[Federal Register Volume 77, Number 83 (Monday, April 30, 2012)]
[Rules and Regulations]
[Pages 25548-25575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10263]



[[Page 25547]]

Vol. 77

Monday,

No. 83

April 30, 2012

Part II





National Labor Relations Board





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29 CFR Parts 101 and 102





Representation--Case Procedures; Final Rule

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

[[Page 25548]]


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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; separate concurring and dissenting statements.

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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. Thereafter, on 
December 22, 2011, the National Labor Relations Board issued a final 
rule amending its regulations, taking effect on April 30, 2012. The 
final rule stated that any dissenting or concurring statements would be 
published separately in the Federal Register prior to the effective 
date of the rule. The purpose of this document is to publish the 
separate statements of Chairman Mark Gaston Pearce and Member Brian E. 
Hayes. Pursuant to the Board's order providing for publication of the 
rule and the separate statements, neither statement constitutes part of 
the rule or modifies the rule or the Board's approval of the rule in 
any way.

DATES: The effective date of the rule is unchanged. The final rule, 
published December 22, 2011, at 76 FR 80138, will be effective on April 
30, 2012.

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

SUPPLEMENTARY INFORMATION: The Final Rule issued on December 22, 2011, 
at 76 FR 80138, stated that any dissenting or concurring statements 
would be published separately in the Federal Register prior to the 
effective date of the rule. The concurring statement of Chairman Mark 
Gaston Pearce and the dissenting statement of Member Brian E. Hayes. 
are as follows:

Separate Concurring Statement by Chairman Pearce

    Chairman Pearce, concurring:
    Today the Board publishes these concurring and dissenting 
statements regarding the Board's final rule concerning representation-
case procedures, 76 FR 80138 (Dec. 22, 2011).
    Much of the dissent is a close paraphrase of the Chamber of 
Commerce's brief attacking this rule in federal court. See Chamber of 
Commerce, et al. v. NLRB, 11-2262, Docket 22 (D.D.C., brief filed Feb. 
2, 2012). Counsel for the Board has already refuted those arguments in 
its responsive brief in that litigation. Id. at Docket 29 (filed Feb. 
28, 2012). In light of this history, little new is said at this point.
    However, for the convenience of readers who may not be familiar 
with that litigation, in this concurrence I will discuss the most 
salient flaws in the dissent. Primarily, this means recapitulating--
often verbatim--the Board's papers in the litigation.
    First, the rule provides an ``appropriate hearing'' under Section 
9(c), and the argument to the contrary ignores the plain language, 
Supreme Court caselaw, and all the relevant legislative history. Next, 
the rule is also consistent with Section 3(b) of the Act, in letter and 
spirit, and preserves the opportunity to request a stay or appeal. The 
rulemaking process was fully consistent with all applicable legal 
requirements, and the Board gave the dissenter every opportunity to 
participate that was reasonably possible under the circumstances. 
Turning to the justification of the rule itself, the rule is not 
arbitrary and capricious. The Board considered and analyzed the 
relevant data, and the dissent's arguments otherwise are premised on a 
misunderstanding of the purpose of the rule. Finally, I reject the 
dissent's contentions that the public did not get a meaningful chance 
to comment on the issues in the rule because the rule is not a 
``logical outgrowth'' of the proposal, and that employer speech rights 
are ``burdened'' by the rule.

Background

    On June 22, 2011, the Board issued a Notice of Proposed Rulemaking 
(NPRM) by a 3-1 vote, with Member Hayes dissenting. 76 FR 36812. The 
views of the public were sharply divided, with tens of thousands of 
comments in favor of the proposals and comparable numbers opposing 
them. Other comments agreed or disagreed only in part. The Board 
reviewed all of the comments and testimony, and considered and 
deliberated on the issues for months. During the comment period, then-
Chairman Liebman's term expired; the Board then faced the imminent end 
of the recess appointment of Member Becker and with it, the indefinite 
loss of a quorum.\1\
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    \1\ 76 FR 80140-45. When the Board last lost its quorum (in 
2007), it was years--816 days to be precise--until the Board was 
reconstituted. This time it turned out that only six days passed 
until three more Board members were appointed, but as discussed in 
greater detail below, there was no way to anticipate this 
development.
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    In light of this situation, on November 30, 2011, the Board held a 
public meeting to deliberate and vote on how to proceed with the 
rulemaking. At the meeting, I put forward for consideration Resolution 
No. 2011-1, which adopted eight of the NPRM proposals--to be published 
in a final rule before Member Becker's appointment ended--while 
deliberations continued for the rest of the proposals.
    At the meeting, all Board Members discussed the resolution in 
depth. The resolution passed by a vote of 2-1, with Member Hayes voting 
against it. Pursuant to the resolution, the final rule was prepared and 
circulated on December 9, with revisions circulated as they were made. 
In circulating the draft rule, I invited all Board members to 
participate in the deliberations. On December 14 and 15, the Board 
voted, again 2-1, on a final order instructing the Board Solicitor to 
publish the final rule upon approval by a majority of the Board. The 
order provided that a dissent or other personal statement could be 
published separately at a later date.
    Also on December 15, as Member Hayes had not yet circulated any 
dissent, my Chief Counsel sent an email asking what Member Hayes wished 
to do, and whether he would include any dissenting statement 
contemporaneously with the Final Rule. Member Hayes indicated that he 
could say whatever he needed to say in a single statement after the 
rule was published, and so would not be publishing a contemporaneous 
dissent.\2\
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    \2\ These internal communications previously have been made 
public in connection with the pending litigation.
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    The rule was finalized shortly thereafter and published on December 
22, 2011. In general, the rule grants regional directors greater 
discretionary authority, while simplifying and consolidating Board 
review. The primary purpose of these changes is to increase procedural 
efficiency by eliminating unnecessary litigation. In addition, there 
may be some resulting improvements in the timeliness of Board 
proceedings. For example, a stipulated election can typically be held 
in close to half the time it takes to hold the election in a fully 
litigated case, and it is reasonably likely that eliminating 
unnecessary litigation may help close

[[Page 25549]]

this gap. 76 FR 80155, 80149. But, again, and as discussed in greater 
detail below, the uselessness of a certain litigation procedure is, by 
itself, sufficient reason to eliminate it, and the primary purpose of 
the rule is to remove the most obviously unnecessary steps in the 
representation-case process.
    Specifically, the former rules required litigation of individual 
eligibility issues that did not need to be decided before the election, 
and may in a given case not need to be decided at all. Id. at 80139-
80140, 80164. This requirement was eliminated, and the regional offices 
can now control their own hearings to prevent litigation of any issue 
that need not be decided before the election.
    The former rules provided for pre-election briefing on a fixed 7-
day schedule after the hearing, even in simple cases where it was 
patently unnecessary. The new rule permits the regional office to 
choose between accepting briefing or hearing oral argument, and to 
determine the schedule and subject matter of any such briefing. Id. at 
80140, 80170-71.
    After the direction of election, the former rules required the 
parties to file an immediate interlocutory request for discretionary 
Board review in order to preserve their rights. Id. at 80140; 80172. 
The new rule eliminates this needless interlocutory interruption in 
most cases, permitting these issues to be raised instead at the 
conclusion of the regional proceeding. However, in ``extraordinary 
circumstances where it appears that the issue will otherwise evade 
review,'' the Board will hear an immediate special appeal. Id. at 
80162.
    The former rules suggested that the regional director should 
``normally'' choose an election date at least 25 days (but no more than 
30 days) after the direction of election. The express purpose of this 
waiting period was to give the Board an opportunity to rule on any 
interlocutory appeal that may be filed by a party, but even under the 
former rules, it did not serve this purpose: in many cases no appeal 
was filed, and, even where filed and granted, the election was usually 
held as scheduled while a ruling on the merits was pending. If the 
election is going to be held in any event, there is no reason to 
routinely wait 25 to 30 days for the election. The new rule gives the 
region broader discretion to select an appropriate election date. Id. 
at 80140, 80173.
    Finally, the former rules generally provided for mandatory Board 
review of a ``report and recommendation'' by a hearing officer, without 
the benefit of any decision on the merits by the regional director. But 
the statute expressly contemplates discretionary Board review of 
decisions by the regional director, and the Board's experience with 
discretionary review has proven that it is perfectly satisfactory. The 
new rule provides that as to determinative challenges and objections 
there will always be a regional director's decision, with discretionary 
review by the Board. Id. at 80142, 80159-61, 80173-74.
    I turn now to the specific points raised in the dissent.

1. Contrary to the Dissent, the Rule Provides for an ``Appropriate 
Hearing''

    The Board has correctly and repeatedly stated that the rule 
provides for an ``appropriate hearing'' consistent with Section 9(c) of 
the statute. That section clearly states that the purpose of the pre-
election hearing is to determine whether there is a question of 
representation:

    [T]he Board shall investigate [representation] petition[s] and 
if it has reasonable cause to believe that a question of 
representation affecting commerce exists shall provide for an 
appropriate hearing upon due notice. * * * If the Board finds upon 
the record of such hearing that such a question of representation 
exists, it shall direct an election by secret ballot and shall 
certify the results thereof.

