[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Rules and Regulations]
[Pages 74308-74490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28777]



[[Page 74307]]

Vol. 79

Monday,

No. 240

December 15, 2014

Part III





National Labor Relations Board





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29 CFR Parts 101, 102, and 103





Representation--Case Procedures; Final Rule

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

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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.

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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, self-organization, 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\
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    \1\ The 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).
    \2\ NLRB 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.
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    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 pre-
election 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.
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    \3\ A question of representation is often referred to as a 
``question concerning representation.'' See, e.g., Casehandling 
Manual Section 11084.
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    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.
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    \4\ The General Counsel administratively oversees the regional 
directors. 29 U.S.C. 153(d).
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    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

[[Page 74309]]

discussed in greater detail below, along with responses to the 
comments.
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    \5\ S. 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.
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    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 pre-election 
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 post-election 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

[[Page 74310]]

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\
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    \7\ See 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.
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    The Board has thus asked for public comments on few proposed rules 
of any kind. A review of prior Board

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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\
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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.
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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\
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    \9\ The 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.
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    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 open-ended 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\
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    \10\ See, 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).
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    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.
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    \11\ The 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.
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    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-and-comment 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

[[Page 74312]]

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\
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    \12\ See, 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.
    \13\ See, e.g., Association of Equipment Manufacturers (AEM) II; 
INDA II.
    \14\ See, e.g., Senator Lamar Alexander and 17 Republican 
Senators (Senator Alexander and Republican Senators) II.
---------------------------------------------------------------------------

    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\

[[Page 74313]]

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.
---------------------------------------------------------------------------

    \15\ After each public hearing in 2011 and 2014, the transcripts 
containing each speaker's testimony 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \16\ As 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).
---------------------------------------------------------------------------

    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-and-forth 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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 half-way 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Although the desire for additional time to gather support and 
develop arguments is understandable, agencies must set some end to the 
comment

[[Page 74314]]

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-action-plans/NationalLaborRelationsBoardPreliminaryRegulatoryReformPlan.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.
---------------------------------------------------------------------------

    \19\ See, e.g., Testimony of Harold Weinrich on behalf of 
Jackson Lewis LLP; ACC; American Trucking Associations II.
---------------------------------------------------------------------------

    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

[[Page 74315]]

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'').
---------------------------------------------------------------------------

    \20\ See also SHRM; Klein, Dub & Holleb (Klein) II.
    \21\ This 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.
---------------------------------------------------------------------------

    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 out-of-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;

[[Page 74316]]

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\
---------------------------------------------------------------------------

    \22\ Senate 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \24\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \25\ Some 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.
    \26\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \27\ See, e.g., Northeastern University, 261 NLRB 1001, 1002 
(1982), enforced, 707 F.2d 15 (1st Cir. 1983).
    \28\ Tropicana Products, Inc., 122 NLRB 121, 123 (1958).
    \29\ Pt. 2, Representation Proceedings, Section 11000.
---------------------------------------------------------------------------

    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

[[Page 74317]]

preclude the Board's consideration and adoption of further 
improvements.
---------------------------------------------------------------------------

    \30\ The 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ See, e.g., Assisted Living Foundation of America (ALFA); 
COLLE; SHRM; Seyfarth Shaw.
---------------------------------------------------------------------------

    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 pre-election 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

[[Page 74318]]

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\
---------------------------------------------------------------------------

    \32\ As 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.
    \33\ See American Federation of Teachers (AFT); International 
Brotherhood of Electrical Workers (IBEW); LIUNA.
    \34\ Comments 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 pre-election 
agreements.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \35\ See, e.g., NAM; PIA.
    \36\ See, e.g., AHA; PIA; SHRM; Chamber; CDW; Professor Samuel 
Estreicher.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \37\ These 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \38\ The 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.
    \39\ See Casehandling Manual Section 11302.1.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \40\ See, e.g., SHRM; Sheppard, Mullin, Richter & Hampton LLP 
(Sheppard Mullin); and the National Retail Federation (NRF).
    \41\ See, e.g., National Grocer's Association (NGA); Waste 
Connections; ALFA.
---------------------------------------------------------------------------

    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

[[Page 74319]]

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 Sec.  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.
---------------------------------------------------------------------------

    \42\ Thomas v. Collins, 323 U.S. 516, 537-38 (1945).
    \43\ See, 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \45\ Some 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 employer-specific 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \46\ See 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.
    \47\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \48\ This 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).
---------------------------------------------------------------------------

    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

[[Page 74320]]

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.
---------------------------------------------------------------------------

    \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).
    \50\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
---------------------------------------------------------------------------

    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 petitioned-for 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.
---------------------------------------------------------------------------

    \51\ See, e.g., Chamber; CDW; National Ready-Mixed Concrete 
Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark 
Legal Foundation; Vigilant; Food Marketing Institute (FMI) II; Klein 
II.
    \52\ NGA; 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.
    \53\ COLLE acknowledges this in its comment.
---------------------------------------------------------------------------

    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\

[[Page 74321]]

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 pre-
petition 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.
---------------------------------------------------------------------------

    \54\ See, 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).
    \55\ The study was based on a random sample of 1000 elections 
during the period 1999 through 2003 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.
    \56\ The 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \57\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \58\ See, 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).
---------------------------------------------------------------------------

    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,

[[Page 74322]]

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\
---------------------------------------------------------------------------

    \59\ See 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.
    \60\ Fox Rothschild LLP; National Mining Association; NRF.
    \61\ See, 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \62\ See SHRM; COLLE; NAM; Seyfarth Shaw; ALFA; Testimony of 
Arnold Perl on behalf of TN Chamber of Commerce.
---------------------------------------------------------------------------

    Finally, even in the absence of any pre-petition campaign, 
employees have experience with the existing labor-management 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\
---------------------------------------------------------------------------

    \63\ See 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \64\ See also comment of RILA, contending that ``stealth 
campaigns'' are common in the retail industry.
---------------------------------------------------------------------------

    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 three-quarters 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.
---------------------------------------------------------------------------

    \65\ In FY2013; 99% of elections involved fewer than 500 
employees.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \66\ A 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.
---------------------------------------------------------------------------

    Another speaker testified about a recent campaign which aptly 
illustrates this principle. Testimony of Elizabeth Bunn on behalf of 
AFL-CIO II. In the

[[Page 74323]]

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.
---------------------------------------------------------------------------

    \67\ See, 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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 ``anti-distortion'' 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.
---------------------------------------------------------------------------

    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 on-
going, 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 
Labor-Management 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.
---------------------------------------------------------------------------

    \69\ As 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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \70\ CDW 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 plant-closing or mass layoff notice period 
under the Worker Adjustment and Retraining Notification Act.
---------------------------------------------------------------------------

    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

[[Page 74324]]

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.
---------------------------------------------------------------------------

    \71\ Many 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 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.
---------------------------------------------------------------------------

    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 case-by-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.
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    \72\ See Chamber; COLLE.
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    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.
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    \73\ See 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 pre-petition organizing campaign, may not know about 
the organizing drive until the petition is filed. See Seyfarth Shaw; 
ALFA.
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    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

[[Page 74325]]

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).
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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.
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    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.
---------------------------------------------------------------------------

    \75\ Following 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/news-outreach/news-story/nlrbs-notice-posting-rule (last visited 
September 26, 2014).
    \76\ This 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.
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    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 pre-
election 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 in-house 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

[[Page 74326]]

conduct. See Con-way Inc.; Bluegrass Institute; ATA.\79\
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    \77\ See also testimony of former Board Member Marshall Babson 
on behalf of Seyfarth Shaw LLP (emphasizing that the rules must 
balance the various competing interests).
    \78\ NRMCA; 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.
    \79\ Other 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).
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    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 
well-documented growth of the labor-relations 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\
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    \80\ Ranking 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.
    \81\ See 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'').
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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 Taft-Hartley 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.
---------------------------------------------------------------------------

    \82\ For 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.
---------------------------------------------------------------------------

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\
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    \83\ Many 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \84\ To 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.

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[[Page 74327]]

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\
---------------------------------------------------------------------------

    \85\ The contents and purpose of the Statement of Position form 
are described further below in relation to Sec.  102.63.
---------------------------------------------------------------------------

    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.
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    \86\ See 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.
    \87\ Also, 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 electronically-filed 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 later-arriving 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \88\ See Plumbers; Georgia Association of Manufacturers (GAM); 
PIA.
---------------------------------------------------------------------------

    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 
Cook-Illinois 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 Sec.  
102.63(a), the regional offices will re-serve 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.
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    \89\ See, e.g., INDA II and AEM II.
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    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

[[Page 74328]]

mail the original documents to the Board at a later date.\90\ CNLP 
comments that the Board should establish e-security 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.
---------------------------------------------------------------------------

    \90\ Fraud concerns specific to electronic signatures are 
addressed below in relation to Sec.  102.61.
---------------------------------------------------------------------------

    The Board believes that the final rule and current electronic 
filing procedures adequately address these concerns. As an initial 
matter, Sec.  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, Sec.  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.
---------------------------------------------------------------------------

    \91\ The 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.
    \92\ The 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).
---------------------------------------------------------------------------

    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

[[Page 74329]]

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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  102.60(a) 
to conform to the language in Sec.  102.61(f).
---------------------------------------------------------------------------

    \93\ To be clear, the language in amended Sec.  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 Sec.  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.''
---------------------------------------------------------------------------

    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 Sec.  102.61(a)(7) and (c)(8) as well as under Sec.  
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.
---------------------------------------------------------------------------

    \94\ To 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 Sec.  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.
---------------------------------------------------------------------------

    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

[[Page 74330]]

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.
---------------------------------------------------------------------------

    \95\ SHRM; Gary Wittkopp; Seyfarth Shaw; AHA (AHA II); National 
Council of Investigation & Security Services (NCISS) II; AEM II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \96\ See 79 FR 7323 (discussing the evolution of the Board's 
electronic filing practice).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \97\ Bluegrass Institute; Mary Rita Weissman; Con-way.
    \98\ David Nay II; Lisa Thomas II; Jack Steele II.
---------------------------------------------------------------------------

    As stated above, we believe that cost-effective methods may exist 
to ensure that electronic signatures are authentic,

[[Page 74331]]

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 pre-election 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.
---------------------------------------------------------------------------

    \99\ AHA (AHA II); Georgia Mining Association; Con-way; 
Testimony of Torres II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \100\ NCISS II; AEM II.
    \101\ Americans for Limited Government (ALG); Labor Relations 
Institute, Inc. (LRI); PIA; Georgia Mining Association; CAST-FAB 
Technologies, Inc. II; U.S. Poultry II; NAM 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 Sec.  
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 Sec.  102.62 clarifying the terms used to 
describe pre-election agreements and eliminating mandatory Board 
resolution of post-election 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.
---------------------------------------------------------------------------

    \102\ See 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).
    \103\ As noted below in connection with Sec. Sec.  102.63 and 
102.67, the final rule retitles the proposed ``Final Notice to 
Employees of Election'' as the ``Notice of Election.''
---------------------------------------------------------------------------

    The final rule's amendments to Sec.  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 post-election disputes subject to 
discretionary Board review. This procedure is consistent with the 
changes to Sec.  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\
---------------------------------------------------------------------------

    \104\ Casehandling Manual Section 11084.
    \105\ The 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).
---------------------------------------------------------------------------

    As explained in the NPRM, the amendment makes the process for 
obtaining Board review of regional

[[Page 74332]]

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 pre- and 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 well-
settled 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\
---------------------------------------------------------------------------

    \106\ For 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.
    \107\ See, e.g., C& G Heating, 356 NLRB No. 133, slip op. at 1 
(2011).
    \108\ See, 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).
    \109\ See Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
    \110\ See, e.g., Care Enterprises, 306 NLRB 491 n.2 (1992).
    \111\ See, 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).
    \112\ See, 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).
    \114\ See current Sec.  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).
---------------------------------------------------------------------------

    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 post-election 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 
pre-election 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\
---------------------------------------------------------------------------

    \115\ See Chamber; SHRM; CDW; COLLE; NAM II; AHA II; Testimony 
of Curt Kirshner on behalf of AHA II.
    \116\ See, e.g, SHRM and Chamber.
    \117\ See, e.g., Dassault Falcon Jet.
    \118\ See, e.g., SHRM and NAM, NAM II.
---------------------------------------------------------------------------

    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 pre-election 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).

