[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Rules and Regulations]
[Pages 80138-80189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32642]



[[Page 80137]]

Vol. 76

Thursday,

No. 246

December 22, 2011

Part IV





National Labor Relations Board





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29 CFR Parts 101 and 102





 Representation--Case Procedures; Final Rule

  Federal Register / Vol. 76 , No. 246 / Thursday, December 22, 2011 / 
Rules and Regulations  

[[Page 80138]]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101 and 102

RIN 3142-AA08


Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: On June 22, 2011, the National Labor Relations Board (the 
Board) issued a Notice of Proposed Rulemaking proposing various 
amendments of its rules and regulations governing the filing and 
processing of petitions relating to the representation of employees for 
purposes of collective bargaining with their employer. This document 
explains which of the proposed amendments the Board is adopting at this 
time in the final rule and sets forth the Board's responses to comments 
concerning those proposals.
    The Board believes that the final rule will reduce unnecessary 
litigation in representation cases and thereby enable the Board to 
better fulfill its duty to expeditiously resolve questions concerning 
representation. The final rule will also save time and resources for 
the parties and the agency. The final rule will focus pre-election 
hearings on those issues relevant to determining if there is a question 
concerning representation, provide for pre-election briefing only when 
it will assist the decision makers, reduce piecemeal appeals to the 
Board, consolidate requests for Board review of regional directors' 
pre- and post-election determinations into a single, post-election 
request, make Board review of post-election regional determinations 
discretionary, and eliminate duplicative regulations. The final rule 
will allow the Board to more promptly determine if there is a question 
concerning representation and, if so, to resolve it by conducting a 
secret-ballot election and certifying the results.

DATES: This rule will be effective on April 30, 2012.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, 1099 14th Street NW., 
Washington, DC 20570, (202) 273-1067 (this is not a toll-free number), 
1-(866) 315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

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.
    The Act itself sets forth only the basic steps for resolving a 
question of representation. First, a petition is filed by an employee, 
a labor organization, or an employer. Second, if there is reasonable 
cause, a 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. Third, if there is 
such a question, an election by secret ballot is conducted. Fourth, the 
results of the election are certified.
    Aside from these general requirements, however, the statute says 
very little about representation case procedures. Instead, Congress 
left these procedures within the broad discretion of the Board.
    The Board has exercised this discretion through two mechanisms. 
First, the Board has promulgated binding rules of procedure, most of 
which are found in 29 CFR part 102, subpart C. Second, the Board has 
interpreted and occasionally altered or created its representation case 
procedures through adjudication.\1\ In addition, the Board's General 
Counsel has prepared a non-binding Casehandling Manual describing 
representation case procedures in detail. The relevant sections of the 
Casehandling Manual are Sections 11000 through 11886.\2\
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    \1\ See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 770, 
777, 779 (1969).
    \2\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings.
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    Within the framework of the current rules, the Board, the General 
Counsel and the agency's regional directors \3\ have sought to achieve 
efficient, fair, uniform, and timely resolution of representation 
cases. But under the current rules, inefficiency, abuse of the process, 
and delay still hamper resolution of many questions of representation.
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    \3\ Pursuant to Section 3(b) of the Act, the Board has delegated 
to its regional directors the authority to conduct pre-election 
hearings, to determine whether questions of representation exist, to 
direct elections, and to certify election results. 29 U.S.C. 153(b). 
The General Counsel administratively oversees the regions. 29 U.S.C. 
153(d).
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    In this final rule, the Board makes eight amendments to its 
regulations governing representation case procedures. The amendments 
are intended to eliminate unnecessary litigation, delay, and 
duplicative regulations. The final rule follows an extensive 
consultation with the public initiated by the Board's Notice of 
Proposed Rulemaking (NPRM) on June 22, 2011. 76 FR 36812. As explained 
below, the final rule adopts some of the proposed amendments and leaves 
the remainder for further deliberation.

A. Summary of Current Procedures \4\
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    \4\ For a more complete discussion and citations, see the NPRM. 
76 FR 36812.
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    When an employee, union, employer, individual, or organization 
wants the Board to determine whether employees wish to bargain 
collectively through a union, that party must file, in the Board's 
regional office, a petition, which the regional director then serves on 
other interested parties. An employee or union petitioner must also, 
ordinarily, provide evidence that a substantial number of employees 
support the petition. Board agents then conduct an ex parte 
investigation to determine if there is enough interest to justify 
further processing of the petition.
    In further processing, three general types of disputes can arise 
among the parties. First are pre-election disputes. These may concern 
whether the employees at issue may be represented as a group--that is, 
whether they are ``an appropriate unit.'' At this stage, the parties 
may also disagree about the Board's jurisdiction, whether an election 
is barred by the Act or Board law, and the time, place, and other 
details of the election itself.
    Second, disputes can also arise during the election about whether 
particular persons are eligible to vote. These disputes arise through 
``challenges'' to the disputed individuals' ballots. When this occurs, 
the ballots of challenged voters are segregated from the other ballots 
in a manner that will not disclose the voters' identity.
    Third, disputes can arise after the election about whether actions 
of the parties or the Board agents--or some other circumstance--made 
the election unfair. These disputes are brought before the Board by the 
filing of ``objections.''
    In the vast majority of cases, the parties, often with Board agent 
assistance, are able to resolve pre-election disputes without 
litigation. In these cases, either a ``consent''

[[Page 80139]]

agreement or a ``stipulation'' agreement is entered into. Both kinds of 
agreements fully resolve pre-election disputes, but in a consent 
agreement the parties also waive the right to Board review of the 
regional director's disposition of any challenges or objections, while 
in a stipulation agreement the parties provide for Board disposition of 
such disputes.\5\
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    \5\ In the alternative, a third type of agreement, called a 
``full consent'' agreement, may also be entered into. This occurs 
when the parties disagree about pre-election issues but are willing 
to permit the regional director to resolve them as well as any post-
election disputes with finality. Full consent agreements are rare.
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    If no agreement on pre-election issues can be reached, a hearing 
must be held. The hearing officer, the Board agent in charge of the 
hearing, takes evidence relevant to the issues in dispute, and the 
parties often file briefs. The regional director then issues a 
decision, either dismissing the petition or directing an election. The 
regional director does not have to resolve all voter eligibility 
questions before the election, but can defer those questions by 
permitting employees whose eligibility is disputed to vote subject to 
challenge.
    If an election is directed, the regional director typically 
schedules it no sooner than 25 days after the decision, so that the 
Board can rule on any interlocutory request for review that might be 
filed. Such interlocutory requests are rarely granted, still more 
rarely result in the regional director's decision being reversed, and 
virtually never result in elections being stayed. If the Board does not 
rule on the request before the election date, the election is held, and 
the ballots are impounded pending a Board ruling.
    After the regional director's decision directing an election, the 
employer must provide the regional office a list of eligible voters and 
their home addresses. The regional office gives the list to the 
parties. The parties use the list for two purposes: To communicate with 
eligible voters about the election, and to determine whether to 
challenge a particular voter.
    Elections are decided by a majority of the valid votes cast. As 
mentioned, during the election, the parties may challenge ballots cast 
by voters. A tally of ballots generally takes place shortly after the 
polls close. If the challenged ballots are too few in number to change 
the outcome of the election, the challenges will not be litigated or 
resolved.
    Within one week after the tally, parties may file objections with 
the regional director. Within one additional week, the objecting party 
must furnish evidence in support of its objections.
    The regional director has discretion to investigate any potentially 
determinative challenges or objections or to immediately direct a 
hearing. If the director conducts an investigation, he will set a 
hearing only if the challenges or objections raise substantial and 
material questions of fact. If no hearing is held, the regional 
director will issue a supplemental decision or a report disposing of 
the challenges or objections.
    If a post-election hearing is held, the parties have the 
opportunity to present evidence to a hearing officer. The hearing 
officer will issue a report resolving any credibility issues and 
containing findings of fact and recommendations.
    In cases involving consent elections, the regional director's 
rulings on challenges and objections are final. In cases involving 
stipulated elections or elections directed by a regional director, the 
parties generally have the right to obtain review by the Board, by 
filing exceptions to the report disposing of the objections and/or 
challenges. If a regional director directs an election and subsequently 
determines that the challenges or objections warrant a hearing, the 
regional director may direct that the hearing officer's recommendation 
be made directly to the Board, in which case a party has the right to 
Board review. On the other hand, if the regional director orders that 
the hearing officer's recommendations be made directly to him or her, 
parties can file exceptions to the hearing officer's report to the 
regional director, but thereafter can seek Board review of the regional 
director's determination only through the discretionary request-for-
review procedure. Similarly, if the regional director decides to 
resolve the challenges and objections without directing a hearing, he 
or she can choose to issue a report, in which case parties have a right 
to Board review, or the regional director can choose to issue a 
supplemental decision, in which case parties may only request Board 
review. By contrast, if the parties enter into a stipulated election 
agreement, the parties are entitled to Board review of the regional 
director's or hearing officer's disposition of the post-election 
matters.

B. Problems Identified and Amendments Proposed

    The Board published an NPRM on June 22, 2011, 76 FR 36812, 
proposing a number of changes to these procedures. These proposals are 
set forth at length in the NPRM. The purpose of this brief summary is 
to introduce the more complete discussion of the final rule. The 
proposed amendments are presented in the chronological order of a 
typical representation case.
    First, under current procedures, the petitioner must file the 
petition in hard copy. The Board proposed to also permit electronic 
filing of the petition.
    Second, under current procedures, the petition is filed by the 
petitioner and then served by the regional office on the other 
interested parties. The Board proposed that the petitioner would 
directly serve a copy of the petition.
    Third, under current procedures, the petitioner may wait 48 hours 
before providing evidence that the employees support the petition (the 
``showing of interest''). The Board proposed that the petitioner be 
required to file the petition and the showing of interest 
simultaneously. The Board also asked for comments concerning whether 
electronic signatures should be accepted in support of the showing of 
interest.
    Fourth, under current procedures, after a petition is filed, the 
regional director asks the employer to voluntarily post a generic 
notice of employee rights. The Board proposed that the notice describe 
the type of petition that has been filed, the name of the petitioner, 
the petitioned-for unit, and the procedures that will follow, and that 
the employer be required to post the notice.
    Fifth, under current procedures, some regional offices routinely 
schedule pre-election hearings to commence seven days after the 
petition is filed, while other regions wait longer. The Board proposed 
that the regional director set the hearing to commence seven days after 
the filing of the petition absent ``special circumstances.'' The Board 
also proposed that the hearing be continued from day to day absent 
extraordinary circumstances.
    Sixth, under current procedures, prior to or at the opening of the 
pre-election hearing, regional personnel typically ask the parties what 
position they will take on the common subjects of pre-election 
disputes, such as jurisdiction, the appropriateness of the proposed 
unit, and any bars to an election. The Board proposed that non-
petitioning parties be required to file, no later than the opening of 
the hearing, a statement of position setting forth their position on 
these issues. The Board also proposed that the employer's statement 
include a list of employees in the petitioned-for unit.
    Seventh, under current procedures, the hearing officer may ask the 
parties to clarify their positions on issues

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potentially in dispute. Although the hearing officer can prohibit a 
party from introducing evidence when it refuses to take a position on 
an issue, hearing officers' practice is not uniform. The Board proposed 
that the hearing process be made uniform through use of the following 
procedures at the commencement of the pre-election hearing. First, the 
petitioner would have to respond to (or ``join'') the issues raised by 
the other parties in their statements of position. Second, if there is 
a dispute between the parties, each would describe what evidence they 
would introduce in support of their position. The hearing officer would 
not permit a party to present evidence related to an issue concerning 
which the party had failed to take a position or concerning which there 
was no genuine dispute of material fact. However, parties could contest 
individual employees' eligibility or inclusion for the first time 
through a challenge during the election. In addition, the petitioner 
would be permitted to present evidence relevant to the appropriateness 
of the unit even if the non-petitioning parties declined to take a 
position on that issue. Finally, any party could contest the Board's 
jurisdiction at any time.
    Eighth, under current procedures, the hearing officer takes 
evidence at the pre-election hearing on any individual eligibility 
issue raised, even though these issues need not be decided pre-
election, and the regional director and Board commonly defer resolution 
of the issues until after the election via the challenge procedure. The 
Board proposed that the hearing officer exclude evidence relevant only 
to individual employees' voting eligibility or inclusion in the unit, 
subject to an exception where the dispute involves a total of more than 
20 percent of the unit employees.
    Ninth, under the current procedures, the parties have a right in 
most kinds of cases to file post-hearing briefs at any time up to seven 
days after the close of the hearing. The Board proposed to vest the 
hearing officer with discretion concerning whether to permit post-
hearing briefs and, if permitted, over their contents and timing.
    Tenth, under current procedures, after the pre-election hearing the 
regional director can choose to transfer the case to the Board without 
deciding it. The Board proposed to eliminate the transfer procedure.
    Eleventh, under current procedures, if the regional director 
directs an election, the parties are required to request Board review 
within 14 days or they waive the right to later raise any issues that 
could have been raised at that time. The Board proposed to eliminate 
the requirement to request review before the election, instead 
permitting the request to be filed after the election and consolidated 
with any request for review of the regional director's disposition of 
post-election challenges and objections.
    Twelfth, under current procedures, parties can request special 
permission to appeal both from a ruling of the hearing officer to the 
regional director and from a ruling of the hearing officer or the 
regional director to the Board, but the regulations establish no 
standard for the grant of such requests. The Board proposed a strict 
standard for the grant of such requests.
    Thirteenth, under current procedures, the regional director is 
instructed not to schedule an election sooner than 25 days after his or 
her decision, so that the Board can rule on any interlocutory request 
for review that might be filed. The Board proposed to eliminate the 25-
day waiting period.
    Fourteenth, under current procedures, the employer must give the 
region a list of eligible voters within seven days of the regional 
director's decision, and the region then gives the list to the other 
parties. The Board proposed to codify this requirement, to shorten the 
time to two days, and to provide for direct service by the employer on 
the other parties.
    Fifteenth, under current procedures, the eligibility list contains 
only names and home addresses. The Board proposed that the list should 
also include available telephone numbers and email addresses, as well 
as the work location, shift, and classification for each employee.
    Sixteenth, under current procedures, 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. In 
the NPRM, the Board asked for comments on whether the Board should 
change its blocking charge policy.
    Seventeenth, under current procedures, after the tally of ballots 
from the election, the parties have seven days to file a pleading with 
the regional director specifying any objections. Objecting parties then 
have an additional seven days to describe the evidence supporting their 
objections. The Board proposed that the offer of proof be filed 
simultaneously with the objections.
    Eighteenth, under current procedures, regional directors have 
discretion over the scheduling of a hearing concerning challenges or 
objections. The Board proposed that the hearing be held fourteen days 
after the tally of ballots, or as soon as practicable thereafter.
    Nineteenth, under current procedures, in most instances, parties 
have a right to appeal a regional director's or hearing officer's 
disposition of challenges or objections to the Board. The Board 
proposed to make Board review of post-election regional dispositions 
discretionary, as is the case with pre-election rulings.
    Twentieth, the current regulations are redundant in a number of 
places and located in various parts of Title 29 of the Code of Federal 
Regulations. The Board proposed to eliminate redundant regulations and 
consolidate and reorganize the regulations so that they may be more 
easily understood.

C. The Final Rule and a Concise, General Statement of Its Basis and 
Purpose

    As explained in the NPRM, the Board proposed various revisions to 
its rules and regulations to further ``the Act's policy of 
expeditiously resolving questions concerning representation'' \6\ and 
to better ensure ``that employees' votes may be recorded accurately, 
efficiently and speedily.'' \7\ Over 65,000 public comments were filed 
in response to the NPRM. Many of the comments focused primarily on a 
few of the proposed amendments, most notably the proposed changes 
concerning the scheduling of the pre-election hearing, the requirement 
of a statement of position, and the content and timing of eligibility 
lists. In light of this commentary, further Board deliberation 
concerning those proposals (and some others) is necessary at this time. 
However, a number of the proposals were less controversial. The Board 
has had the opportunity to fully consider all the comments and to 
deliberate concerning the proposed amendments and believes it is 
appropriate to adopt some of the proposals in this final rule and leave 
the others for further consideration. The Board considers the 
amendments adopted in this final rule to be severable from the 
remainder of the proposals, and from each other.\8\
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    \6\ Northeastern University, 261 NLRB 1001, 1002 (1982), 
enforced, 707 F.2d 15 (1st Cir. 1983).
    \7\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
    \8\ Each of the major changes adopted in this final rule is 
independently justified, and thus the Board has decided to adopt 
each of them, while also deciding to deliberate further on the 
remaining proposals. Although, at a very high level of generality, 
the various proposals in the NPRM shared a common purpose to improve 
``efficiency,'' in fact, each of the proposals addressed discrete 
sources of inefficiency in the rules, and it is clear that the 
amendments will serve their functions whether adopted in whole or in 
part, together or one at a time. For this reason as well, each of 
the amendments in this final rule would be adopted by the Board 
independently of the others.

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    For the reasons explained below, the Board has decided to adopt the 
following eight proposals at this time.
    First, the Board has decided to amend Sec.  102.64 in order to 
expressly construe Section 9(c) of the Act and to state that the 
statutory purpose of a pre-election hearing is to determine if a 
question of representation exists. Second, the Board has decided to 
amend Sec.  102.66(a) and eliminate Sec.  101.20(c) (along with all of 
Part 101, Subpart C) in order to ensure that hearing officers presiding 
over pre-election hearings have the authority to limit the presentation 
of evidence to that which supports a party's contentions and which is 
relevant to the existence of a question concerning representation. 
Third, the Board has decided to amend Sec.  102.66(d) to afford hearing 
officers presiding over pre-election hearings discretion over the 
filing of post-hearing briefs, including over the subjects to be 
addressed and the time for filing. Fourth, the Board has decided to 
amend Sec. Sec.  102.67 and 102.69 to eliminate the parties' right to 
file a pre-election request for review of a regional director's 
decision and direction of election, and instead to defer all requests 
for Board review until after the election, when any such request can be 
consolidated with a request for review of any post-election rulings. 
Fifth, the Board has decided to eliminate the recommendation in Sec.  
101.21(d) (as stated, along with all of Part 101, Subpart C) that the 
regional director should ordinarily not schedule an election sooner 
than 25 days after the decision and direction of election in order to 
give the Board an opportunity to rule on a pre-election request for 
review. Sixth, the Board has decided to amend Sec.  102.65 to make 
explicit and narrow the circumstances under which a request for special 
permission to appeal to the Board will be granted. Seventh, the Board 
has decided to amend Sec. Sec.  102.62(b) and 102.69 to create a 
uniform procedure for resolving election objections and potentially 
outcome-determinative challenges in stipulated and directed election 
cases and to provide that Board review of regional directors' 
resolution of such disputes is discretionary. Eighth, as mentioned, the 
Board has decided to eliminate part 101, subpart C of its regulations, 
which is redundant. The remainder of the amendments merely conform 
other sections of the Board's Rules and Regulations to the eight 
amendments described above. The Board has concluded, after careful 
review of all public comments and after deliberation, that adopting 
those eight proposals in a final rule will eliminate wholly unnecessary 
litigation and delay in the processing of petitions filed under Section 
9 of the Act and thus in the resolution of questions of 
representation.\9\
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    \9\ The Board has not, in each instance, adopted the precise 
rule language proposed in the NPRM. To the extent alternative 
language has been adopted in the final rule, the Board sets forth 
its rationale in Part IV below.
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    The current rules have been interpreted to give parties a right to 
present evidence at a pre-election hearing relating to matters that 
need not be addressed in order for the hearing to fulfill its statutory 
function of creating a record based on which the regional director can 
determine if there is a question of representation that should be 
answered via an election. Furthermore, the current rules have been 
understood to give parties a right to present evidence at a pre-
election hearing concerning such matters even though neither the 
regional director nor the Board must address those matters prior to the 
election, and a decision on such matters is commonly deferred until 
after the election. In other words, such litigation is wholly 
unnecessary prior to an election. Moreover, the issues in dispute in 
such litigation are often rendered moot by the election results or 
resolved by the parties post-election, thus eliminating the need for 
litigation of the issues. Therefore, the Board has determined that 
amending Sec.  102.64(a) to expressly construe the statutory purpose of 
the hearing and amending Sec.  102.66(a) to vest hearing officers with 
authority to limit the presentation of evidence to that supporting a 
party's contentions and relevant to the existence of a question 
concerning representation will eliminate unnecessary litigation and 
delay.
    After the pre-election hearing, the filing of post-hearing briefs 
often delays issuance of the regional director's decision and direction 
of election, thereby delaying resolution of the question of 
representation even when the issue or issues in dispute can be 
accurately and fairly resolved without briefing. Given the recurring 
and often familiar and uncomplicated legal and factual issues arising 
in pre-election hearings, the filing of briefs, which also imposes 
financial costs on the parties, is not necessary in every case to 
permit the parties to fully and fairly present their positions or to 
facilitate prompt and accurate decisions. Therefore, the Board has 
decided to amend Sec.  102.66(d) to vest hearing officers presiding 
over pre-election hearings with authority to provide for the filing of 
post-hearing briefs only in those instances when they would be of 
assistance to the decision-maker and to control the subjects addressed 
in, and the time for filing of, any such briefs. The Board has 
determined that amending the rules to give the hearing officer 
discretion to permit the filing of post-hearing briefs will eliminate 
unnecessary expense and delay.
    The Board's current rules require parties to file a request for 
review of the regional director's decision and direction of election 
before the election is held in order to preserve their right to raise 
disputed issues in post-election proceedings, even though the issues in 
dispute are often rendered moot by the election results or resolved by 
the parties post-election thus eliminating the need for litigation of 
the issues at any time. The pre-election request for review procedure 
is inconsistent with judicial procedures, which limit interlocutory 
appeals in order to avoid unnecessary litigation and delay. In 
addition, Sec.  101.21(d) of the Board's current Statements of 
Procedure provides that elections ``normally'' are delayed for a period 
of at least 25 days after the regional director directs that an 
election should be conducted, ``to permit the Board to rule on any 
request for review which may be filed.'' This provision effectively 
stays the conduct of all elections for at least 25 days despite 
Congress's instruction in Section 3(b) of the Act that even the grant 
of review by the Board ``shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
director.'' Furthermore, even in the cases in which a request for 
review is filed, review is granted only rarely and the Board almost 
never stays the conduct of the election either before or after granting 
review, instead permitting employees to vote and then impounding the 
ballots. For these reasons, the waiting period unnecessarily delays the 
resolution of questions of representation in all cases, and the delay 
is not justified by the only purpose articulated in the Board's 
Statements of Procedure. Therefore, the Board has determined that 
amending the rules to defer the right to file requests for review of 
the direction of the election until after the election and to eliminate 
the mandatory waiting period will eliminate unnecessary litigation and 
delay.
    Consistent with the effort to avoid piecemeal appeals to the Board, 
the Board has also decided to amend Sec.  102.65 to provide that a 
request for special permission to appeal to the Board will only be 
granted under

[[Page 80142]]

extraordinary circumstances, when it appears that the issue will 
otherwise evade review. To further discourage piecemeal appeals, the 
amendments provide 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 amendments provide that neither 
the filing of a request for special permission to appeal nor the grant 
of such a request will stay an election or any other action or require 
impounding of ballots unless specifically ordered by the Board. The 
Board has determined that narrowing the circumstances under which a 
request for special permission to appeal will be granted will eliminate 
unnecessary litigation and delay.
    Under the current rules, the nature of Board review of a regional 
director's disposition of pre- and post-election disputes varies, but 
for no articulated reason. Pre-election review is discretionary, while 
post-election review is ordinarily mandatory. This is the case even 
though many post-election disputes raise no question of policy and 
often turn on the application of well-established principles of law to 
particular facts. In addition, the procedures for post-election review 
vary from case to case even though the nature of the issues is the 
same. Therefore, the Board has decided to amend Sec. Sec.  102.62(b) 
and 102.69 to create a uniform procedure in both stipulated and 
directed election cases, whereby parties may file exceptions to any 
hearing officer's report with the regional director, and file a request 
for review of the regional director's disposition of the post-election 
matters with the Board. That request may be consolidated with a request 
for review of the regional director's decision and direction of 
election, if any. Permitting the Board to deny review when a party's 
request raises no compelling grounds for review will eliminate the most 
significant source of administrative delay in achieving finality of 
election results. The Board has determined that amending the rules to 
create this uniform procedure for handling pre- and post-election 
disputes will eliminate unnecessary litigation and delay.
    Finally, the Board currently has two sets of regulations describing 
its procedures in representation cases, one in Part 102, Subpart C of 
its Rules and Regulations and the other in Part 101, Subpart C of its 
Statements of Procedure. 29 CFR Part 102, Subpart C; 29 CFR Part 101, 
Subpart C. The two sets of regulations are almost entirely redundant. 
This redundancy is a potential source of confusion. The Board has 
determined that eliminating Part 101, Subpart C will reduce such 
confusion.