29 U.S.C. 159(c). When is a hearing to be held? When there might be a 
``question of representation.'' And what must the Board decide on the 
record of the hearing? Whether ``such a question of representation 
exists.''
    That seems plain enough to me. The focus of the hearing is the 
existence of a question of representation. Other matters, which do not 
implicate the essential issue, are within the sound discretion of the 
Board and regional director to decide whether to hear.
    The dissent is absolutely correct to state that ``the reference [in 
Section 9(c)] to an `appropriate' hearing connotes a relative, flexible 
standard.'' As discussed below, the word ``appropriate'' was carefully 
chosen by Congress to grant the Board very broad discretion.
    In the very next breath, however, the dissent concludes precisely 
the opposite, stating that ``appropriate'' means that the Board is 
required to hear--in each and every litigated case--evidence on a host 
of contested issues that do not need to be decided before the election.
    That is not flexibility. To require litigation of such issues would 
tie the Board's hands, so that it could not adjust or control the 
issues litigated to fit the circumstances. By contrast, the Board's 
rule is explicitly discretionary, and frees the Board to take evidence 
on the appropriate issues and at the appropriate time for the 
particular case. It is the dissent, not the Board, that is trying to 
transform the word ``appropriate'' into an inflexible statutory limit 
on the form and contents of the hearing.
    The statute's plain language should settle the matter. But, in case 
any doubt remained, the Supreme Court has already reviewed all the 
relevant legislative history and has expressly held that the whole 
point of the term ``an appropriate hearing'' in the 1935 Act is to 
``confer[] broad discretion upon the Board as to the hearing 
[required].'' Inland Empire Council v. Millis, 325 U.S. 697, 706-710 
(1945).

    [U]nder Public Resolution 44, which preceded Sec.  9(c), the 
right of judicial hearing was provided. The legislative reports 
cited above show that this resulted in preventing a single 
certification after nearly a year of the resolution's operation and 
that one purpose of adopting the different provisions of the Wagner 
Act was to avoid these consequences. In doing so Congress 
accomplished its purpose not only by denying the right of judicial 
review at that stage but also by conferring broad discretion upon 
the Board as to the hearing which Sec.  9(c) required before 
certification.

325 U.S. at 708 (emphases added).\3\ Thus, the Board's investigation is 
``informal'' and the language ``appropriate hearing'' is broad and 
general, designed to give ``great latitude'' to the Board. Id. at 706-
708. As the Supreme Court stated, the purpose of this ``latitude'' is 
to help the Board keep its process timely, efficient, and free of the 
unnecessary litigation that bogged down the former process. That is 
precisely what the new rule is designed to do.
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    \3\ Public Resolution 44 (approved June 19, 1934, c. 677, 48 
Stat. 1183), comprised the National Industrial Act's enforcement 
machinery.
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    The dissent tries to twist Inland Empire to create an inflexible 
scheme for pre-election litigation of every issue, even if it will not 
be decided before the election.\4\ But the Supreme Court's

[[Page 25550]]

opinion is squarely aimed at achieving the opposite result: increased 
Board flexibility in controlling the litigation.
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    \4\ The language from Inland Empire quoted by the dissent does 
not answer the question in this matter. It is certainly true that 
the parties should have a ``full and adequate opportunity to present 
their objections before the * * * certification.'' Inland Empire, 
325 U.S. at 708. But this does not answer the question here, because 
the overwhelming majority of such objections literally cannot be 
litigated until after the election: ``Objections relate to the 
working of the election mechanism and to the process of counting the 
ballots accurately and fairly.'' Cf. NLRB v. A.J. Tower Co., 329 
U.S. 324, 334 & fn.7 (1946).
     Under the basic structure of Section 9(c), some issues must be 
litigated after the election (such as the fairness of the election 
campaign), and some issues must be litigated before the election 
(such as the existence of a question of representation). The 
question here is what to do with the rest of the many and varied 
issues that can arise, which can be litigated either before or after 
the election. Inland Empire makes clear that the term 
``appropriate'' is not designed to limit Board discretion on this 
issue. The dissent's efforts to read it to mean the opposite are 
unavailing.
     Ever since Inland Empire, the courts have continued to take a 
very broad and accommodating view of what will satisfy the 
requirement of an ``appropriate'' pre-election hearing. In Utica 
Mutual Ins. Co. v. Vincent, 375 F.2d 129, 133-34 (2d Cir. 1967), for 
example, Judge Friendly followed the Supreme Court's statement that 
the ``appropriate'' hearing was within Board discretion. As the 
court noted, due process concerns were overblown: ``A representation 
hearing is simply a preliminary to an election which may or may not 
result in a certification; if it does, and the employer refuses to 
bargain, he is entitled to present in an unfair labor practice 
proceeding any material evidence he was prevented from introducing 
at a hearing under Sec.  9(c).''
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    In the quest to find some support for this inflexible view of 
``appropriate,'' the dissent cites inapposite authority, including a 
statement by Senator Taft in 1947 and an irrelevant Third Circuit case. 
Then, the dissent cites a trio of terse Board decisions that have 
already been extensively discussed in the Board's final rule. These 
points are addressed in turn.
    First, the dissent relies upon a passing comment in a 1947 
statement by Senator Taft about a failed amendment to the NLRA. 93 
Cong. Rec. 6858, 6860 (June 12, 1947). At the outset, it should be 
noted that such post-enactment history sheds no reliable light on the 
meaning of the word ``appropriate'' as used by Congress 12 years 
earlier. See Huffman v. OPM, 263 F.3d 1341, 1354 (Fed. Cir. 2001) and 
cases discussed therein.\5\
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    \5\ For the same reason, none of the still later history cited 
by the dissent is relevant either.
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    But even assuming this statement was relevant, it has been badly 
misinterpreted by the dissent. The dissent views Senator Taft as 
endorsing the litigation of eligibility questions, regardless of 
whether they would need to be decided. However, in the crucial words 
relied upon by the dissent, what Senator Taft actually said was that 
the Board would ``decide'' voter eligibility. Senator Taft made no 
mention of litigation:

    [T]he function of hearings * * * [is] to determine whether an 
election may properly be held at the time; and if so, to decide 
questions of unit and eligibility to vote.

Did Senator Taft mean that the Board must decide all questions of 
eligibility to vote before the election? Of course not. This would have 
been in conflict with the well-established challenge procedure for 
deciding voter eligibility post-election. The Supreme Court had 
expressly held--in 1946, the year before this statement was made--that 
the Board was allowed to wait to decide eligibility to vote via the 
challenge procedure. NLRB v. A.J. Tower Co., 329 U.S. 324, 330-35.
    So what did Senator Taft mean? He was generally describing the 
``function,'' not the requirements, of hearings, and did not mean to 
suggest that the Board must resolve all such issues pre-election in 
every case.\6\ And his mention of ``unit and eligibility to vote'' 
accurately reflected the reality that ``[b]ecause the representation 
election is held only within the approved unit'' (Local 1325, Retail 
Clerks Intern. Ass'n v. NLRB, 414 F.2d 1194, 1199 (D.C. Cir. 1969)), 
the designation of an appropriate unit largely determines who will vote 
in the election. Indeed, the definition of the unit, together with 
other voting eligibility formulae (such as the payroll period for 
eligibility), necessarily identifies the core group of eligible voters. 
See, e.g., NLRB v. Hondo Drilling Company, 428 F.2d 943 (5th Cir. 
1970). Accordingly, Senator Taft's remarks are fully consistent with 
the new Rule. See 76 FR 80165 n.116.
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    \6\ The same is true of the law review articles quoted by the 
dissent, none of which suggest that Section 9(c) requires litigation 
of issues that will not be decided. See Steven E. Abraham, How the 
Taft-Hartley Act Hindered Unions, 12 Hofstra Labor Law Journal 1, 12 
(1994); Craig Becker, Democracy in the Workplace: Union 
Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 
495, 516 fn. 91, 519 fn. 102 (1993).
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    Simply put, the dissent misinterprets Senator Taft. And, in any 
event, his statement--twelve years after the fact--sheds no reliable 
light on the intent of Congress in the Wagner Act.
    Regarding NLRB v. SW. Evans & Son, 181 F.2d 427 (3d. Cir. 1950), 
the dissent claims that the ``inescapable inference'' is that the 
``appropriate hearing * * * must permit litigation of all contested 
issues of substance.'' But, in fact, the Third Circuit expressly 
disclaimed any suggestion that it might be interpreting the 
``appropriate hearing'' requirement of the statute, and relied 
explicitly and exclusively upon the language in the Board's regulations 
themselves. The court stated:

    Moreover, we need not determine whether we are presented with a 
situation in which the statute may be said to control on the issue 
of a pre-election hearing. For, in our view, the solution to the 
problem presented is to be found in the Rules and Regulations of the 
Board.