[[Page 74333]]

Notably, none of the comments suggests that the current rules as to 
pre-election disputes violate Section 3(b) or are otherwise 
improper.\119\
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    \119\ Moreover, even under the current rules, specifically Sec.  
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.
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    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 post-election 
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\
---------------------------------------------------------------------------

    \120\ See 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.'').
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    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.
---------------------------------------------------------------------------

    \121\ See, AHA II.
    \122\ See, RILA II.
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    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 Sec.  
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 post-election 
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 pre-election disputes, 
the Board will scrutinize regional directors' post-election 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\
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    \123\ For instance, in FY 13, the Board published only five of 
the decisions it issued on post election exceptions.
    \124\ Nor 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).'').
---------------------------------------------------------------------------

    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.

[[Page 74334]]

    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 Cutcher-Gershenfeld) noted, empowering regional directors to make 
final post-election 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.
---------------------------------------------------------------------------

    \125\ The 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).
---------------------------------------------------------------------------

    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 post-election 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).
---------------------------------------------------------------------------

    \126\ See Chamber; Chamber II; AHA; CDW; Baker & McKenzie; 
Testimony of Curt Kirshner on behalf of AHA II.
---------------------------------------------------------------------------

    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 
post-election 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\
---------------------------------------------------------------------------

    \127\ See, 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 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 post-election 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 post-election 
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 pre-election 
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 post-election 
disputes discretionary.
    Some comments, such as that of Sheppard Mullin II, express 
confusion about the rule and the request-for-review procedure. The 
grounds for granting a request for review under Sec.  102.69(c)(2) 
(referencing Sec.  102.67(d)) of the final rule are nearly identical to 
the grounds set forth in Sec.  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-for-
review 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 post-election 
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.

[[Page 74335]]

    In sum, the amendments to Sec.  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 post-election 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 Sec.  102.62 as well as in Sec.  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\
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    \128\ Some 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.
---------------------------------------------------------------------------

    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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    \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 Sec.  102.69(a)'' 
language in describing the consequences for failure to comply with 
the voter list amendments that Sec.  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 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.

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[[Page 74336]]

    (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\
---------------------------------------------------------------------------

    \131\ The final rule also conforms the election notice 
provisions in Sec.  102.62(e) to the election notice provisions that 
are discussed in relation to Sec. Sec.  102.67(b),(k). Thus, for 
example, the text of amended Sec.  102.62(e) explicitly provides, 
just as the text of amended Sec.  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 Sec.  102.69(a).''
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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 non-discriminatory, 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.
---------------------------------------------------------------------------

    \132\ See, e.g., SHRM; ALFA; COLLE.
    \133\ For other comments to this effect, see, e.g., NAM II; 
Sheppard-Mullin II; RILA.
---------------------------------------------------------------------------

    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\
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    \134\ See, 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.
    \136\ See SEIU II; Testimony of Jess Kutch on behalf of 
Coworker.org II.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \137\ See, e.g., National Association of Wholesaler-Distributors 
(NAW) II; AEM II.
---------------------------------------------------------------------------

    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).

[[Page 74337]]

    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\
---------------------------------------------------------------------------

    \138\ See ``Email vs. snail mail (infographic)'' (Sept. 29. 
2010), http://royal.pingdom.com/2010/09/29/email-vs-snail-mail-infographic.
    \139\ Susannah 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-at-25-in-the-U-S/.
    \140\ See, 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.
---------------------------------------------------------------------------

    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\
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    \141\ To 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.

    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 third-party 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\
---------------------------------------------------------------------------

    \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 (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).

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[[Page 74338]]

    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\
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    \143\ For 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).
    \144\ We 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.
    \145\ To 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.
    \146\ SIGMA 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \147\ See, e.g., SIGMA; Schnuck Markets, Inc.; INDA II.
---------------------------------------------------------------------------

    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/

[[Page 74339]]

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 non-existent 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/fact-sheets/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/wireless201312.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-fact-sheet/. 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-report-calling-yesterday-texting-today-using-apps-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-fact-sheet/, 
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\
---------------------------------------------------------------------------

    \148\ See 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'').
---------------------------------------------------------------------------

    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

[[Page 74340]]

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\
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    \149\ Although, 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.
    \150\ See, 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.
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    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 Sec. Sec.  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 post-election 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 Sec.  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\
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    \152\ For comments in agreement, see, e.g., National Union of 
Healthcare Workers--California Nurses Association (NUHW) II; Nicole 
Teixeira II.
    \153\ 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.
    \154\ On 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.
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    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

[[Page 74341]]

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\
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    \155\ The 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.
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    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 Sec. Sec.  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.
---------------------------------------------------------------------------

    \156\ See, e.g., NUHW II; Testimony of Maneesh Sharma on behalf 
of AFL-CIO 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 Court-sanctioned 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\
---------------------------------------------------------------------------

    \157\ The 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 Wyman-Gordon decision affirming the Excelsior policy, nor any 
of the post-Griswold circuit court decisions listed above, faulted 
the Excelsior Board for this alleged deficiency.
---------------------------------------------------------------------------

    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

[[Page 74342]]

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:
---------------------------------------------------------------------------

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

    [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\
---------------------------------------------------------------------------

    \159\ See 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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \160\ See, e.g., Chamber II; SHRM II; Brent Jones II; Marna 
Skripko II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \161\ Over 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).
---------------------------------------------------------------------------

    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

[[Page 74343]]

(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.
---------------------------------------------------------------------------

    \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.)
    \163\ We 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.
    \164\ The AFL-CIO's 2014 comment asserted that ``despite this 
extensive experience [with the 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.''
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \165\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \166\ See, e.g., Chairmen Kline and Roe II; Klein II; COLLE; 
SIGMA; RILA; ACE; COSE; Ann Pomola.
    \167\ See, 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.
    \168\ As 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \169\ Of 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.
    \170\ See Testimony of Doreen Davis on behalf of RILA II; 
Testimony of William Messenger on behalf of NRTWLDF II.
    \171\ Compare 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).
---------------------------------------------------------------------------

    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

[[Page 74344]]

the disclosures discussed in Wyman-Gordon, and standing alone, may 
reasonably be viewed as less private.\173\
---------------------------------------------------------------------------

    \172\ Cf. 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.'').
    \173\ See, 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \174\ For 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.
---------------------------------------------------------------------------

    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 Sec.  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\
---------------------------------------------------------------------------

    \175\ Thus, we reject the ATA's claim that the voter list 
amendments create ``difficulties * * * under * * * FOIA.''
---------------------------------------------------------------------------

    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 
Sec.  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\
---------------------------------------------------------------------------

    \176\ Moreover, 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.
---------------------------------------------------------------------------

    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

[[Page 74345]]

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/1974privacyact-2012.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.
---------------------------------------------------------------------------

    \177\ The 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.
---------------------------------------------------------------------------

    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

[[Page 74346]]

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.
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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 Sec. Sec.  102.62(d) and 102.67(l). But, as discussed in 
connection with Sec.  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.
---------------------------------------------------------------------------

    \179\ See Allen LeClaire; Robert Mills II.
---------------------------------------------------------------------------

    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/1974privacyact-2012.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\
---------------------------------------------------------------------------

    \180\ Subsection (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).
---------------------------------------------------------------------------

    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

[[Page 74347]]

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.
---------------------------------------------------------------------------

    \181\ See, e.g., ACE; CNLP; Senator Alexander and Republican 
Senators II; National Grocer's Association (NGA) II.
    \182\ See, e.g., Baker & McKenzie LLP; COSE; Anchor Planning 
Group; SHRM II.
    \183\ See, e.g., Gregg Stackler; Harold Kapaun; Kimberley 
McKaig; Greg Smith II.
    \184\ See, e.g., MEMA II; Vigilant II; IFA II.
---------------------------------------------------------------------------

    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 opt-out 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.
---------------------------------------------------------------------------

    \185\ As 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, Sec.  
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.''
    \186\ Marvin 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.
    \187\ The 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.
---------------------------------------------------------------------------

    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 opt-in 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 opt-in 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 74348]]

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\
---------------------------------------------------------------------------

    \189\ For 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.
    \190\ We 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \191\ We 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.
---------------------------------------------------------------------------

    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 cost-effective 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.
---------------------------------------------------------------------------

    \192\ See UFCW II.
    \193\ See 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 opt-out mandate would also 
likely prove inadministrable as applied to individual employees and 
small independent organizations.
---------------------------------------------------------------------------

    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

[[Page 74349]]

with that proposal counsel against its pursuit.
---------------------------------------------------------------------------

    \194\ See, e.g., IFA II; Louis Toth II.
    \195\ See SEIU II; AFL-CIO II.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \196\ See, e.g., NUHW II.
    \197\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \198\ We 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \199\ See, 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 Detroit-
Edison 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).
---------------------------------------------------------------------------

    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

[[Page 74350]]

employees' names and addresses confidential was outweighed by the 
public interest in disclosure).
---------------------------------------------------------------------------

    \200\ We note that the comments do not persuade us that 
employers routinely pledge to their employees that they will keep 
confidential such information.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \201\ See, e.g., Sheppard Mullin II; Bruce E. Buchanan; ALG; 
U.S. Poultry II.
    \202\ See Testimony of Melinda Hensel on behalf of IUOE Local 
150 II.
    \203\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \205\ To 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.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 74351]]

disclosed will lead to any greater dangers than the disclosure of 
contact information for other coworkers.
---------------------------------------------------------------------------

    \206\ AHCA shares this concern.
---------------------------------------------------------------------------

    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 
self-interests 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-consumers-union-and-fcc-announce-new-industry-guidelines. 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.
---------------------------------------------------------------------------

    \207\ See, e.g., CDW; Buchanan; NRF; Indiana Chamber; Doug 
Muyres II.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \208\ See, e.g., National Mining Association; ACE; Sheppard 
Mullin.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \209\ NRMCA 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.
    \210\ See 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.
---------------------------------------------------------------------------

    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

[[Page 74352]]

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).
---------------------------------------------------------------------------

    \211\ See 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.
    \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.
---------------------------------------------------------------------------

    Some comments also claim that the Controlling The Assault of Non-
Solicited 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.
---------------------------------------------------------------------------

    \213\ See, e.g., Con-way; NRTW; Sheppard Mullin; RILA.
    \214\ As 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).
---------------------------------------------------------------------------

    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 Do-Not-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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 do-not-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\
---------------------------------------------------------------------------

    \216\ Similarly, 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.
    \217\ ACE 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. 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.