II. The Rulemaking Process

A. A Brief History of Board Rulemaking

    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 since they were published in the very first volume of the Federal 
Register, 1 FR 207 (April 18, 1936), and has only rarely utilized the 
Administrative Procedures Act's notice-and-comment rulemaking 
procedures; most often the Board simply implemented the changes 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, a practice that has occasionally drawn the ire of academic 
commentators and the courts.\10\
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    \10\ 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 (1970); Samuel Estreicher, Policy Oscillation 
at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 
(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 (1973); Charles J. Morris, The NLRB 
in the Dog House--Can an Old Board Learn New Tricks?, 24 San Diego 
L. Rev. 9 (1987); Cornelius Peck, The Atrophied Rulemaking Powers of 
the National Labor Relations Board, 70 Yale L.J. 729 (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 (1968); David L. Shapiro, The Choice 
of Rulemaking or Adjudication in the Development of Administrative 
Policy, 78 Harv. L. Rev. 921 (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.
---------------------------------------------------------------------------

    The Board has thus asked for public comments on few proposed rules 
of any kind. A review of prior Board rulemaking procedures reveals that 
the Board has not held a public hearing attended by all Board Members 
for at least half a century. 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. In fact, even 
in the course of adjudication, the Board has not held oral argument 
since 2007 and has held only two oral arguments in the last decade. The 
last open meeting of the Board, prior to the open meeting on November 
30, 2011, to discuss and vote on whether to adopt any of the proposed 
amendments in a final rule in this proceeding, was held in 1989 and 
also concerned the acute care hospital bargaining-unit rule.

B. The Process of This Rulemaking

    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, and announced a public hearing to be held on July 18 
and 19, 2011. The Board issued press releases about the proposals and 
hearings, and placed summaries, answers to frequently asked questions, 
and other more detailed information on its Web site (www.nlrb.gov).
    The Board Members also held two days of hearings in Washington, DC, 
on July 18 and 19, 2011, where 66 individuals representing diverse 
organizations and groups gave oral statements and answered questions 
asked by the Board Members. The purpose of all of these procedures was 
to give the Board the benefit of the views of the public. In this the 
Board was quite successful, receiving 65,958 written comments and 
taking 438 transcript pages of oral testimony.
    Nonetheless, a number of comments criticize the Board's process: 
Some claim there should have been some pre-notice-and-comment notice 
and opportunity to comment; some criticize the length of the hearing (2 
full days), the location of the hearing (Washington, DC), or the timing 
of the hearing (halfway through the comment period); some criticize the 
length of the comment periods (60 days plus 14 days).
1. The Pre-NPRM Process
    The comment of the Chamber of Commerce of the United States of

[[Page 80143]]

America (the Chamber) provides a representative example of criticism of 
the 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.\11\
---------------------------------------------------------------------------

    \11\ 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).
---------------------------------------------------------------------------

    The Board continues to believe that it has followed a lawful, fair, 
and open process that succeeded in eliciting broad and informed public 
participation to a greater extent than ever before in connection with 
the Board's representation (or unfair labor practice) case procedures.
    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 American Hospital Association (AHA), the 
Board is not directly subject to E.O. 13563, nor is its language 
pertaining to pre-NPRM procedures mandatory in any event. As explained 
in the NPRM, in this instance, the Board concluded that beginning the 
process of public comment by issuing a NPRM would be the most effective 
method of proceeding.
    The course of proceedings since issuance of the NPRM has confirmed 
the Board's initial judgment. The notice of the two-day public hearing 
published in the Federal Register on June 27, 2011, specifically 
invited interested members of the public to appear and comment on the 
proposals set forth in the NPRM and to ``make other proposals for 
improving representation case procedures.'' 76 FR 37291. Yet at the 
public hearing, while the Board heard a considerable amount of valuable 
testimony concerning the specific proposals in the NPRM, it received 
almost no suggestions unrelated to those proposals. Similarly, in the 
NPRM, while the Board proposed specific rule language related to most 
of the problems it identified, in several areas the Board identified a 
problem or question and invited comment without proposing specific rule 
language. For example, the Board specifically invited comments on 
whether the Board should take any action related to the use of 
electronic signatures in relation to the showing of interest supporting 
certain forms of petitions. 76 FR 36812, 36819. The Board also 
specifically invited comments ``on whether any final amendments should 
include changes in the current blocking charge policy.'' 76 FR 36812, 
36827. The NPRM specifically invited comments on whether the Board 
should change that policy in several respects or leave the policy 
unchanged. Id. While the Board received many meaningful comments on the 
specific proposals in the NPRM, it received very few comments in 
response to the more open-ended inquiries, and the comments that were 
received were less specific and less helpful in analyzing the 
procedural questions at stake.
    The Board also is doubtful about 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 both at 
the public hearing and in the comments, the Board continues to believe 
that following the notice-and-comment procedures set forth in the 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 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.
    In sum, the Board's pre-NPRM process was lawful and appropriate.
2. The Length, Timing, and Location of the Hearing
    The Board Members held a two-day public hearing in Washington, DC, 
approximately halfway through the initial comment period, i.e., about 
one month after publication of the NPRM and one month before the 
initial comment period closed. All Board Members heard five-minute 
statements from 66 individuals, representing diverse organizations and 
groups, and then actively questioned the speakers for an additional 
period of time.\12\ This hearing was not legally required.
---------------------------------------------------------------------------

    \12\ After the public hearing, the transcript of each speaker's 
testimony along with any Board questioning of the speaker was made 
part of the record of the rulemaking as a separate comment. Any such 
testimony discussed in this final rule is cited as follows: 
``Testimony of [name of speaker].''
---------------------------------------------------------------------------

    Some comments compare this proceeding to the hospital unit 
rulemaking and essentially argue that the Board should have held 14 
days of hearings around the country over the course of years.\13\ For 
example, the National Association of Manufacturers (NAM)--and many 
nearly identical form comments by member companies--claim that the 
``relative rush'' of these hearings ``is a departure from past Board 
practice that will result in both an inadequate opportunity for 
stakeholders to address the merits of the rules and inadequate 
information and data for the Board to make a prudential judgment 
regarding the rules.''
---------------------------------------------------------------------------

    \13\ See, e.g., Coalition for a Democratic Workplace (CDW); 
Council on Labor Law Equality (COLLE); SHRM. By contrast, scholars 
have described the Board's procedures in the earlier rulemaking as 
``procedural overkill.'' See Mark H. Grunewald, The NLRB's First 
Rulemaking: An Exercise in Pragmatism, 41 Duke L. J. 274, 319 
(1991).
---------------------------------------------------------------------------

    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. The procedures the Board has employed in 
order to obtain public input on proposed rules have, in fact, varied 
considerably, and the Board has substantial discretion to use 
procedures suited to the matter under consideration. Indeed, the Board 
has adopted amendments to its representation case procedures without 
any notice or opportunity for comment or with opportunities 
considerably more

[[Page 80144]]

limited than in the instant matter.\14\ In contrast to the subject 
matter of the acute care hospital unit proceeding, the proposals at 
issue in this proceeding involve a matter uniquely within the Board's 
own expertise: the operation of the Board's own procedural rules.
---------------------------------------------------------------------------

    \14\ In its run-off election rulemaking proceedings, for 
example, the Board provided only two weeks for comments, with a 
short hearing on the final day of the comment period. 8 FR 10031-32 
(1943).
---------------------------------------------------------------------------

    The Board believes that the hearing not only exceeded the 
requirements of the APA, it was fair, appropriate, and useful. Holding 
the hearing in Washington, DC was appropriate because many of the 
Board's major stakeholders are either headquartered in DC or are 
represented by counsel in the city or who frequently appear in the 
city.\15\
---------------------------------------------------------------------------

    \15\ No party informed the Board that it wished to appear at the 
hearing but was unable to send a representative to Washington, DC.
---------------------------------------------------------------------------

    The hearing was also properly noticed and appropriately timed 
during the initial comment period. The NPRM was published on June 22, 
2011, and informed the public that the Board intended to hold a public 
hearing on July 18 and 19. A subsequent notice published in the Federal 
Register on June 27, 2011 informed the public of the details of the 
hearing. 76 FR 37291. In fact, the Board accommodated all parties who 
wished to appear at the hearing, even those whose requests to appear 
were made after the deadline.\16\ That the public notice was sufficient 
to permit interested parties to appear is evidenced by the fact that 66 
individuals appeared at the hearing, representing many major management 
and labor organizations as well as many other groups. No individual or 
organization informed the Board that it was unable to participate due 
to the shortness of time between the June 22 and June 27 notices and 
the hearing. The two-day hearing was held about a month after the NPRM 
was published, giving participants adequate time to carefully read the 
proposal, consult with each other and with clients, and develop 
detailed positions. And the five minutes that speakers were given 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. In total, the hearings 
resulted in more than 400 pages of transcript (promptly made available 
to the public on the Board's Web site \17\). The Board found that the 
speakers provided informed, thorough, and thoughtful analysis, and the 
back-and-forth dialogue with the Board Members demonstrated the wide-
ranging familiarity of the speakers with the proposals.
---------------------------------------------------------------------------

    \16\ The Board did, however, limit organizations to presenting 
one speaker at the hearing.
    \17\ The hearing was also streamed live on the Board's Web site.
---------------------------------------------------------------------------

    Some comments suggest that the hearing should have been held after 
the comment period closed so that the speakers could address arguments 
presented in the written comments. But holding the hearing first made 
the subsequent written comments more informed, thoughtful, and 
technically sophisticated, and many commenters, 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 than the proposed alternative because 
written comments are better suited to the technical issues at stake and 
thus appropriately came after the public hearing.
    In sum, the Board believes that the two-day public hearing attended 
by all Board Members was highly valuable, was of an appropriate length, 
and was held at an appropriate time and in an appropriate location.
3. The Length and Timing of the Comment Periods
    The Board provided an initial comment period of 60 days beginning 
June 22, followed by a reply comment period of 14 days that ended on 
September 6, 2011. No late comments were accepted.
    COLLE describes the NLRB's comment period as ``the bare-minimum 60-
day[s],'' but 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). Indeed, for procedural rules, such as the final rule 
here, no comment period at all is required.
    Sixty days has become the benchmark period for comments on 
significant substantive rules. Id. Countless NPRMs provide 60 days for 
comments.
    Nevertheless, a number of comments opposing the rule assert that 
the comment period was inadequate. For example, SHRM characterized the 
comment period as ``hurried, abridged and clandestine.'' But the 
Montana Chamber of Commerce--though opposing the rule--states that 
``[t]his 60-day window seems like a very reasonable timeframe to allow 
ample comments and statements from all interested parties, whether they 
are supportive of these sweeping changes or not.''
    In practice, the Montana Chamber of Commerce proved correct on this 
point: 60 days was quite ample. The Board received hundreds of 
detailed, informed, and thoughtful comments. Many were submitted by the 
very same parties that asserted the comment period should have been 
longer, such as the 88-page comment--and hundreds of accompanying 
nearly identical form comments--submitted by SHRM and its members. The 
U.S. Chamber states that it needed more time to ``study Board data'' 
and conduct ``rigorous'' economic analysis. But the Chamber did provide 
detailed discussions of data and many studies in its comment. Although 
the desire for additional time to gather additional support and develop 
arguments is understandable, agencies must set some end to the comment 
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.
    Fourteen days were given for reply comments. The Chamber suggested 
that 14 days was insufficient time to review tens of thousands of 
comments, and noted that some of the comments submitted were not 
available to the public until some time after the close of the initial 
comment period. Neither the APA nor any other law requires an 
opportunity to reply to initial public comments. Moreover, while some 
comments were not available to the public immediately upon the close of 
the initial comment period, the comments that were unavailable were 
largely identical ``postcard comments,'' tens of thousands supporting 
the proposal in general terms, and tens of thousands opposing the 
proposal in general terms.\18\ And the purpose of the reply period was 
not to afford interested

[[Page 80145]]

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

    \18\ By August 24, 2011, the day after the close of the initial 
comment period, 29,236 timely filed initial comments were available 
electronically for review. The Board believes, based on its staff's 
investigation, that initial comments that were not available at that 
time fall into one of three categories: (1) Timely filed form 
letters submitted by the AFL-CIO, (2) timely filed form letters 
submitted by Americans for Prosperity or CDW or mailed by individual 
businesses using a common form, and (3) late-filed comments 
submitted electronically.
---------------------------------------------------------------------------

    This the Chamber and others did quite successfully within the 14 
days provided. For example, 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.
    The over 65,000 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.
4. The Final Rule
    In light of the procedural concerns voiced in some of the comments, 
it seems likely that some stakeholders will believe that the period of 
time between the close of the reply comment period and the issuance of 
the final rule was too short, and that the Board was required to spend 
additional time considering the comments. This concern is suggested by 
NAM in its reply comment, stating that ``failure to give due 
consideration to the public comments would nonetheless render * * * the 
rules * * * arbitrary and capricious * * *. Absent due consideration of 
all the comments, the Board would be unable to certify that it has 
examined and considered all relevant arguments and data.''
    In order to allay this concern, the Board assures all those who 
provided comments that the Board, through its Members personally or 
staff acting at the Members' direction, read every non-duplicative 
comment.\19\ The comments were coded so that all comments addressing 
specific issues could be electronically identified. All specific 
arguments raised in the comments were identified, grouped by subject 
matter, and analyzed. Through this process, the Board has read and 
carefully considered every relevant argument, datum, or suggestion in 
the comments.
---------------------------------------------------------------------------

    \19\ Using electronic means, the Board identified all identical 
comments and read only one of each group of identical comments. More 
than 90 percent of the over 65,000 comments were duplicates, near 
duplicates, devoid of analysis, or irrelevant. In this connection, 
see ACUS 2011-1 ] 1(a)(1): While 5 U.S.C. 553 requires agencies to 
consider all comments received, it does not require agencies to 
ensure that a person reads each one of multiple identical or nearly 
identical comments.
---------------------------------------------------------------------------

    Finally, the Board has decided to take additional time to 
deliberate concerning the majority of the proposals in the NPRM, 
including many of those that generated the most comments and 
controversy.
    The Board thoroughly considered and deliberated about all 
substantive comments relevant to the final rule.
    Some comments expressed the view that the rulemaking procedure 
suggested a fait accompli, or created an appearance of favoritism.\20\ 
Any sense of a fait accompli could have mistakenly arisen only from the 
detailed specificity of most of the proposed amendments, as compared 
with the open-ended queries concerning several subjects. However, as 
explained above, the comments addressing the proposals accompanied by 
proposed rule text and detailed explanation far exceeded in number and 
quality those addressing the open-ended questions unaccompanied by such 
specifics, bearing out the Board's judgment that a more specific 
proposal would promote more useful public participation in the process. 
And contrary to any suggestion of favoritism, the process was 
completely transparent and provided multiple opportunities for any 
member of the public to participate. The process resulted in 
significant changes to the proposed rule as well as a decision not to 
proceed with all the proposals at this time. In short, the process was 
fair, open, and successful.
---------------------------------------------------------------------------

    \20\ See, e.g., CDW; Indiana Chamber of Commerce.
---------------------------------------------------------------------------

5. Board Membership
    Some comments question whether a divided three-member Board can or 
should issue a final rule, arguing that the Board lacks the authority 
to do so or that such action would be contrary to the Board's 
traditions or otherwise imprudent.\21\ Certain comments contend that a 
Board Member serving a recess appointment may not, or should not, 
participate in any action that represents a change in Board law or 
practice.\22\ After careful consideration, the Board rejects these 
arguments.
---------------------------------------------------------------------------

    \21\ See, e.g., Chamber; SHRM; Associated Builders & Contractors 
(ABC).
    \22\ See, e.g., National Grocers Association (NGA); Testimony of 
Harold Weinrich.
---------------------------------------------------------------------------

    Under the National Labor Relations Act, a lawful quorum of the 
Board consists of three Members (out of the five Members provided for 
by the statute). Section 3(b) of the Act expressly provides that:

    A vacancy in the Board shall not impair the right of the 
remaining members to exercise all of the powers of the Board, and 
three members of the Board shall, at all times, constitute a quorum 
of the Board * * *.

29 U.S.C. 153(b). See generally New Process Steel L.P. v. NLRB, ---- 
U.S. ----, 130 S.Ct. 2635, 2639-42 (2010) (analyzing quorum 
requirement). Rulemaking is one of the ``powers of the Board,'' as 
Section 6 of the Act provides. See 29 U.S.C. 156. Adoption of the final 
rule, then, reflects the proper exercise of the Board's powers by the 
majority of a lawful quorum of three Members.
    Nothing in the text of the Act or its legislative history suggests 
that, even if the Board has a lawful quorum, certain Board powers may 
be exercised only if approved by at least three Members. Put somewhat 
differently, there is no statutory basis to argue that a three-Member 
quorum of the Board must act unanimously--as opposed to acting by 
majority vote as is typical--in order properly to exercise the Board's 
powers. During the many periods in which the Board consisted of only 
three Members, including the period since August 27, 2011, it routinely 
has issued non-unanimous decisions in adjudicated cases. See, e.g. 
Arkema, Inc., 357 NLRB No. 103 (Oct. 31, 2011); Allied Mechanical 
Services, Inc., 357 NLRB No. 101 (Oct. 25, 2011).
    The Board does have a tradition of not overruling its own prior 
decisions through adjudication with fewer than three votes to do so. 
See Hacienda Resort Hotel & Casino, 355 NLRB No. 154, slip op. at 2, 2 
n.1 (2010) (concurring opinion of Chairman Liebman and Member Pearce) 
(listing cases dating to 1985). This tradition--which is not unbroken 
\23\--is not based on the Act itself, nor has it been codified in a 
Board rule or statement of procedure.
---------------------------------------------------------------------------

    \23\ See Mathews Readymix, Inc., 324 NLRB 1005, 1008 n. 14 
(1997), enforced, 165 F.3d 74 (DC Cir. 1999) (two-member majority 
overrules precedent); Service Employees Local 87 (Cresleigh Mgmt.), 
324 NLRB 774, 775 n.3 (1997) (same).
---------------------------------------------------------------------------

    While the rationale for this tradition does not appear to have been 
clearly set forth in any Board decision, it was recently articulated by 
a Federal appellate court. In Hacienda Resort, supra--where the Board 
had deadlocked 2-2 and thus decided the case under existing law, 
despite a prior court remand directing reconsideration--the U.S. Court 
of Appeals for the Ninth Circuit reversed the Board's decision, while 
acknowledging the Board's traditional approach to overruling precedent 
in adjudication:

    We recognize the Board's interest in protecting the stability of 
its legal precedent. Unlike other federal agencies, the NLRB

[[Page 80146]]

promulgates nearly all of its legal rules through adjudication 
rather than rulemaking * * *. Under such a scheme, the Board's rules 
would be of little assistance to employers and unions in following 
the NLRA if the Board's rules interpreting the Act were subject to 
routine, frequent change. The Board reasonably has decided that 
requiring a three-member majority to overturn precedent provides for 
the necessary stability of its rules, and we defer to that judgment.