    Id. at 429-30. Those rules required hearings on ``substantial 
issues.'' They did not and could not turn this standard into a 
statutory requirement of the 1935 Act.
    The Board's vacated decision Pacific Greyhound Lines, 22 NLRB 111, 
123-24 fn. 37 (1940), is also inapposite. Although the Board stated 
that the hearing ``may'' include many issues, this was not mandatory, 
and nothing in the decision suggests that the 1940 Board viewed Section 
9 as mandating litigation of every voter eligibility issue prior to the 
election. Indeed, the focus of the litigation was actually the 
appropriate unit, and the Board decided to defer decision on these unit 
questions in part until after the ballots were opened and counted. Id. 
at 121-23.\7\
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    \7\ Pacific Greyhound Lines also illustrates the dangers of 
lengthy litigation. Petitions were filed in June 1938. About 144 
days later, in October 1938, a decision and direction of election 
was issued, which was later amended, and the election was not 
completed until 204 days after the petition, in late December 1938. 
Id. at 120-22. That the Board in one case from the 1930s chose to 
permit such lengthy proceedings does not tie the hands of all future 
Boards; rather, as Inland Empire established, the ``appropriate 
hearing'' is within Board discretion.
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    In any event, the Board is allowed to change its mind--particularly 
about something as irrational as a reading of the statute that would 
imply a requirement to litigate issues that will not be decided. Which 
leads to the final point in this discussion: the 1990's trio of Board 
cases, including Barre-National, regarding the pre-election hearing. 
Even assuming these cases rested upon the statute, rather than the 
regulations, the statutory analysis in these cases is non-existent. 
There is no meaningful discussion of the statutory language, no 
analysis of the legislative history or the plain language of Section 
9(c), and no explanation for why it would make sense to require 
litigation of issues that will not be decided--in short, nothing 
whatsoever to substantively support the supposed interpretation of the 
statute. The persuasiveness of the ``analysis'' in these cases has 
already been fully addressed by the final rule.
    The D.C. Circuit recently reiterated that ``the APA allows an 
agency to adopt an interpretation of its governing statute that differs 
from a previous interpretation and that such a change is subject to no 
heightened scrutiny.'' Air Trans. Ass'n of Am. v. NMB, 663 F.3d 476, 
484 (D.C. Cir. 2011) (citing FCC v. Fox Television Studios, Inc., 129 
S.Ct. 1800, 1810 (2009)). The court proceeded to find that ``for 
purposes of APA review, the fact that the new rule reflects a change in 
policy matters not at all. [T]he [National Mediation] Board 
`articulated a rational connection between the facts found and the 
choice

[[Page 25551]]

made.' '' Id. (quoting City of Portland v. EPA, 507 F.3d 706, 713 (D.C. 
Cir. 2007). So, too, here, Barre-National is entirely irrelevant to 
whether the current statutory interpretation of the Board is 
reasonable.\8\
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    \8\ Because the dissent straightforwardly borrows the Chamber's 
arguments about North Manchester and the minority views in Barre-
National, I would be remiss if I did not mention the shortcomings of 
these arguments already identified in the litigation. North 
Manchester is, at most, imprecise in its description of Barre-
National, and there is absolutely no indication that North 
Manchester was intended to make any change to the rationale of 
Barre-National. See 328 NLRB 372, 372-73 (1999). Meanwhile, the view 
articulated in the concurrence and dissent of Barre-National 
demonstrates quite the opposite of Member Hayes' claims that the 
majority holding rests on the statute. That the concurrence was 
forced to make this point separately supports, rather than 
undermines, the Board's reading of Barre-National as resting on the 
regulations. The views of a minority of the Board about what the 
majority meant are not authoritative.
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    Aside from Inland Empire (which undermines the dissent), there is 
no meaningful analysis of the statutory text in any of the cases cited 
by the dissent. Thus, there is no support for the dissent's 
interpretation of the statute.

2. Contrary to the Dissent, the Rule Is Consistent With Section 3(B) of 
the Act

    The rule generally delays Board review until the conclusion of the 
regional proceeding. But, if a party wants immediate review or a stay, 
it can seek it, and it will be granted in extraordinary circumstances 
where the issue would otherwise evade review.
    This result is not all that different from current procedures, 
under which pre-election review is rarely sought and very rarely 
granted. When the Board does grant review, it usually does not issue a 
decision on the merits until after the election has been held; 
meanwhile, pre-election stays are so rare as to be almost mythical 
creatures.
    The rule's approach is very similar to procedures in the subpoena 
context, which the Supreme Court has already approved. See NLRB v. 
Duval Jewelry Co. of Miami, Inc., 357 U.S. 1, 6-7 (1958). The Court 
held: ``One who is aggrieved by the ruling of the regional director or 
hearing officer can get the Board's ruling. The fact that special 
permission of the Board is required for the appeal is not important.'' 
The Court also noted that, even in meritorious special appeals, ``where 
an immediate ruling by the Board on a motion to revoke is not required, 
the Board defers its ruling until the entire case is transferred to it 
in normal course.'' Id. Here, too, special permission offers an avenue 
for requesting immediate review, but where immediate review is not 
required, the Board can simply address the issue upon completion of the 
regional office's processing of the case.
    The dissent argues that the rule unlawfully eliminates a ``right to 
request'' a stay or Board review before the election. First, there is 
no such right in the statute. But even if there were, the rule plainly 
does not eliminate any such right.
    The dissent argues that Section 3(b) implicitly suggests a right to 
request review before the election because it mentions the possibility 
of stays. But, by its plain terms, the statute does not speak to when a 
request for review must be decided by the Board, and the ``stay'' 
language reflects a grant of discretion to the Board, not a limit. 
Section 3(b) states in relevant part:

    The Board is [] authorized to delegate to its regional directors 
its powers [] to determine [issues arising in representation 
proceedings], except that upon the filing of a request therefor with 
the Board by any interested person, the Board may review any action 
of a regional director delegated to him [], but such review shall 
not, unless specifically ordered by the Board, operate as a stay of 
any action taken by the regional director.

    29 U.S.C. 153(b). That the Board ``may review'' any action of a 
regional director does not mean that the Board must rule on requests 
for review at any particular point in time. Indeed, the Board sometimes 
decides such requests after the election. 76 FR 80168, 80172 (and cases 
cited therein). Nothing requires the Board to rule within a certain 
number of days of the regional director's action, or imposes any other 
time limit on review.
    The ``stay'' language is not phrased as a limit on Board power. To 
the contrary, the language only clarifies that, whenever review is 
granted, either before or after the election, it will not automatically 
operate as a stay. The stay language of the statute expressly 
contemplates that the Board's failure to rule on a request for review 
would have no impact on the progress of ongoing regional election 
proceeding.\9\ Nothing in the text of Section 3(b) prevents the 
regional director from continuing to process the election proceeding to 
completion while a request for review is pending.
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    \9\ Contrary to the dissent's reading, the stay language would 
not be ``render[ed] meaningless'' even if the rule completely 
prohibited stays (which it does not), because the statutory language 
is designed only to grant authority to the Board to routinely refuse 
to grant stays, and does not require the Board ever to exercise its 
power to issue specifically ordered stays.
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    But, even assuming that the statute somehow required an immediate 
opportunity to request a stay or Board review, both the former rules 
and the current rules provide that opportunity, through the special-
appeal procedure. In a sense, the request-for-review procedure was 
always beside the point here, because it applied to the direction of 
election, whereas the request for a special appeal was available for 
any of the multitude of other regional office decisions made before the 
election.
    So, if we assume that Section 3(b) required an immediate 
opportunity for review of ``any action'' of the region, it was always 
and only the special appeal that met that requirement. The dissent 
admits that special appeals are very rarely granted in current 
practice, and even admits that the special appeal will still exist 
under the rule. But, the dissent avers that this right to seek a stay 
and appeal is ``entirely illusory'' simply because it is granted under 
a ``severely narrow standard'' in the rule. This argument lacks merit.
    Nothing in Section 3(b) even arguably speaks to the standard the 
Board is to apply in granting or denying review--whether pre-election 
or post-election. It says, again, that the Board ``may'' grant review, 
without imposing any limit on this discretion. As the Supreme Court has 
explained, ``Congress has made a clear choice; and the fact that the 
Board has only discretionary review of the determination of the 
regional director creates no possible infirmity within the range of our 
imagination.'' Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971). 
As the Board pointed out, ``extraordinary circumstances'' is not the 
same as ``no circumstances.'' 76 FR 80163. As a matter of common sense, 
pre-election review serves no purpose in the ordinary case, where final 
review is more than adequate.

3. Contrary to the Dissent, the Board Followed an Appropriate 
Rulemaking Procedure, and the Dissenter Had Adequate Opportunities To 
Participate

    The dissent argues that the Board should not make rules without 
three affirmative votes, and that it should have waited 90 days for the 
dissent before publishing the rule. The dissent admits that these are 
discretionary choices, but contends that these choices were 
inadequately explained. However, under Vermont Yankee Nuclear Power 
Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978), the 
procedure that the Board follows in rulemaking is subject to only the 
most narrow review, and little if any explanation of these procedural 
choices is necessary. In any event, the Board's choices were fully 
explained: it makes no sense to require three affirmative votes for 
rulemaking,

[[Page 25552]]

and the Board gave the dissenter every reasonable opportunity to 
participate under the circumstances.