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[[Page 74353]]

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\
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    \218\ Although 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.
    \219\ See, e.g., GAM; AAE; Vigilant; Buchanan; U.S. Poultry II; 
Testimony of Peter Kirsanow on behalf of NAM II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \220\ As 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 Sec.  102.111(a) of the 
Board's prior rules, which this final rule leaves undisturbed. Thus, 
Sec.  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 Sec. Sec.  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.
---------------------------------------------------------------------------

    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 Sec.  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 
pre-election hearings under the prior rules.\222\
---------------------------------------------------------------------------

    \221\ For similar comments, see GAM; Sheppard Mullin; AHA.
    \222\ This information concerning FY 2011 through FY 2013 was 
produced from searches in the Board's NxGen case processing 
software.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  102.62 (or Sec.  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

[[Page 74354]]

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\
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    \223\ Some 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 
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.
    \224\ Thus, 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.''
    \225\ See, e.g., Ranking Member Enzi and Republican Senators; 
COSE; CNLP; Testimony of Elizabeth Milito on behalf of NFIB II.
    \226\ National 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \228\ 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).
---------------------------------------------------------------------------

    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) collective-bargaining 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\
---------------------------------------------------------------------------

    \229\ 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, and failing access 
to that technology, a phone call would surely suffice for all but 
the largest bargaining units.
---------------------------------------------------------------------------

    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

[[Page 74355]]

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.
---------------------------------------------------------------------------

    \230\ As noted above, this issue is currently pending before the 
Board.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \231\ However, 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.
    \232\ Nor 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.
---------------------------------------------------------------------------

    As for employers with large workforces,\233\ the fact that a 
petitioned-for 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 Sec.  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.
---------------------------------------------------------------------------

    \233\ See, e.g., AHCA; Sheppard Mullin; AHA.
    \234\ This is also true of decentralized businesses, which Con-
way argues will also be unduly burdened by the new time frame.
    \235\ As explained above, the Board does not believe that small 
employers without the best available technology will be particularly 
burdened by compiling the list.
    \236\ See, e.g., Chamber; Chamber reply; SIGMA.
    \237\ See 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).
---------------------------------------------------------------------------

    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

[[Page 74356]]

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\
---------------------------------------------------------------------------

    \238\ See, e.g., Pinnacle; ALG; Constangy; LRI.
    \239\ Neither 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, 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).
    \240\ See, e.g., Chamber; Sheppard Mullin.
---------------------------------------------------------------------------

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 Sec. Sec.  
102.62(d), 102.67(l).
---------------------------------------------------------------------------

    \241\ See, e.g., GAM; UNAC/UHCP II; U.S. Poultry II.
    \242\ Upon 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.
---------------------------------------------------------------------------

    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 Sec. Sec.  
102.62(d), 102.67(l).
---------------------------------------------------------------------------

    \243\ See Testimony of Darrin Murray on behalf of SEIU II; SEIU 
II.
---------------------------------------------------------------------------

    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

[[Page 74357]]

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.
---------------------------------------------------------------------------

    \244\ See, e.g., Indiana Chamber; Vigilant; AHA; COSE.
    \245\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \246\ Although 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.
---------------------------------------------------------------------------

    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\
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    \247\ To 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \248\ However, 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 Sec.  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 Sec.  102.62(d) and 
Sec.  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)
---------------------------------------------------------------------------

    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\
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    \249\ The 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).
---------------------------------------------------------------------------

    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 Sec.  102.67, the answer is ``yes.'' Prior to 
the NPRM, parties could agree that

[[Page 74358]]

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 Sec.  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\
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    \250\ Although 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).
---------------------------------------------------------------------------

    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\
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    \251\ See, e.g., AFL-CIO II; UFCW; NNU.
    \252\ See, e.g., PCA (union selling employee information); 
NRTWLDF (harassment, identity theft, property crime); David Holladay 
II (threats to spouse or children).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \253\ See, e.g., Chamber; UFCW; Testimony of Thomas Meiklejohn 
on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \254\ See, 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.
    \255\ See, e.g., SEIU (reply); UFCW.
    \256\ See AFL-CIO. AFL-CIO further points out that non-Board 
remedies are already available for the possible misuses identified 
by opponents of 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 Sec. Sec.  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 post-
election 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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    \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 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.

---------------------------------------------------------------------------

[[Page 74359]]

    While the Board thinks it is self-evident 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 Sec. Sec.  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.
---------------------------------------------------------------------------

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

    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\
---------------------------------------------------------------------------

    \259\ Nor 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, Sec.  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 Sec.  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 Sec.  
102.177, the Board may look to amend that provision in the future.
    \260\ Similarly, 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.
---------------------------------------------------------------------------

    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 developed under the 
Gramm-Leach-

[[Page 74360]]

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.
---------------------------------------------------------------------------

    \261\ The 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \262\ See, e.g., Chamber; Daniel Wroblewski.
    \263\ To 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.
---------------------------------------------------------------------------

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. Wyman-Gordon 
Co., 394 U.S. at 767. The Excelsior rule was accordingly found

[[Page 74361]]

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\
---------------------------------------------------------------------------

    \264\ See, e.g., ACC; Chamber; Chamber II; NAM; NAM II.
    \265\ See, e.g., COLLE; Indiana Chamber; NAM; Chamber Reply; 
Chamber II.
    \266\ See, e.g., Chamber; Chamber II; NRF; MEMA.
    \267\ See, e.g., Washington Farm Bureau; CDW; ACC.
    \268\ See, e.g., Testimony of Russ Brown on behalf of LRI; 
Chamber Reply.
    \269\ See, e.g., AFL-CIO; AFL-CIO Reply; AFL-CIO II; SEIU; NELP.
    \270\ See, e.g., SEIU and UFCW.
---------------------------------------------------------------------------

    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\
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    \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.
---------------------------------------------------------------------------

    (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.

[[Page 74362]]

    (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 Sec.  102.61 above, the non-petitioning 
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 Sec.  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 Sec.  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 Sec.  
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\
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    \272\ The 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.
---------------------------------------------------------------------------

    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 &

[[Page 74363]]

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\
---------------------------------------------------------------------------

    \273\ Other 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.
---------------------------------------------------------------------------

    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 
pre-election hearing.'' \274\ Accordingly, under amended Sec.  
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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \275\ Although 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.
    \276\ Because the Board must have statutory jurisdiction, the 
final rule clarifies in Sec.  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.
    \277\ See 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.
---------------------------------------------------------------------------

    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 representation-case 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.

[[Page 74364]]

    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\
---------------------------------------------------------------------------

    \278\ See, e.g., Chamber; Chamber II; ALFA; SHRM.
    \279\ See, e.g., SHRM; CDW; Prepared Testimony of David Kadela 
on behalf of Littler Mendelson.
    \280\ Chamber; Chamber II.
    \281\ Chamber; Chamber II.
    \282\ See, e.g., ALFA; Chamber; Chamber II.
---------------------------------------------------------------------------

    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 pre-election 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\
---------------------------------------------------------------------------

    \283\ The 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.
    \284\ See 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.'')
---------------------------------------------------------------------------

1. Identification of Alternative Unit
    Numerous comments address the Board's proposal (in Sec.  
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 Sec.  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 non-petitioning 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

[[Page 74365]]

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, Sec.  
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\
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    \285\ The 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 Sec. Sec.  
102.63(b)(2)(i) and (b)(3)(i).
---------------------------------------------------------------------------

    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 unit-appropriateness 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.
---------------------------------------------------------------------------

    \286\ To 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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \287\ See, e.g., ACE; SHRM.
---------------------------------------------------------------------------

    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 
Sec.  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

[[Page 74366]]

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 Sec.  
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.
---------------------------------------------------------------------------

    \288\ Sencer 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.'')
---------------------------------------------------------------------------

    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

[[Page 74367]]

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.
---------------------------------------------------------------------------

    \289\ Similarly, if a petitioner petitions for a single facility 
unit and the employer contends that the petitioned-for unit is not 
appropriate because it 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.
---------------------------------------------------------------------------

    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 
Norris-Thermador 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 Sec.  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 Sec.  
102.63 and the Board's conclusion discussed below in connection with 
Sec. Sec.  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.
---------------------------------------------------------------------------

    \290\ Senior Member Miller and Democratic House Members 
characterize the proposal to give such basic information to the 
nonemployer parties as a small but important improvement.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 74368]]

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.
---------------------------------------------------------------------------

    \291\ For 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.
    \292\ The 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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-to-wall'' (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.
---------------------------------------------------------------------------

    \293\ SHRM; ACE; ACE II; NAM II.
---------------------------------------------------------------------------

    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

[[Page 74369]]

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 
Sec.  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 Sec. Sec.  
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\
---------------------------------------------------------------------------

    \294\ The 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 petitioned-for unit and 
in any alternative units proposed by the employer. Casehandling 
Manual Sections 11025.1 and 11030.5.
    \295\ Consistent with the amendments to Sec.  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 Sec.  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 Sec.  102.66(d) in the 
paragraph entitled ``Preclusion.''
---------------------------------------------------------------------------

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 pre-election 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\
---------------------------------------------------------------------------

    \296\ The 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 Sec.  102.63 to describe Statement-of-Position 
obligations. 79 FR at 7355.
    \297\ See, e.g., Chamber; ACC.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \298\ UFCW 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 petitioned-for 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.

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[[Page 74370]]

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 Sec.  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.
---------------------------------------------------------------------------

    \299\ The final rule makes explicit in amended Sec. Sec.  
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 Sec. Sec.  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.'')
---------------------------------------------------------------------------

    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 Sec.  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\
---------------------------------------------------------------------------

    \300\ In addition, as noted below in connection with Sec.  
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.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \301\ See, e.g., King & Ballow; GAM; Chamber; ALG; Arizona 
Hospital and Healthcare Association; COSE.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \302\ To 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.
---------------------------------------------------------------------------

    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

[[Page 74371]]

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, Sec.  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, Sec.  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, Sec.  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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \303\ Although the Board has selected a hearing-opening 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.
    \304\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \305\ UFCW; SEIU.
---------------------------------------------------------------------------

    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\
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    \306\ The 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.
---------------------------------------------------------------------------

    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 
pre-election 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.
---------------------------------------------------------------------------

    \307\ See, e.g, Seyfarth Shaw; NAM; Senator Alexander and 
Republican Senators II.
---------------------------------------------------------------------------

    ``[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-
Position-form time frames provide parties with

[[Page 74372]]

``due notice.'' The final rule provides in amended Sec.  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 Sec.  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 pre-election 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 petitioned-for 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.
---------------------------------------------------------------------------

    \308\ Some 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 first-hand knowledge of such matters as what the 
petitioned-for employees do and how often they fill in for one 
another.
---------------------------------------------------------------------------

    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

[[Page 74373]]

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.
---------------------------------------------------------------------------

    \309\ See AFL-CIO; Testimony of Margaret McCann on behalf of 
AFSCME.
    \310\ See Joel Cutcher-Gershenfeld.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \311\ Chamber; Chamber II.
    \312\ Ranking Member Enzi and Republican Senators.
    \313\ COLLE.
    \314\ NCISS II.
    \315\ Indiana Chamber.
    \316\ GAM.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \317\ Ranking 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.
---------------------------------------------------------------------------

    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 pre-election 
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\
---------------------------------------------------------------------------

    \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.
    \319\ To 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 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.

---------------------------------------------------------------------------

[[Page 74374]]

    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 (Sec.  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\
---------------------------------------------------------------------------

    \320\ There 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).
---------------------------------------------------------------------------

    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 
Sec. Sec.  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\
---------------------------------------------------------------------------

    \321\ See, e.g., COSE; LRI.
    \322\ Other 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.
    \323\ As discussed below in connection with Sec.  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 Sec.  102.66.
---------------------------------------------------------------------------

    The dissent argues that the Statement-of-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 fully-litigated 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

[[Page 74375]]

language already does so. Certainly, nothing in the NPRM or final rule 
suggests that a party must raise post-election 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.
---------------------------------------------------------------------------

    \324\ See, 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.
---------------------------------------------------------------------------

    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 
pre-election 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 pre-election 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-of-
proof procedures discussed below in connection with Sec.  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\
---------------------------------------------------------------------------

    \325\ Accordingly, 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.
    \326\ Contentions 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 collective-bargaining 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.
---------------------------------------------------------------------------

    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

[[Page 74376]]

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.
---------------------------------------------------------------------------

    \327\ See, 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.
---------------------------------------------------------------------------

    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 
overwhelming-community-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\
---------------------------------------------------------------------------

    \328\ For 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.
    \329\ Thus, it is the employer that establishes the terms and 
conditions of employment of the petitioned-for employees.
    \330\ The 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 petitioned-for 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.
    \331\ Comments about Specialty Healthcare are also discussed 
below in connection with Sec.  102.66.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \332\ See, 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.
---------------------------------------------------------------------------

    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 well-
documented 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

[[Page 74377]]

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\
---------------------------------------------------------------------------

    \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 pre-election 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.
---------------------------------------------------------------------------

    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 Sec.  
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\
---------------------------------------------------------------------------

    \334\ Section 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).
---------------------------------------------------------------------------

    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) 
collective-bargaining 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 collective-bargaining agreement. See American 
Automatic Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 211, 214-15 
(4th

[[Page 74378]]

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 Board-conducted 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\
---------------------------------------------------------------------------

    \335\ See also C.J.M. Services, Inc. II; Sundt Construction II; 
Knife River Materials.
    \336\ As discussed above in connection with Sec.  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).
---------------------------------------------------------------------------

    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 Sec. Sec.  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.
---------------------------------------------------------------------------

    \337\ Some 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.
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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

[[Page 74379]]