Local Joint Executive Bd. of Las Vegas v. NLRB, 657 F.3d 865, 872 (9th 
Cir. 2011).
    The Ninth Circuit's statement underscores a critical aspect of the 
Board's tradition: It has been followed in the Board's adjudication of 
cases, as opposed to in notice-and-comment rulemaking. The notice-and-
comment process of rulemaking does not implicate the same concerns 
about the stability of legal rules that adjudication does, because it 
does not permit ``routine, frequent change'' in the words of the court. 
The greater stability inherent in notice-and-comment rulemaking has 
been cited by ACUS in recommending increased use of rulemaking by the 
Board. See ACUS, Recommendation 91-5, Facilitating the Use of 
Rulemaking by the National Labor Relations Board (adopted June 14, 
1991), 56 FR 33851 (July 24, 1991).
    Whatever its limited legal weight may be, the Board's traditional 
practice with respect to overruling precedent through adjudication is 
simply not implicated here for several reasons. The final rule is the 
product of notice-and-comment rulemaking, not adjudication. Moreover, 
the final rule reverses no prior Board decisions. It amends rules that 
themselves are not the product of adjudication, and, indeed, were in 
large measure adopted without notice-and-comment rulemaking. Finally, 
the final rule is purely procedural. Procedural rules, governing such 
subjects as whether parties have a right to file a post-hearing brief, 
do not implicate the sorts of reliance interests that underlie the 
Board's tradition. Under all these circumstances, the Board construes 
its unwritten tradition of not overruling precedent in adjudication 
absent three votes to not apply here.
    In addition, the Board rejects the argument that the presence of a 
Member serving on the Board under a recess appointment has any bearing 
on the adoption of the final rule. There is no basis in the Act, in 
administrative law, or in the Constitution for distinguishing between 
Members of the Board serving under a recess appointment and Members 
confirmed by the Senate. The Board itself has no rule, statement of 
procedure, or tradition that would bar a recess appointee from 
participating in an adjudication or a rulemaking or that requires some 
minimum number of Senate-confirmed Members to exercise the Board's 
powers. Notably, the Board has overruled precedent in cases where the 
majority consisted entirely of recess appointees. See MV 
Transportation, 337 NLRB 770 (2002). Recess appointees have been 
essential to a majority vote to overrule precedent in many decisions 
issued by prior Boards. See, e.g., Randall Warehouse of Arizona, 347 
NLRB 591 (2006) (two recess appointees among three-member majority); 
Dana Corp., 351 NLRB 434 (2007) (one recess appointee). If effective 
administration of the Act is the goal, treating recess appointees as 
lesser Members of the Board or deferring action until the Board has 
some particular number of Senate-confirmed Members is untenable.
    In sum, the present Board has full authority to adopt the final 
rule.
6. The Dissent
    The final rule has been approved by a two-Member majority of the 
Board. The Board currently has three Members, a lawful quorum under 
Section 3(b) of the Act, as explained above.
    Member Hayes has effectively indicated his opposition to the final 
rule by voting against publication of the NPRM and voting against 
proceeding with the drafting of the final rule at the Board's public 
meeting on November 30, 2011. Although Member Hayes has not yet 
supplied a dissent or similar statement in connection with the final 
rule itself, the Board has authorized the publication of such a 
document in the Federal Register, together with any separate concurring 
opinion, when they are made available. The Board has delayed the 
effective date of the final rule so that Member Hayes will have over 90 
days after he received a final draft of this final rule to write a 
dissent and have it published prior to the effective date of the rule. 
The Board believes that this procedure will provide Member Hayes with a 
reasonable period of time to express his views in a timely, formal, and 
public manner.
    The Board has no desire to prevent Member Hayes from expressing his 
views in any manner he deems appropriate. Indeed, the Board has 
facilitated Member Hayes' expression of a dissenting view in earlier 
instances of rulemaking, including the initial stage of this 
proceeding.\24\ The Board has also invited and attempted to facilitate 
Member Hayes' expression of his views to his fellow Board Members 
through all appropriate means, including at the public meeting on 
November 30. At the same time, under the circumstances involved in this 
rulemaking, the Board does not believe that it is required, either by 
law or agency practice, to delay the adoption and publication of a 
final rule in order to accommodate a dissenting Member.\25\ Nothing in 
the APA compels that course of action, nor does the National Labor 
Relations Act demand it.\26\
---------------------------------------------------------------------------

    \24\ Member Hayes dissented from the Board's Notice of Proposed 
Rulemaking (NPRM) in this proceeding, and his dissent was published 
as part of the NPRM. 76 FR 36812, 36829 (June 22, 2001) (dissenting 
view of Member Brian E. Hayes).
    Member Hayes also dissented from the Board's final rule 
regarding notification of employee rights under the National Labor 
Relations Act, and his dissent was published with the final rule. 76 
FR 54006, 54037 (Aug. 30, 2011) (dissenting view of Member Brian E. 
Hayes). Member Hayes had earlier dissented from the NPRM in that 
proceeding. 75 FR 80410, 80415 (Dec. 22, 2010) (dissenting view of 
Member Brian E. Hayes).
    \25\ The Board's decision in this regard is informed by the 
possibility that after Member Becker's service ends at the end of 
the current congressional session, no later than January 3, 2012, 
the Board will be reduced to two Members, and under the Supreme 
Court's recent New Process decision, supra, may be unable to act on 
the proposed rule for a considerable period of time.
    \26\ See Jeffrey S. Lubbers, The Potential of Rulemaking by the 
NLRB, 5 FIU L. Rev. 411, 431 n.102 (2010) (``[T]he APA does not 
address the possibility of dissents in agency rulemakings, and 
agencies seem to have widely different practices in this regard.'').
---------------------------------------------------------------------------

    Neither do the Board's rules, statements of procedure, internal 
operating procedures, or traditional practices, which do not address 
the internal process of rulemaking, compel such action. In its 76-year 
history, the Board--which has interpreted and administered the National 
Labor Relations Act primarily through adjudication--has engaged in 
notice-and-comment rulemaking only rarely.\27\ The rarity of Board 
rulemaking explains why the sole internal Board rule establishing a 
timetable for decision-making addresses only the adjudication of cases. 
Executive Secretary's Memorandum No. 01-1 (``Timely Circulation of 
Dissenting/Concurring Opinions''), issued to Board staff on January 19, 
2001, provides that a Board decision in an adjudicated case may issue 
without a dissent if 90 days have passed following the circulation of a 
majority-approved draft without action by the remaining Board Member or 
Members. Notably, the Memorandum provides that ``[f]or good cause, the 
Board has the discretion to allow departure from these procedures on a 
case-by-case basis.'' Like Memorandum

[[Page 80147]]

No. 01-1, which superseded them, prior memoranda from the Executive 
Secretary addressing the circulation of individual opinions by Board 
Members refer only to the adjudication of cases and make no mention of 
rulemaking. Rather, the Board has treated each rulemaking proceeding as 
unique and adopted internal procedures suited to the particular matter. 
In any event, to the extent that the 90-day period for dissents 
reflected in Memorandum 01-1 could be regarded as establishing a 
traditional norm that applies not only to routine adjudication, but 
also to the rare rulemaking proceedings at the Board, the Board has 
honored that norm by authorizing a dissent to be submitted and 
published during the more than 90-day period between publication of the 
final rule and its effective date.\28\
---------------------------------------------------------------------------

    \27\ See generally Administrative Conference of the United 
States, Recommendation 91-5, Facilitating the Use of Rulemaking by 
the National Labor Relations Board (adopted June 14, 1991), 56 FR 
33851 (July 24, 1991).
    \28\ While the Board construes its Memorandum governing its own 
internal, operating procedures not to apply to rulemaking, it also 
finds good cause to depart from those procedures in this proceeding 
in the manner and for the reasons explained in the text.
---------------------------------------------------------------------------

    The notice-and-comment rulemaking process, which the Board has 
followed in this proceeding, is distinct from adjudication in its 
iterative nature (a proposed rule, followed by a final rule) and the 
high degree of public participation it involves. The focus of the 
process is, in effect, a dialogue between the administrative agency and 
the public--not an intramural debate between or among agency officials. 
As explained, the final rule adopted today has been approved by a 
majority of a lawful quorum of the Board, in full compliance with the 
APA and other applicable statutes. That action follows both full public 
participation and extensive internal deliberations by the Members of 
the Board.
    Member Hayes has in no respect been excluded from the rulemaking 
process. Rather, Member Hayes has had every opportunity to participate 
in the Board's extensive internal deliberations concerning the final 
rule and to express his views to the other Members of the Board and to 
the public. To a highly unusual, indeed, unprecedented and unfortunate, 
degree, the Board's internal deliberations have become public, although 
not disclosed by the Board itself. Those communications have already 
revealed that Member Hayes has been kept fully informed at every 
significant stage in the conception and development of the final rule 
(an undertaking of more than one year) and that he has been repeatedly 
invited to share his views with his fellow Board Members over the 
course of that process. Member Hayes was briefed on internal proposals 
to revise the Board's representation case procedures. He was provided 
with a draft NPRM and was offered a briefing before the NPRM was 
published (along with his dissent) on June 22, 2011.\29\ When the Board 
held a public hearing on the proposed rule on July 18-19, 2011, Member 
Hayes attended and actively participated in questioning witnesses. 
Following the close of the initial public comment period (August 22, 
2011) and of the period for reply comments (September 6, 2011), Member 
Hayes and his staff (which comprises more than 25 attorneys) had access 
to all public comments filed with the Board as soon as they were filed. 
When the Board's review and coding of comments began, Member Hayes was 
invited to have his staff participate. He did not respond to that 
invitation, and no member of his staff participated in the laborious 
comment-review process. Nevertheless, Member Hayes was specially 
provided with copies of those comments considered by the other Members 
and their senior staff to be the most extensive, detailed, and useful; 
with computer-generated reports identifying particular issues raised in 
the comments that had been coded ``most significant'' or 
``significant'' by Board staff; with instructions on how to locate any 
of the more than 65,000 comments on the Board's shared computer system; 
and with lists of issues raised in the comments grouped by subject 
matter. On November 30, 2011, the Board held a public meeting to 
discuss the rulemaking, at which a majority voted to proceed to a final 
rule. Member Hayes attended, participated fully, and voted against 
proceeding.
---------------------------------------------------------------------------

    \29\ 76 FR 36812, 36829 (June 22, 2001) (dissenting view of 
Member Brian E. Hayes).
---------------------------------------------------------------------------

    In sum, Member Hayes has been afforded a full opportunity to 
participate in the deliberative process by which this final rule was 
developed. While the Board respects any Member's right to disagree and 
to express that disagreement at appropriate times and in an appropriate 
form, the Board perceives no basis--in law, in policy, or in 
tradition--for indefinitely postponing adoption of the final rule and 
for, in essence, permitting one Member to exercise what would amount to 
a minority veto over a proper exercise of the Board's rulemaking 
authority. Such a course of action would be plainly inconsistent with 
the operation of a multi-member independent agency that is, and always 
has been, governed by majority vote.

III. 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 procedural nature of the final rule; (c) 
the justification for any changes to the rules; (d) employers' 
opportunity to campaign; and (e) effects on employee representation and 
the economy.

A. Board Authority To Promulgate Election Rules

    The Board's rulemaking authority is well established, as 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.''
    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 election 
procedure rules, stating that elections will be held ``in accordance 
with such regulations as may be prescribed by the Board.''
    As the Supreme Court unanimously held in American Hospital 
Association v. NLRB, 499 U.S. 606, 609-10 (1991), 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

[[Page 80148]]

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 (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, 
specifically finality and the minimizing of dilatory claims.

    Some comments allege that the Board lacks authority to issue these 
rules.\30\ As discussed, the Supreme Court's interpretation of Section 
6 clearly forecloses this argument.
---------------------------------------------------------------------------

    \30\ See, e.g., Testimony of Harold Weinrich; ACC.
---------------------------------------------------------------------------

    In sum, the Board clearly has authority to amend its election 
rules.

B. The Final Rule Is Procedural

    Rules of procedure are exempt from the requirement of notice and 
comment under the APA. See 5 U.S.C. 553(b)(3)(A). In the NPRM, the 
Board stated that the ``vast majority of the amendments proposed * * * 
are procedural in nature, and the Board was not required to proceed by 
notice and comment with respect to them.'' 76 FR 36812, 36828 (proposed 
June 22, 2011). But see id. at 36830 n. 63 (Member Hayes, dissenting). 
The final rule is wholly procedural. It does not change any substantive 
law and does not impose any new substantive rules of conduct on 
parties.
    Moreover, the final rule amends rules of procedure applicable only 
in representation proceedings that are themselves exempt from the 
requirements of the APA. See 5 U.S.C. 554(a)(6). For both of these 
reasons, when the Board promulgated the regulations delegating 
authority under Section 9 of the Act to its regional directors in 1961, 
it concluded that the rulemaking provisions of the APA did not apply. 
See Wallace Shops, Inc., 133 NLRB 36, 38-39 (1961).

C. Purpose of the Final Rule

    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.\31\ As discussed above, however, the 
amendments the Board has decided to adopt at this time are designed to 
streamline Board procedures in order to eliminate wholly unnecessary 
barriers to the expeditious resolution of questions concerning 
representation. They thus effectuate employee free choice and safeguard 
commerce from industrial strife. Furthering these statutory goals 
constitutes a legitimate and substantial justification for the Board's 
amendments of its representation case procedures. In addition, the 
amendments will reduce unnecessary litigation and thus the burdens of 
litigation both on parties and the Board. Finally, the amendments 
eliminate duplicative regulations. Furtherance of all of these 
objectives supports issuance of the final rule.
---------------------------------------------------------------------------

    \31\ 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. 
Similar concerns were raised by Member Hayes in his dissent to the 
NPRM. The Board responds that its reasons for issuing the rule are 
fully set forth in the NPRM and in this preamble.
---------------------------------------------------------------------------

    Numerous comments contend more 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 timeframes 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.\32\ Both Congress and the Board have sought to 
improve the efficiency of representation case procedures over time, as 
discussed in detail in the NPRM. 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 CDW and Associated Builders and Contractors (ABC). Past 
improvements do not and should not preclude the Board's consideration 
and adoption of further improvements. Likewise, the current time 
targets set by the Board's General Counsel for the processing of 
representation petitions reflect the provisions of the Board's current 
rules. That the Board seeks to, and does, meet those targets in most 
instances is irrelevant to whether additional improvements may be made 
by amending the rules.
---------------------------------------------------------------------------

    \32\ This point was also advanced by the AHA; American Council 
on Education (ACE); COLLE; CDW; Associated Oregon Industries; 
National Marine Manufacturers Association; The Bluegrass Institute; 
and the Chamber.
---------------------------------------------------------------------------

    Many of these same comments, for example, those of Delhaize 
America, Associated General Contractors of America (AGCA), Society of 
Independent Gasoline Marketers of America, Indiana Chamber of Commerce, 
ABC, and Permanent Solutions Labor Consultants, also cite the rate of 
union success in elections as evidence that the current procedures are 
fair and not in need of revision. While the Board has considered these 
comments, so long as election results accurately reflect employees' 
free choice, the Board views the results as irrelevant to the question 
of whether its representation case procedures are fulfilling their 
statutory purpose as fully and efficiently as possible.
    Contrasted with the comments endorsing the current system, 
primarily from employers and associated groups, comments from various 
labor organizations, including the AFL-CIO, SEIU, Laborers 
International Union of North America (LIUNA), and the International 
Brotherhood of Electrical Workers (IBEW), argue that the current system 
is subject to manipulation, causing significant pre-election delay and 
leading to petitions being withdrawn prior to an election in over 35 
percent of cases, frustration of employee free choice, and avoidance of 
Board processes altogether. Many labor organizations cited research 
finding that a longer period between the filing of a petition and an 
election permits commission of more unfair labor practices with 
corresponding infringement upon employee free

[[Page 80149]]

choice, while a shorter period leads to fewer unfair labor 
practices.\33\ The National Employment Law Project (NELP) asserts that 
low-wage workers are particularly susceptible to pre-election 
misconduct.
---------------------------------------------------------------------------

    \33\ John Logan, Erin Johansson, & Ryan Lamare, ``New Data: NLRB 
Process Fails to Ensure A Fair Vote'' (2011), http://laborcenter.berkeley.edu/laborlaw/NLRB_Process_June2011.pdf.; Kate 
Bronfenbrenner & Dorian Warren, ``The Empirical Case for 
Streamlining the NLRB Certification Process: The Role of Date of 
Unfair Labor Practice Occurrence'' (2011), http://iserp.columbia.edu/sites/default/files/working_papers/working_paper_cover_2011-01-final.pdf.; Kate Bronfenbrenner, ``No Holds 
Barred: The Intensification of Employer Opposition to Organizing'' 
(2009), http://www.epi.org/page/-/pdf/bp235.pdf?nocdn=1; Commission 
on the Future of Worker-Management Relations, ``The Dunlop 
Commission on the Future of Worker-Management Relations: Final 
Report'' (1994), available at http://digitalcommons.ilr.cornell.edu/key_workplace/2/(``Dunlop Commission Final Report''). Some 
comments, for example, from the Chamber and ABC, question the 
validity of such studies.
---------------------------------------------------------------------------

    These comments reveal that the stakeholders in the Board's 
representation process have starkly divergent views of its efficiency 
and fairness. Labor organizations and employee advocacy groups view 
significant elements of the representation procedure as largely 
unsatisfactory, while the comments of individual employers and 
associated groups such as the GAM, the National Mining Association 
(NMA), and the PCA consistently assert that the current procedures work 
well.\34\
---------------------------------------------------------------------------

    \34\ Comments received from individuals largely reflect this 
divide.
---------------------------------------------------------------------------

    The Board, having carefully considered these pointedly contrasting 
comments, adopts neither position. The final rule is intended to 
continue the Board's course of incrementally improving its procedures 
in order to better perform its statutory functions within the framework 
established by Congress. The final rule is not intended to, and does 
not, alter the basic representation case procedures. Rather, as 
explained more fully below, each element of the final rule is intended 
to correct a specific, identified problem in the current procedures. 
Indeed, it is the Board's statutory duty to adapt and improve its 
processes based on experience and that is what the final rule 
accomplishes.
    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. The Board has considered this view, 
but has concluded that the eight amendments adopted in the final rule 
address systemic problems in the representation case procedures, which 
affect not only contested cases that proceed to a pre-election hearing, 
but also those cases in which the parties enter into election 
agreements.
    For example, without clear regulatory language giving the hearing 
officer 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. That specter, sometimes articulated as an express 
threat according to some comments,\35\ 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 
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 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. The temptation to use the threat of unnecessary 
litigation to gain such strategic advantage is heightened by both the 
right to take up to seven days to file a post-hearing brief and the 25-
day waiting period. Every experienced participant in the Board's 
representation proceedings who wishes to delay the conduct of an 
election in order to gain strategic advantage knows that once the 
hearing opens, at least 32 days (seven 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 21 days to the 
process over the past decade.
---------------------------------------------------------------------------

    \35\ See American Federation of Teachers (AFT); IBEW; LIUNA.
---------------------------------------------------------------------------

    Many comments acknowledge that the expeditious resolution of 
questions concerning representation is a central purpose of the Act, 
but argue that the Board did not consider other statutory policies in 
proposing the amendments.\36\ In fact, the Board did do so, both in 
proposing amendments to its rules in the NPRM and in deciding to 
proceed at this time with the eight amendments in the final rule. The 
Board considered the statute as a whole, as well as the various 
policies underlying its enactment and amendment. Most centrally, 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. 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 eight 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. The 
time between petition and election will continue to be determined by 
whether the parties can reach a pre-election agreement, the scheduling 
of a hearing, the amount of evidence that must be received in order for 
the regional director to determine if a question of representation 
exists, the complexity of the issues and extent of the record the 
regional director must consider in reaching a decision, and the sound 
discretion of the regional director in setting an election date. 
Further, the amendments do not in any manner alter existing regulation 
of parties' campaign conduct or restrict freedom of speech. The 
amendments apply with equal force to both union-certification 
proceedings

[[Page 80150]]

and union-decertification proceedings. The Board has also carefully 
considered the possibility that the amendments might somehow reduce the 
time between the filing of the petition and the election so drastically 
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.
---------------------------------------------------------------------------

    \36\ See, e.g., Assisted Living Foundation of America (ALFA); 
COLLE; SHRM; Seyfarth Shaw.
---------------------------------------------------------------------------

    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.\37\ 
Other comments point to the Board's blocking charge policy.\38\ 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, 486-487 (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.\39\
---------------------------------------------------------------------------

    \37\ See, e.g., NAM; PIA.
    \38\ See, e.g., AHA; PIA; SHRM; Chamber; CDW; Professor Samuel 
Estreicher.
    \39\ 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 Board is aware that, in too many instances, it has taken too 
long to decide both representation and unfair labor practice cases. The 
final rule takes steps to address those delays at the Board level by 
eliminating pre-election requests for review by the Board and making 
Board review of all regional directors' post-election dispositions 
discretionary. The first of the amendments will lead to fewer disputes 
coming before the Board, because many pre-election disputes will be 
rendered moot by the election or will be resolved by the parties post-
election. It will also often permit the remaining pre-election disputes 
to be presented to the Board together with any post-election disputes 
and thus to be disposed of more efficiently. Similarly, making Board 
review of post-election dispositions discretionary will permit the 
Board to more promptly, and with less expenditure of time and other 
resources, dispose of post-election requests for review that do not 
raise substantial issues meriting Board review. The amendments will 
thus both directly speed Board processing of representation cases and, 
by reducing the number of such cases coming before the Board for full 
review, free Board resources to more promptly decide all cases.
    The NPRM specifically asked for comments on various proposed 
revisions of the Board's blocking charge policy. While the Board 
received some comments relevant to the matter, it has decided to 
deliberate further before deciding what, if any, changes should be made 
in the policy, just as it has decided to deliberate further on many of 
the other proposals contained in the NPRM. 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, if proven, 
would interfere with employee free choice in an election, were one to 
be conducted.'' There are significant exceptions to the general policy 
of having a charge ``block'' a petition. See Casehandling Manual 
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 of the comments that point to blocking charges as a serious 
source of delay argue that incumbent unions file such charges in order 
to delay decertification elections.\40\ The General Counsel 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. Recent improvement in case processing procedures 
in some regional offices appears to have contributed, at least in part, 
to a significant reduction in the number of decertification elections 
blocked by the filing of unfair labor practice charges. Thus, there 
were 112 decertification elections blocked by unfair labor practice 
charges in Fiscal Year (FY) 2007, 100 in 2008, 71 in 2009, 64 in 2010, 
and just 31 to date in 2011. The Board anticipates that there will be a 
further reduction in the number of decertification elections blocked by 
unfair labor practice charges, as well as a more expeditious processing 
of all blocking charges, as these best practices are adopted more 
uniformly. Nevertheless, the Board intends to continue to deliberate 
concerning the proposal to revise the blocking charge policy via 
rulemaking.
---------------------------------------------------------------------------