A. Rulemaking Procedure Is Within Board Discretion, and the Board Acted 
in Good Faith

    The dissent appears to acknowledge that the legal standard for 
overturning the rule on a ground like this is supplied by Vermont 
Yankee, but, by also arguing that the rulemaking procedure was 
``arbitrary and capricious,'' the dissent misunderstands the nature of 
Vermont Yankee review.
    The ``formulation of procedures [i]s basically to be left within 
the discretion of the agencies.'' Vermont Yankee, 435 U.S. at 524. 
Otherwise, ``all the inherent advantages of informal rulemaking would 
be totally lost.'' Id. at 546-47 (rejecting ``Monday morning 
quarterbacking''); Nat'l Classification Committee v. United States, 765 
F.2d 1146, 1149-52 (D.C. Cir. 1985).
    Review under the arbitrary and capricious standard is not a 
loophole in this policy of extraordinary deference. To be sure, in some 
sense, arbitrary and capricious review ``imposes a general `procedural' 
requirement of sorts by mandating that an agency take whatever steps it 
needs to provide an explanation that will enable the court to evaluate 
the agency's rationale at the time of decision.'' Pension Ben. Guaranty 
Corp. v. LTV Corp., 496 U.S. 633, 653-55 (1990).
    But, so long as the rule itself is adequately explained, the courts 
cannot prescribe ``specific procedural requirements that have no basis 
in the APA.'' Id.; see Natural Res. Def. Council v. NRC, 216 F.3d 1180, 
1189-91 (D.C. Cir. 2000); JEM Broadcasting Co. v. FCC, 22 F.3d 320, 
326-28 (D.C. Cir. 1994) (notice-and-comment rulemaking not required in 
agency's promulgation of ``hard-look'' rules intended to streamline 
license review process). Thus, it is irrelevant whether the agency 
explained its wholly discretionary choices about the procedure of 
rulemaking--that is not required by the APA. So long as the substance 
of this rule is adequately explained, it cannot be arbitrary and 
capricious.
    The Supreme Court has hinted that there might be a narrow exception 
for ``a totally unjustified departure from well settled agency 
procedures of long standing,'' but such an exception--if it exists--has 
been applied rarely if at all. Vermont Yankee, 435 U.S. at 542. And, as 
in this case, where there are reasons to distinguish prior traditions--
such as the imminent loss of an agency quorum--there is no ``totally 
unjustified'' departure. See Consol. Alum. Corp. v. TVA, 462 F.Supp. 
464, 476 (M.D. Tenn. 1978). In the absence of extraordinary evidence of 
bad faith, the courts simply do not inquire into discretionary choices 
made regarding the rulemaking procedure. See Air Trans. Assoc. of Am., 
Inc. v. NMB, 663 F.3d 476, 487-88 (D.C. Cir. 2011).
    Consider the contrast between the Board's procedure here and a very 
recent example considered by the D.C. Circuit involving National 
Mediation Board rulemaking. 75 FR 26062. The NMB majority, according to 
a letter written by the dissenter to members of Congress, at first 
refused to allow her to publish a dissent, and then gave the dissenter 
precisely 24 hours in which to consider the proposed rule and prepare 
her dissent--which she did. See Air Trans. Assoc. of Am., Inc. v. NMB, 
663 F.3d at 487-88. If she had not met this timeline, the majority 
would have published without any opportunity for her to publicly 
express her views. Id.
    Little if any explanation was given by the majority for this 
choice. But the court refused even to open discovery on the issue 
because, although the letter ``reflects serious intra-agency discord'' 
and the majority's ``treatment of their colleague fell well short of 
ideal,'' it did not meet the standard of a ``strong showing of bad 
faith or improper behavior'' and therefore was not enough to permit 
further inquiry. Id. Here, the Board's procedure was far more 
accommodating. If, as the D.C. Circuit held, the 24 hours provided by 
the NMB was enough, then the Board's procedure in this rulemaking was 
more than adequate. Id.
    I have no desire to reexamine, in public, the internal details of 
the process leading up to the Board's issuance of the final rule. It is 
enough to say that a fair-minded student of the existing public record 
can only conclude that Member Hayes was given ample opportunity to 
participate in the rulemaking process and that, by his own choosing and 
for his own reasons, he chose to opt out for as long as possible.
    There is clearly no legal requirement for three affirmative votes. 
The Supreme Court has held that a majority of the quorum is all the law 
requires. FTC v. Flotill Prods., Inc. 389 U.S. 179, 185 fn.9 (1967). 
So, too, as the dissent appears to concede, no law requires the Board 
to wait for a dissent. 76 FR 80146 & fn.26; see Jeffrey S. Lubbers, The 
Potential of Rulemaking by the NLRB, 5 FIU L. Rev. 411, 431 fn.102 
(2010) (observing that ``APA does not address the possibility of 
dissents in agency rulemakings''). Agencies can issue decisions without 
awaiting dissenting or other separate statements. See, e.g., S. Cal. 
Edison Co., 124 FERC ] 61308, 2008 WL 4416776 at **8 (2008); Marshall 
J. Breger & Gary J. Edles, ``Established by Practice: the Theory and 
Operation of Independent Federal Agencies,'' 52 Admin. L. Rev. 1111, 
1248-49, 1256-57, 1262-63, 1288 (2000) (noting that the Farm Credit 
Administration, the Federal Energy Regulatory Commission, the Federal 
Maritime Commission, and the Surface Transportation Board all allow 
this practice).

B. The Board had Good Reason To Issue the Final Rule Without Waiting 
for a Dissent

    The dissent's suggestion that the Board should nonetheless be bound 
by past agency practice is also bad policy. Internal agency procedure 
is subject to extraordinary deference for good reason. Administrative 
efficiency demands that agencies be permitted to adapt internal 
procedures based on the particular circumstances in which they find 
themselves. See FCC v. Pottsville Broadcasting Co., 309 U.S. 134 
(1940). To transform very limited past agency experience into rigid 
internal procedural requirements would deprive the agency of the 
essential ability to adapt its procedures to the differing needs 
imposed by differing circumstances.
    The error of the dissent's suggestion becomes even more obvious 
when the agency experience and procedure at issue here are examined. In 
arguing that the final rule should not have issued without a 
contemporaneous dissent, the dissent relies on an ``unbroken 76-year 
practice.'' That cited ``practice'' consists of just two final rules 
that included a dissent, issued in 1989 and 2011, respectively, and 
only one in which Member Hayes was not the dissenter.\10\ Board policy 
ES 01-01, upon which the dissent relies, is expressly limited to case 
adjudications, as evident in the terms ``full Board or Panel cases'' in 
the policy. See NLRB Executive Secretary's Memorandum No. 01-1, Timely 
Circulation of Dissenting/Concurring Opinions (January 19, 2001). Thus, 
even if a well-established internal practice could bind an agency in 
some instances, this would not be such an occasion.
---------------------------------------------------------------------------

    \10\ The dissent also cites two notices of proposed rulemaking 
that included a dissent, both published within the last year and a 
half, and both with Member Hayes as the lone dissenter.
---------------------------------------------------------------------------

    It is also significant that the Board was facing unusual 
circumstances at the time that it ordered issuance of the rule with any 
dissent or concurrence to issue on a later date. The Supreme Court had 
recently ruled that the Board could not issue decisions without a 
quorum of at

[[Page 25553]]

least three members in place, New Process Steel L.P. v. NLRB, U.S., 130 
S.Ct. 2635, 2639-42 (2010), and the appointment of one of the Board's 
three members was set to expire at the end of the congressional 
session, no later than January 3, 2012, and possibly weeks earlier. The 
last time that the Board's membership had fallen to two, it had taken 
over 27 months for additional members to be installed. The Board had 
expended significant resources in the rulemaking effort, resources that 
might very well have been wasted if the Board lost a quorum before the 
process reached fruition. Under these circumstances, it was perfectly 
reasonable for the Board to defer the publication of members' personal 
statements, rather than delay issuance of the rule beyond the date when 
the Board would lose its quorum in order to permit those personal 
statements to be published simultaneously with the rule.
    We now know that the Board did lose its quorum, but only for a few 
days. Around noon on January 3, 2012, Member Becker's appointment 
ended. On January 9, 2012, three new members were sworn in pursuant to 
recess appointments by the President, bringing the Board to full 
strength.
    The dissent argues--in hindsight--that these circumstances did not 
warrant any departure from procedures that would ordinarily have been 
followed. At the time, however, that was not how the Board, including 
Member Hayes, assessed the situation. In November and December 2011, 
the Board issued a series of orders and rules delegating some of the 
Board's functions in the absence of a quorum and creating a new Subpart 
X of the Board's Rules and Regulations contingently modifying some of 
the Board's procedures.\11\ The orders recited that the Board 
``anticipate[d] that in the near future it may, for a temporary period, 
have fewer than three Members of its full complement of five Members,'' 
specifically citing the approaching end of Member Becker's service.\12\ 
Each of these measures was deemed to be necessary in order to ``assure 
that the Agency [would] be able to meet its obligations to the public 
to the greatest extent possible.'' \13\ And each of these measures was 
approved by all of the members of the Board, including Member 
Hayes.\14\
---------------------------------------------------------------------------