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\
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    \338\ See, e.g., AHA; AHA II; CHA II; Con-way; Testimony of 
Robert Garbini on behalf of NRMCA.
    \339\ ALFA 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.
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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 Sec.  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.
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    \340\ As discussed above in connection with Sec.  102.60, the 
Board has concluded that service of the description of 
representation case procedures will aid non-petitioning parties' 
understanding of those procedures.
    \341\ The 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 Sec.  102.63(a)(2) so 
provides. The Board has decided to use similar language in amended 
Sec.  102.67(k) to describe where the ``Notice of Election'' should 
be posted.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \342\ AFL-CIO; SEIU; GAM.
---------------------------------------------------------------------------

    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

[[Page 74380]]

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 Sec.  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\
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    \343\ The 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 Sec.  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. Sec.  103.20(d) 
[of the Board's prior rules], the rule does not implicate Sec.  
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).
    \344\ For 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.
---------------------------------------------------------------------------

Sec. 102.64 Conduct of Hearing
    As explained in the NPRM, the proposed amendments to Sec.  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 Sec.  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\
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    \345\ Thus, 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.''
    \346\ A 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 Sec.  102.66(b) makes clear that 
even if the employer declines to take a position on issues such as 
the appropriateness of a petitioned-for 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.
    \347\ The 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.
---------------------------------------------------------------------------

    Amended Sec.  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 
Sec.  102.64(a) (79 FR at 7356):

    If, upon the record of the hearing, the regional director finds 
that such a question

[[Page 74381]]

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 Sec.  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 Sec.  102.66. For that 
reason, the language, ``unless specifically provided otherwise in these 
rules,'' has been removed. As more fully explained in relation to Sec.  
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 Sec.  102.64 (b) (79 FR 7356):

    Subject to the provisions of Sec.  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 Sec.  102.64(b):

    Subject to the provisions of Sec.  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 Sec.  102.64(b) will provide, 
``Subject to the provisions of Sec.  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 Sec.  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 Sec.  102.64(a) and 
(b). Those that do, question our construction of Section 9(c) of the 
Act in Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \348\ See 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.''
---------------------------------------------------------------------------

    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 Sec.  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 pre-election 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

[[Page 74382]]

continuances--as largely being unnecessary in light of the final rule's 
adoption of revised language in Sec.  102.63 regarding the scheduling 
of the pre-election hearing and the changes to Sec.  102.64 and Sec.  
102.66 regarding the conduct of the hearing. As set forth in amended 
Sec.  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 Sec.  
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 Sec. Sec.  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 pre-election hearing that requires more than 1 day 
should continue day to day until completed or should be adjourned to a 
later date. Accordingly, amended Sec.  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\
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    \349\ The proposed amendment to Sec.  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 Sec.  102.64(c) 
that the regional director has discretion to adjourn the hearing to 
a different location by appropriate notice.
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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 Sec.  
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 Sec.  
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 
Sec. Sec.  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\
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    \350\ For example, if a party enters into an agreement pursuant 
to Sec.  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.
---------------------------------------------------------------------------

    Few comments were submitted on the proposed amendments to Sec.  
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 Sec.  102.67, the Board has decided to permit 
parties to request review of a regional director's post-hearing 
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 Sec.  
102.65(c) and amended Sec.  102.67(c) that such filings will not result 
in an automatic stay.
    The final rule adopts the proposed amendments to Sec.  
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

[[Page 74383]]

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\
---------------------------------------------------------------------------

    \351\ Upon 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.
---------------------------------------------------------------------------

    The final rule makes a few additional amendments to Sec.  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 Sec.  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 Sec.  
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 Sec.  102.65(c) into amended Sec.  102.65(a). The final 
rule's other amendments to Sec.  102.65 conform the provisions of this 
section to the remainder of the amendments.\352\
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    \352\ Because as discussed below in connection with Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    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 Sec.  
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 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 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 pre-NPRM Statement of Procedures 
provided in pertinent part, ``The parties are afforded full opportunity 
[at the pre-election hearing] to present their respective positions and 
to produce the significant facts in support of their contentions.'' And 
the Board's pre-NPRM rules provided in Sec.  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 Sec.  101.20 (and the rest of 
Subpart C of Part 101) and to amend Sec.  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 so-called 
``20-percent rule''). Thus, Sec.  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

[[Page 74384]]

unit if they were found to be eligible to vote, the hearing officer 
shall close the hearing.\353\


    \353\ The NPRM also proposed in Sec.  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.''
---------------------------------------------------------------------------

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 Sec.  
101.20(c). The final rule also amends Sec.  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 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.\354\


    \354\ In the proposed rule, the last two sentences were in a 
separate paragraph (e).
---------------------------------------------------------------------------

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 
Sec.  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.
---------------------------------------------------------------------------

    \355\ Although 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.
---------------------------------------------------------------------------

    The final rule's amendment of Sec.  102.66(a) together with the 
modification of the language which previously appeared in Sec.  
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 Sec.  102.64(a), the amendment of Sec.  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).
---------------------------------------------------------------------------

    \356\ As discussed below, the final rule provides in amended 
Sec.  102.66(c) that the regional director shall direct the hearing 
officer concerning the issues to be litigated at the hearing.
---------------------------------------------------------------------------

    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

[[Page 74385]]

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.
---------------------------------------------------------------------------

    \357\ On 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 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.
    \358\ For 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).
---------------------------------------------------------------------------

    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 Sec.  102.64, the statutory purpose of 
the pre-election hearing is to determine whether a question of 
representation exists. The amendments to Sec. Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \359\ See, 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.
---------------------------------------------------------------------------

    The final rule's amendment of Sec. Sec.  102.64(a) and 102.66(a) is 
also consistent with the final sentence of current Sec.  102.64(a), 
which the final rule does not amend, though the sentence will now 
appear in Sec.  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 Barre-National, 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 Barre-National Board 
cited both Sec. Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  
102.66(a) and 101.20(c). In light of the regulatory changes made today, 
that reliance is no longer relevant.\360\
---------------------------------------------------------------------------

    \360\ Reliance 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).
---------------------------------------------------------------------------

    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 pre-election 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

[[Page 74386]]

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.
---------------------------------------------------------------------------

    \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.'' Sec.  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.
    \363\ After 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.
---------------------------------------------------------------------------

    Even assuming that the Barre-National 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.
---------------------------------------------------------------------------

    \364\ The 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 ``tried-and-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).
    \365\ Again, 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.
---------------------------------------------------------------------------

    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 Barre-National 
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 Barre-National, 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

[[Page 74387]]

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\
---------------------------------------------------------------------------

    \366\ See 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.'').
    \367\ See AFT; IBEW; LIUNA.
    \368\ See CWA II; BCTD; Testimony of Brenda Crawford II; UNAC/
UHCP II.
---------------------------------------------------------------------------

    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 cost-
free 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 pre-
election 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.
---------------------------------------------------------------------------

    \369\ Some 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 post-election 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.

---------------------------------------------------------------------------

[[Page 74388]]

    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-by-case 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \373\ The 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.
---------------------------------------------------------------------------

    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 ballot\376\ 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

[[Page 74389]]

chilled in the exercise of their Section 7 and First Amendment rights.
---------------------------------------------------------------------------

    \374\ See, 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 attorney-client 
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.
    \375\ See, e.g., PIA.
    \376\ See, 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.'')
    \377\ See, e.g., Associated Oregon Industries; COSE; Seyfarth 
Shaw; Kuryakyn; John Deere Water.
    \378\ See, e.g., NGA II; Leading Age II; SHRM; ACE; AHA.
    \379\ See, e.g., SHRM II; Pinnacle Health Systems; Arizona 
Hospital and Healthcare Association.
    \380\ See, e.g., LRI; Anchor Planning Group; Bluegrass 
Institute.
    \381\ See, e.g., Seyfarth Shaw; ACE; Sheppard Mullin II.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \382\ To be sure, it is not the purpose of the pre-election 
hearing to determine employers' spokespersons in the ongoing 
representation campaign.
    \383\ See, 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).
---------------------------------------------------------------------------

    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, pre-election 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 pre-election. 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.
---------------------------------------------------------------------------

    \384\ Additionally, 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.
    \385\ FMI 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.
---------------------------------------------------------------------------

    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

[[Page 74390]]

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-under-challenge 
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 Sec.  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\
---------------------------------------------------------------------------

    \386\ See, 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).
    \387\ CDW 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.
---------------------------------------------------------------------------

    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 one-by-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\
---------------------------------------------------------------------------

    \388\ As 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.
    \389\ The 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.
---------------------------------------------------------------------------

    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

[[Page 74391]]

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 
ballot\390\--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.
---------------------------------------------------------------------------

    \390\ See Casehandling Manual Section 11338.6.
    \391\ SHRM 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.
---------------------------------------------------------------------------

    Finally, balanced against any asserted employer or employee 
interests in pre-election 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 Sec.  
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 non-
litigable, 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

[[Page 74392]]

any particular course of decision-making 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.
---------------------------------------------------------------------------

    \392\ See Casehandling Manual Section 11361.3.
---------------------------------------------------------------------------

    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 petitioned-for 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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec. Sec.  102.62(b) and 102.69, any 
Board review of the disposition will be expedited by the final rule.
---------------------------------------------------------------------------

    \395\ See, e.g., Chairmen Kline and Roe II; CDW II; Leading Age 
II; U.S. Chamber Workforce Freedom Initiative II; Associated Oregon 
Industries; Bluegrass Institute.
    \396\ See COSE; Constangy.
---------------------------------------------------------------------------

    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[.]''

[[Page 74393]]

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-[agrave]-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.
---------------------------------------------------------------------------

    \397\ See, e.g., Testimony of Doreen Davis on behalf of RILA II; 
SHRM II; CDW II.
    \398\ As 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 post-election negotiations posited by AHA. See, 
e.g., Testimony of Brenda Crawford II; Testimony of Martin Hernandez 
on behalf of UFCW II.
    \400\ Cf. 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'').
    \401\ See, e.g., Micro Pacific Development, Inc. v. NLRB, 178 
F.3d 1325, 1335-36 (D.C. Cir. 1999).
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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 Sec.  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 pre-election hearing.
    After careful consideration of the comments, and as more fully 
discussed below, the Board has decided to require, in amended Sec.  
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 Sec.  102.63, although parties currently are asked to 
provide much of the information requested by the

[[Page 74394]]

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\
---------------------------------------------------------------------------

    \402\ We 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 Sec.  102.63(b). Accordingly, we have also explicitly 
provided in the regulatory text for required responses to any 
amendments to a Statement of Position.
    \403\ The 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 Sec. Sec.  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.
    \404\ Moreover, 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.
---------------------------------------------------------------------------

    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 Sec.  102.66(a), consolidating their provisions, as 
modified, as Sec.  102.66(b).
    The Board adopts in all material respects the ``Preclusion'' 
paragraph of the proposed rule, numbered here as Sec.  102.66(d). This 
complements Sec. Sec.  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 Sec.  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 Sec. Sec.  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, Sec.  102.66(d) constitutes the enforcement 
mechanism for Sec. Sec.  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 (Sec.  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 Sec.  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

[[Page 74395]]

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 
Sec.  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 Sec.  102.64(b) (which 
was formerly Sec.  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\
---------------------------------------------------------------------------

    \405\ See 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).
---------------------------------------------------------------------------

    In sum, amended Sec.  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 post-election litigation and post-certification 
challenges.\410\
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    \406\ See, 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.
    \407\ See, e.g., ALFA;Testimony of Roger King on behalf of SHRM 
II; COLLE II.
    \408\ See, e.g., ACE; SHRM II; Bluegrass Institute; GAM; York 
SHRM.
    \409\ See, 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.
    \410\ See, e.g., National Mining Association; Baker & McKenzie; 
GAM; NAM II.
---------------------------------------------------------------------------

    Responsive comments express the contrary position that the proposed 
rules grant no greater discretion to hearing officers than that which 
they

[[Page 74396]]

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.
---------------------------------------------------------------------------

    \411\ See, e.g., AFL-CIO II; SEIU Reply.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \412\ See, e.g., NELP; UFCW; Testimony of Peter Ford on behalf 
of UFCW II.
---------------------------------------------------------------------------

    Conversely, several comments express the position that the 
mandatory offer-of-proof 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 cross-examine 
witnesses.\415\
---------------------------------------------------------------------------

    \413\ See, 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.
    \414\ See, e.g., SHRM; ACE; U.S. Poultry II.
    \415\ See, e.g., SHRM; CNLP; AHCA II; CDW II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \416\ See, e.g., AFL-CIO Reply; SEIU Reply.
    \417\ See, e.g., AFL-CIO Reply; SEIU Reply; UFCW; LIUNA MAROC 
II.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \418\ See, 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.
---------------------------------------------------------------------------

    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

[[Page 74397]]

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 Sec.  102.66(c) that was 
drawn from Rule 56. Similarly, in Sec. Sec.  102.64(b) and 102.66(a) we 
have rejected proposed language imported from Rule 56, and in Sec.  
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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \419\ In any event, Sec.  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.
---------------------------------------------------------------------------

    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 Sec.  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\
---------------------------------------------------------------------------

    \420\ Regional 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \421\ We 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 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.