    \40\ National Right to Work Legal Defense Foundation (NRTWLDF); 
Chamber. Between 2001 and 2010, the number of decertification 
elections conducted annually by the Board has ranged from 246 to 488 
while the number of certification elections has ranged from 1,335 to 
2,645. Of course, when a union files a petition seeking to be 
certified as the employees' representative, it can simply withdraw 
the petition if it does not want the election to take place.
---------------------------------------------------------------------------

D. The Employer's Opportunity To Campaign

    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.
    But many of these comments address the proposed adoption of 
amendments that have not been adopted as part of this final rule. For 
instance, most comments raising these arguments focus on the Board's 
proposals to: (1) Set pre-election hearings to open seven days from the 
notice of hearing absent special circumstances; (2) shorten the time 
period for production of a final voter list from seven days to two days 
following a regional director's approval of an election agreement or 
direction of an election; and (3) shorten the time period during which 
the Board's final notice of election must be posted prior to the 
election. None of the cited proposals is included in the final rule.
    However, to the extent that the concerns about the employer's 
opportunity to campaign are relevant to the rule changes adopted today, 
the Board has concluded that the final rule will advance the statutory 
objective of promptly resolving questions of

[[Page 80151]]

representation without in any way compromising employee free choice or 
any other statutory mandate or policy.
    The final rule simply removes unnecessary barriers to prompt 
resolution of questions of representation by reducing needless 
litigation. It does not establish any rigid timelines for the conduct 
of elections. Under the final rule, how fast an election will occur 
will vary from case to case, just as it did under the prior rules. 
Variables affecting the timing will include (as in the past) whether 
the parties are able to reach a pre-election agreement; the scheduling 
of the pre-election hearing; the length of the hearing; the number and 
complexity of the issues the regional director must address in order to 
determine if there is a question of representation; and the regional 
director's exercise of discretion, considering the preferences of the 
parties, in setting the election date. Moreover, the final rule will 
apply to petitions seeking certification of a new representative, 
petitions seeking decertification of an existing representative, and 
employer petitions filed after a union requests recognition.
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 \41\ and 
the First Amendment.\42\ But neither the proposed rule nor the more 
limited final rule in any way restricts the speech of any party.
---------------------------------------------------------------------------

    \41\ See, e.g., SHRM; Sheppard, Mullin, Richter & Hampton LLP 
(Sheppard Mullin); and the National Retail Federation (NRF).
    \42\ See, e.g., 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 only 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 1782, 1787 fn. 11 (1962). 
Because the final rule, which addresses representation case procedures, 
does not in any way permit the use of speech as evidence of an unfair 
labor practice, Section 8(c) is not implicated.
    Nor does the final rule implicate concerns grounded in the First 
Amendment. Aside from the accurate statement that speech about unions 
is protected by the First Amendment,\43\ the comments do not appear to 
argue that the proposed amendments would violate the First Amendment. 
In any event, neither the proposed nor the final rule restricts speech 
in any manner. 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 whenever and as 
often as they desire, both before and after the petition is filed, so 
long as they refrain from threats or coercion. As the Supreme Court 
stated in 1941, ``The employer * * * is as free now as ever to take any 
side it may choose on this controversial issue.'' NLRB v. Virginia 
Electric & Power Co., 314 U.S. 469, 477 (1941). Likewise, the rule does 
not impose any new limitations on union speech. Accordingly, the 
Board's effort to simplify and streamline the representation case 
process does not infringe the speech rights of any party. The comments 
do not contend that employers will be prevented from expressing their 
opinions on unionization, but only that, because there may be less time 
between petition and election in some cases, employers will have fewer 
opportunities to express their opinions before the Board concludes its 
investigation under Section 9. 29 U.S.C. 159. This does not rise to the 
level of an unconstitutional restriction on speech.
---------------------------------------------------------------------------

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

2. 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. 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). The Senate Report on the bill in 
the prior session suggested that a 30-day period would provide a 
``safeguard against rushing employees into an election where they are 
unfamiliar with the issues.'' S. Rep. No. 1684, 85th Cong., 2d Sess. 
27-28 (1958). The House bill, however, never contained a parallel 
provision, and it was not enacted into law.
    Nevertheless, ACC 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.\44\ 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.
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    \44\ 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.
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3. The Statutory Policy in Favor of Free Debate
    Although it is clear that the proposed amendments implicate neither 
the First Amendment nor 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

[[Page 80152]]

a union.\45\ They contend that the consequences of a union vote are 
longlasting and could significantly affect employees' livelihoods and 
careers, and therefore that ensuring that employees have sufficient 
time to hear from all sides is critical to the statutory objective of 
ensuring employee free choice.\46\ 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. Some of these comments also argue that a lengthy 
election campaign harms the prospects for successful collective 
bargaining.\47\
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    \45\ See Chamber; COLLE; SHRM; Seyfarth Shaw; Sheppard Mullin; 
Baker & McKenzie; John Deere Water; and PIA.
    \46\ 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; 
National Meat Association (NMA).
    \47\ See AFL-CIO and SEIU.
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a. NLRB v. Gissel Packing
    The Supreme Court's decision in NLRB v. Gissel Packing Co., 395 
U.S. 575 (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 rendered 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.
b. Chamber of Commerce v. Brown
    The Supreme Court recognized in Chamber of Commerce v. Brown, 554 
U.S. 60 (2008), that the Act embodies a general ``congressional intent 
to encourage free debate on issues dividing labor and management.'' 
\48\ Id. at 68 (quoting Linn v. Plant Guard Workers, 383 U.S. 53, 62 
(1966) (a defamation case)). Some comments contend that this case 
demonstrates that the Board must now provide a definite period of time 
after the petition in which parties can campaign prior to the election. 
In fact, however, Chamber of Commerce v. Brown held only that the Act 
preempted a state law that prohibited the use of state funds to 
encourage or discourage employees from seeking representation. What the 
Court suggested in the quoted language is that Congress intended to 
leave speech concerning labor relations unregulated; in the Court's 
words, to ``shield a zone of activity from regulation.'' Id. The Court 
concluded that the California law at issue in Brown ``indirectly 
regulate[d] such conduct by imposing spending restrictions on the use 
of state funds.'' Id. at 69. In short, the Court held the state law 
regulated speech and was thus preempted. The final rule in no way 
regulates speech. It is fully consistent with congressional intent as 
articulated in Brown.
---------------------------------------------------------------------------

    \48\ 554 U.S. 60, 68 (2008).
---------------------------------------------------------------------------

    Even adopting the more expansive view of the statutory policy 
articulated in Brown urged by some comments--that Congress intended not 
only to insulate and protect speech concerning labor relations, but to 
affirmatively facilitate such speech--the final rule is fully 
consistent with that objective as explained below.
c. 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.\49\ 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.\50\ 
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,\51\ and the Board's 
experience and recent scholarly research suggest the opposite.
---------------------------------------------------------------------------

    \49\ See, e.g., Chamber; CDW; National Ready-Mixed Concrete 
Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark 
Legal Foundation; and Vigilant.
    \50\ NGA; NMA. See also Spartan Motors, Inc.; Cook Illinois 
Corporation; Arizona Hospital and Healthcare Association; Constangy, 
Brooks & Smith, LLP; Sheppard Mullin; Ranking Member Michael B. Enzi 
of the U.S. Senate Committee on Health, Education, Labor & Pensions, 
and Republican Senators; Specialty Steel Industry of North America; 
International Foodservice Distributors Association; NAM; Chamber; 
NRTWLDF.
    \51\ COLLE acknowledges this in its comment.
---------------------------------------------------------------------------

    First, Board precedent is replete with cases in which there was 
clear evidence that the employer was aware of the organizing campaign 
well before the petition was filed. For example, unions often 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.\52\ In other 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.\53\
---------------------------------------------------------------------------

    \52\ See, e.g., 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 (DC 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).
    \53\ See, e.g., Ryder Truck Rental, 341 NLRB 761, 765 fn. 9, 
766-67 (2004) (petition filed in December; in November, employer 
invited employees to report any harassment by union), enfd. 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), enfd. mem. 5 F.3d 1488 (3d Cir. 1993); 
Spring City Knitting Co., 285 NLRB 426, 432, 449, 450, 456 (1987) 
(unfair labor practices occurred March 1, 14, and 29; petition filed 
May 3); Well-Bred Loaf, Inc., 280 NLRB 306, 308, 317 (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, 1143, 1156 (1995) (union informed employer of campaign on 
January 4, but employer had threatened employees with discharge in 
December if they engaged in union activity), enfd. 107 F.3d 521 (7th 
Cir. 1997), cert. denied 522 U.S. 862 (1997).

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

[[Page 80153]]

    An empirical study conducted by Professors Kate Bronfenbrenner and 
Dorian Warren (and submitted with their comment) casts further doubt on 
the contention that employers are frequently unaware of a union 
campaign until the petition is filed.\54\ 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 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. 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 relying on empirical evidence 
was presented to the Board.
---------------------------------------------------------------------------

    \54\ The study was based on a random sample of 1,000 elections 
during the period 1999 through 2003 and a survey of 562 campaigns 
from that sample. See Bronfenbrenner & Warren, supra at 2.
---------------------------------------------------------------------------

d. Employer Communications in the Absence of a Campaign
    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.\55\ 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.\56\ 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.\57\ For 
example, 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.\58\
---------------------------------------------------------------------------

    \55\ See comments of John Logan, Ph.D., Erin Johansson, M.P.P., 
and Ryan Lamare, Ph.D.; Center for American Progress Action Fund.
    \56\ Fox Rothschild LLP; NMA; NRF.
    \57\ SHRM suggests that the proposed rule will cause more 
employers to express their views on employee representation prior to 
active campaigns. Given the number of petitions filed each year, the 
Board does not view this as likely. In any event, such expressive 
activity is consistent with the Act so long as it does not convey a 
threat or promise of benefit.
    \58\ 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.''), enfd. 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, 
1119 (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 opposition to 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.\59\ The Board concludes that the opportunity 
for generalized communications together with the opportunities that 
will continue to exist post-petition under the final rule will ensure 
employee free choice even in those cases where employers are unaware of 
the organizing drive until the petition is filed.
---------------------------------------------------------------------------

    \59\ See SHRM; COLLE; NAM; Seyfarth Shaw; and ALFA.
---------------------------------------------------------------------------

    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 alter it. 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.
e. Post-Petition Communication
    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

[[Page 80154]]

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.\60\
---------------------------------------------------------------------------

    \60\ See also comment of RILA, contending that ``stealth 
campaigns'' are common in the retail industry.
---------------------------------------------------------------------------

    In relation to the opportunities for post-petition communication, 
the Board notes initially that the final rule will apply to 
decertification elections as well as certification elections, and 
therefore that incumbent unions will suffer the same disadvantages in 
relation to a petitioner as will employers.\61\ In fact, because unions 
typically do not have any on-going presence in the workplace, incumbent 
unions are much less likely to know about the circulation of a 
decertification petition than employers are to know about a union 
organizing drive.\62\
---------------------------------------------------------------------------

    \61\ SEIU argues that the time frames in the proposed amendments 
should not apply in cases involving decertification petitions, 
because employers can withdraw recognition in certain circumstances 
without having to go through the election process. To the extent 
that SEIU's comment is still relevant to the limited changes 
implemented by the final rule, the Board disagrees. Employers can 
also voluntarily recognize unions as the collective-bargaining 
representatives of their employees without going through the 
election process, yet the Board has a duty to expeditiously resolve 
questions concerning representation when employers will not 
voluntarily recognize unions. Thus, the NLRA provides a means for 
employees to engage in collective bargaining with their employer 
even if their employer would prefer not to do so. Similarly, the 
NLRA does not require employees to depend on their employer to end 
unwanted representation. The Board takes seriously its 
responsibility to expeditiously resolve questions concerning 
representation in the decertification context just as in an initial 
organizing context.
    \62\ Cf. United Kiser Services, 355 NLRB No. 55, slip op. at 1 
(2010) (union representative only visited the represented shop four 
times over 17-month period); Moeller Bros. Body Shop, 306 NLRB 191, 
191 (1992) (union official ``rarely'' visited respondent's body 
shop, including every three years for contract renewal 
negotiations); Pullman Bldg. Co., 251 NLRB 1048, 1051-52 (1980) 
(union official visited worksite to commence investigation only 
after receiving complaint that employer was violating labor 
agreement), enfd. 691 F.2d 507 (9th Cir. 1982).
---------------------------------------------------------------------------

    The Board finds, moreover, that as a general matter, employers are 
able to communicate their message to employees quickly and effectively. 
The median bargaining unit size from 2001 to 2010 was 23 to 26 
employees. Given this relatively small size, effective communication 
with all voters can be accomplished in a short period of time.\63\ In 
addition, some provisions of the Board's rules give a ``head start'' to 
the employer that, in the Board's view, more than counterbalances any 
perceived union advantage. For instance, under extant precedent, not 
altered by the final rule, the employer is not required to provide the 
union with the names and addresses of eligible voters until seven days 
after the Regional Director approves the parties' election agreement or 
issues a Decision and Direction of Election. After the filing of the 
petition and until that time--which, in contested cases over the last 
decade, is often at least six weeks--the employer is in many cases the 
only party that knows who all the eligible voters are likely to be and 
how to contact them. In addition to having a record of eligible 
employees' names, phone numbers, and email addresses, the employer 
knows their work locations and work schedules. Even after it provides 
the eligibility list to the other parties, the employer often remains 
the only party with access to all employees' contact information other 
than their home addresses.
---------------------------------------------------------------------------

    \63\ 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. 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 makes a similar argument that its industry has unique 
features such as isolated plant locations, unpredictable delivery 
hours, and dispersed employees. But it, too, states that the vast 
majority of employers in the industry are small businesses. 
Therefore, most bargaining units in the retail and ready-mixed 
concrete industries are likely to be quite small, which should 
enable employer communication to take place in a relatively short 
period of time and, certainly, much more easily than union 
communication because unions often lack knowledge of all work 
locations, employee shifts and hours, and even the identity of all 
employees. 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.
---------------------------------------------------------------------------

    Moreover, as noted in the testimony of Professor Joseph McCartin, 
the employer has unlimited access to employees during every workday and 
has the ability to compel employees to attend meetings on working time 
at the employer's convenience.\64\ The employer can also communicate 
its views to employees while they are working, even in settings where 
the employees have no choice but to listen. See, e.g., Frito Lay, Inc., 
341 NLRB 515, 515 (2004) (``In the 2 months between the filing of the 
petition and the election, the Employer wanted to provide an 
opportunity for the employees to obtain information relevant to the 
drivers' upcoming voting decision. Because the Employer's ability to 
communicate with its drivers at the facility was constrained, the 
Employer sent `guests' along on their runs to provide information and 
answer any questions the drivers might have. These `ride-alongs' 
averaged approximately 10-12 hours, due to the length of the drivers' 
day runs, and each truckdriver averaged approximately 3 ride-alongs in 
the 2 months before the election.''). In fact, the employer can even 
compel such attendance outside employees' normal work hours and 
locations. See, e.g., Curtin Matheson Scientific, 310 NLRB 1090, 1090 
(1993) (employer required employees to attend campaign meeting in 
hotel); Ideal Elevator Corp., 295 NLRB 347, 351 (1989) (employer 
required all employees to attend meeting after working hours to listen 
to its president's speech).\65\ Under current law, such compelled 
attendance at meetings at which employees are often expressly urged to 
vote against representation is generally neither objectionable nor an 
unfair labor practice.\66\ The employer may require individual 
employees or small groups to attend such meetings at any time up until 
employees enter the polling area or

[[Page 80155]]

are waiting in line to vote.\67\ Thus, for example, the Board has held 
that it is not objectionable for an employer's highest ranking 
officials to proceed systematically through the workplace less than 24 
hours before a vote, urging each individual employee at his or her work 
station to vote against representation. See Electro-Wire Products, Inc. 
242 NLRB 960, 960 (1979); Associated Milk Producers, Inc., 237 NLRB 
879, 880 (1978). 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).\68\ One 
classic empirical study of representation elections found that ``the 
employer who uses working time or premises to campaign against the 
union and denies those facilities to the union effectively communicates 
with a substantially greater proportion of the employees than does the 
union.'' Julius G. Getman et al., ``Union Representation Elections: Law 
and Reality'' 156 (1976). Because those who attend union meetings tend 
to already be union supporters, the employer, which can convene 
meetings of all employees on working time, ``has a great advantage in 
communicating with the undecided and those not already committed to 
it.'' Id. at 156-57.
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    \64\ 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.
    \65\ The Board found the conduct at issue in these cases 
unlawful or objectionable for reasons unrelated to the time or 
location of the required meetings. Requiring employees to attend 
such campaign meetings outside their normal work hours without full 
compensation may constitute objectionable conduct. See Comet 
Electric, 314 NLRB 1215, 1216 (1994).
    \66\ See, e.g., F.W. Woolworth Co., 251 NLRB 1111, 1113 (1980) 
(employer's attempt to further its campaign by conducting a 
mandatory meeting and by declaring that no questions would be 
answered in the course thereof was not unlawful), enfd. 655 F.2d 151 
(8th Cir. 1981), cert. denied 455 U.S. 989 (1982); Litton Systems, 
Inc., 173 NLRB 1024, 1030 (1968) (adopting the decision of the 
administrative law judge, who concluded: ``An employee has no 
statutorily protected right to leave a meeting which the employees 
were required by management to attend on company time and property 
to listen to management's noncoercive antiunion speech designed to 
influence the outcome of a union election.''); S & S Corrugated 
Paper Machinery Co., Inc., 89 NLRB 1363, 1364 (1950) (``the `captive 
audience' aspect of the Employer's speeches, otherwise protected by 
Section 8(c) of the amended Act, cannot form the basis for a finding 
that the Employer * * * has interfered with the employees' free 
choice of a bargaining representative''); 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'').
    \67\ An exception exists for ``massed assemblies,'' which are 
prohibited during the 24 hours before the election under Peerless 
Plywood, 107 NLRB 427, 429 (1953).
    \68\ As described in the NPRM, the Board's experience suggests 
employers are also increasingly using email to send campaign 
communications to their employees. 76 FR 36812, 36820 (June 22, 
2011).
---------------------------------------------------------------------------

    In addition to the employer's earlier, more complete knowledge of 
voters' identity and whereabouts and ability to convene employees 
inside and outside the workplace during work and non-work time to 
campaign, the Board's usual practice is to hold the election itself 
``somewhere on the employer's premises,'' unless there is ``good 
cause'' to do otherwise.\69\ Because employers can ordinarily bar union 
representatives from their property,\70\ this practice permits 
employers to campaign actively among employees on election day while 
barring the union from doing the same. Thus, the employer not only has 
greater access to employees throughout the representation process, but 
also ordinarily has the ``last word'' on election day. The Board has 
recognized that having the ``last, most telling word'' is a significant 
advantage in elections. Peerless Plywood, 107 NLRB at 429.
---------------------------------------------------------------------------

    \69\ See Casehandling Manual Section 11302.2.
    \70\ See Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992); NLRB 
v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).
---------------------------------------------------------------------------

    For these reasons, the Board does not believe that any reduction of 
the time between petition and election that results from the final rule 
will be unfair to any party or infringe on employee free choice.\71\
---------------------------------------------------------------------------

    \71\ The bipartisan Commission on the Future of Worker-
Management Relations, U.S., concluded as follows after extensive 
study in 1994: ``The Commission believes the NLRB should conduct 
representation elections as promptly as administratively feasible. * 
* * Each side would continue to have ample time to express its views 
if the process were much shorter.'' Dunlop Commission Final Report, 
supra at 41.
---------------------------------------------------------------------------

f. The Current Median Time of 38 Days
    Many comments contend that there is no reason to adopt the proposed 
amendments because the current median time period between petition and 
election is 38 days. That time period, however, is simply a historical 
fact, and does not represent a considered judgment on the optimal 
duration of a campaign. It is not the result of a deliberate choice by 
Congress or any prior Board.
    Moreover, because the 38 days is a median, the actual time from 
petition to election varies greatly from one case to another. By 
definition, a median of 38 days means that, in half of all cases, the 
time between petition and election is longer than 38 days. Most 
importantly for present purposes, the median time between petition and 
election in cases that proceed to hearing (the only cases directly 
affected by the final rule) has varied between 64 and 70 days over the 
past five years.
    As explained in the NPRM, the current median reflects prior reforms 
enacted by Congress and adopted by the Board altering the procedures 
for resolving questions of representation. See 76 FR at 36813-14. Each 
of those changes had the effect of shortening the time period between 
the filing of the petition and the holding of an election. Thus, the 
length of the so-called ``critical period'' has never been static, and 
prior changes have not proven to be detrimental to employee free 
choice.
    In other words, the current median period between petition and 
election is tied to factors having nothing to do with informing 
employees about unionization. To the extent current procedures impair 
the Board's ability to expeditiously resolve questions of 
representation and are not necessary to the fair and accurate 
performance of the Board's statutory duties to determine if a question 
of representation exists and, if so, to direct an election in order to 
answer the question, the Board has concluded that the procedures should 
be amended.
g. Other Issues Affecting the Appropriate Time Period between Petition 
and Election
    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.\72\ 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.\73\ 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 conduct. See Con-way Inc.; Bluegrass Institute; ATA.\74\
---------------------------------------------------------------------------