    \11\ Order Contingently Delegating Authority to the General 
Counsel, 76 FR 69768 (Nov. 9, 2011); Order Contingently Delegating 
Authority to the Chairman, the General Counsel, and the Chief 
Administrative Law Judge, 76 FR 73719 (Nov. 29, 2011); Special 
Procedural Rules Governing Periods When the National Labor Relations 
Board Lacks a Quorum of Members, 76 FR 77699 (Dec. 14, 2011).
    \12\ 76 FR 69768; 76 FR 73719.
    \13\ Id.
    \14\ A fourth measure, adding a fifth section to Subpart X 
concerning representation cases, was not approved by Member Hayes. 
76 FR 82131, 82132 (Dec. 30, 2011). As recounted above in the 
``Background'' section, Member Hayes also voted against the order 
providing for publication of the final rule with separate dissenting 
and concurring statements to be published at a later date.
---------------------------------------------------------------------------

    The dissent also asserts that the December 14 announcement of the 
President's intention to nominate Sharon Block and Richard Griffin for 
seats on the Board was an indication that new member appointments were 
imminent. However, it ignores the facts that Terence Flynn's nomination 
had been pending for almost a year at the time of his appointment, and 
that the only other recess appointments to the Board by President 
Obama, those of Craig Becker and myself, had been made more than eleven 
months after the announcement of intent to nominate. In short, there 
was every reason to believe that the Board would be without a quorum 
for a substantial period of time.
    Similar concerns were persuasive in Consolidated Aluminum, to give 
one example, where the TVA sped up its decision-making process because 
the resignation of one of its members threatened to deprive the agency 
of a quorum. 462 F.Supp. at 472. The court held that, even assuming 
that the TVA had deviated from a ``well settled'' tradition, the change 
was lawful for many reasons, including because the impending loss of a 
quorum was good reason to move quickly. Id. at 476. Thus, here, even if 
ES-01-1 were somehow binding and applicable to rulemaking (neither of 
which is true), departure is permitted on a ``case-by-case basis'' for 
``good cause.'' NLRB Executive Secretary's Memorandum No. 01-1 at 2. 
The imminent loss of a quorum was good cause to give the dissenter 90 
days to draft a dissent after publication of the rule, but before the 
effective date.
    Justice Ginsburg's article cited by the dissent points out the 
value of dissenting opinions as a vehicle for the exchange of ideas 
among members of a collegial decision-making body. Dissents are not, 
however, the only such vehicle. Significantly, my colleague does not 
assert that he was in any way deprived of an opportunity to engage in a 
collegial decision-making process.
    The procedure followed here accommodated the concerns addressed in 
Justice Ginsburg's article to the greatest extent possible while 
addressing the exigencies of the possibility of a loss of quorum. 
Indeed, the Supreme Court itself has issued a decision with dissent to 
follow when time constraints so required. SEC v. Chenery Corp., 332 
U.S. 194, 209 (1947) (releasing the majority opinion before the 
dissent, and stating that dissent would follow because there was ``not 
now opportunity for a response adequate to the issues raised * * * 
Accordingly, the detailed grounds for dissent will be filed in due 
course.'').
    The dissenter has had ample opportunity to participate. My email to 
Member Hayes on December 9 was an open invitation to him to engage with 
his colleagues, and, if he so chose, draft a contemporaneous dissent. 
He had sufficient time to do so, and indeed could have drafted one 
dissent to accompany the rule, followed by the longer statement 
published today. He chose otherwise. On December 15th my Chief Counsel 
sent an email asking whether the dissenter wished to include any 
dissenting statement in the Final Rule. The dissenter indicated that he 
did not, because he could add a dissent at a later date, and could say 
whatever he needed to say in a single statement. It seems unfair to 
blame the Board for the loss of an opportunity that the dissenter 
deliberately chose not to take.\15\
---------------------------------------------------------------------------

    \15\ As previously explained, these internal Board 
communications were previously made public in connection with the 
litigation challenging the Rule.
---------------------------------------------------------------------------

    Finally, the issues that are raised in Member Hayes' statement 
today show that the Board was fully aware of his policy concerns about 
the rule when it issued the final rule, and so would likely have gained 
little from a written dissent. That a draft dissent could, in some 
cases, have some influence on the majority is therefore of little 
consequence here.
    The Board had good cause to move forward with the rule without 
waiting any longer.

C. The Board Explained Why There Is No Reason To Require Three ``Yes'' 
Votes for Rulemaking

    The Board acted by a majority vote of the quorum, as authorized by 
statute. Requiring an additional, third ``yes'' vote makes no sense for 
rulemaking. 76 FR 80145-46. The Board has a tradition of requiring a 
third vote to overturn precedent in adjudication, but the whole point 
of the tradition is to provide stability to an inherently unstable 
adjudicatory process for making rules of law. Id. This purpose flows 
directly from the fact that ``[u]nlike other federal agencies, the NLRB 
promulgates nearly all of its legal rules through adjudication rather 
than rulemaking.'' Local Joint Exec. Bd. of Las Vegas v. NLRB, 657 F.3d 
865, 872

[[Page 25554]]

(9th Cir. 2011); see also Samuel Estreicher, ``Policy Oscillation at 
the National Labor Relations Board: A Plea for Rulemaking,'' 37 Admin. 
L. Rev 163 (1985) (explaining in detail how ``overruling'' past cases 
through the rulemaking process would lead to greater certainty and 
consistency in the law). Thus, where the Board does utilize rulemaking, 
the basic purpose of the tradition is inapplicable.
    The dissent apparently maintains that notice-and-comment rulemaking 
does not give the rule any added stability over adjudication. In this 
view, the Board could mechanically and rapidly issue ``another proposed 
rule revision, another notice-and-comment period, and a rationally 
justified rule.'' This is a curious supposition, particularly when 
countless commentators on Board practice, Congressional encouragement 
of rulemaking generally, the collective administrative experience of 
the federal government, past Board experience with rulemaking, hints 
from the Supreme Court, and basic common sense uniformly suggest that 
rulemaking is more stable than adjudication. The Board's decision here 
was reasonably explained.\16\
---------------------------------------------------------------------------

    \16\ Responses concerning the procedural nature of the rule, and 
whether Barre-National was ``overruled,'' are contained elsewhere in 
this statement.
---------------------------------------------------------------------------

4. The Rule Was Adequately Explained

    The dissent denounces a caricature of the rule as arbitrary and 
capricious, while ignoring the reasoned explanation that the Board 
actually provided for the rule. The structure of the dissent's argument 
appears to be as follows: (1) The sole purpose of the rule is to have 
faster representation proceedings; but (2) those proceedings are 
(generally) fast enough already; and, in any event, (3) the Board did 
not consider statistically whether each change in the rule will 
necessarily lead to faster proceedings. I will address the first two 
points in turn, then analyze the particular changes in the rule.
    From the outset, the dissent fails to come to terms with the actual 
rule's principles of good administrative practice, focusing instead 
almost exclusively on how the rule will lessen delay. The dissent's 
focus on delay and time leads it further and further from adequately 
grappling with the Board's primary and clearly-articulated reason for 
propounding the rule: to ``reduce unnecessary litigation.'' \17\ 
Unnecessary litigation, even when not accompanied by delay, can and 
should be eliminated. The dissent entirely misses this point. And so, 
the dissent wonders why the Board focuses on litigation, when there are 
other sources of delay. The answer is that this rule is primarily about 
reducing unnecessary litigation, with reducing delay as an important 
but collateral purpose. According to the dissent, the Board assumes 
that litigation always leads to undesirable delay. The Board does no 
such thing: It simply posits that litigation that is unnecessary is 
also undesirable.
---------------------------------------------------------------------------

    \17\ See, e.g., 76 FR 80138; Explanation of Election Process 
Changes, available at http://www.nlrb.gov/node/3608.
---------------------------------------------------------------------------