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[[Page 74398]]

    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 Sec.  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.
---------------------------------------------------------------------------

    \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 
Sec. Sec.  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.
---------------------------------------------------------------------------

    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 
pre-election 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.
---------------------------------------------------------------------------

    \423\ As 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.
---------------------------------------------------------------------------

    Amended Sec.  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 Sec.  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 
Sec.  102.66(c) likewise does not deprive parties of their right to 
``an appropriate [pre-election] 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.
---------------------------------------------------------------------------

    \424\ See 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.
---------------------------------------------------------------------------

    Moreover, because offers of proof are part of the record as 
discussed below in connection with amended Sec.  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\
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    \425\ As noted, hearing officers have long had discretion to 
require offers of proof at the pre-election 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.
---------------------------------------------------------------------------

    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

[[Page 74399]]

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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \426\ The 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  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 Sec.  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.''
---------------------------------------------------------------------------

    \427\ Likewise, 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.
---------------------------------------------------------------------------

    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 Sec.  
102.63 why we disagree with the claim that the Statement of Position 
form due date and the pre-election 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.
---------------------------------------------------------------------------

    \428\ See, e.g., Cook-Illinois; AGC; Sheppard Mullin; ACC; NRF; 
Indiana Chamber.
    \429\ See, e.g., Bluegrass Institute; NMMA; Testimony of Curt 
Kirschner; GAM; Constangy.
---------------------------------------------------------------------------

    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

[[Page 74400]]

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, Sec.  
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 Sec.  102.63 (and Sec.  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 Sec.  102.66(d) merely provides 
that the employer ``shall be precluded from contesting * * * the 
eligibility or inclusion of any individuals at the pre-election 
hearing'' if it fails to furnish the lists of employees as part of its 
Statement of Position. (emphasis added). Similarly, amended Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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\
---------------------------------------------------------------------------

    \430\ Accord 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'').
    \431\ Because 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.
---------------------------------------------------------------------------

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

[[Page 74401]]

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 Sec.  
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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \432\ According 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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    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 Sec. Sec.  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 Sec.  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 Sec. Sec.  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.
---------------------------------------------------------------------------

    \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 post-hearing 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \434\ A 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.'').
---------------------------------------------------------------------------

    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

[[Page 74402]]

elimination of briefing by right denies parties due process.\435\
---------------------------------------------------------------------------

    \435\ See GAM; INDA II; AEM II; U.S. Poultry II.
---------------------------------------------------------------------------

    Having considered these comments, the Board has concluded that 
post-hearing briefing is not required or even helpful in every case. In 
this regard, it is important to note that amended Sec.  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 pre-election 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 post-election 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

[[Page 74403]]

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 Sec.  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, Sec. Sec.  102.67 (h), (i), and (j) of 
the current rules which referenced the transfer procedure, and 
reletters various subparts of Sec.  102.67.\436\
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    \436\ Because Sec.  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 Sec.  102.67(h) clarifies (consistent with 
current Sec.  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.
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B. The 20-Percent Rule
    As discussed above in connection with Sec.  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 Sec.  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 Sec.  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.
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    \437\ The final rule provides for this in Sec.  102.67(b), 
rather than in Sec.  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 Sec.  
102.67(a), rather than in Sec.  102.67(b), that the decision by the 
regional director shall set forth the director's findings, 
conclusions, and order or direction.
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    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 Sec.  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

[[Page 74404]]

providing in amended Sec.  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 decision-making 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 pre-NPRM 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.
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    \438\ As noted above, the final rule moves this requirement from 
Sec.  102.67(b) to Sec.  102.67(a).
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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 Sec.  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 Sec. Sec.  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 Sec.  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.
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    \439\ The 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.
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    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

[[Page 74405]]

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 pre-election 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\
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    \440\ Thus, 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 Sec.  101.21(d).
    \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.
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    The final rule also adopts in Sec.  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.
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    \442\ And 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 Sec.  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.
    \443\ We 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.
    \444\ We 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.
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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 Sec.  102.67(b). The final rule also provides in 
Sec.  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.
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    \445\ As discussed above, the final rule retitles the proposed 
``Final Notice to Employees of Election'' as the ``Notice of 
Election.''
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    Section 103.20 of the Board's current rules addresses the posting 
of the election notices. The NPRM proposed to eliminate Sec.  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 Sec.  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 Sec.  102.67(k). This 
amendment parallels the final rule's amendment to Sec.  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 Sec.  102.67(k), which parallels the amendments to 
Sec.  102.63(a)(2) regarding the Notice of Petition for Election. Thus, 
if the employer customarily

[[Page 74406]]

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 
Sec.  102.67(k) the relevant language about the time for posting that 
previously appeared in Sec.  103.20(a) and (b).\446\
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    \446\ However, 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 
Sec.  103.20(c) of the prior rules.
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    Consistent with the pre-NPRM version of Sec.  103.20(c), and (d), 
the final rule also provides in Sec.  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 
information-sharing. 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

[[Page 74407]]

described above in relation to Sec.  102.62 after entry into any form 
of consent or stipulated election agreement. In addition, Sec.  
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.
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    \447\ As 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).
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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. Sec.  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 post-election 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\
---------------------------------------------------------------------------

    \448\ As Justice Story stated, ``causes should not come up here 
in fragments, upon successive appeals. It would occasion very great 
delays, and oppressive expenses.'' Canter v. Am. Ins. Co., 28 U.S. 
307, 318 (1830). ``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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \449\ See 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-
special-permission-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.
    \450\ The 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.
---------------------------------------------------------------------------

    The final rule is intended to codify the text of the statute. Thus, 
the relevant portion of the final rule begins by stating, in Sec.  
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 Sec.  
102.62(a) or (c), or under Sec.  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

[[Page 74408]]

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.
---------------------------------------------------------------------------

    \451\ This exception is also necessary in light of the different 
procedures for Board review applicable to dismissal of petitions 
under Sec.  102.71, and procedures for elections which implicate 
Section 8(b)(7) of the Act, and other specialized circumstances 
addressed elsewhere in the regulations.
---------------------------------------------------------------------------

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 pre-
election requests for review in order to preserve issues.
---------------------------------------------------------------------------

    \452\ For 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \453\ The 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.''
---------------------------------------------------------------------------

    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 pre-election request for review post-
election). 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.
---------------------------------------------------------------------------

    \454\ Out 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.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 74409]]

will be thwarted if the pre-election request for review is eliminated.
---------------------------------------------------------------------------

    \455\ See, e.g., Testimony of Harold Weinrich on behalf of 
Jackson Lewis LLP; Chamber II.
---------------------------------------------------------------------------

    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 
Sec.  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 pre-
election 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 Sec.  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-and-impound 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

[[Page 74410]]

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 Sec.  102.66, bargaining takes 
place in the shadow of the law, and some parties use the threat of 
insisting on a pre-election 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.
---------------------------------------------------------------------------

    \456\ A 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.
    \457\ Accordingly, 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \458\ See 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.'').
    \459\ See Professor Joel Cutcher-Gershenfeld; Senior Member 
Miller and Democratic House Members; IBEW; Thomas Meiklejohn.
---------------------------------------------------------------------------

    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 Sec.  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-and-impound 
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.
Sec.  102.68 Record in Pre-Election Proceeding; What Constitutes; 
Transmission to Board
    The proposed amendments to Sec.  102.68, which currently defines 
the record in a proceeding conducted pursuant to Sec.  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

[[Page 74411]]

received no significant comments regarding that proposed change either. 
The final rule in Sec.  102.68 adopts those portions of the proposal. 
The final rule also amends Sec.  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 Sec.  102.68 would define the record in 
proceedings conducted pursuant to Sec.  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 Sec.  102.69(d)(1) defines the record in 
proceedings conducted pursuant to Sec.  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 pre-election 
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 
Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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\
---------------------------------------------------------------------------

    \460\ The amendments also codify existing practice permitting 
parties to file, but not serve, evidence in support of objections. 
Amended Sec.  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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \461\ See, e.g., GAM; Chamber Reply; ACE; SHRM; AHCA; Summa 
Health Systems (Summa); AHA II; US Poultry II.
---------------------------------------------------------------------------

    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

[[Page 74412]]

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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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-of-proof requirement.
B. Uniform Procedure for Handling Objections and Potentially 
Determinative Challenges and Requests for Review of Regional Director 
Post-Election 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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \462\ At 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 Sec.  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.
    \463\ Matters such as the scheduling of the post-election 
hearing and procedure at the post-election hearing are addressed 
below.
    \464\ The 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 Sec.  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.
---------------------------------------------------------------------------

    Some comments question whether the Board will resolve 
nondeterminative challenges post-election. The final rule maintains the 
status quo in this regard:

[[Page 74413]]

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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 
post-election 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 Sec.  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 Sec.  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 Sec.  102.67 of the final rule, rather than in 
Sec.  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 Sec.  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 Sec.  102.69(e)(1)(ii)) that 
the decision and direction of election and the record previously made 
as defined in Sec.  102.68 will also be part of the record in a 
proceeding pursuant to Sec.  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 Sec.  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 Sec.  102.68.
    Similarly, prior to the NPRM, Sec.  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 Sec.  
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 
``Sec.  102.69(c) and to include a reference to no request for review 
being filed (proposals which the December 22, 2011 final rule adopted).

[[Page 74414]]

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 Sec.  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.
---------------------------------------------------------------------------

    \466\ The NPRM had proposed to restyle paragraph (b) as (c) 
because, as discussed above, the NPRM had also proposed adding a new 
Sec.  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 Sec.  102.69, the Board has 
decided to leave the text in question in Sec.  102.69(b) of this 
final rule.
    \467\ Thus, 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 
Sec. Sec.  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 Sec.  102.62(c).
---------------------------------------------------------------------------

C. Post-Election Hearing Scheduling
    The NPRM proposed that any post-election 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 
hearing-scheduling 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 
post-election 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 post-election 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 post-election 
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.
---------------------------------------------------------------------------

    \468\ See, e.g., GAM; ACE; SHRM; AHA; Summa; Buchanan; ACC; AHCA 
II.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \469\ Admittedly, our decision to require that post-election 
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 Sec.  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.
---------------------------------------------------------------------------

    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

[[Page 74415]]

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). 
Sec.  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 post-election 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 post-election 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\
---------------------------------------------------------------------------

    \470\ For 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.
---------------------------------------------------------------------------

    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 Sec.  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 
post-election 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 pre-election 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 pre-election 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

[[Page 74416]]

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\
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    \472\ Thus, 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).
    \473\ Thus, the amendments to Sec.  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.''
---------------------------------------------------------------------------

    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 multi-day hearings turn into multi-week 
affairs. The NPRM proposed to do just that, albeit not explicitly. 
Thus, proposed Sec.  102.69(d)(1)(iii) provided that the post-election 
hearing be conducted in accordance with Sec.  102.64 insofar as 
applicable, and proposed Sec.  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 Sec.  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.
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    \474\ As discussed above in connection with Sec.  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 pre-election 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.
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D. Procedure at the Post-Election Hearing on Objections and Challenged 
Ballots
    The NPRM proposed that the post-election hearing would open with 
the parties stating their positions on any challenges and objections, 
followed by mandatory offers of proof as described in proposed Sec.  
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 post-
election hearing.
    However, as discussed above in relation to Sec.  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 post-
election 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 pre-election 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

[[Page 74417]]