    \72\ See also testimony of former Board Member Marshall Babson 
(emphasizing that the rules must balance the various competing 
interests).
    \73\ NRMCA; Indiana Chamber of Commerce; National Automobile 
Dealers Association; T&W Block Company; York Society for Human 
Resource Management; National Marine Manufacturers Association; 
Council of Smaller Enterprises; Bluegrass Institute; Landmark Legal 
Foundation; American Trucking Associations; testimony of Steve 
Jones; American Fire Sprinkler Association.
    \74\ Other comments, however, cite evidence indicating a 
positive correlation between the length of a campaign and unfair 
labor practice allegations. See SEIU; NELP; Ranking Member George 
Miller and Democratic Members of the U.S. House of Representatives 
Committee on Education and the Workforce; John Logan, Ph.D., Erin 
Johansson, M.P.P., and Ryan Lamare, Ph.D. See also testimony of 
Professor Ethan Daniel Kaplan (citing similar results from a study 
in Canada).
---------------------------------------------------------------------------

    The Board believes that most of the rules governing campaign 
conduct are matters of common sense that are intuitively understood by 
employers and employees--the prohibition of threats and bribes, for 
example. Moreover, when the petition is served on the employer by the 
regional office, it is accompanied by a Notice to Employees, Form NLRB 
666, which sets forth in understandable terms the central rules 
governing campaign conduct. In any event, the Board does not believe 
that any shortening of the

[[Page 80156]]

time between petition and election that results from the final rule 
will impair employers' ability to retain counsel in a timely 
manner.\75\ 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.\76\
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    \75\ Ranking Member Michael B. Enzi of the U.S. Senate Committee 
on Health, Education, Labor, and Pensions 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 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.
    \76\ See testimony of Russ Brown 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 (noting that a ``thriving 
industry of consultants has emerged'').
---------------------------------------------------------------------------

    Other comments propose that the Board set a minimum number of days 
between the petition and the election. Cook-Illinois Corporation 
suggests a minimum of 21 days, subject to expansion or contraction by 
agreement of the parties. The Heritage Foundation proposes a minimum of 
40 days.\77\ In contrast, Professor Samuel Estreicher stated that he 
would not favor specifying a particular time period within which the 
election must be held. No such minimum exists in the Act or under the 
current rules.
---------------------------------------------------------------------------

    \77\ 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.
---------------------------------------------------------------------------

    For the same reasons that the Board has not set a maximum number of 
days between the petition and the election, it has declined to set a 
minimum. Congress provided that the Board should conduct ``an 
appropriate hearing upon due notice'' and determine if a question of 
representation exists prior to directing an election, but did not 
otherwise specify when the Board should conduct the election. Under the 
amended rules, as under the existing rules, the time it will take for 
the Board to perform that statutory function will vary. The Board 
believes that its duty is to perform its statutory functions as 
promptly as possible consistent with employee free choice. 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.
    Citing Member Hayes's dissent from the NPRM, some comments suggest 
that the amendments will provide for elections in as little as 10 days 
after the filing of the petition.\78\ But neither the proposed 
amendments nor the more limited final rule contains any such 
requirement and, in practice, the final rule cannot lead to elections 
taking place within 10 days of the petition in a contested case. 
Moreover, the Board believes it is highly unlikely that, in any 
significant number of cases, the required procedural steps will be 
taken so quickly that a regional director could even have discretion to 
schedule an election close to 10 days after the filing of the 
petition.\79\
---------------------------------------------------------------------------

    \78\ See Chamber; COLLE.
    \79\ Even assuming that an election were to occur close to 10 
days after the petition, under existing precedent, the union is only 
entitled to obtain the Excelsior list 10 days before the election. 
See Mod Interiors, 324 NLRB 164, 164 (1997); Casehandling Manual 
Section 11302.1. Thus, existing Board precedent contemplates that a 
union may only have the ability to contact all eligible voters for 
10 days.
---------------------------------------------------------------------------

    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.\80\ For three 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 render 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).
---------------------------------------------------------------------------

    \80\ Vigilant; Indiana Chamber of Commerce; John Deere Water; 
PIA; Greater Raleigh Chamber of Commerce; NMMA; Associated Oregon 
Industries; NAM; testimony of Michael Prendergast. 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.
---------------------------------------------------------------------------

    The Board also 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 recently promulgated a

[[Page 80157]]

rule requiring employers to continuously post in the workplace a notice 
of employee rights under the Act. The Board does not agree that these 
other posting requirements are in any way inconsistent with the final 
rule. The notice postings required by the Board serve different 
purposes in different contexts--to inform employees of their general 
rights or to alleviate the impact of unlawful acts by an employer or 
union, rather than to communicate about a specific petition in a 
specific unit. Moreover, the time reasonably necessary for employees to 
obtain the message from a posted notice, and for that message to 
dissipate the effects of unfair labor practices, is different from the 
time needed for employees to receive information from employers and 
unions actively campaigning for their support. Finally, the existing 
notice-posting provision for elections, which is not altered by the 
final rule, requires that the notice be posted for only three days 
before the election. See NLRB Rules and Regulations Section 103.20(a). 
The Board thus rejects the ``one size fits all'' suggestion for time 
periods under the Act.
    In addition to arguing that the rule fails to give employers 
sufficient time to deliver their campaign message, some comments 
contend that the 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.\81\ The comments argue that 
the final rule therefore runs afoul of the Act's policies of protecting 
employees' right to ``full freedom of association'' and ``encourag[ing] 
free debate'' on labor issues. 29 U.S.C. 151; Chamber of Commerce v. 
Brown, 554 U.S. at 68. They further argue that the final rule violates 
employees' Section 7 right to refrain from union activity, because this 
right ``implies an underlying right to receive information opposing 
unionization.'' Chamber of Commerce v. Brown, 554 U.S. at 68.
---------------------------------------------------------------------------

    \81\ See NRTWLDF; Seyfarth Shaw; ALFA; American Council on 
Education; CDW; NRMCA; Indiana Chamber of Commerce; Con-way; 
Specialty Steel; Americans for Limited Government; International 
Foodservice; testimony of Steve Jones; testimony of Charles I. 
Cohen; testimony of David Kadela; testimony of Harold Weinrich; 
testimony of Brett McMahon.
    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.
---------------------------------------------------------------------------

    As explained above in the discussion of Section 8(c) and the First 
Amendment, Chamber of Commerce v. Brown did not involve the question of 
the appropriate time period between a petition and election, nor did 
the Court's general observations regarding speech indicate that any 
particular period of time is necessary for employees to receive 
information about the union. And the procedural rule adopted here does 
not police speech or limit employees' freedom of association. It also 
will not, as explained above, cause such a significant reduction in the 
time employers have to campaign or employees have to process campaign 
messages and organize for or against representation as to interfere 
with employees' freedom of choice or association.
    A number of comments asserted that a lengthy election campaign 
tends to disserve the interests of both employees and employers. AFT 
cites anecdotal evidence from a lengthy campaign that demoralized 
workers and resulted in significant expenditures by the employer.\82\ 
Several comments also note a correlation between the length of the 
campaign and the number of unfair labor practice complaints issued 
against the employer.\83\ Another study indicated that protracted 
campaigns lead to a more conflict-ridden, adversarial work 
environment.\84\ SEIU argues that the contentious pre-election 
environment often associated with long campaigns harms the prospects 
for future bargaining. NELP argues that low-wage workers stand to make 
significant improvements in their working conditions through 
unionization, yet these same workers are particularly vulnerable to 
retaliation for union activity, rendered more likely by long campaigns, 
and are also likely to become discouraged by complex bureaucratic 
processes.\85\ The Board did not rely on any such assertions in 
proposing the amendments and does not do so in adopting the final rule.
---------------------------------------------------------------------------

    \82\ See also comment of Professor Paula Voos, contending, based 
on her 2010 study, that campaigns longer than 60 days resulted in a 
decline in shareholder wealth (as measured by changes in stock 
prices plus disbursement of dividends), but campaigns of 60 days or 
fewer did not.
    \83\ 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,'' supra). See also SEIU; NELP; and 
Ranking Member George Miller and Democratic Members of the U.S. 
House of Representatives Committee on Education and the Workforce 
(citing Logan, Johanson, and Lamare study).
    \84\ See Dunlop Commission Final Report, supra at 38-41, cited 
in comment of SEIU. Another comment contends, but offers no 
supporting argument or empirical evidence, that elections on short 
notice will foster bad feelings between pro- and anti-union 
employees and between the union and management. See Norman Owen.
    \85\ See testimony of Professor Paul F. Clark (noting that 
employee organizing has become a ``minefield and a marathon'' due to 
sophisticated anti-union campaigns and delays).
---------------------------------------------------------------------------

    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.

E. 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. The Board 
observes 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. Rather, 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 and for conducting 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.
    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 in the middle of an economic 
recession. Again, the Board views these comments as questioning policy 
decisions already made by Congress.\86\ Neither the

[[Page 80158]]

proposed amendments nor the final rule reflects a judgment concerning 
whether increased employee representation would benefit or harm the 
national economy. As explained in the NPRM and above, increasing the 
rate of employee representation is not the goal of the Board's proposed 
or final rule.
---------------------------------------------------------------------------

    \86\ 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.
---------------------------------------------------------------------------

IV. Comments on Particular Sections

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.'' 76 FR at 36819.
    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).
    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.'' \87\ 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.'' \88\ 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.\89\ The NPRM contained an uncodified statement 
of the general course, 76 FR at 36817-18, 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.\90\
---------------------------------------------------------------------------

    \87\ 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).
    \88\ Tom C. Clark, Attorney General's Manual on the 
Administrative Procedure Act, 17, 19 (August 27, 1947).
    \89\ 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.'').
    \90\ 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.
---------------------------------------------------------------------------

    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 final rule, however, does not revise Sec.  102.61 as proposed 
or in any respect. To the extent that ALFA would still have the Board 
amend Sec.  102.61 to specify the 30 percent figure, 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.\91\
---------------------------------------------------------------------------

    \91\ 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.
---------------------------------------------------------------------------

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 regarding unfair 
labor practice and representation cases arising under Sections 8(b)(7) 
and 9(c) of the Act and referendum cases arising under Section 9(e)(1) 
and (2) of the Act. The Board has decided to deliberate further 
regarding its proposal to eliminate these subparts that describe 
procedures for two specialized types of representation cases. Instead 
of eliminating these two subparts entirely, the final rule conforms the 
procedures described therein to the amendments set forth below.

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. 102.62 Election Agreements
    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 petitioner,\92\ 
and to alter the means of transmittal of the final notice of election. 
The Board has decided at this time to adopt only the proposed 
amendments to Sec.  102.62 clarifying the terms used to describe pre-
election agreements and eliminating mandatory Board resolution of post-

[[Page 80159]]

election disputes under a stipulated election agreement.
---------------------------------------------------------------------------

    \92\ See Excelsior Underwear, Inc., 156 NLRB 1236 (1966) 
(establishing requirement that employers must file a list of the 
names and addresses of all eligible voters with the regional 
director within seven days after a Board election has been agreed to 
or directed; the regional director then makes the information 
available to all parties in the case).
---------------------------------------------------------------------------

    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,'' \93\ 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.\94\
---------------------------------------------------------------------------

    \93\ Casehandling Manual Section 11084.
    \94\ 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 directors' dispositions of post-
election disputes fully 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. 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.\95\ 
Review as of right should not be granted in those situations. Others 
cases present only circumscribed, purely factual issues concerning 
which the Board is in no better position to reach a correct finding 
than the hearing officer (who heard the evidence) or the regional 
director.\96\ Given the highly deferential standard that the Board 
employs in reviewing a hearing officer's post-election factual 
findings,\97\ 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,\98\ or where there is no dispute about the facts at all.\99\ 
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,\100\ 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.\101\ 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.\102\ The final 
rule will enable the Board to separate the wheat from the chaff, and to 
devote its limited time to cases of particular importance. Based on 
those considerations, 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.
---------------------------------------------------------------------------

    \95\ See, e.g., C&G Heating, 356 NLRB No. 133, slip op. at 1 
(2011).
    \96\ 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).
    \97\ See Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
    \98\ See, e.g., Care Enterprises, 306 NLRB 491 n.2 (1992).
    \99\ See, e.g., CEVA Logistics U.S., Inc., 357 NLRB No. 60 
(2011) (consequences of regional delay in forwarding Excelsior 
list).
    \100\ See, e.g., 1621 Route 22 West Operating Co., LLC d/b/a 
Somerset Valley Rehabilitation & Nursing Ctr., 357 NLRB No. 71 
(2011); Ace Car & Limousine Service, Inc., 357 NLRB No. 43 (2011).
    \101\ Mental Health Ass'n, Inc., 356 NLRB No. 151 (2011) 
(whether employer's particular statements about bonuses constituted 
objectionable promise of benefit); G&K Services, Inc., 357 NLRB No. 
109 (2011) (whether employer's letter about health coverage 
constituted objectionable promise of benefit).
    \102\ See Sec.  102.67(c), providing:
    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 the 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.
---------------------------------------------------------------------------

    Several comments argue that if the Board were to adopt these 
amendments, it would be abdicating its statutory responsibility and 
function.\103\ For example, SHRM argues 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. Others state that denying aggrieved 
parties the right to appeal adverse determinations to the Board 
undermines due process protections. 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.\104\ 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.
---------------------------------------------------------------------------

    \103\ See Chamber; SHRM; CDW; COLLE; NACCO Materials Handling 
Group; Dassault Falcon Jet; Bluegrass Institute; John Deere Water.
    \104\ See, e.g., Dassault Falcon Jet.
---------------------------------------------------------------------------

    The Board is not persuaded by these comments. The arguments they 
advance apply equally to pre-election disputes, and yet the Board has 
since 1961 afforded only discretionary review of regional directors' 
dispositions of pre-election disputes 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(f). 
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.
    Moreover, Section 3(b) of the NLRA does not support the conclusion 
expressed in those comments. Section 3(b) provides in part:


[[Page 80160]]


    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. None of the comments suggest that the 
current rule as to pre-election disputes violates Section 3(b) or is 
otherwise improper.
    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. \105\
---------------------------------------------------------------------------

    \105\ 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.'').
---------------------------------------------------------------------------

    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. The Board disagrees.
    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).'').
    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). Thus, the 
discretionary review provided for in the final rule parallels that used 
by the Supreme Court to ensure uniformity among the circuit courts of 
appeals. See Supreme Court Rule 10. For these reasons, the Board does 
not believe that the final rule will lead to a lack of uniformity.
    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.'' GM Life suggests that regional directors are unfamiliar with the 
legal process and will not follow proper procedures. Other comments 
contend that because hearing officers report directly to regional 
directors, appeal to the regional directors does not constitute 
meaningful review.
    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

[[Page 80161]]

procedures.\106\ Similarly, the Chamber, 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 guarantees 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.
---------------------------------------------------------------------------

    \106\ 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 specifically 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 decisions' 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.\107\ 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 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 Geist Co., 8-RC-17056 (Dec. 1, 
2011); The Memorial Hospital of Salem County, 4-RC-21697 (Aug. 3, 
2011); Ashland Nursing & Rehabilitation Center, 5-RC-16580 (May 31, 
2011); Banner Services Corp., 13-RC-21983 (May 25, 2011).
---------------------------------------------------------------------------

    \107\ See Chamber; AHA; CDW; Baker & McKenzie.
---------------------------------------------------------------------------

    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, 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.\108\
---------------------------------------------------------------------------

    \108\ See, e.g., ALFA; SHRM. Constangy, Brooks & Smith 
(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 concerning 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 of the likelihood of success, the importance of the 
issue, and the cost of litigation, that it does at present. In addition 
to avoiding the time and expense 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, express confusion 
about the rule and the request-for-review procedure. The grounds for 
granting a request for review under Sec.  102.69(d)(3) of the final 
rule are 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. The Board's denial of review of a 
post-election request for review will be the final order in a 
representation proceeding under the final rule, as it is currently. 
However, 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.
    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 able to get 
greater post-election Board review simply by virtue of the fact that 
there are no pre-election

[[Page 80162]]

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.
Sec. 102.63 Investigation of Petition by Regional Director; Notice of 
Hearing; Service of Notice; Withdrawal of Notice
    In the NPRM, the Board proposed a number of amendments to Sec.  
102.63. The Board proposed that absent special circumstances, the 
regional director would set the pre-election hearing to begin seven 
days after service of the notice of hearing. The Board also proposed to 
require the employer to post an initial election notice to employees. 
The Board further proposed to require non-petitioning parties to 
complete Statements of Position. The Board has decided to take no 
action at this time on those proposals in order to permit more time for 
deliberation.
    The amendments to Sec.  102.63 conform this section to the 
remainder of the amendments.
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. The 
final rule largely embodies the proposed amendment to Sec.  102.64(a).
    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. A question of 
representation exists if a petition has been filed, as described in 
Section 9(c)(1) of the Act and Sec.  102.60 of the Board's rules, 
concerning a unit appropriate for the purpose of collective bargaining 
or, in the case of a petition filed under Section 9(c)(1)(A)(ii), 
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.\109\ 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. If any party contends that an 
election is barred, under the terms of the Act or Board precedent, and 
that contention is contested, the regional director must also rule on 
the existence of such a bar prior to directing an election. \110\
---------------------------------------------------------------------------

    \109\ 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. Similarly, a proper petition under Section 
9(c)(1)(A) 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.
    \110\ 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 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 attempt to cast a 
ballot, and both litigated and resolved, if necessary, post-election. 
The proposed rule provided:

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

    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 and there is no bar to an election, he 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 
evidence concerning such disputes on the grounds that such evidence is 
not relevant to the existence of a question of representation.
    The final rule defers, in order to permit further deliberation, a 
final decision concerning the proposed amendments to subsections (b) 
and (c) of Sec.  102.64. Therefore, amended Sec.  102.64(b) will 
provide, as is now provided in Sec.  102.64(a), ``It shall be the duty 
of the hearing officer to inquire fully into all matters and issues 
necessary to obtain a full and complete record 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 amendment of Sec.  102.64(a). 
Those that do question the construction of Section 9(c) of the Act 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.
Sec. 102.65 Motions; Interventions
    The final rule adopts the proposed amendments of Sec.  102.65(c) 
specifying the grounds for a request for special permission to appeal a 
ruling of the hearing officer or regional director to the Board. 
However, the final rule does not apply the new, narrower standard to 
requests for special permission to appeal a ruling of the hearing 
officer to the regional director.
    The existing rules set forth no standard for the grant of a request 
for special permission to appeal. Consistent with the effort to avoid 
piecemeal appeal to the Board, as discussed above in relation to Sec.  
102.62 and below in relation to Sec.  102.67, the amendments to Sec.  
102.65(c) specify narrow circumstances under which a request for 
special permission to appeal to the Board will be granted. The final 
rule specifies that special permission to appeal will be granted only 
under ``extraordinary circumstances where it appears that the issue 
will otherwise evade review.'' To further discourage piecemeal appeal, 
the final rule makes clear that a party need not seek special 
permission to appeal in order to preserve an issue for review post-
election.
    Consistent with Congress's intent as evidenced in Section 3(b) as 
well as

[[Page 80163]]

ordinary practice in the courts and before administrative agencies, the 
final rule further specifies that neither the filing of a request for 
nor the grant of special permission to appeal will automatically stay 
proceedings or require the impounding of ballots unless specifically 
ordered by the regional director or the Board.
    Few comments were submitted on this proposal. The American Health 
Care Association and the National Center for Assisted Living (jointly, 
AHCA) contend 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.
    The Board disagrees with these concerns. ``Extraordinary 
circumstances'' is not the same as ``no circumstances.'' Cf. Sec.  
103.30(b) (``Where extraordinary circumstances exist, the Board shall 
determine appropriate units by adjudication.''). The general rule in 
adjudication before both courts and agencies is that interlocutory 
appeals are not favored, and should be permitted only when the issues 
raised would evade review if not resolved before review of a final 
judgment. See 28 U.S.C. 1291, 1292(b) (2006); Mohawk Industries, Inc. 
v. Carpenter, 130 S. Ct. 599, 604-605 (2009); Coopers & Lybrand v. 
Livesay, 437 U.S. 463, 468-469 (1978).
    As discussed above, Section 3(b) of the Act authorizes the Board to 
delegate to its regional directors power to resolve issues arising in 
representation proceedings, and the final rule is intended to further 
that delegation while maintaining appropriate procedures for those 
unusual cases that require interlocutory intervention.
    AHCA and ALFA argue that special permission to appeal serves little 
purpose because it will not stay proceedings. But the final rule does 
not preclude a stay. Rather, it merely provides that neither the filing 
nor grant of a request for special permission to appeal shall result in 
an automatic stay. The regional director and Board remain free to grant 
a stay, either on their own or on request, under appropriate 
circumstances.
    After deliberation, the Board has decided not to approve the 
application of this new, narrow standard for special permission to 
appeal to requests 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 
director 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 new, narrow standard to requests for special permission to 
appeal rulings of hearing officers to the regional director.
    The final rule also adopts the proposed amendment 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 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 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.
Sec. 102.66 Introduction of Evidence: Rights of Parties at Hearing; 
Subpoenas
    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. 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 also 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 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 Board also 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 five days provided in 
Section 11(1) of the Act.
    The Board received a great number of comments about the proposed 
amendments to Sec.  102.66, particularly with respect to the statement 
of position form and the consequences of failing to complete it, the 
joinder and offer-of-proof procedure, and the so-called ``20-percent 
rule.'' The Board has decided to take no action at this time on those 
proposals or the proposal regarding subpoenas in order to permit more 
time for deliberation. The final rule adopts the proposals to amend 
Sec.  102.66(a) and (d) to ensure that hearing officers presiding over 
pre-election hearings have authority to limit the presentation of 
evidence to that which is relevant to the existence of a question of 
representation and to give the hearing officer discretion in regard to 
the filing of post-hearing briefs.
Subsec. 102.66(a)
    The proposed rule provided:

    Rights of parties at hearing. 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

[[Page 80164]]

evidence relevant to any genuine dispute as to a material fact. The 
hearing officer shall identify such disputes as follows: * * *

    The final rule provides:

    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 documentary and other evidence so long as 
such examination, cross-examination, and other evidence supports its 
contentions and is relevant to the existence of a question of 
representation or a bar to an election. 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.\111\
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    \111\ In the proposed rule, the last two sentences were in a 
separate subsection (e).