    In focusing on time, the dissent pretends that the rule's changes 
are designed solely to ensure a union's rapid certification, thus 
implicitly suggesting that the rule's purpose is improper. But the 
rule's improved procedures apply equally to decertification elections, 
thus helping employees to get the election they desire, whether to 
certify or decertify a bargaining representative, without wading 
through litigation that is unnecessary and costly to the parties and 
the Board. That other changes to the procedure might provide additional 
benefits is good reason to pursue further rulemaking, but it is not 
good reason to invalidate this rule.
    The dissent then criticizes the Board for not adequately discussing 
the Board's time target statistics. Yet what the dissent primarily 
offers in response is the simplistic assertion that because the agency 
is meeting its current time targets for representation case processing, 
there can be no reason to make any changes. This is a disconcerting 
stance, to say the least. As explained in both the NPRM (76 FR 36813-
14) and the final rule (76 FR 80155), for decades the Board has 
continually strived to process representation cases more quickly and 
efficiently, and the targets have accordingly been adjusted downward 
over time. Under the dissent's reasoning, in any given year when the 
agency was meeting its then-applicable time targets, the agency should 
have left well enough alone and should not have engaged in any analysis 
about how the process might be improved.
    In my view, there is nothing magical about the time targets now or 
those that existed decades ago. As stressed in the rule, the existing 
time targets reflect the limits imposed by the Board's current rules. 
That the Board seeks to, and does, meet its current targets in most 
instances is commendable but irrelevant to whether additional 
improvements may be made by amending the rules. 76 FR 80148.
    Nevertheless, even taking the dissent's misguided focus on current 
time targets at face value, it is easy to see a justification for the 
rule's efforts to make the process more timely. As the Board stressed, 
the changes in the rule focus on the subset of cases in which the 
parties do not enter into an election agreement and instead proceed to 
a pre-election hearing. And, as further discussed in the rule, the 
median time to process those cases has ranged from 64 to 70 days over 
the past five years. 76 FR 80155. Yet, as the dissent points out, the 
agency currently strives to move representation cases from petition to 
election in a median of 42 days, far faster than it takes the agency to 
process litigated cases. The agency also attempts to process 90% of 
cases from petition to election within 56 days. But the garden-variety 
litigated case misses even this generous goal. In short, under the 
current system of case processing, we have shown an inability to 
regularly move cases (whether in the context of initial certification 
or decertification) through the pre-election process within even the 
existing 56 day time target for the tail of our cases, unless we can 
somehow convince the parties not to exercise their right to litigate. 
This is not acceptable. The Board should be able to process litigated 
cases in a more timely fashion. As described below and in the final 
rule, some of the changes will in fact result in more timely processing 
of litigated cases.
    In any event, the rule relies upon statistical evidence where 
appropriate. For example, in deciding to move the request for review 
process from before to after the election, the rule relies, in part, on 
data showing that in recent years review was granted pursuant to less 
than 12% of requests and that less than 5% of regional directors' 
decisions were reversed. 76 FR 80172 fn. 140. Notably, the dissent 
fails to meaningfully engage these statistics and instead offers a 
handful of cases that demonstrate only the uncontroversial proposition 
that the issues raised via requests for review are not always 
meritless. The ironies here are twofold. First, this is exactly what 
the dissent accuses the Board of: ``shooting ducks in a barrel'' 
through anecdotal identification of individual representation cases 
rather than identifying problematic patterns. Second, as discussed 
below, the cases picked by the dissent run directly counter to the 
dissent's assertion that eliminating the pre-election request for 
review will lead to unnecessary elections. For in each of the cited 
cases, by the time that the Board judged the regional director's 
decision to be in error, the election had already been run.
    In sum, the dissent's focus on delay blinds it to every other 
principle of good

[[Page 25555]]

administrative practice. With that in mind, let us consider each of the 
changes discussed by the dissent, and show how the rule truly does 
eliminate needless litigation.

A. Evidence About Challenged Voters Is Irrelevant at the Pre-Election 
Hearing

    The dissent correctly points out that pre-election hearings are 
often short under current rules. The dissent's conclusion, however, 
that there is therefore no reason to exclude irrelevant evidence simply 
does not follow.
    Courts routinely refuse irrelevant evidence, see Fed. R. Evid. 
401(b) (evidence must be ``of consequence in determining the action''); 
Wood v. State of Alaska, 957 F. 2d 1544, 1550 (9th Cir. 1992) (holding 
that there is no constitutional right to present irrelevant evidence), 
as do agencies, even in the far more rigorous APA adjudications, 5 
U.S.C. 556(d) (``[T]he agency as a matter of policy shall provide for 
the exclusion of irrelevant, immaterial, or unduly repetitious 
evidence.'').
    In representation cases, the Board and the General Counsel have 
long maintained that it is important to avoid a cluttered record at the 
pre-election hearing. Guidance documents are emphatic on this point. 
For example, consider the NLRB Hearing Officer's Guide: \18\
---------------------------------------------------------------------------

    \18\ See Office of the General Counsel, NLRB, Guide for Hearing 
Officers in NLRB Representation and Section 10(K) Proceedings, at 
General Counsel's Statement, Forward, 1, 6, 34 (Sept. 2003).

    The hearing officer must ensure that the * * * record is free of 
cumulative or irrelevant testimony.'' ``The hearing officer has the 
authority to seek stipulations, confine the taking of evidence to 
relevant disputed issues and exclude irrelevant and cumulative 
material.'' (emphasis added) ``The hearing officer's role is to 
guide, direct and control the presentation of evidence at the 
hearing * * * While the record must be complete, it is also the duty 
of the hearing officer to keep the record as short as is 
commensurate with its being complete.'' (emphasis added) ``The 
hearing officer should guide, direct and control the hearing, 
excluding irrelevant and cumulative material and not allowing the 
record to be cluttered with evidence submitted `for what it's 
worth.' '' ``Exhibits are not admissible unless relevant and 
material, even though no party objects to their receipt. Even if no 
party objects to an exhibit, the hearing officer should inquire 
about the relevancy of the document and what it is intended to show. 
The hearing officer can exercise his or her discretion and determine 
whether the documents are material and relevant to the issues for 
---------------------------------------------------------------------------
hearing.'' (emphasis added).

    The Board's interest here is in keeping ``the record as short as is 
commensurate with its being complete'' on the relevant questions. Id. 
at 1. That is unquestionably a legitimate rationale, and advanced 
statistical analysis is simply not necessary to support it.
    This legitimate goal of administrative economy includes prohibiting 
litigation of issues that should instead be resolved through the 
challenge procedure. For example, the hearing officer routinely 
excludes evidence about the eligibility to vote of striking employees: 
``Voting eligibility of strikers and strike replacements are not 
generally litigated at a pre-election hearing. They are more commonly 
disposed of through challenged ballot procedures.'' Id. at 20. As the 
Board noted in Mariah, Inc., 322 NLRB 586, fn.1 (1996) (citations 
omitted):

    It is beyond cavil that the role of the hearing officer is to 
ensure a record that is both complete and concise. Here, the hearing 
officer, consistent with this duty, exercised her authority to 
exclude irrelevant evidence and to permit the Employer to make an 
offer of proof. Our consideration of that offer establishes the 
correctness of the hearing officer's decision to exclude the 
testimony. Thus, with particular respect to the issue of strikers, 
we note the Board's decision in Universal Mfg. Co., 197 NLRB 618 
(1972) [that] the issue of striker eligibility is best left to a 
postelection proceeding.

    See 76 FR 80166 (citing Mariah). The amendments call for using 
precisely the same approach with other voter eligibility questions that 
will be resolved by challenge.
    This is not just delaying litigation. Any post-election settlement, 
any mooted issue, is a clear and unqualified gain in efficiency--one 
less issue to litigate. There is no need to engage in speculation about 
the quantum of such gains. The answer is not clearly knowable: any 
statistics from current Board practice on this point will be cast into 
doubt by the fact that litigation costs will play into the post-
election settlement calculus. And the dissent concedes that at least 
``some issues will indeed be mooted.'' Nothing more is needed to 
justify the rule. The better question, for which there is no clear 
answer, is why did the Board ever embrace such useless litigation? It 
is Barre-National that is unjustified, not the Board's rule.
    Aside from the timing issue, the bulk of the dissent on this point 
is aimed at the supposed benefits of identifying or deciding voter 
eligibility issues before the election. This is simply irrelevant here. 
There is every reason to believe that the regional offices will 
continue to try to identify and settle voter eligibility disputes 
sooner rather than later, if possible. The dissent discusses the 
``discretionary case-by-case practice'' of figuring out what issues 
will be decided pre-election, and that practice is entirely unchanged 
by this rule.
    The only issue here is whether those unresolved issues will 
nevertheless be litigated. There is no reason that they should be. For 
these reasons, the Board's evidentiary rule is adequately explained.