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 well-placed 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\
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    \475\ As noted, the NPRM proposed that the post-election hearing 
would be conducted in accordance with Sec. Sec.  102.64, 102.65, and 
102.66, insofar as applicable. 79 FR at 7361. The final rule 
clarifies in amended Sec.  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 Sec.  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 Sec.  
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 pre-
NPRM practice. See Hearing Officer's Guide at 167.
---------------------------------------------------------------------------

    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 Sec.  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. Sec.  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, Sec. Sec.  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\
---------------------------------------------------------------------------

    \476\ The 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 Sec. Sec.  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 Sec. Sec.  102.77(b) and 102.86. Similarly, 
the 2011 final rule deferred the proposals (79 FR at 7362-7363) to 
amend Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  102.86 to provide that in cases arising 
under Subpart E, posthearing procedure would be governed, insofar as 
applicable, by Sec. Sec.  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 Sec. Sec.  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 Sec.  102.77(b) to incorporate language from 
preexisting Sec.  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 Sec.  101.23(e).
---------------------------------------------------------------------------

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 Sec.  
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

[[Page 74418]]

the Chamber raises no general objection to electronic service of 
representation case documents, with the exception of the voter 
list.\478\
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    \477\ PIA 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 
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.
    \478\ The Chamber's prediction of an electronic voter list 
inviting abuse is discussed in relation to Sec.  102.62.
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    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 Sec. Sec.  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 Sec.  
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.
---------------------------------------------------------------------------

    \479\ In addition, the testimony of Jess Kutch on behalf of 
Coworker.org II concerning potential spam filter problems discussed 
in connection with Sec.  102.62 above would not implicate these 
types of service, which would not be attempted via bulk emails.
---------------------------------------------------------------------------

    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, Sec.  103.20 was entitled ``Posting 
of election notices.'' As discussed above in connection with Sec.  
102.67, the final rule adopts the proposal to integrate its contents as 
modified into Sec.  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 Sec.  103.20. Accordingly, the final 
rule retitles Sec.  103.20 ``Election procedures and blocking charges; 
filing of blocking charges; simultaneous filing of offer of proof; 
prompt furnishing of witnesses.''
---------------------------------------------------------------------------

    \480\ As noted in Sec.  102.62, the election notice changes also 
apply in cases where the parties agree to an election.
---------------------------------------------------------------------------

    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

[[Page 74419]]

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.
---------------------------------------------------------------------------

    \481\ See SEIU; AFL-CIO (Reply); UFCW; Testimony of Melinda 
Hensel on behalf of IUOE Local 150 II.
    \482\ SEIU (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).
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    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\
---------------------------------------------------------------------------

    \483\ Curiously, 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.
    \484\ See, e.g., AHA II; COLLE; CDW; CNLP; PIA; NRMCA II.
    \485\ SHRM 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).
    \486\ See, e.g., NRTWLDF; Chamber II; COLLE.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \487\ See, e.g., NRTWLDF; Chamber.
---------------------------------------------------------------------------

    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 Sec.  102.61(a)(7), 
(b)(8) and (c)(8) providing for the simultaneous filing of the showing 
of interest with election petitions, and Sec.  102.69(a) providing for 
the simultaneous filing of offers of proof together with election 
objections, the Board's amendments to Sec.  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

[[Page 74420]]

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.
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    \488\ Our 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.
    \489\ Although 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.
    \490\ Similarly, the final rule provides in amended Sec.  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.
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    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.
---------------------------------------------------------------------------

    \491\ See AHA II; NRTWLDF; AFL-CIO; NNU.
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    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.
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    \492\ Casehandling Manual (Part Two) Representation Proceedings 
Section 11012.1.
    \493\ Casehandling Manual (Part One) Unfair Labor Practice 
Proceedings Section 10054.1.
---------------------------------------------------------------------------

    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 pre-complaint settlements and post-complaint 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 case-specific 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.
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    \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 Sec.  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 . . .'').
    \495\ See 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).
    \496\ See Frankl v. HTH Corp., 650 F.3d 1334, 1352 (9th Cir. 
2011).
    \497\ See 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).
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    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\
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    \498\ For 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.
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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 Sec.  102.69(a).

[[Page 74421]]

    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, Sec.  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\
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    \499\ See 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).
    \500\ Tom C. Clark, Attorney General's Manual on the 
Administrative Procedure Act, 17, 19 (August 27, 1947).
    \501\ See, 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.'').
    \502\ The 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.
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    Prior Sec.  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 Sec.  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 Sec.  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\
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    \503\ The 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.
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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.
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    \504\ For 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.
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    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 
vis-[agrave]-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

[[Page 74422]]

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.
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    \505\ For 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.
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    The final rule conforms representation and referendum procedures in 
these two subparts as described therein to amendments set forth 
below.\506\
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    \506\ The 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 
Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  101.30(c) to so provide.
---------------------------------------------------------------------------

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 single-mindedly 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 decision-making 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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    \507\ Section 102.67(b).
    \508\ See Section 9(c) of the Act (29 U.S.C. 159(c)).
    \509\ See Id.; Inland Empire Council v. Millis, 325 U.S. 697, 
706-710 (1945).
    \510\ See Section 9(d) of the Act (29 U.S.C. 159(d)); Boire v. 
Greyhound Corp., 376 U.S. 473, 476-480 (1964).
    \511\ See 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).
    \512\ See 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).
    \513\ Our 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 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 collective-bargaining 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.

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[[Page 74423]]

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 pre-election 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 near-
complete 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.
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    \514\ The 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \515\ The 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.
---------------------------------------------------------------------------

    Finally, the dissent claims that the rule is ultimately based on an 
`` `anti-distortion' 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.

[[Page 74424]]

    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.
---------------------------------------------------------------------------

    \516\ The dissenters claim that the new statement-of-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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \518\ Although 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.
---------------------------------------------------------------------------

    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

[[Page 74425]]

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\
---------------------------------------------------------------------------

    \519\ Labor 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.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  
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 Sec.  
102.66(b). \520\
---------------------------------------------------------------------------

    \520\ Our 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' pre-hearing, 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.
---------------------------------------------------------------------------

    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 non-petitioner's position from 
the Statement itself, and so preclusion attaches in replying to the 
Statement.\521\
---------------------------------------------------------------------------

    \521\ We 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \522\ This caselaw is discussed in the preamble section on 
102.66.
    \523\ As 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.
---------------------------------------------------------------------------

    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

[[Page 74426]]

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\
---------------------------------------------------------------------------

    \524\ At 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \525\ It should also be noted that parties are also free to 
submit affidavits supporting their proffers.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \526\ Contrary 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 Sec.  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).
---------------------------------------------------------------------------

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

[[Page 74427]]

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 post-hearing briefs.
---------------------------------------------------------------------------

    \527\ We 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \528\ We 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.
---------------------------------------------------------------------------

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 post-election 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 outcome-determinative 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\
---------------------------------------------------------------------------

    \530\ Most 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.
---------------------------------------------------------------------------

    Under the final rule, the Board will apply the same discretionary 
standard to review of regional directors' post-election 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

[[Page 74428]]

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\
---------------------------------------------------------------------------

    \531\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 opt-
out 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\
---------------------------------------------------------------------------

    \533\ We 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.
---------------------------------------------------------------------------

    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 Sec.  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:


[[Page 74429]]


    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-and-comment 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\
---------------------------------------------------------------------------

    \534\ The 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.
---------------------------------------------------------------------------

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Review of a direction of election prior to the election: 
The final rule rejects the proposal to eliminate the pre-election 
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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Offers of proof in support of election objections: Unlike 
the NPRM,

[[Page 74430]]

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.
    <bullet> 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

    <bullet> Petition filing: Permitting electronic filing of 
petitions;
    <bullet> Showing of Interest: Requiring the petitioner to 
simultaneously file its showing of interest with its petition;
    <bullet> Notice of Petition for Election:
    [cir] Requiring the employer to post a more informative notice upon 
the filing of a petition;
    [cir] triggering the posting requirement by the regional director's 
service of the notice of hearing;
    [cir] requiring the employer to also electronically distribute the 
Notice of the Petition for Election if it customarily communicates with 
its employees electronically;
    <bullet> Conduct of the pre-election hearing:
    [cir] Rejecting 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;
    [cir] making offers-of-proof at the pre-election hearing part of 
the record in Sec.  102.68 (while omitting any reference in Sec.  
102.68 to the record in post-election proceedings);
    <bullet> Transfer Procedure: Eliminating the transfer procedure;
    <bullet> Requests for Review:
    [cir] 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;
    [cir] providing that requests for review shall not stay regional 
director actions unless specifically ordered by the Board;
    [cir] providing a procedure for requesting stays of elections and 
impoundment and/or segregation of ballots;
    <bullet> Scheduling of Election: Eliminating the 25-day waiting 
period after issuance of the direction of election in contested cases;
    <bullet> Decision and Direction of Election: Rejecting the proposal 
to permit regional directors to direct elections without simultaneously 
providing a statement of reasons;
    <bullet> 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;
    <bullet> Notice of Election:
    [cir] Requiring the employer to electronically distribute the 
Notice of Election if the employer customarily communicates with 
employees in the unit electronically;
    [cir] rejecting the proposal to reduce the period to post paper 
copies of the notice from 3 to 2 working days;
    [cir] rejecting the proposal that regional directors transmit 
election notices directly to employees if practicable, such as by work 
email or phone;
    <bullet> Voter List:
    [cir] 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;
    [cir] 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;
    [cir] rejecting a proposal for the agency to host sealed-off 
communication portals;
    <bullet> Election Objections:
    [cir] Requiring parties to simultaneously file with their election 
objections a supporting offer-of-proof
    [cir] 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;
    <bullet> 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;
    <bullet> Service: permitting the Board to serve papers on parties 
electronically;
    <bullet> Streamlining the Rules and Regulations:
    [cir] Eliminating subpart C of Part 101; and
    [cir] 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:
    <bullet> 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> 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.
    <bullet> 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 self-contradictory 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

[[Page 74431]]

important decisions. The Rule operates in reverse, making the available 
time as short as possible.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 pre-election 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.
    <bullet> 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\
---------------------------------------------------------------------------

    \536\ Section 9(b) (emphasis added).
---------------------------------------------------------------------------

    <bullet> 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.
    <bullet> 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 
petition-filing; (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.
---------------------------------------------------------------------------

    \537\ This 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.
---------------------------------------------------------------------------

    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 pre-election procedure in 
fulfillment of the requirement that an election be scheduled ``at the 
earliest date

[[Page 74432]]

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.
---------------------------------------------------------------------------

    \538\ Each 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.
---------------------------------------------------------------------------

    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 
employee-voters 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\
---------------------------------------------------------------------------

    \539\ NLRA 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).
    \542\ Section 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 
wide-open 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 Sec.  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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \545\ NLRA 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.
---------------------------------------------------------------------------

    (b) Knowledge of Representation, Bargaining and NLRA Rights. In 
2011, the Board stated that the great majority

[[Page 74433]]

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\
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    \546\ The 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/news-story/national-labor-relations-board-launches-mobile-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).
---------------------------------------------------------------------------

    (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 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.''' \550\
---------------------------------------------------------------------------

    \550\ Chamber 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.'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \551\ The 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).
    \552\ NLRB v. Brown, 380 U.S. 278, 291 (1965).
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \553\ Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 
467 U.S. 837 (1984).
    \554\ 5 U.S.C. 551 et seq.

    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\
---------------------------------------------------------------------------

    \555\ Chevron 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).