    The Board removed the 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. The substitute language 
makes clear that the hearing officer's role is the traditional one of 
admitting only evidence relevant to the matter at issue. The last 
sentence as well as the subsections of proposed Sec.  102.66(a) and 
subsections (b), (c), and (d) are deleted because the final rule does 
not adopt the offer-of-proof, joinder, statement of position, or 20 
percent rule provisions.
    As explained in the NPRM, the final rule's amendment of Sec.  
102.66(a) together with the elimination of 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 proper petition has been filed in an 
appropriate unit in order to find that a question of representation 
exists, the regional director need not decide all individual 
eligibility and inclusion questions (so long as they do not affect the 
type of election that must be conducted) and the hearing officer need 
not permit introduction of evidence relevant only to disputes 
concerning the eligibility and inclusion of individuals.
    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. Generally, 
individual eligibility and inclusion issues concern: (1) Whether 
individuals or groups of individuals, otherwise falling within the 
terms used to describe an appropriate unit, are nevertheless ineligible 
because they are excluded from the Act's definition of employee and (2) 
whether individuals or groups of individuals fall within the terms used 
to describe 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).
    For different reasons, the hearing officer must take evidence and 
the regional director must determine, prior to the election, whether 
any employees in an otherwise appropriate unit containing 
nonprofessionals are professionals. 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.\112\ 
Similarly, if a party contends that, under Board precedent, an 
eligibility standard different than the Board's ordinary standard 
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.
---------------------------------------------------------------------------

    \112\ Although some comments argue the same would be true of the 
question of whether any employees in a unit containing non-guards 
are guards, 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.
---------------------------------------------------------------------------

    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.\113\ The Board 
disagrees. Section 9(c)(1) of the Act provides in pertinent part:
---------------------------------------------------------------------------

    \113\ See Americans for Limited Government; Constangy. 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; NMA.

    Whenever a petition shall have been filed, * * * the Board shall 
investigate such petition and if it has reasonable cause to believe 
that a question of representation affecting commerce exists shall 
provide for an appropriate hearing upon due notice. Such hearing may 
be conducted by an officer or employee of the regional office, who 
shall not make any recommendations with respect thereto. If the 
Board finds upon the record of such hearing that such a question of 
representation exists, it shall direct an election by secret ballot 
---------------------------------------------------------------------------
and shall certify the results thereof.

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 all 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 ``so long as such examination, cross-examination, and 
other evidence supports its contentions and is relevant to the 
existence of a question of representation or a bar to an election.'' 
Nothing in Section 9(c) or any other section of the Act requires the 
Board to permit parties

[[Page 80165]]

to introduce evidence at a pre-election hearing that is not relevant to 
whether a question of representation exists.

    The final rule's amendment of 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 which is 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 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 argues that ``[u]nder current NLRB procedural rules, a party 
is guaranteed the right to submit evidence in support of its position 
at the hearing.'' The Board acknowledges that the current language in 
Sec. Sec.  102.66(a) and 101.20(c), when read in isolation, could have 
been construed to mean that parties have a right to present evidence 
regarding issues that do not relate to whether a question of 
representation exists. But that is why the Board is amending Sec.  
102.66(a) and eliminating Sec.  101.20(c). Put simply, it is 
administratively irrational 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 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.
    SHRM cites Barre-National, Inc., 316 NLRB 877 (1995), in which the 
Board relied on Sec. Sec.  102.66(a) and 101.20(c) in holding that the 
hearing officer erred by preventing an employer from presenting 
evidence at a pre-election hearing regarding the eligibility of 24 line 
and group leaders to vote in an election directed in a unit of 
production, maintenance, and warehouse employees.\114\ The employer 
sought to present evidence that the line and group leaders were 
supervisors. 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:
---------------------------------------------------------------------------

    \114\ The 24 disputed individuals would have constituted 8-9 
percent of the unit if included. 316 NLRB at 878.

    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 these two provisions, the Board concluded, 
``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.\115\ The Board held in Barre-National, 
``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,\116\ Barre-National cannot be read to rest on a 
construction of the Act, but only on the Board's reading of Sec. Sec.  
102.66(a) and 101.20(c). The final rule's amendment of Sec.  102.66(a) 
and elimination of Sec.  101.20(c) make clear that parties are entitled 
to present evidence in support of their contentions only if the 
evidence is relevant to the existence of a question of representation, 
which it was not in Barre-National. The Board will no longer follow 
Barre-National under the amended rules.
---------------------------------------------------------------------------

    \115\ The Board also cited the second sentence of Sec.  
102.64(a), but, as explained above, that sentence provides no 
support for the holding in Barre-National.
    \116\ 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. 7000 (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 7002. 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. The Board does not believe that 
Senator Taft's vague reference to ``eligibility to vote'' was 
intended to encompass the types of questions concerning individual 
eligibility or inclusion discussed above as opposed, for example, to 
the general eligibility formula to be used in an election. See, 
e.g., Alaska Salmon Industry, 61 NLRB 1508, 1511-12 (1945) (changing 
eligibility formula for seasonal industries). In any event, the 
statement of a single legislator, even the Act's principal sponsor, 
made after the dispositive vote, cannot alter the plain meaning of 
the language in Section 9(c)(1), particularly in light of the 
Board's longstanding construction of the Act not to require that it 
``decide'' such individual eligibility questions prior to an 
election. See Barre-National, 316 NLRB at 878 n. 9.

    Moreover, as explained in the NPRM, the result in Barre-National is 
even less administratively rational given the Board's acknowledgement 
in that case 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, and 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 879 n.9. 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

[[Page 80166]]

(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). The Eighth Circuit has stated that ``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). 
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). In short, 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. The final rule thus eliminates 
wholly unnecessary litigation that serves as a barrier to the 
expeditious resolution of questions of representation.
    Some comments argue that permitting the hearing officer to exclude 
evidence related to individual eligibility and inclusion issues will 
deprive the decision-makers of an adequate record.\117\ The Board does 
not believe that the final rule will deprive the regional director, the 
Board, or the courts of appeals of an adequate record to review. It is 
true that the record will not include evidence that the hearing officer 
found was not relevant, but that is the case now and is the case with 
respect to any hearing or trial court record developed in front of an 
officer or judge who applies ordinary rules of relevance. The final 
rule does not amend Section 102.68 of the Board's Rules and 
regulations, which provides that:
---------------------------------------------------------------------------

    \117\ See, e.g., AHA.

    The record in a proceeding conducted pursuant to the foregoing 
section shall consist of: the petition, notice of hearing with 
affidavit of service thereof, 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.

Moreover, if the regional director finds that the record is not 
sufficient to determine whether a question of representation exists or 
any other matter that must be addressed prior to directing an election, 
the regional director can reopen the record and remand the proceeding 
to the hearing officer.

    Some comments make a more specific point concerning the need for an 
adequate record upon which the regional director can determine whether 
the petitioned-for unit is an appropriate unit as required by the 
Act.\118\ These comments suggest that if an employer declines to take a 
position on the appropriateness of the petitioned-for unit and the 
hearing officer exercises the authority to limit the employer's 
examination, cross-examination, and introduction of evidence to that 
which ``supports its contentions'' under Sec.  102.66(a), the regional 
director and Board may be deprived of an adequate record upon which to 
fulfill their statutory duty to determine if the proposed unit is 
appropriate. The Board believes that these comments misunderstand the 
effect of the amendment. First, as explained in the NPRM, hearing 
officers have this same authority to limit parties' participation in 
the hearing under the current rules. See 76 FR 36823; Bennett 
Industries Inc., 313 NLRB 1363 (1994); Allen Health Care Services, 332 
NLRB 1308 (2000); Casehandling Manual Section 11217. Second, even if 
the hearing officer exercises the authority to limit an employer's 
presentation of evidence under these circumstances, both the petitioner 
and the hearing officer will retain the right to introduce the evidence 
needed to make the required determination concerning the unit. 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. Third, the final 
rule, like the current rules, merely vests the hearing officer with 
discretion to limit a party's participation in the hearing as it 
relates to issues concerning which the party has not taken a position. 
The hearing officer remains free to permit such participation if the 
officer concludes it is necessary to develop a complete record. 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. The Board has further concluded that not vesting hearing 
officers with clear authority to limit such employers' participation in 
the hearing under those circumstances threatens the hearing officer's 
ability to control the proceedings and avoid burdening the record.
---------------------------------------------------------------------------

    \118\ AHA argues that it would be unfair to preclude employers 
from introducing evidence given that some evidence must be accepted 
concerning this issue.
---------------------------------------------------------------------------

    Some comments criticize the Board's statement of position, joinder, 
offer-of-proof, preclusion, and 20-percent proposals on the ground that 
assigning the hearing officer to manage the revised process would be 
inconsistent with the limits on the role of the hearing officer 
contained in Section 9(c)(1) of the Act or beyond the capacity of the 
Board's current hearing officers.\119\ The Board does not respond to 
these comments at length because the Board is taking no action on those 
proposals at this time.
---------------------------------------------------------------------------

    \119\ ALFA; SHRM; Bluegrass Institute; NMA; ACE; AHCA; NAM; 
Center on National Labor Policy (CNLP).
---------------------------------------------------------------------------

    To the extent the authors of the comments would criticize the final 
rule on the same grounds, the Board would find them to be unpersuasive. 
The hearing officer's role under the amendments is limited to the 
traditional one of controlling the hearing and preventing the record 
from being burdened by irrelevant evidence. See Mariah, Inc., 322 NLRB 
586, 586 n.1 (1996) (hearing officer acted consistent with his role of 
ensuring that the record is both complete and concise in refusing to 
permit the introduction of irrelevant evidence at the pre-election 
hearing). The hearing officer may limit the presentation of evidence 
based on relevance but cannot render a decision or make any form of 
recommendation. Thus, the final rule is fully consistent with Section 
9(c)(1). Moreover, if upon transmission of the record to the regional 
director, the director believes the record is insufficient to render a 
decision on a particular issue relevant to determining whether a 
question of representation exists or in any other respect, the director 
may reopen the record for presentation of additional evidence before 
the hearing officer relevant to that issue.\120\
---------------------------------------------------------------------------

    \120\ The Board also notes in this regard that, as explained in 
relation to Sec.  102.65(c), the final rule does not adopt the 
narrowed standard for special permission to appeal rulings of the 
hearing officer to the regional director.
---------------------------------------------------------------------------

    The Board is also confident that its hearing officers can fully and 
competently perform their role under the final rule. Currently, the 
regional

[[Page 80167]]

directors assign either field attorneys or field examiners 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 an 
almost 500-page publication entitled Guide for Hearing Officers in NLRB 
Representation and Section 10(K) Proceedings,\121\ 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.
---------------------------------------------------------------------------

    \121\ Office of the General Counsel, National Labor Relations 
Board, Guide for Hearing Officers in NLRB Representation and Section 
10(K) Proceedings (Sept. 2003).
---------------------------------------------------------------------------

    Some comments criticize the Board's statement of position, joinder, 
offer-of-proof, preclusion, and 20-percent proposals on the ground that 
the proposals would violate the parties' rights to due process of law 
by limiting the evidence they could introduce at the pre-election 
hearing.\122\ The Board does not respond to these comments at length 
because the Board is taking no action on those proposals at this time.
---------------------------------------------------------------------------

    \122\ Constangy; SHRM; Sheppard Mullins; NRF; Kuryakyn Holding 
LLC (Kuryakyn); NMMA; CNLP.
---------------------------------------------------------------------------

    To the extent the authors of the comments would criticize the final 
rule on the same grounds, the Board would find them to be unpersuasive. 
Most importantly, the final rule does not limit any party's right to 
present evidence, but merely gives the hearing officer and regional 
director discretion to defer introduction of such evidence until after 
the election. Moreover, a party has no right to present irrelevant 
evidence under the Act, the APA, or the Constitution. 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 (DC 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). The Board believes that the final rule merely 
codifies evidentiary limits that trial court judges routinely apply and 
thus is fully consistent with the requirement of an ``appropriate 
hearing,'' the APA, and the due process clause.
    A number of comments suggest that Section 9(c) requires a hearing 
regardless of whether material facts are in dispute.\123\ But, as under 
the current rules, the final rule provides for a pre-election hearing 
in all cases where the parties have not entered into an election 
agreement resolving all possible pre-election disputes. Section 9(c) 
does not require an evidentiary hearing in every case. Rather, it 
requires ``an appropriate hearing.'' If the parties come to the hearing 
and the hearing officer 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 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). In fact, the Board 
concludes that a hearing where irrelevant evidence is introduced is an 
inappropriate hearing.
---------------------------------------------------------------------------

    \123\ See SHRM; CNLP.
---------------------------------------------------------------------------

    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.\124\ 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.\125\ 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,\126\ or impeding their ability to 
determine whether they share a community of interest with the other 
voters.\127\ Similarly, a number of comments express the view that 
deferral of eligibility issues would engender confusion among the 
voting employees.\128\ 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,\129\ 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

[[Page 80168]]

election.\130\ Finally, with respect specifically 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,\131\ and SHRM asserts that employees would be chilled in the 
exercise of their Section 7 and First Amendment rights.
---------------------------------------------------------------------------

    \124\ Seyfarth Shaw; Council of Smaller Enterprises (COSE); 
Constangy; Indiana Chamber of Commerce; COLLE; RILA. 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.
    \125\ See, e.g., PIA.
    \126\ See, e.g., Testimony of Eric Schweitzer; Testimony of 
David Burton; GAM; Constangy; ACC; Anchor Planning Group; Kruchko & 
Fries; NRF; Baker & McKenzie; COLLE; Indiana Chamber of Commerce. 
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.
    \127\ See, e.g., Associated Oregon Industries; COSE; Seyfarth 
Shaw; Kuryakyn; NMMA; John Deere Water; NACCO Materials Handling 
Group; Graphtec America; Baker & McKenzie.
    \128\ See, e.g., SHRM; Seyfarth Shaw; ACE; AHA; ALFA; Spartan 
Motors.
    \129\ See, e.g., Pinnacle Health Systems; PIA; Arizona Hospital 
and Healthcare Association.
    \130\ See, e.g., LRI; Anchor Planning Group; Bluegrass 
Institute.
    \131\ See, e.g., Seyfarth Shaw; ACE; Sheppard Mullin.
---------------------------------------------------------------------------

    However, in this final rule the Board has determined not to adopt 
the 20-percent rule at this time, or make any change to the status quo 
concerning the regional director's or Board's discretion to defer 
deciding or the parties' right to agree to defer litigation concerning 
such questions until after the election. Prior to the amendments, 
regional directors were free to decide individual eligibility questions 
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 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 
individual eligibility questions-the hearing officer is free to permit 
the introduction of such evidence and the regional director is free to 
direct that such evidence be admitted if he or she resolves to decide 
the individual 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 effectively to campaign 
against union representation. 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 individual 
employees, the employer nevertheless has in its employ managers and 
supervisors whose status is not disputed and is undisputable.\132\
---------------------------------------------------------------------------

    \132\ 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 five business days 
after the notice), the hearing must be completed, and the regional 
director must issue a decision. Thus, for a substantial part of any 
campaign, including a substantial part of the ``critical period'' 
between the filing of the petition and the election, employers will not 
yet have a regional director's decision even in those cases where one 
issues pre-election. Third, again under the current rules, even if the 
regional director makes a decision concerning an individual eligibility 
question, it 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 hold the showing of 
interest to be 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 rendered 
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 rendered pre-election. See 29 U.S.C. 159(d) and 160(e); Boire 
v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).\133\ Thus, the 
uncertainty with which the comments are concerned exists under the 
current rules and cannot be fully eliminated.
---------------------------------------------------------------------------

    \133\ ALFA expressed 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 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 is also the 
case under the Board's current rules, as explained above, and when the 
parties agree to permit disputed employees to vote subject to 
challenge. In addition, as pointed out by SEIU in its comments, 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 to 
be part of such a mixed unit and the results of that separate vote, 
which takes place simultaneously with the vote in the entire unit, are 
not known when 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 NPRM, those 
two decisions represent the minority view in the courts. The

[[Page 80169]]

majority of the courts of appeals have upheld the Board's vote-and-
impound procedures and upheld election results even when the 
eligibility or inclusion of certain employees was not resolved until 
after the election.\134\ Moreover, under the final rule, the hearing 
officer and regional director have discretion to permit litigation and 
to resolve eligibility and inclusion questions that 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 prevent exactly that form of 
change in unit definition from occurring, by deferring both a regional 
director's decision, in most instances, and a Board decision until 
after the election and permitting disputed employees to vote subject to 
challenge. 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. Finally, as proposed in the NPRM, the 
Board could, even prior to or without adopting the relevant proposed 
rule, revise its final notice of election to inform employees that 
specified employees are voting subject to challenge, what that means, 
and how their status will be resolved. See Sears, Roebuck, 957 F.2d at 
55 (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'').
---------------------------------------------------------------------------

    \134\ 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).
---------------------------------------------------------------------------

    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, even if the amendments to 
Sec. Sec.  102.64(a) and 102.66(a) and the elimination of Sec.  
101.20(c) lead to more disputes concerning individual eligibility being 
deferred until after the election, 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. 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 ballots cast by such individuals 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 inherent 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.\135\
---------------------------------------------------------------------------

    \135\ 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.
---------------------------------------------------------------------------

    Finally, the Board is unaware of any 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).
    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

[[Page 80170]]

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. 
In addition, the final rule leaves the hearing officer and regional 
director with discretion, respectively, to permit introduction of 
evidence and to rule pre-election if the eligibility questions involve 
a large percentage of the unit. When the deferred questions concern 
only a small percentage of the unit, the concern expressed by NRTWLDF 
is unlikely to arise. Furthermore, the required showing of interest is 
purely an internal administrative matter, as explained in current Sec.  
102.18(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. 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. Finally, given 
that the only consequence of the possible scenario envisioned by 
NRTWLDF is, in rare cases, the conduct of an election which would not 
otherwise have been conducted, the Board does not believe that that 
possibility weighs heavily against the efficiencies gained by affording 
the hearing officer discretion not to take evidence concerning 
individual eligibility and inclusion questions.
    Some comments criticize the 20-percent rule on the grounds that it 
will lead to more post-election litigation and result in more 
overturned elections as a result of post-election rulings concerning 
the eligibility of employees.\136\ Similarly, 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.\137\ 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, the matter will be litigated and the resolution may 
affect the results of the election, but it will not lead to the results 
of the election being overturned. 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.
---------------------------------------------------------------------------

    \136\ See Associated Oregon Industries; Kuryakyn; Bluegrass 
Institute; NMMA.
    \137\ 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. 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.
Subsection 102.66(d)
    The NPRM proposed amending Sec. Sec.  102.67 and 102.66(d) to vest 
the hearing officer with discretion to control the filing, subjects, 
and timing of any post-hearing briefs. The final rule adopts this 
proposal.
    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 seven days after the close of the 
hearing.\138\ By exercising that right or even by simply declining to 
expressly waive that right until after the running of the seven-day 
period, parties can potentially delay the issuance of a decision and 
direction of election and the conduct of an election for purely 
tactical reasons.
---------------------------------------------------------------------------

    \138\ 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, AHCA 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 and ACE 
point out that this cannot be done as effectively in oral argument at 
the close of the hearing because the full transcript is ordinarily not 
yet available. Bruce E. Buchanan argued 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.'' 
\139\
---------------------------------------------------------------------------

    \139\ The AFL-CIO also points out that 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.'').
---------------------------------------------------------------------------

    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(d) does 
not prevent parties from filing post-hearing briefs. Rather, it simply 
vests the hearing officer with discretion to permit or not permit such 
filings and to otherwise control the content and timing of any post-
hearing briefs. Moreover, 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 average pre-election hearing lasts for less than one 
day.
    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;

[[Page 80171]]

Guide for Hearing Officers in NLRB Representation and Section 10(K) 
Proceedings 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.'').
    GAM argues that the proposal denies due process. In response, 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 with leave of the 
hearing officer. 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 that in formal agency adjudication:

    Before a recommended, initial, or tentative decision, or a 
decision on agency review of the decision of subordinate employees, 
the parties are entitled to a reasonable opportunity to submit for 
the consideration of the employees participating in the decisions--
    (1) proposed findings and conclusions; or
    (2) exceptions to the decisions or recommended decisions of 
subordinate employees or to tentative agency decisions; and
    (3) supporting reasons for the exceptions or 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, 79th Cong., 1st Sess. 16 (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).
    While Section 9 of the NLRA was amended in 1947 to adopt the 
current version of Section 9(c), the APA was not amended and 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).
    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 hearing 
officer who has heard the evidence introduced at the hearing 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.
Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; 
Action by the Regional Director; Review of Action by the Regional 
Director; Statement in Opposition; Transfer of Case to the Board; Board 
Action
    In the NPRM, the Board proposed a number of amendments to Sec.  
102.67. The Board proposed that the regional director defer deciding 
eligibility questions involving less than 20 percent of the unit and 
instead permit the disputed individuals to vote subject to challenge. 
The Board also proposed to give the regional director discretion to 
issue a direction of election with findings and a statement of reasons 
to follow no later than the tally of the ballots. The Board further 
proposed to make changes with respect to the Excelsior list and the 
final notice of the election, and to eliminate the regional director's 
authority to transfer a case to the Board for decision at any time. The 
Board has decided to take no action at this time on those proposals in 
order to permit more time for deliberation.
    In the NPRM, the Board also proposed amendments to the current pre-
election request-for-review procedure and the accompanying 25-day 
waiting period. Under the current rules, the parties are required to 
request Board review within 14 days of a regional director's decision