B. Written Briefing Is Not Required for Simple, Straightforward Cases

    The Supreme Court has permitted administrative agencies a great 
deal of flexibility to choose between oral argument and written 
briefing. Compare Mathews v. Eldridge, 424 U.S. 319, 345 (1976) 
(written submission without oral hearing); with Goss v. Lopez, 419 U.S. 
565, 581-82 (1974) (oral hearing without written submission). Although 
adjudication under the APA requires briefing, 5 U.S.C. 557(c), Congress 
specifically exempted Board representation cases from these provisions 
because of the ``simplicity of the issues, the great number of cases, 
and the exceptional need for expedition.'' Senate Committee on the 
Judiciary, comparative print on revision of S. 7, 79th Cong., 1st Sess. 
7 (1945) (discussing 5 U.S.C. 554(a)(6)).
    These very concerns motivate this amendment. 76 FR 80170-71. 
Although some cases are sufficiently complex that briefing is helpful, 
in others the issues are quite simple and oral argument is sufficient. 
Here, the Board authorized the hearing officer to choose whether to 
have full briefing, partial briefing, or oral argument, so that the 
hearing officer can ask for briefing only when it would be helpful in a 
given case. In addition, the parties retain the right to file briefs 
requesting Board review of the regional director's decision, so the 
parties will still have an adequate opportunity to present their 
arguments to the Board in writing.
    Again, in focusing only on time, the dissent does not account for 
good administrative practice. It is indisputable that briefing is of 
little help, at least in some cases. The dissent's own reference to the 
drafting guide demonstrates that briefs are often of so little help 
that the drafting begins before the briefs arrive. And so there is no 
reason to prohibit hearing officers from taking oral argument or 
limited briefing in such cases.\19\ There is no

[[Page 25556]]

reason to put the Board and the parties to the expense and trouble of 
briefs when oral argument would suffice. That is a sufficient rationale 
for the rule.
---------------------------------------------------------------------------

    \19\ The dissent apparently interprets ``special permission'' as 
crafting a narrow substantive limit on Board review. This issue was 
not specifically addressed in the rule, and will be subject to 
interpretation. That said, it is unclear why the dissenter feels 
that special permission would be interpreted so narrowly. The term 
implies no particular standard, and in fact means different things 
in different contexts in the Board's regulations. For example, 
special permission to appeal to the regional director from decisions 
of the hearing officer is not subject to the same standard as 
special permission to appeal to the Board. Rather than speculating 
on the standard to be applied, I will simply focus on the fact that 
the purpose and text of the rule are designed to give hearing 
officers, in consultation with regional management, the authority to 
make, as the dissent terms it, a ``real case-by-case evaluation'' of 
the helpfulness of briefs.
---------------------------------------------------------------------------

    In addition, there quite clearly is a delay caused by accepting 
briefs. Because the briefs are due in seven days, briefing, by itself, 
essentially guarantees that the decision will take at least a week from 
the hearing to be issued. No statistics are necessary on that point; it 
is a clear feature of the former rules: By simply insisting on briefs, 
the parties effectively have the power to prevent the decision and 
direction of election from issuing in the week or so after the hearing. 
In sufficiently straightforward cases, therefore, under the revised 
rules decisions may now issue more promptly.
    The dissent says that the Board is ``totally dismissive of the 
potential value of post-hearing briefs.'' Not so. The Board simply 
feels that the potential value of post-hearing briefs depends on the 
particular litigation, and therefore regional personnel are in the best 
position to weigh, in each particular case, the relative benefits and 
costs of oral argument, briefing, partial briefing, etc. under the 
particular circumstances. The rule puts the power to make that decision 
in their capable hands. The rule eliminates the one-size-fits-all 
approach in favor of flexibility to tailor the briefing to the case.

C. It Is Reasonable for the Board To Hear All the Issues in a Single 
Post-Election Review Proceeding. Interlocutory Review Is Disfavored, 
and It Is Appropriate To Limit It to Issues That Would Otherwise Evade 
Review

    The dissent is incorrect to claim that the request for review was 
eliminated in order to eliminate the ``companion'' time constraints on 
the election. Again, by focusing solely on timing the dissent fails to 
appreciate the administrative process improvement that drives the 
change.
    The final judgment rule is omnipresent in administrative and 
judicial procedure for good reason: as Justice Story stated, ``causes 
should not come up here in fragments, upon successive appeals. It would 
occasion very great delays, and oppressive expenses.'' Canter v. Am. 
Ins. Co., 28 U.S. 307, 318 (1830); 76 FR 80163, 80172. The old rules 
were inconsistent with this practice, requiring interlocutory review to 
avoid waiver. It is perfectly reasonable, therefore, to limit 
interlocutory Board action to issues that ``would otherwise evade 
review.'' See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 
546-47 (1949); cf. Duval Jewelry, 357 U.S. at 6 (``[W]here an immediate 
ruling by the Board on a motion to revoke is not required, the Board 
defers its ruling until the entire case is transferred to it in normal 
course.''). The amendments merely apply a commonsense final judgment 
rule to election proceedings, consolidating review after the regional 
proceedings have been completed.
    In fact, the parties generally gain nothing from pre-election 
review. If the election was improper, the Board can simply invalidate 
the results, and, where appropriate, order the election to be rerun 
properly. This is the only remedy for post-election objections, and it 
is fully adequate in this context, as well. The Board reasonably 
concluded that, in most cases, post-election review is the more 
efficient method for addressing the matter, rather than to preemptively 
disrupt the process on the off-chance that the regional director might 
have erred. 76 FR 80172 fn.140 (discussing the low reversal rate).
    It is important to point out that the new procedure for Board 
review is as generous as the old. Indeed, the former procedure was more 
burdensome to the parties in that unless a request for review was filed 
within two weeks of the direction of election, the issues would be 
forever waived. See former Sec.  102.67(b) (requiring the request 
within 14 days). So the parties were burdened with the obligation to 
engage in protective interlocutory litigation to preserve issues that 
could ultimately be mooted out. Under the new rules, failure to seek 
pre-election special permission to appeal will not result in waiver. 76 
FR 80162.\20\
---------------------------------------------------------------------------

    \20\ The dissent argues that some issues are not mooted, but 
that does not account for the inefficiency of protective 
interlocutory litigation. Before the election, the parties simply do 
not know what the electoral margin will be, and an issue involving 
just one voter must be appealed to the Board just to avoid the 
possibility that that vote will make the difference. This is an 
entirely unnecessary burden.
     The dissent also argues that some cases will not involve post-
election objections, thus ``giv[ing] the lie to my colleagues' 
characterization of the pre-election request for review as 
interlocutory.'' But simply because some parties do not choose to 
exercise their right to file objections, that does not convert an 
appeal in the middle of a proceeding into an appeal of a final 
judgment.
---------------------------------------------------------------------------

    The dissent contends that denial of an interlocutory request for 
review at least provides ``finality'' to the regional director's 
direction of election. The same could be said for every single 
interlocutory ruling. And yet no one maintains that the Board should 
hear an immediate appeal from every single act of the regional office. 
The Board should have discretion to say, ``this issue does not require 
our immediate attention, we will deal with it later,'' rather than 
being forced to issue a truly final decision on the matter immediately 
or risk sabotaging the smooth functioning of the regional process. In 
any event, court review always remains available, and so even the 
Board's decision cannot be said to be truly final.
    The Board addressed the matter of the supposed ``unnecessary 
elections'' in its rule, and none of the examples cited by the dissent 
prove its point. In each, the regional office had already held the 
election when the Board decision was made. Truly, the risk of 
unnecessary elections is about the same under the former rules as the 
new rules, because it is--understandably--exceedingly rare for the 
Board to (1) fully consider the papers, (2) grant review, and (3) 
publish a final decision reversing the regional director, all in the 
slim window typical between the filing of briefs and the election.\21\
---------------------------------------------------------------------------

    \21\ Former Sec.  102.67(b) and (d) provided that parties could 
file a request for review within 14 days following a decision and 
direction of election, and that a statement in opposition to any 
such request could be filed as late as 21 days following a decision 
and direction of election. Thus, given the instruction in former 
Sec.  101.21(d) that regional directors should normally schedule an 
election between the 25th and 30th day following the decision and 
direction of election, the Board could be left with as little as 4 
days between full briefing concerning the request for the review and 
the election itself.
---------------------------------------------------------------------------

    Thus, the request for review breaks up the regional proceeding, and 
for no purpose. This is sufficient justification for the rule.

D. The Regional Director Is in the Best Position To Decide an 
Appropriate Election Date

    The regional director determines the election date--this is not 
new. But the former rules had included--as a general, non-binding 
guideline--a recommendation that ``normally'' regional directors should 
hold the vote within a five-day window 25 to 30 days after the pre-
election decision, thereby creating at least a 25-day wait between the 
direction of the election and the election itself. 76 FR 80172. The 
former rules expressly stated that the purpose of this guideline was 
``to permit the

[[Page 25557]]

Board to rule on any [interlocutory] request for review which may be 
filed,'' after the regional director's direction of election. Former 29 
CFR 101.21(d).
    But, even under the former rules, the window did not serve its 
stated purpose. It applied regardless of whether a request was filed. 
Furthermore, because a request for review does not operate as a stay 
unless specifically ordered by the Board, elections were usually 
conducted as scheduled after 25 days even if the Board had not ruled on 
a request to review. For these reasons, the amendments independently 
eliminate this recommended window (without respect to the availability 
of a pre-election request for review).
    This basic analysis was seldom criticized in the comments. In fact, 
there was ``near consensus that this [25-day] period serves little 
purpose.'' 76 FR 80173. Moreover, enlarging the regional director's 
discretion to set the election date makes sense because the regional 
director is most familiar with the case, the area, the industry, and 
the parties, and is in the best position to know what election date to 
choose. Cf. Vermont Yankee, 435 U.S. at 525. Should an inappropriate 
election date be chosen in a particular case, the Board will be able to 
revisit that decision and re-run that election.
    The dissent ignores all this. Without confronting the Board's 
stated justification for the rule, it views the issue as wholly 
subsumed within the change to the Board review procedure. However, the 
dissent does tentatively offer two alternative reasons to keep the 
recommended window: (1) ``there could well be both an agency 
administrative justification for at least some post-decisional time to 
arrange the details of election,'' and (2) ``in at least some instances 
it will be critically important to provide some post-decisional time 
for employers to exercise their free speech rights. * * *''
    But these claims miss the mark. The regional director has 
discretion to choose an appropriate election date. Will 25 to 30 days 
define the only appropriate choice in each case? Certainly not. The 
dissent acknowledges that these interests will vary, and may only apply 
in ``at least some'' cases. Again, the better solution is to move away 
from the one-size-fits-all approach of the former rules, so that 
flexibility is available to deal sensibly with the ``at least some'' 
cases that merit it.