    Step two of the Chevron test of an agency's statutory construction 
somewhat overlaps with the APA, which generally governs the quasi-
legislative 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\
---------------------------------------------------------------------------

    \556\ 5 U.S.C. 706 (2)(A).
    \557\ The 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).
---------------------------------------------------------------------------

    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

[[Page 74434]]

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.
---------------------------------------------------------------------------

    \558\ As 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \559\ NLRB'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.
    \561\ NLRB Summaries of Operations, fiscal years 2007-2012, and 
Performance Accountability Reports, 2004-2013, www.nlrb.gov/reports-guidance/reports. See GC-11-09, supra note 25, at 18-19.
    \562\ NLRB Performance Accountability Report, fiscal year 2013, 
www.nlrb.gov/reports-guidance/reports.
---------------------------------------------------------------------------

    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 pre-election hearing itself 
accounts for very little of the overall time it takes to process 
representation cases. When hearings are required, regions hold pre-
election 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\
---------------------------------------------------------------------------

    \563\ Reported by NLRB Division of Operations Management, August 
8, 2014.
    \564\ FY 2012 Summary of Operations, General Counsel's Memo 13-
01 (January 11, 2013), at http://www.nlrb.gov/reports-guidance/general-counsel-memos.
---------------------------------------------------------------------------

    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,

[[Page 74435]]

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 post-election 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.
---------------------------------------------------------------------------

    \565\ For 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).
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

    \566\ H.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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \567\ For 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.
    \568\ We 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 pre-election 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.
---------------------------------------------------------------------------

    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

[[Page 74436]]

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 Taft-Hartley 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.
---------------------------------------------------------------------------

    \569\ Examples 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).
---------------------------------------------------------------------------

    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 post-election 
determinations. This means the only guaranteed review of regional 
director decisions will occur if employers refuse to comply with post-
election 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 pre-election 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

[[Page 74437]]

the presentation of evidence on these issues, is a keystone device in 
the Final Rule's acceleration of the pre-election timeline.\571\
---------------------------------------------------------------------------

    \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 
pre-election 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.
    \571\ Other amendments in the Final Rule that impermissibly 
implement this definition by limiting the presentation of evidence 
in a pre-election 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \572\ See also former Member Hayes' discussion of this point in 
his dissent to the vacated December 2011 rule at 77 FR 25560.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \575\ See 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 
pre-hearing 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.
---------------------------------------------------------------------------

    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 post-election 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\
---------------------------------------------------------------------------

    \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 ``pre-hearing 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).
---------------------------------------------------------------------------

    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

[[Page 74438]]

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\
---------------------------------------------------------------------------

    \578\ NLRB v. Bell Aerospace Company, Division of Textron, Inc., 
416 U.S. 267, 274-75 (1974).
    \579\ Congress'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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \580\ Regarding 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).
    \581\ An 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 
pre-election 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 pre-election 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 pre-
election 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.
    \582\ Specialty 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).
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \583\ Chamber of Commerce v. Brown, 554 U.S. at 68 (quoting 
Letter Carriers v. Austin, 418 U.S. 264, 272-73 (1974)).

---------------------------------------------------------------------------

[[Page 74439]]

    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.
---------------------------------------------------------------------------

    \584\ The 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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \585\ See discussion in text and accompanying footnotes in Sec. 
A.2, supra.
---------------------------------------------------------------------------

    In short, in respect to free speech concerns, the Final Rule has 
two infirmities. First, the Rule single-mindedly 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 pre-election campaigns as 
vitally important.
---------------------------------------------------------------------------

    \586\ To 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \587\ The 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.
    \588\ See, 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).
    \589\ Republican Party of Minnesota v. White, 536 U.S. 765, 782 
(2002) (citing Brown v. Hartlage, 456 U.S. 46, 60 (1982)).
---------------------------------------------------------------------------

    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

[[Page 74440]]

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.
---------------------------------------------------------------------------

    \590\ The 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).
    \591\ The 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).
---------------------------------------------------------------------------

    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 petition-filing, 
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.
---------------------------------------------------------------------------

    \592\ Supra note 591.
    \593\ See Ideal Electric & Mfg. Co., 134 NLRB at 1278.
    \594\ Supra note 591.
---------------------------------------------------------------------------

    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 union-side 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 well-established 
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.
---------------------------------------------------------------------------

    \595\ See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) 
(addressing limitations on union access rights to private property).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \596\ Citizens 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)).
    \597\ See 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 Sec.  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.
---------------------------------------------------------------------------

    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

[[Page 74441]]

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.
---------------------------------------------------------------------------

    \599\ Supra note 591.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \600\ Many 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \601\ We 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.
---------------------------------------------------------------------------

    (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 non-petitioning 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.)
---------------------------------------------------------------------------

    \602\ The requirement also applies to non-petitioning 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.
---------------------------------------------------------------------------

    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 pre-hearing 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

[[Page 74442]]

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 pre-hearing 
procedures, there is no basis for declaring it in advance to be a best 
practice under the amended procedures.
---------------------------------------------------------------------------

    \603\ Croft 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.
    \604\ As 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.
    \605\ Preparation 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.
---------------------------------------------------------------------------

    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.
    <bullet> 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 
non-petitioning party) bears the burden to identify issues it wishes to 
contest in a written statement of position.\606\
---------------------------------------------------------------------------

    \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 
pre-election issues not identified in the Statement of Position.
---------------------------------------------------------------------------

    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 pre-election 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

[[Page 74443]]

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.
---------------------------------------------------------------------------

    \607\ This would include Section 9(b)(3) guard/nonguard labor 
organization issues.
    \608\ See Sonotone Corp., 90 NLRB 1236 (1950).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \609\ One 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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \610\ As 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 post-election 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'').

    <bullet> 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.
    <bullet> 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.
    <bullet> [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 pre-election 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

[[Page 74444]]

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\
---------------------------------------------------------------------------

    \611\ See, 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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \612\ See Pergament United Sales, supra, 296 NLRB at 334.
---------------------------------------------------------------------------

    <bullet> 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.''
---------------------------------------------------------------------------

    \613\ Notably, 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).
---------------------------------------------------------------------------

    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

[[Page 74445]]

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.
---------------------------------------------------------------------------

    \614\ NLRB v. S.W. Evans & Son, 181 F.2d 427, 431 (3d Cir. 
1950).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \615\ The 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.
    \616\ Section 9(b) (emphasis added).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \617\ These 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.
---------------------------------------------------------------------------

    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

[[Page 74446]]

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 post-petition 
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.
---------------------------------------------------------------------------

    \618\ We 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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \619\ Excelsior Underwear, supra, 156 NLRB at 1243.
    \620\ NLRB 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.

    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 blas[eacute] 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\
---------------------------------------------------------------------------

    \621\ 77 FR at 25566.

    <bullet> 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 pre-election 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

[[Page 74447]]

the basis for any decision or appeal on the merits.\625\
---------------------------------------------------------------------------

    \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.
    \623\ The 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).
    \624\ FRE 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).
    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \626\ Respectfully, 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 Sec.  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); Sec.  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.
    \627\ Section 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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \628\ Specialty 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).
---------------------------------------------------------------------------

    Section 9(c)(1) also provides that pre-election 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 
pre-election 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 election-related 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-the-record 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

[[Page 74448]]

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 second-hand 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\
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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 hard-working 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 
Taft-Hartley 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-the-record 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.
---------------------------------------------------------------------------

    (d) No Post-Hearing Briefs--The Final Rule impermissibly eliminates 
the right to file post-hearing briefs. Reflecting longstanding 
practice, Sec.  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\
---------------------------------------------------------------------------

    \630\ We 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \631\ The 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.
---------------------------------------------------------------------------

    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

[[Page 74449]]

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 post-hearing 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 pre-hearing 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 pre-election 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 post-hearing 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.
---------------------------------------------------------------------------

    \632\ Assuming 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \633\ See Representation Casehandling Manual Sec.11242 and G.C. 
Memo. 98-1, ``Report of Best Practices Committee--Representation 
Cases December 1997,'' at 10, 28.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \634\ See 77 FR 25567.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \635\ Much 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.
---------------------------------------------------------------------------

    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

[[Page 74450]]

of pre-election disputes in the absence of any election agreement.\637\
---------------------------------------------------------------------------

    \636\ According 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.
    \637\ Even 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.
---------------------------------------------------------------------------

    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 post-election 
Board review will adversely affect the parties' willingness to 
compromise on pre-election issues. Thus, making Board review of post-
election 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 post-election 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 post-election 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\
---------------------------------------------------------------------------

    \638\ Twenty-Fourth Annual Report of the National Labor 
Relations Board for Fiscal Year Ended June 30, 1959, Appendix A--
Tables 1 and 3.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \639\ Representation Petitions, National Labor Relations Board, 
available at http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/representation-petitions-rc.
    \640\ The 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).
---------------------------------------------------------------------------

    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-for-review 
practice,\641\ this standard will predictably rarely be met.
---------------------------------------------------------------------------

    \641\ According 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.
---------------------------------------------------------------------------

    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 post-election 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

[[Page 74451]]

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.
---------------------------------------------------------------------------

    \642\ See, 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).
    \643\ See, e.g., Automatic Fire Systems, 357 NLRB No. 190 
(2012); Enterprise Leasing Company-Southeast, LLC, 357 NLRB No. 159 
(2011).
    \644\ See, 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).
    \645\ The 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 
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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \646\ We 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.
    \647\ E.g., Rental Uniform Service, Inc., 330 NLRB 334, 336 n.10 
(1999) (citing S.H. Kress & Co., 212 NLRB 132 n.1 (1974)).
---------------------------------------------------------------------------

    The elimination of mandatory post-election 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.
---------------------------------------------------------------------------

    \648\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \649\ The 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).
---------------------------------------------------------------------------

    (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 pre-election hearing, the opportunity 
to present oral testimony and cross-examine 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\
---------------------------------------------------------------------------

    \650\ Bennett 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)).
---------------------------------------------------------------------------

    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

[[Page 74452]]

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.
---------------------------------------------------------------------------

    \652\ As we have noted elsewhere, the Final Rule also 
contravenes due process by impermissibly infringing free speech and 
privacy interests.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \653\ The 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).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \654\ We 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.''
---------------------------------------------------------------------------

    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.
    <bullet> 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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    \655\ Our 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.

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[[Page 74453]]

    <bullet> 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.
---------------------------------------------------------------------------

    \656\ Several 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.
    \657\ The 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).
---------------------------------------------------------------------------

    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\
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    \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.
    \659\ For 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \660\ For 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.
---------------------------------------------------------------------------

    The majority counters with the argument that there is no evidence 
of voter lists being misused by non-employer 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 blas[eacute] at 
best. As previously mentioned, the news is full of daily abuse stories 
relating to, e.g., disclosure of personal email addresses.\661\
---------------------------------------------------------------------------

    \661\ See, 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-stolen-from-vendor-1415309282. As for the majority's suggestion that 
employees' personal contact information is unlikely to be misused, 
see Cedars-Sinai Medical Center, 342 NLRB 596 (2004) (setting aside 
election based on telephonic threats of violence).

---------------------------------------------------------------------------

[[Page 74454]]

    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 opt-out 
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.
---------------------------------------------------------------------------

    \662\ 15 U.S.C. 7704.
    \663\ 16 CFR part 310.
---------------------------------------------------------------------------

    <bullet> 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 on-call 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.

[[Page 74455]]

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\
---------------------------------------------------------------------------

    \664\ See, e.g., Sheppard Mullin; AHCA; AHA.
    \665\ Such units may commonly occur within employers with 
decentralized operations. See, e.g., ACE; Con-Way.
    \666\ See, e.g., ABC II; AGC II.
    \667\ See ACE.
    \668\ See, e.g., AHA II.
    \669\ See, e.g., Bluegrass Institute; GAM; Sheppard Mullin; AHA.
    \670\ See, e.g., Mod Interiors, Inc., 324 NLRB I64 (1997) 
(setting aside election where Excelsior list contained a significant 
number of inaccurate addresses).
    \671\ As 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.
---------------------------------------------------------------------------

    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.
    <bullet> 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.
---------------------------------------------------------------------------

    \672\ As 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \673\ See, 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.
    \674\ See, e.g., NRTWLDF; Chamber II; COLLE; CDW II.
---------------------------------------------------------------------------

    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

[[Page 74456]]

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.
---------------------------------------------------------------------------

    \675\ We say ``arguably'' because, as the majority notes, the 
General Counsel already accords ``highest priority'' to 
investigating blocking charges.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \676\ Casehandling Manual Sec. 11730.1.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \677\ Ideal Electric Mfg. Co., supra (to be found objectionable, 
alleged conduct must occur in critical period between petition and 
election dates).
    \678\ Casehandling Manual Sec. 11730.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \679\ See Sec. A.2., supra.
    \680\ These 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.
---------------------------------------------------------------------------

    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

[[Page 74457]]

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).
[GRAPHIC] [TIFF OMITTED] TR15DE14.003

    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.
---------------------------------------------------------------------------

    \681\ As 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.
    \682\ See 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).
---------------------------------------------------------------------------

    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 anti-poaching 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.
---------------------------------------------------------------------------

    \683\ Manatees, 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \684\ State Farm, supra, 463 U.S. at 43.
---------------------------------------------------------------------------

    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.