[[Page 80172]]

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 the decision and direction of election. Sec.  
102.67(f); see, e.g., A.S. Horner, Inc., 246 NLRB 393, 394-95 (1979). 
In addition, the regional director generally schedules the election no 
sooner than 25 days after the direction of election so that the Board 
has an opportunity to rule on any request for review that may be filed. 
Sec.  101.21(d). But a request does not automatically stay the 
election, which proceeds as scheduled in almost all cases. 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.
    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. In the NPRM, the 
Board explained that the amendment 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 will 
result in efficiencies for the parties and the Board.
    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 is 
eliminated by the elimination of the pre-election request for review.
    The final rule adopts both these proposals.
    The final rule's elimination of the pre-election request for review 
and consolidation of all Board review (except via a request for special 
permission to appeal) post-election conforms Board procedures with the 
ordinary rules in both federal and state courts. As the Supreme Court 
has explained, consolidating appellate review in a single proceeding 
subsequent to a final order avoids unnecessary litigation and expense. 
``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). In contrast, the Court explained in a later decision, ``An 
interlocutory appeal * * * risks additional, and unnecessary, appellate 
court work either when it presents appellate courts with less developed 
records or when it brings them appeals that, had the trial simply 
proceeded, would have turned out to be unnecessary.'' Johnson v. Jones, 
515 U.S. 304, 309 (1995). Countless court of appeals decisions contain 
the same reasoning for limiting interlocutory appeal. See, e.g., 
Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir. 1996) (``[P]iecemeal 
litigation * * * risks the creation of unnecessary appellate work by 
presenting issues for review which could have been avoided entirely if 
trial had proceeded.'').
    Relatively few comments took issue with the proposed elimination of 
the pre-election request for review, as noted by SEIU in its reply 
comment. Those that did--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 grants, the election will typically be held 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,\140\ the number of 
cases of the type described in these comments is likely to be 
insignificant. Finally, under the final rule a party may file a request 
for special permission to appeal and request a stay under appropriate 
circumstances.
---------------------------------------------------------------------------

    \140\ From 2004 to 2009, review was granted pursuant to less 
than 12 percent of requests, and less than 5 percent of regional 
directors' decisions were reversed.
---------------------------------------------------------------------------

    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.\141\ However, this is no different from 
current practice when the regional director and the Board rule on 
challenged ballots or objections. Moreover, it is a necessary correlate 
of waiting to see if the dispute is rendered moot by the election 
results. Thus, it is parallel to the situation in appellate courts that 
consider evidentiary and other interlocutory rulings only as part of an 
appeal from a final order, i.e., knowing how the case was decided.
---------------------------------------------------------------------------

    \141\ See, e.g., PIA; COLLE; ACE.
---------------------------------------------------------------------------

    Some comments contend that the proposed rule will not expedite 
commencement of bargaining but will simply shift review until after the 
election.\142\ The Board disagrees. 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 
election are removed from consideration. Accordingly, the Board 
believes that the current system is inefficient and imposes unnecessary 
costs on the parties and the government by requiring parties to 
litigate, and the Board to rule on, issues that are frequently rendered 
moot by the election results. In sum, the Board believes that the final 
rule will not simply shift litigation from before elections to after, 
but rather will significantly reduce the total amount of litigation.
---------------------------------------------------------------------------

    \142\ See, e.g., Testimony of Michael Prendergast; AHA; Seyfarth 
Shaw.
---------------------------------------------------------------------------

    AHA comments that the Board's own failings in timely processing 
requests is not a basis for eliminating the right of parties to review. 
But the final rule does not eliminate any party's right to request 
review. The rule simply eliminates the obligation to request review 
pre-election in order to preserve an issue, and permits any issue that 
would previously have been raised pre-election to be raised through a 
single, more efficient, post-election request for review.

[[Page 80173]]

Moreover, if a party believes that pre-election review is essential to 
preserve an issue for review, it can file a request for special 
permission to appeal. Finally, 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 pre-
election request for review will, 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.
    Others suggest that limiting pre-election review will mean that the 
parties will be unsure who is a supervisor during the pre-election 
campaign.\143\ This objection is addressed at length above in relation 
to Sec.  102.66. But 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. 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 will be thwarted if the pre-election 
request for review is eliminated.
---------------------------------------------------------------------------

    \143\ See, e.g., Testimony of Harold Weinrich.
---------------------------------------------------------------------------

    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.\144\ 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.\145\
---------------------------------------------------------------------------

    \144\ See Testimony of Professor Samuel Estreicher; SEIU reply.
    \145\ See Professor Joel Cutcher-Gershenfeld; Ranking Member 
George Miller and Democratic Members of the U.S. House of 
Representatives Committee on Education and Workforce; IBEW; Thomas 
Meiklejohn.
---------------------------------------------------------------------------

    Some comments, such as the hearing testimony of Jay P. Krupin, 
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. If 
adopted, however, that proposal would give parties the ability to delay 
elections for tactical purposes. 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. 
Finally, 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. As explained above, 
these objections have little continuing relevance now that the Board 
has determined to deliberate further about several of the other 
proposed amendments. To the extent the objections still have force, 
they are addressed at length above in Section III, D.
Sec. 102.69 Election Procedure; Tally of Ballots; Objections; 
Certification by the Regional Director; Requests for Review of 
Directions of Elections; Hearings; Hearing Officer Reports on 
Objections and Challenges; Exceptions to Hearing Officer Reports; 
Requests for Review of Regional Director Decisions in Stipulated or 
Directed Elections
    In the NPRM, the Board proposed to amend Sec.  102.69 to (1) 
require that a party filing objections simultaneously file a 
description of the evidence supporting its objections, (2) require that 
the regional director set any hearing on determinative challenged 
ballots or objections to begin 14 days after the tally or as soon 
thereafter as practicable, (3) 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, (4) establish a uniform 
procedure when a hearing is conducted, and (5) make Board review of 
regional directors' post-election dispositions discretionary. The final 
rule adopts proposals (3), (4), and (5).
    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.\146\ 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. 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

[[Page 80174]]

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.\147\ 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, who are 
members of the career civil service.
---------------------------------------------------------------------------

    \146\ 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). 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(e) what constitutes 
the record in such no-hearing cases, just as they specify what 
constitutes the record in cases that proceed to a hearing.
    \147\ 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) any request for review of the regional director's 
decision and direction of election is due within 14 days after 
issuance of the administrative law judge's decision; and (2) 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. 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 his 
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.
---------------------------------------------------------------------------

    Finally, the amendments clarify in Sec.  102.69(e)(1)(ii) that in a 
proceeding conducted pursuant to Sec.  102.69 in which no hearing is 
held, the record will include any decision and direction of election 
and the record previously made as defined in Sec.  102.68. As discussed 
above, pursuant to the amendments to Sec.  102.69, parties may file 
requests for review of the regional director's decision and direction 
of election after the election, but the timing depends on whether there 
are also objections and challenges. In a case involving objections or 
determinative challenges, the request for review is due 14 days after 
the regional director issues his decision resolving them. Section 
102.69(g)(1)(i) currently provides that in cases where a hearing is 
held on objections and challenges, the record includes the record 
previously made as defined in Sec.  102.68. Absent objections and 
challenges, the amendments provide that the request for review of the 
decision and direction of election is due 14 days after the tally of 
ballots is prepared. Because there may be no post-election hearing, 
either because there were no objections or determinative challenges or 
because the director disposed of them without a hearing, the amendments 
clarify in Sec.  102.69(e)(1)(ii) that if a party files a request for 
review of the decision and direction of election but no post-election 
hearing on objections and challenges is held, the record will similarly 
include the decision and direction of election and the record made at 
the pre-election hearing as defined in Sec.  102.68.
    Some comments question whether the Board will resolve 
nondeterminative challenges post-election. The final rule maintains the 
status quo in this regard: 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.'' Yet, as many of the comments 
in support of the amendments indicate, parties currently engage in 
precisely such bargaining regarding the inclusion or exclusion of 
particular individuals and classifications before the election, when 
they negotiate an election agreement defining the appropriate unit, and 
after the election, when they often resolve both determinative and 
nondeterminative challenges by agreement.\148\ In relation to AHA's 
concern that deferring such matters to bargaining runs counter to the 
goal of promoting labor peace, the Board believes that labor peace is 
more likely to be promoted if parties are permitted to voluntarily 
resolve their differences, particularly when the parties remain free to 
bring a timely unit clarification petition before the Board if they do 
not reach agreement.
---------------------------------------------------------------------------

    \148\ Even after certification, the scope of the bargaining unit 
remains a permissible subject of bargaining. See The Idaho Statesman 
v. NLRB, 836 F.2d 1396, 1405 (D.C. Cir. 1988).
---------------------------------------------------------------------------

    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.
    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. The Board disagrees. 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.'' \149\ 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

[[Page 80175]]

eligibility questions after the election than if the regional director 
decides them prior to the election, and the final rule corrects this 
anomaly.
---------------------------------------------------------------------------

    \149\ 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 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.

Subparts D and E, Sec. Sec.  102.73 Through 102.88, Procedures for 
Unfair Labor Practice and Representation Cases Under Sec. 8(b)(7) and 
9(c) of the Act and Procedures for Referendum Under Sec. 9(e) of the 
Act

    The amendments in these two subparts merely conform their 
provisions to the amendments in Subpart C described above.

V. Comments on Other Statutory Requirements

A. The Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et 
seq., requires agencies promulgating proposed rules to prepare an 
initial and final regulatory flexibility analysis and to develop 
alternatives, wherever possible, when the regulations will have a 
significant 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''). An agency is 
not required to prepare an initial regulatory flexibility analysis or a 
final regulatory flexibility analysis for a proposed rule 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).\150\ 
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. Based on the factual statement and analysis below, 
the Board concludes that the final rule will not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
the Board's Chairman has certified to the Chief Counsel for Advocacy of 
the Small Business Administration (``SBA'') that the proposed 
amendments will not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

    \150\ The RFA requires analysis of a final agency rule only 
where notice and comment rulemaking was required. 5 U.S.C. 604(a). 
As explained above, the final rule is a procedural rule for which 
notice and comment rulemaking was not required under the APA, 5 
U.S.C. 553(b)(3)(A). Therefore, no analysis under the RFA need be 
performed. Nevertheless, the Board chose to undertake the threshold 
analysis contemplated by Section 605 of the RFA.
---------------------------------------------------------------------------

    The RFA does not define either ``significant economic impact'' or 
``substantial'' as it relates to the number of regulated 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 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'' at 17 (available at http://www.sba.gov/sites/default/files/rfaguide.pdf) (``SBA Guide'').
    The Board determined that the proposed rule would not have an 
impact on a substantial number of small entities within the meaning of 
5 U.S.C. 605(b). 76 FR 36833-34. The same is true for the final rule. 
According to the United States Census Bureau, there were approximately 
6 million businesses in the United States with employees in 2007. Of 
those, the Small Business Administration's Office of Advocacy estimates 
that all but some 18,300 were small businesses with fewer than 500 
employees.\151\ Nearly all of those 5,981,700 small employers are 
subject to the Board's jurisdiction.\152\ However, the Board concludes 
that the final rule will not have an impact on the vast majority of the 
small employers because only entities that are actually parties to 
representation proceedings under the NLRA are subject to the rule. 
Fewer than 4,000 representation proceedings were initiated during each 
of the past five years, and the Board has conducted fewer than 2,500 
elections during each of those years.\153\ Thus, between 2006 and 2010, 
the final rule would have applied to fewer than 4,000 small entities 
per year.\154\ The Board believes that this pattern will continue into 
the foreseeable future. The final rule is thus likely to have an impact 
on fewer than 4,000 small entities per year, which is less than one-
tenth of one percent of the small employers in the country.\155\ 
Moreover, the affected entities are not concentrated in one or a few 
sectors, but are distributed among every sector and industry subject to 
the Board's jurisdiction.\156\ Because one-tenth of one

[[Page 80176]]

percent of small entities is not a substantial number of small 
entities, the Board concludes that the final rule will not impact a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act.
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    \151\ U.S. Small Business Administration, FAQs, http://web.sba.gov/faqs (select ``Advocacy Small Business Statistics and 
Research'') (SBA Office of Advocacy estimates based on data from the 
U.S. Department of Commerce, Bureau of the Census, and trends from 
the U.S. Department of Labor, Bureau of Labor Statistics, Business 
Employment Dynamics).
    \152\ The principal private sector employers exempt from the 
Board's jurisdiction are employers of agricultural laborers and 
firms covered by the Railway Labor Act, 45 U.S.C. 151. See 29 U.S.C. 
152(2) & (3). Employers whose connection to interstate commerce is 
so slight that they do not satisfy the Board's discretionary 
jurisdictional standards are also treated as exempt. See 29 U.S.C. 
164(c); NLRB, An Outline of Law and Procedure in Representation 
Cases, http://www.nlrb.gov/sites/default/files/documents/44/rc_outline_2008_full.pdf.
    \153\ See NLRB Graphs & Data, Petitions and Elections, http://www.nlrb.gov/graphs-data (including charts documenting that the 
total number of election petitions filed between the years of 2006 
and 2010 is 3359, 3064, 3170, 2725, and 2977 and the total number of 
elections is 2159, 1913, 1938, 1621, and 1817).
    \154\ Although the number of petitions has fluctuated over the 
last 10 years, rising to as many as 5,347 in 2002, even that number 
constitutes only a very small percentage of the total number of 
small entities, and so would also fail to reach the significant 
number threshold in the statute. See id.
    \155\ CNLP comments that the Board failed to properly define 
small entities. It argues that the median size of petitioned-for 
units is 23-26 employees, and therefore half of the Board's 
elections involve employers with 25 or fewer employees. But a unit 
does not necessarily and does not typically include all the 
employees of the employer. Moreover, CNLP misunderstands the proper 
inquiry for certification under the RFA. The question is whether the 
rule has a significant impact on a substantial number of small 
entities, not whether most of the entities so affected (no matter 
how few in number) are small entities. Finally, the Board has used 
an extremely inclusive definition of small entity, including all 
employers not excluded by the Small Business Administration's 
definition.
    \156\ Following the recommendation of the SBA Office of 
Advocacy, the Board identified the total number of affected 
employers within each industry using the NAICS categories. In no 
category did the percentage of affected employers rise above half of 
one percent. In the largest category, utilities, only 0.28 percent 
of all employers were parties to a representation proceeding. See 
Seventy Fourth Annual Report of the NLRB, https://www.nlrb.gov/sites/default/files/documents/119/nlrb2009.pdf (NLRB data); U.S. 
Census Bureau, North American Industry Classification System. http://censtats.census.gov/cbpnaic/cbpnaic.shtml (select ``United 
States'' in the first drop down box for national data).
---------------------------------------------------------------------------

    In response to the Board's proposed rule, some of the comments 
argue that the rule would affect many more than the approximately 4,000 
small entities estimated by the Board. The comments argue that the rule 
imposes burdens on all employers, because each must, for example, read 
and understand the rules, train human resources and management staff 
concerning the rules, educate their employees about the rules, and find 
or hire labor counsel to provide advice concerning the rules. Comments 
of this type were submitted by the Chamber, NAM, and NRF, among others. 
NAM also opined that the rule will lead to increased numbers of 
election petitions, and NRF posited that the rule would change 
employers' typical reactive approach to election petitions to proactive 
employee education about unionization.
    The Board disagrees with these comments. First, the comments are 
based primarily on elements of the proposed rule not adopted in the 
final rule. Thus, the final rule does not impose any reporting or 
recordkeeping requirements on employers. Second, the RFA does not 
require an agency to consider these types of speculative and 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); Colorado State Banking Bd. v. Resolution Trust Corp., 926 F.2d 
931, 948 (10th Cir. 1991). This construction of the RFA is supported by 
Section 603 of the RFA, which lists the items to be included in an 
initial regulatory flexibility analysis (if one is required). Section 
603 states that such an analysis ``shall describe the impact of the 
proposed rule on small entities.'' 5 U.S.C. 603(a). And Section 603(b) 
describes the ``impact'' by stating that ``[e]ach initial regulatory 
flexibility analysis * * * shall 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[.]'' 5 U.S.C. 603(b)(4) (emphasis added). Section 604 further 
corroborates the Board's conclusion, as it contains an identical list 
of requirements for a final regulatory analysis (if one is required). 5 
U.S.C. 604(a)(4). Guidance from the Small Business Administration also 
supports this construction of the RFA because it cites only direct, 
compliance-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 34.
    Thus, nothing in the RFA, its prior construction, or SBA guidance 
suggests that the Board must consider the speculative and 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 must consider only 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, mandatory costs of 
modifying existing processes, no costs of lost sales or profits, and no 
costs of changed market competition. SBA Guide at 34. 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. 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 
done so under the prior 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.\157\ For all of these reasons, the Board reaffirms its 
certification on the grounds that the final rule will not have an 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \157\ The Chamber states that it does ``not know how many 
employers would undertake such [education] efforts.'' Other similar 
comments also lack factual support, including NRF's assertion that 
this rule will require employers to preemptively educate their 
employees. Similarly, the suggestion of COLLE, that the Board must 
prove that employers will not engage in additional training in 
response to the final rule, is misguided, because any such activity 
would be undertaken voluntarily and is not required by the final 
rule.
---------------------------------------------------------------------------

    Moreover, even if the Board assumed that the final rule would have 
an impact on a substantial number of small entities, the final rule 
will not have a significant economic impact within the meaning of 5 
U.S.C. 605(b). 76 FR 36833-34.
    In the NPRM, the Board explained, ``the Board estimates that the 
net effect of the proposed amendments could be to decrease costs for 
small entities. While certain of the proposed amendments--when viewed 
in isolation--could result in small cost increases, those costs should 
be more than offset by the many efficiencies in the Board's 
representation procedures created by the proposed amendments.'' 76 FR 
36833. The final rule adopts none of the proposed amendments that could 
have resulted in small cost increases for parties to representation 
proceedings. Therefore, as shown below, each of the amendments adopted 
in the final rule will either reduce the cost of being a party to a 
representation proceeding or have no economic impact on such parties.
    First, the final rule amends Sec.  102.64 in order to expressly 
construe Section 9(c) of the NLRA and state that the statutory purpose 
of a pre-election hearing is to determine if a question of 
representation exists. That amendment has no economic impact except in 
relation to the amendment of Sec.  102.66(a), infra.
    Second, the final rule amends Sec.  102.66(a) and eliminates Sec.  
101.20(c) (along with all of Part 101, Subpart C) in order to ensure 
that hearing officers presiding over pre-election hearings have the 
authority to limit the presentation of evidence to that supporting a 
party's contentions and relevant to the existence of a question

[[Page 80177]]

concerning representation. These amendments will lower the cost of 
participating in representation proceedings by reducing litigation at 
the pre-election hearing. While some disputes that would have been 
litigated at the pre-election hearing will still be litigated at the 
post-election hearing, many will be rendered moot by the results of the 
election or resolved by the parties once they are free of the tactical 
consideration of the impending election.
    Third, the final rule amends Sec.  102.66(d) to afford hearing 
officers presiding over pre-election hearings discretion over the 
filing of post-hearing briefs, including over the subjects addressed 
and the time for filing. Presenting oral argument in lieu of a post-
hearing brief will reduce the cost of participating in representation 
proceedings.
    Fourth, the final rule amends Sec. Sec.  102.67 and 102.69 to 
eliminate the requirement that parties' file a pre-election request for 
review of a regional director's decision and direction of election in 
order to preserve issues for review, and defer all requests for Board 
review until after the election, when any such request can be 
consolidated with a request for review of any post-election rulings. 
Because many issues concerning which parties would previously have 
filed a pre-election request for review are rendered moot by the 
election results and because, even when they are not, filing a single 
consolidated request for review when a party wishes to seek review 
concerning both pre- and post-election rulings results in efficiencies, 
eliminating the pre-election request for review will reduce the cost of 
participating in representation proceedings.
    Fifth, the final rule eliminates the regulatory direction in Sec.  
101.21(d) (again, along with all of Part 101, Subpart C) that the 
regional director should ordinarily not schedule an election sooner 
than 25 days after the decision and direction of election in order to 
give the Board an opportunity to rule on a pre-election request for 
review. This will have no direct impact on the cost of participating in 
representation proceedings.
    Sixth, the final rule amends Sec.  102.65 to make explicit and to 
narrow the circumstances under which a request for special permission 
to appeal to the Board will be granted. For the same reasons explained 
above in relation to eliminating the pre-election request for review, 
limiting this form of interlocutory appeal will reduce the cost of 
participating in representation proceedings.
    Seventh, the final rule amends Sec. Sec.  102.62(b) and 102.69 to 
create a uniform procedure for resolving potentially outcome-
determinative challenges and election objections in stipulated and 
directed election cases and to provide that Board review of regional 
directors' resolution of such disputes is discretionary. This will have 
no direct impact on the cost of participating in representation 
proceedings.
    Eighth, the final rule eliminates redundant part 101, subpart C of 
its regulations. This will have no direct impact on the cost of 
participating in representation proceedings.
    The remainder of the final rule's amendments conform other sections 
of the Board's Rules and Regulations to the eight amendments described 
above. This will have no direct impact on the cost of participating in 
representation proceedings.
    The Chamber asserts that the Board failed to calculate the costs of 
compliance with the proposed rule with sufficient particularity. The 
Chamber's comment focuses on the costs of the proposed notice posting, 
completion of the statement-of-position form, and the shortening of 
certain deadlines within the representation case process. It suggests 
that these costs would constitute a significant economic impact. The 
comment does not include numerical estimates of such costs, and, in any 
event, the final rule largely does not adopt the proposals pointed to 
in the Chamber's comment. Moreover, under the RFA Section 607, ``an 
agency may provide * * * more general descriptive statements if 
quantification is not practicable or reliable.'' \158\ Administrative 
guidance explains that, ``[s]uch a standard is not required for section 
605 certifications, but some agencies use section 607 as a model for 
preparing certifications.'' \159\ Because quantification was not 
practical or reliable in relation to most of the proposed amendments, 
the Board followed Sec.  607 and provided a general descriptive 
statement in the NPRM and has done the same here.
---------------------------------------------------------------------------

    \158\ 5 U.S.C. 607; see also Alenco Communications, Inc. v. FCC, 
201 F.3d 608, 625 (5th Cir. 2000).
    \159\ SBA Guide, supra, at 10 n. 34.
---------------------------------------------------------------------------

    For the two separate reasons explained above, the Board concludes 
the final rule will not have a significant economic impact on a 
substantial number of small entities.