[[Page 74458]]

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\
---------------------------------------------------------------------------

    \685\ Section 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.
    \687\ We 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.
    \688\ The 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \689\ 79 FR at 7318.
    \690\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \691\ Atchison, T. & S. FR Co. v. Wichita Bd. of Trade, 412 U.S. 
800, 807-08 (1973).

---------------------------------------------------------------------------

[[Page 74459]]

    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.
---------------------------------------------------------------------------

    \692\ 79 FR 7340, 7344, 7347.
---------------------------------------------------------------------------

    We believe it would be reasonable to have a minimum guideline time 
period between 30 and 35 days from petition-filing 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.
---------------------------------------------------------------------------

    \693\ See note 576, supra, and accompanying text.
---------------------------------------------------------------------------

    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 
Three-Year 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.
---------------------------------------------------------------------------

    \694\ Farmers Union Central Exchange, Inc. v. FERC, 734 F.2d 
1486, 1511 (D.C. Cir. 1984).
    \695\ City of Brookings Municipal Telephone Co. v. FCC, 822 F.2d 
1153, 1169 (D.C. Cir. 1987).
---------------------------------------------------------------------------

Conclusion

    The Final Rule represents the culmination of a rulemaking process 
characterized by discontinuity, a near-complete change in the Board's 
composition, an unprecedented number of comments espousing widely 
divergent views, and the rewriting of

[[Page 74460]]

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.
---------------------------------------------------------------------------

    \696\ NLRB v. Savair Mfg. Co., 414 U.S. 270, 278 (1973).
    \697\ NLRB v. Action Automotive, 469 U.S. 490, 498 (1985).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
    \699\ This 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-and-comment 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.
---------------------------------------------------------------------------

    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.

[[Page 74461]]

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-business-size-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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \701\ There 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/news-outreach/graphs-data/petitions-and-elections/ (last visited July 15, 2014).
    \702\ NAM 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.

 Table 1--Frequency of the Use of Particular Procedures During Election
                                  Cases
------------------------------------------------------------------------
                                                                Percent
                                                     Total       ``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 Mid-Tex 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, compliance-

[[Page 74462]]

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\
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    \703\ The 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.

    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\
---------------------------------------------------------------------------

    \704\ The 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 x $37.58 + 1 
hr x 78.58] $153.71. See infra, discussing wage statistics. This 
would not be a significant impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    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 non-coercively 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.
---------------------------------------------------------------------------

    \705\ The 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.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \706\ The 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.

       Table 2--Labor Costs as per the Bureau of Labor Statistics
------------------------------------------------------------------------
                                                                  Plus
                     Employee                         Wages     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 Sec.  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\
---------------------------------------------------------------------------

    \707\ We 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.
---------------------------------------------------------------------------

    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

[[Page 74463]]

$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 x 
$37.57 + 20 mi x $0.56] $86.33.\710\
---------------------------------------------------------------------------

    \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 cost of 
benefits, the wage must be multiplied by 1.43. This results rate of 
$37.57 per hour.
    \709\ According 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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

2. Posting and Distributing the Notice
    The final rule amends Sec.  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 x $37.57] $56.35.
3. Completing the Statement of Position Form
    In Sec.  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 x 1.43 x 1.5] $117.87 in 
compensation including benefits.
---------------------------------------------------------------------------

    \711\ We 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.
---------------------------------------------------------------------------

    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 Sec.  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.)
---------------------------------------------------------------------------

    \712\ See also National Meat Association; COSE; ALG; Bluegrass 
Institute.
    \713\ Other 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \714\ One 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.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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%.

[[Page 74464]]

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 x \1/2\] $27.48 per hour for the attorney and [$46.36 x \1/2\] 
$23.18 for the manager, for a total of [8 x $27.48 + 4 x $23.18] 
$312.52 increase for the hearing preparation.\716\
---------------------------------------------------------------------------

    \716\ The 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \717\ We 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \718\ This 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.
    \719\ Some 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).
---------------------------------------------------------------------------

    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) x 
0.1 (hours required per employee) x $50.70] $126.75.\720\
---------------------------------------------------------------------------

    \720\ This 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.
---------------------------------------------------------------------------

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 Sec.  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 x $37.57] $9.39.\721\
---------------------------------------------------------------------------

    \721\ CNLP 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 an election. However, for 
the purposes of this analysis, the cost is being assessed to all 
petitions.

---------------------------------------------------------------------------

[[Page 74465]]

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.
---------------------------------------------------------------------------

    \722\ The 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-to-wall'' 
units, and in almost every case, the employer has many statutory 
employees which are not in the unit.
    \723\ The 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.
---------------------------------------------------------------------------

    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]
----------------------------------------------------------------------------------------------------------------
                                                           Union serving
            RC Petitions                   Employer         petition via    Union serving  by    Union serving
                                                            email or fax           mail            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)
----------------------------------------------------------------------------------------------------------------
                                                                     Employer
                                                                      serving        Employer        Employer
                  RM Petitions                         Union       petition via     serving by        serving
                                                                   email or fax        mail         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
                                                 ---------------------------------------------------------------

[[Page 74466]]

 
    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 x $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:
---------------------------------------------------------------------------

    \725\ This 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 x 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, post-election 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.
    \726\ The 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 6--Estimated Additional Costs to Parties Filing Blocking Charges
                                  \726\
------------------------------------------------------------------------
 
------------------------------------------------------------------------
No. of Cases.................................................        223
Maximum cost of changes without post-election litigation or      $622.88
 blocking charges............................................
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 post-election 
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

[[Page 74467]]

 
Maximum cost of changes without post-election litigation or      $622.88
 blocking charges)...........................................
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 Sec.  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, 
Sec.  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 x $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:
---------------------------------------------------------------------------

    \727\ The 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.

 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      $622.88
 blocking charges............................................
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.
---------------------------------------------------------------------------

    \728\ These 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.
    \729\ The 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  102.64, focusing the hearing on its statutory purpose, 
and overruling Barre-National, will substantially reduce needless 
testimony. New provision Sec.  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, Sec.  102.67 of the final rule revises the deadline for 
seeking Board

[[Page 74468]]

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, Sec.  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 Sec.  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:

    <bullet> Except as provided in paragraph (2), this subchapter 
shall not apply to the collection of information--
    [cir] during the conduct of--
    [cir] an administrative action or investigation involving an 
agency against specific individuals or entities;
    <bullet> 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

[[Page 74469]]

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\
---------------------------------------------------------------------------

    \730\ See, 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).
    \731\ See, 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).
    \732\ See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 
(1941).
    \733\ Similarly, 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \734\ See 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).
---------------------------------------------------------------------------

    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

[[Page 74470]]

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 collective-
bargaining 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 
petitioned-for 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 pre-election 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

[[Page 74471]]

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 pre-election 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

[[Page 74472]]

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 post-election 
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 post-
election 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

[[Page 74473]]

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 post-hearing 
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

[[Page 74474]]

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 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 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.

[[Page 74475]]

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 Sec.  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 post-election 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.


[[Page 74476]]


    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

0
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]

0
2. Remove and reserve subpart C, consisting of Sec. Sec.  101.17 
through 101.21.

Subpart D--Unfair Labor Practice and Representation Cases Under 
Sections 8(b)(7) and 9(c) of the Act

0
3. Revise Sec.  101.23 to read as follows:


Sec.  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 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.
---------------------------------------------------------------------------

    (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.

0
4. Revise Sec.  101.25 to read as follows:


Sec.  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

0
5. Revise Sec.  101.26 to read as follows:


Sec.  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

[[Page 74477]]

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.

0
6. Revise Sec.  101.28 to read as follows:


Sec.  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.
0
7. Revise Sec.  101.29 to read as follows:


Sec.  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.

0
8. Revise Sec.  101.30 to read as follows:


Sec.  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

0
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
---------------------------------------------------------------------------

    \2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the 
Act is governed by subpart D of this part.

0
10. Revise Sec.  102.60 to read as follows:


Sec.  102.60  Petitions.

    (a) Petition for certification or decertification. A petition for

[[Page 74478]]

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 Sec.  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 Sec.  102.114(i) need not file an 
original. Except as provided in Sec.  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.

0
11. Revise Sec.  102.61 to read as follows:


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.

    (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

[[Page 74479]]

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.

0
12. Revise Sec.  102.62 to read as follows:


Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  102.63, 
102.64, 102.65,

[[Page 74480]]

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 Sec. Sec.  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 
Sec.  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 Sec.  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 Sec.  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.

0
13. Revise Sec.  102.63 to read as follows:


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) Investigation; notice of hearing; Notice of Petition for 
Election. (1) After a petition has been filed under Sec.  102.61(a), 
(b), or (c), if no agreement such as that provided in Sec.  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 Sec.  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

[[Page 74481]]

notices if it is responsible for the nondistribution.
    (b)(1) Statement of Position in RC cases. If a petition has been 
filed under Sec.  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 Sec.  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 pre-election 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

[[Page 74482]]

Sec.  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 Sec.  
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 
Sec. Sec.  102.64 through 102.69 whenever applicable, except where the 
unit or certification involved arises out of an agreement as provided 
in Sec.  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 Sec.  102.71. The regional director's dismissal shall be by 
decision, and a request for review therefrom may be obtained under 
Sec.  102.67, except where an agreement under Sec.  102.62(a) is 
involved.

0
14. Revise Sec.  102.64 to read as follows:


Sec.  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 Sec.  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.

0
15. Revise Sec.  102.65 to read as follows:


Sec.  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

[[Page 74483]]

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 Sec.  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 Sec.  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 Sec.  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.

0
16. Revise Sec.  102.66 to read as follows:


Sec.  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

[[Page 74484]]

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 pre-election 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, cross-examining 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 Sec. Sec.  
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.

[[Page 74485]]

    (j) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.

0
17. Revise Sec.  102.67 to read as follows:


Sec.  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 8\1/2\- 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

[[Page 74486]]

filed a request for review of the pre-election 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 Sec.  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 Sec.  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.

0
18. Revise Sec.  102.68 to read as follows:


Sec.  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.

0
19. Revise Sec.  102.69 to read as follows:


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.

    (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

[[Page 74487]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 
Sec. Sec.  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 Sec. Sec.  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 Sec.  102.62(b), or by a 
direction of election issued following any proceeding under Sec.  
102.67, the parties shall have the right to Board review set forth in 
Sec.  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 
Sec. Sec.  102.62(b) or 102.67, the provisions of Sec.  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

[[Page 74488]]

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 Sec.  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 8\1/2\- 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.

0
20. Revise Sec.  102.71(c) to read as follows:


Sec.  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

0
21. Revise Sec.  102.76 to read as follows:


Sec.  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 
Sec. Sec.  102.60 and 102.61, insofar as applicable, except that if a 
charge under Sec.  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.

0
22. Revise Sec.  102.77(b) to read as follows:


Sec.  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 Sec.  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

[[Page 74489]]

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 Sec. Sec.  102.63 through 102.68 inclusive.

Subpart E--Procedure for Referendum Under Section 9(e) of the Act

0
23. Revise Sec.  102.83 to read as follows:


Sec.  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 Sec.  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 
Sec.  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.

0
24. Amend Sec.  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:


Sec.  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.

0
25. Revise Sec.  102.85 to read as follows:


Sec.  102.85  Investigation of petition by regional director; consent 
referendum; directed referendum.

    Where a petition has been filed pursuant to Sec.  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.

0
26. Revise Sec.  102.86 to read as follows:


Sec.  102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following 
the hearing shall be governed, insofar as applicable, by Sec. Sec.  
102.63 through 102.68 inclusive.

Subpart I--Service and Filing of Papers

0
27. Revise Sec.  102.112 to read as follows:


Sec.  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 Sec.  102.111.

0
28. Revise Sec.  102.113(d) to read as follows:


Sec.  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.
* * * * *

0
29. Revise Sec.  102.114(a), (d), and (g) to read as follows:


Sec.  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

[[Page 74490]]

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 Sec.  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 8\1/2\- 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 Cross-
Exceptions; 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

0
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

0
31. Revise Sec.  103.20 to read as follows:


Sec.  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