B. 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 final rule does not adopt any of the proposed amendments 
regarding the contents of petitions, notice postings, the statement of 
position, or employee or eligibility lists, and so there are no longer 
any even arguable information collection requirements in the final 
rule. The Board therefore concludes that the final rule is not subject 
to the PRA.

C. Congressional Review Act

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act). This rule 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 on 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.

VI. 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 for many different 
reasons. 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 the union demanding recognition as the 
representative of the employer's employees. If there is already a 
certified or currently recognized representative, an employee 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

[[Page 80178]]

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, and the names of all labor organizations that claim 
to represent the employees. A petitioner seeking certification as the 
collective-bargaining representative or seeking to decertify an 
incumbent representative must supply, within 48 hours after filing but 
in no event later than the last day on which the petition might timely 
be filed, evidence of employee interest in an election. Such evidence 
is usually in the form of cards, which must be dated, authorizing the 
labor organization to represent the employees or authorizing the 
petitioner to file a decertification petition. If a petition is filed 
by an employer, the petitioner must supply, within 48 hours after 
filing, 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 by fax, by mail, or in person 
at one of the NLRB's regional offices.

B. Pre-Hearing Withdrawals and Dismissals; Notice of Hearing

    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 in the 
discretion of the hearing officer upon such terms as he or she deems 
just.
    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 
issues a notice of a pre-election hearing at a time and place fixed 
therein to the parties named in the petition. Along with the notice of 
hearing, the regional director serves a copy of the petition 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.

C. 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 the election details, 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.
    The Board has devised and makes available to the parties three 
types of 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. 
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 shall 
be 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 with discretionary Board review. 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 with final regional director determination 
of pre- and post-election disputes. 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

[[Page 80179]]

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.

D. Formal 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 regional 
director may at any time transfer the case to the Board for decision, 
but until such action is taken, it will be presumed that the regional 
director will decide the case. In the event the regional director 
decides the issues in a case, the decision is final subject to the 
review procedure set forth in the Board's Rules and Regulations.
    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 be necessary for determination of whether a question of 
representation exists. A question of representation exists if a 
petition as described in Section 9(c) of the Act has been filed 
concerning a unit appropriate for the purposes of collective bargaining 
or, in the case of a petition filed under Section 9(c)(1)(A)(ii), 
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. Each party is 
afforded full opportunity to present its respective positions and to 
prove the significant facts supporting its positions, so long as the 
evidence a party seeks to introduce supports its contentions and is 
relevant to the existence of a question of representation or a bar to 
an election. 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 election. The filing of a request for special 
permission to appeal does not stay an election and does not result in 
impounding of ballots unless specifically ordered by the Board.
    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 hearing officer. The hearing 
officer specifies the time for filing such briefs, and may limit the 
subjects to be addressed in post-hearing briefs. If the regional 
director transfers the case to the Board for decision, parties may file 
post-hearing briefs with the permission of the Board.
    Upon the close of the hearing, the entire record in the case is 
forwarded to the regional director or, upon issuance by the regional 
director of an order transferring the case, to the Board in Washington, 
DC. The hearing officer also transmits an analysis of the issues and 
the evidence, but makes no recommendations in regard to resolution of 
the issues.

E. Regional Director Pre-Election Determinations; Requests for Review

    After the pre-election hearing closes, the regional director may 
proceed 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. Or, in 
cases involving novel or complex issues, the regional director may 
transfer the case to the Board for decision. In that event, the record 
is forwarded to the Board, and if the Board directs an election, the 
election is held under the supervision of the regional director in the 
same manner as if the regional director had directed the election.
    If the regional director directs an election, a party may request 
review of the direction after the election in the manner described 
below. If the regional director dismisses a petition, a party may file 
a request for review with the Board within 14 days after service of the 
decision dismissing the petition in the manner specified in the Board's 
Rules and Regulations. Any party may file with the Board a statement in 
opposition to a request for review, within the time periods and in 
manner specified in the Board's Rules and Regulations. The Board will 
grant a request for review only where there are compelling reasons to 
do so. The parties may, at any time, waive their right to request 
review. Failure to request review precludes such parties from 
relitigating, in any subsequent related 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 subsequent related unfair labor 
practice proceeding.

F. Election Procedure; Challenges and Election Objections; Requests for 
Review of Directions of Elections; Requests for Review of Regional 
Director Dispositions of Challenges and Objections

1. Election Procedure; Challenges; and Objections
    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. The 
regional director determines the details incident to the conduct of the 
election. 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. Also, prior to the date of election, the 
holding of such election is publicized by the posting of official 
notices in the employer's facility whenever possible or in other 
places, or by the use of other means considered appropriate and 
effective. These notices reproduce a sample ballot and outline such 
election details as the date of the election, location of polls, time 
of voting, and eligibility rules. 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. 
The

[[Page 80180]]

parties' authorized observers and Board agents may challenge, for good 
cause, the eligibility of any person to participate in the election. 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, 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 
before the tally. 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.
    Within seven days after the tally of ballots has been prepared, a 
party may file objections to the conduct of the election or to conduct 
affecting the results of the election. Parties have an additional seven 
days to file their evidence in support of objections. A party must 
timely file objections and the supporting evidence even if there are 
determinative challenges.
2. Requests for Review of Decisions and Directions of Elections
    If the election has been conducted pursuant to a regional 
director's decision and direction of election, any party may file a 
request for review of that decision with the Board in the manner 
specified in the Board's Rules and Regulations. In the absence of 
election objections or potentially determinative challenges, the 
request for review of the decision and direction of election must be 
filed within 14 days after the tally of ballots has been prepared. In a 
case involving election objections or potentially determinative 
challenges, the request for review must be filed within 14 days after 
the regional director's decision on challenged ballots and/or 
objections, and may be combined with a request for review of that 
decision as described below, unless the hearing on objections and 
determinative challenges has been consolidated with an unfair labor 
practice proceeding before an administrative law judge. In such cases, 
the request for review of the decision and direction of election must 
be filed within 14 days after issuance of the administrative law 
judge's decision. Any party may file with the Board a statement in 
opposition to the request for review within the time periods and in the 
manner specified in the Board's Rules and Regulations. The Board will 
grant a request for review only where there are compelling reasons to 
do so. If no request for review is filed, the decision and direction of 
election is final and shall have the same effect as if issued by the 
Board. A party may, at any time, waive its right to request review. 
Failure to request review precludes such a party from relitigating, in 
any subsequent related unfair labor practice proceeding, any issue 
which 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 subsequent related unfair labor practice proceeding.
3. Certification in Absence of Objections, Determinative Challenges and 
Requests for Review
    If no timely objections are filed, if the challenged ballots are 
insufficient in number to affect the results of the election, if no 
runoff election is to be held, and if no request for review of any 
decision and direction of election is filed, the regional director 
issues 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 is 
closed.
4. 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 party's supporting evidence would not constitute grounds for 
overturning 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 party's supporting evidence could be grounds for 
overturning 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 issues 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 issues a notice of hearing before a 
hearing officer, 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 within the time 
periods and in the manner specified in the Board's Rules and 
Regulations.
    The regional director then decides the matter and issues 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 or 
objections depend upon whether the parties agreed to waive any appeal 
prior to the election. If the election has been held pursuant to a 
stipulated election agreement or a direction of election, a party may, 
within 14 days from the date of issuance of the regional director's 
decision, file with the Board a request for review of such decision, 
which may be combined with a request for review of the regional 
director's decision to direct the election. Any party may file with the 
Board a statement in opposition to the request for review. The 
procedures for filing such requests for review and any statements in 
opposition thereto are contained in the Board's Rules and Regulations. 
If no request for review is filed, the decision is final and has the 
same effect as if issued by the Board. The parties may, at any time, 
waive their right to request review. Failure to request review 
precludes such parties from relitigating, in any subsequent related 
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 that 
also precludes relitigating any such issues in any subsequent related 
unfair labor practice proceeding.

[[Page 80181]]

    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 final, and includes a certification of the results of the election, 
including certification of representative where appropriate.
    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 his 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.

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.
    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, 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, after the election, file a 
request for review of a regional director's decision to direct the 
election within the time periods specified and as described in 29 CFR 
102.69. 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 CFR102.69.
    (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 or Board 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 102.64, 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,

[[Page 80182]]

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.  101.28 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 commonly referred to as consent-election agreement with final 
regional director determinations of post-election disputes, stipulated 
election agreement with discretionary Board review, and 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
6. 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
7. 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. 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 or Board 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 or the Board, 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 hearing officer and within the time and 
addressing the subjects permitted by the hearing officer. If the case 
is transferred to the Board after the close of the hearing, the parties 
may, within such time after service of the order transferring the case 
as is fixed by the regional director, file with the Board any post-
hearing brief previously filed with the regional director. The parties 
may also request to be heard orally. Because of the nature of the 
proceeding, however, permission to argue orally is rarely granted. 
After review of the entire case, the Board issues a 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 in the manner described in 29 CFR 102.69 and the 
statement of the general course.
    (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
8. The authority citation for part 102 continues to read as follows:

    Authority:  Secs. 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 sec. 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 sec. 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 
and for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act

0
9. Revise Sec.  102.62 to read as follows:


Sec.  102.62  Election agreements.

    (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

[[Page 80183]]

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, provided further 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, 102.66 and 102.67 to determine if a question concerning 
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, provided further that rulings or determinations by 
the regional director in respect to any amendment of such certification 
shall also be final.
0
10. Revise Sec.  102.63 to read as follows:


Sec.  102.63  Investigation of petition by regional director; notice of 
hearing; service of notice; withdrawal of notice.

    (a) 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. A copy of the 
petition 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 his own motion.
    (b) After a petition has been filed under Sec.  102.61(d) or (e), 
the regional director shall conduct an investigation and, as 
appropriate, he 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 his own motion. All hearing and posthearing procedure under 
this paragraph (b) 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
11. 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 petition as described in section 9(c) of 
the Act has been filed concerning a unit appropriate for the purpose of 
collective bargaining or, in the case of a petition filed under section 
9(c)(1)(A)(ii), 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 and there is no bar to 
an election, he 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. 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 officer may, in his discretion, continue the 
hearing from

[[Page 80184]]

day to day, or adjourn it to a later date or to a different place, by 
announcement thereof at the hearing or by other appropriate notice.
0
12. Revise Sec.  102.65 to read as follows:


Sec.  102.65  Motions; interventions.

    (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 case to the Board 
shall be filed with the regional director, except that motions made 
during the hearing shall be filed with the hearing officer. After the 
transfer of the case to the Board, all motions shall be filed with the 
Board. Such motions shall be printed or otherwise legibly duplicated. 
Provided, however, That carbon copies of typewritten matter shall not 
be filed and if submitted will not be accepted. Eight copies of such 
motions shall be filed with the Board. The regional director may rule 
upon all motions filed with him, causing a copy of said ruling to be 
served on the parties, or he may refer the motion to the hearing 
officer: Provided, 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 him as 
hereinabove provided, 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.
    (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, as the case may be, may by order permit 
intervention in person or by counsel or other representative to such 
extent and upon such terms as he may deem proper, and such intervenor 
shall thereupon become a party to the proceeding.
    (c) 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(c). Unless expressly authorized by 
the Rules and Regulations, rulings by the regional director or by the 
hearing officer shall not be appealed directly to the Board, but shall 
be considered by the Board on appropriate request for review pursuant 
to Sec. Sec.  102.67 (b), (c), (d), and 102.69 or whenever the case is 
transferred to it for decision: Provided, however, That if the regional 
director has issued an order transferring the case to the Board for 
decision such rulings may be appealed directly to the Board by special 
permission of the Board. Nor shall rulings by the hearing officer be 
appealed directly to the regional director unless expressly authorized 
by the Rules and Regulations, except by special permission of the 
regional director, but shall be considered by the regional director 
when he reviews the entire record. Requests to the regional director, 
or to the Board in appropriate cases, for special permission to appeal 
from a ruling of the hearing officer or the regional director, 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. The 
Board will not grant a request for special permission to appeal except 
in extraordinary circumstances where it appears that the issue will 
otherwise evade review. No party shall be precluded from raising an 
issue at a later time based on its failure to seek special permission 
to appeal. If the Board or the regional director, as the case may be, 
grants the request for special permission to appeal, the Board or the 
regional director may proceed forthwith to rule on the appeal. Neither 
the filing nor the grant of such a request shall, unless otherwise 
ordered by the Board, operate as a stay of an election or any action 
taken or directed by the regional director or require the impounding of 
ballots.
    (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: Provided, 
however, 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 
this paragraph (e) 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 permit the moving party to challenge the ballots of 
such employees even if they are specifically included in the

[[Page 80185]]

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
13. Revise Sec.  102.66 to read as follows:


Sec.  102.66  Introduction of evidence: Rights of parties at hearing; 
subpoenas.

    (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 documentary and other evidence so long as 
such examination, cross-examination, and other evidence supports its 
contentions and is relevant to the existence of a question of 
representation or a bar to an election. 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) 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.
    (c) 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: Provided, however, 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.
    (d) 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 hearing officer and within the time and addressing 
the subjects permitted by the hearing officer. 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 leave of the 
regional director.
    (e) Hearing officer analysis. The hearing officer may submit an 
analysis of the record to the regional director or the Board but he 
shall make no recommendations.
    (f) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.

0
14. Revise Sec.  102.67 to read as follows:


Sec.  102.67  Proceedings before the regional director; further 
hearing; action by the regional director; review of action by the 
regional director; statement in opposition; transfer of case to the 
Board; Board action.

    (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 he may deem proper, to 
determine whether a question concerning 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.
    (b) Directions of elections; dismissals; requests for review. A 
decision by the regional director upon the record shall set forth his 
findings, conclusions, and order or direction. The decision of the 
regional director shall be final: Provided, however, That within 14 
days after service of a decision dismissing a petition any party may 
file a request for review of such a dismissal with the Board in 
Washington, DC: Provided, further, That any party may, after the 
election, file a request for review of a regional director's decision 
to direct an election within the time periods specified and as 
described in Sec.  102.69.
    (c) 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 the 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.
    (d) Contents of request. Any request for review must be a self-
contained document enabling the Board to rule on the basis of its 
contents without the necessity or 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 (c)(2) of this 
section, and other grounds where appropriate, said request must contain 
a summary of all evidence or rulings bearing on the issues together 
with page

[[Page 80186]]

citations from the transcript and a summary of argument. But such 
request may not raise any issue or allege any facts not timely 
presented to the regional director.
    (e) 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 thereto, which shall be served in 
accordance with the requirements of paragraph (k) of this section. A 
statement of such service of opposition shall be filed simultaneously 
with the Board. The Board may deny the request for review without 
awaiting a statement in opposition thereto.
    (f) Waiver; denial of request. 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.
    (g) Grant of review; briefs. The granting of a request for review 
shall not stay the regional director's decision 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 will consider the entire record in 
the light of the grounds relied on for review. 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.
    (h) Transfer. In any case in which it appears to the regional 
director that the proceeding raises questions which should be decided 
by the Board, he may, at any time, issue an order, to be effective 
after the close of the hearing and before decision, transferring the 
case to the Board for decision. Such an order may be served on the 
parties upon the record of the hearing.
    (i) Briefs. If any case is transferred to the Board for decision 
after the parties have filed briefs with the regional director, the 
parties may, within such time after service of the order transferring 
the case as is fixed by the regional director, file with the Board the 
brief previously filed with the regional director. No further briefs 
shall be permitted except by special permission of the Board.
    (j) Board action. Upon transfer of the case to the Board, the Board 
shall proceed, either forthwith upon the record, or after oral argument 
or the submission of briefs, or further hearing, as it may determine, 
to decide the issues referred to it or to review the decision of the 
regional director and shall direct a secret ballot of the employees or 
the appropriate action to be taken on impounded ballots of an election 
already conducted, dismiss the petition, affirm or reverse the regional 
director's order in whole or in part, or make such other disposition of 
the matter as it deems appropriate.
    (k)(1) Format of request. All documents filed with the Board under 
the provisions of this section shall be filed in eight copies, double 
spaced, on 81/2- by 11-inch paper, and shall be printed or otherwise 
legibly duplicated. Carbon copies of typewritten materials will not be 
accepted. Requests for review, including briefs in support thereof; 
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.
    (2) Service of copies of request. 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 statement of such 
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.

0
15. Revise Sec.  102.69 to read as follows:


Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the regional director; requests for review of 
directions of elections; hearings; hearing officer reports on 
objections and challenges; exceptions to hearing officer reports; 
requests for review of regional director decisions in stipulated or 
directed elections.

    (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: Provided, however, 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 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. 
Such filing must be timely whether or not the challenged ballots are 
sufficient in number to affect the results of the election. 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 pursuant 
to

[[Page 80187]]

Sec.  102.114(f). The Regional Director will cause a copy of the 
objections to be served on each of the other parties to the proceeding. 
Within 7 days after the filing of objections, or such additional time 
as the Regional Director may allow, the party filing objections shall 
furnish to the Regional Director the evidence available to it to 
support the objections.
    (b) Requests for review of directions of elections. If the election 
has been conducted pursuant to Sec.  102.67, any party may file a 
request for review of the decision and direction of election with the 
Board in Washington, DC. In the absence of election objections or 
potentially determinative challenges, the request for review of the 
decision and direction of election shall be filed within 14 days after 
the tally of ballots has been prepared. In a case involving election 
objections or potentially determinative challenges, the request for 
review shall be filed within 14 days after the regional director's 
decision on challenged ballots, on objections, or on both, and may be 
combined with a request for review of that decision as provided in 
paragraph (d)(3) of this section. Provided, however, That if the 
hearing on objections and determinative challenges has been 
consolidated with an unfair labor practice proceeding before an 
administrative law judge, the request for review of the decision and 
direction of election shall be filed within 14 days after issuance of 
the administrative law judge's decision. The procedures for such 
request for review shall be the same as set forth in Sec.  102.67(c) 
through (g), and (k), insofar as applicable. If no request for review 
is filed, the decision and direction of election is final and shall 
have the same effect as if issued by the Board. 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.
    (c) Certification in the absence of objections, determinative 
challenges and requests for review. 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, if no runoff election is to be held pursuant to Sec.  102.70, 
and if no request for review is filed pursuant to paragraph (b) of this 
section, 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.
    (d)(1)(i) Decisions 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 party's 
supporting evidence would not constitute grounds for overturning 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 objections and determinative challenges, and a 
certification of the results of the election, including certification 
of representative where appropriate.
    (ii) Notices of hearing. 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 party's 
supporting evidence could be grounds for overturning 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 prepare and caused 
to be served on the parties a notice of hearing at a place and time 
fixed therein: Provided, however, that the regional director may 
consolidate the hearing concerning objections and determinative 
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 
his decision, sever the representation case and transfer it to the 
regional director for further processing.
    (iii) Hearings; hearing officer reports; exceptions to regional 
director. 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, except that, 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. 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 in consent or full consent 
elections. If the election has been held pursuant to Sec.  102.62(a) or 
(c), the decision of the regional director shall be final and shall 
include a certification of the results of the election, including 
certification of representative where appropriate.
    (3) Requests for review of regional director decisions in 
stipulated or directed elections. If the election has been held 
pursuant to Sec. Sec.  102.62(b) or 102.67, the decision of the 
regional director shall include a certification of the results of the 
election, including certification of representative where appropriate. 
Within 14 days from the date of issuance of the regional director's 
decision on challenged ballots or on objections, or on both, any party 
may file with the Board in Washington, DC, a request for review of such 
decision which may be combined with a request for review of the 
regional director's decision to direct an election as provided in 
Sec. Sec.  102.67(b) and 102.69(b). The procedures for post-election 
requests for review shall be the same as set forth in Sec.  102.67(c) 
through (g), and (k), insofar as applicable. If no request for review 
is filed, the decision is final and shall have the same effect as if 
issued by the Board. 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.

[[Page 80188]]

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. 
Provided, however, 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.  
102.62(b) or Sec.  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.
    (e)(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 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, 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, any other motions, rulings or 
orders of the regional director, as well as any decision and direction 
of election 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, except as provided in paragraph (e)(3) of this section.
    (2) Immediately upon issuance of an order transferring the case to 
the Board, or 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 (e)(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 objections or challenges, or any opposition thereto, may 
support its submission to the Board by appending thereto copies of 
documentary evidence, including copies of any affidavits 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.
    (f) 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. The proceeding shall thereupon be 
closed.
    (g) 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. 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.
    (h) 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.

Subpart D--Procedure for Unfair Labor Practice and Representation 
Cases Under Sections 8(b)(7) and 9(c) of the Act

0
16. Amend Sec.  102.77 by revising paragraph (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, he shall forthwith proceed to conduct an election by secret 
ballot of the employees in an appropriate unit, or make other 
disposition of the matter: Provided, however, That in any case in which 
it appears to the regional director that the proceeding raises 
questions which cannot be decided without a hearing, he may issue and 
cause to be served on the parties, individuals, and labor 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, including transfer of the case to 
the Board, shall be governed insofar as applicable by Sec. Sec.  102.63 
through 102.69 inclusive.

Subpart E--Procedure for Referendum Under Section 9(e) of the Act

0
17. 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, he 
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: Provided, 
however, That in any case in which it appears to the regional director 
that the proceeding raises questions which cannot be decided without a 
hearing, he may issue and cause to be

[[Page 80189]]

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
18. 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, including transfer of the case to the Board, shall be 
governed, insofar as applicable, by Sec. Sec.  102.63 through 102.69 
inclusive.

    Signed in Washington, DC on December 16, 2011.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2011-32642 Filed 12-21-11; 8:45 am]
BILLING CODE 7545-01-P