E. It Makes Sense for Regional Directors To Decide Objections and 
Challenges, and Certiorari-Like Review by the Board Is a Reasonable and 
Efficient Way To Oversee the Regions

    In Magnesium Casting, the Supreme Court held that under the Act, 
the Board may engage in discretionary review of regional directors' 
decisions. The dissent considers it ``pretentious'' and an 
``abdication'' of responsibility for the Board to do precisely what 
Congress contemplated, and exercise discretionary review. I disagree.
    Congress entrusted the Board with the ultimate authority over labor 
policy, subject only to very limited review in the courts. We should 
not try to do more than we reasonably can, or thinly spread too much of 
our limited attention to cases that raise no substantial issues. 
Certainly, we should not be micro-managing regional directors.
    The Board has recognized this in the context of unit determinations 
in directions of election, which have been only discretionarily 
reviewed for decades. And there have been no problems of the sort 
predicted by the dissent. No dearth of opportunities for clarification 
or dissent, no breakdown in uniformity of law and policy, no citing 
regional precedent, no swell in test-of-certification cases.
    The rule merely applies precisely the same standard to post-
election review.\22\ The dissent does not explain why these fears 
should have any special salience in the post-election context that they 
have never had pre-election.
---------------------------------------------------------------------------

    \22\ Nor is there any merit to the dissent's accusation that the 
majority has failed to rationalize the rule's standard of review for 
post-election litigation. The rule does not change the Board's 
standards for considering post-election requests for review of 
regional director decisions. It appears that the dissent fails to 
appreciate that under the rule, the Board will be applying a 
discretionary standard of review to regional directors' disposition 
of exceptions to hearing officers' factual findings following post-
election hearings, not to the hearing officers' factual findings 
themselves. See 76 FR 80173-74. Although perhaps not the normal 
course under the former rules, this procedural option existed prior 
to the final rule, and when utilized, the Board applied exactly the 
same standard of review. See former Sec.  102.69(c)(4) (providing 
that if a regional director chose to issue a decision disposing of 
election objections or determinative challenges, parties would 
subsequently have the same rights to request review by the Board as 
exist under the pre-election request for review standards in former 
Sec.  102.67); see also 76 FR 80174, quoting Casehandling Manual 
section 11366.2; Casehandling Manual section 11396.2. It is 
unquestionably rational for the Board to continue to utilize the 
same standard of review that it currently applies to pre-election 
requests for review and post-election requests for review, when they 
arise.
---------------------------------------------------------------------------

    Consider the stipulation rate, for example. Under the current 
rules, except in the rare cases of regional director decisions, both 
stipulated and litigated cases are most often subject to mandatory 
review. Stipulations are not being signed by parties in order to secure 
Board review.\23\ Under the new rules, again, the Board will apply the 
same standard for review regardless of whether a stipulation is entered 
into. And so, again, the choice between stipulation and litigation 
remains entirely unrelated to the availability of post-election review.
---------------------------------------------------------------------------

    \23\ They were preferred to consent agreements for that reason, 
but that preference has nothing to do with the choice between 
stipulation and full litigation, where there is no meaningful 
difference in post-election Board review.
---------------------------------------------------------------------------

    In sum, the amendments are adequately explained and reasonably 
address the problems presented. They are within the sound discretion of 
the Board to regulate its own procedures.

5. Other Points

A. The Opportunity To Comment

    The dissent complains that the final rule is not a ``logical 
outgrowth'' of the June proposed rule. The ``logical outgrowth'' test 
is a creature of the notice-and-comment requirement. It is satisfied if 
the public had a meaningful opportunity to comment on the issues raised 
by the final rule.
    The crux of the dissent's argument is that, without the proposed 
``20% rule,'' the regional director will defer decision on more voter 
eligibility issues, a consequence that the comments were not able to 
meaningfully address. This is plainly not true, both because it 
mischaracterizes the rule, and because there was an opportunity to 
comment on this point. In any event, the question is irrelevant because 
notice and comment is not required for these procedural rules.
    First, as the dissent posits elsewhere, under current practice, 
``[u]sually, the number of such challenges does not exceed about 10-12% 
of the unit.'' \24\ And, because the proposed 20% rule has not been 
adopted at this time, the new rule does not change the current practice 
with respect to regional director discretion to defer deciding 
individual eligibility questions. Rather the rule contemplates that 
litigation will be permitted only of issues that will be decided prior 
to the election. The dissent's fear that the rule will result in 
massive and disproportionate numbers of challenges is, quite simply, 
not

[[Page 25558]]

grounded in the rule, and is rank speculation.
---------------------------------------------------------------------------

    \24\ See also Casehandling Manual 11084.3 (``As a general rule, 
the Regional Director should decline to approve an election 
agreement where it is known that more than 10 percent of the voters 
will be challenged, but this guideline may be exceeded if the 
Regional Director deems it advisable to do so.'').
---------------------------------------------------------------------------

    Second, it is perfectly appropriate to adopt only some of the 
proposals. As the Supreme Court recently explained in Coke, a proposed 
rule is ``simply a proposal,'' meaning that the agency is ``considering 
the matter,'' and thus its decision not to adopt part of the proposal 
is ``reasonably foreseeable'' and a logical outgrowth. Long Island Care 
at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (emphasis in original). 
Indeed, here, many commenters obviously foresaw that only parts of the 
rule might be adopted, and some urged the Board to use a different 
percentage or to eliminate the 20% rule altogether.\25\ Clearly, the 
issue was reasonably presented by the proposal.
---------------------------------------------------------------------------

    \25\ See, e.g., Testimony of Peter Leff, General Counsel for the 
Graphic Communications Conference of the International Brotherhood 
of Teamsters; United Food & Commercial Workers International Union; 
U.S. Chamber of Commerce; National Association of Manufacturers; 
Coalition for a Democratic Workplace.
---------------------------------------------------------------------------

    Finally, this is a procedural rule, and no opportunity to comment 
was required. The courts cannot impose the logical outgrowth test on 
the Board simply because it voluntarily undertook to provide an 
opportunity to comment on a proposal. The fact that the agency chose to 
engage in notice and comment ``does not carry the necessary implication 
that the agency felt it was required to do so.'' United States v. Fla. 
E. Coast R.R. Co., 410 U.S. 224, 236 fn.6 (1973). None of the Board's 
prior election rules were substantive--even when they made dramatic 
changes--so what is different here? In fact, this is in many ways a 
textbook procedural rule: Rules of evidence, the manner of arguing 
(oral vs. written), the timing of Board review, etc. ``[A] judgment 
about procedural efficiency * * * cannot convert a procedural rule into 
a substantive one.'' Public Citizen v. Dep't of State, 276 F.3d 634, 
641 (D.C. Cir. 2002).
    For these reasons, the Board was not required to hold a new round 
of public comment to consider the November 30th resolution adopting 
parts of the proposed rule.

B. Employer Speech

    At the end of the dissent, a First Amendment argument is thrown in. 
The central thrust of this argument appears to be that the secret 
purpose of timely elections is to unfairly tilt the campaign in favor 
of unions by quashing the opportunity for meaningful employer speech. 
This argument is puzzling for two reasons.\26\
---------------------------------------------------------------------------

    \26\ Initially, it should be noted that this argument is in 
tension with the dissent's vehemently expressed doubts that the rule 
will result in a more timely process. If the stipulation rate drops 
dramatically and elections are dragged out, as the dissent contends, 
how can the rule be said to limit speech? In any event, whether 
faster or not, elections conducted under the new rule will not 
violate the First Amendment.
---------------------------------------------------------------------------

    First, it is not the purpose of the amendments to limit speech, but 
to limit unnecessary litigation. To the extent litigation results in 
delay that incidentally provides extra opportunities for speech, the 
Board fully considered the effect of the amendments and validly found 
the rules consistent with the policies of the Act and Constitution. All 
parties remain free to engage in as much or as little campaign speech 
as they desire. The content of such speech, of course, is entirely 
unregulated by these amendments.
    To the extent the amendments eliminate delay, they do not do so 
unfairly. Time is a resource that is inherently equal for everyone: A 
day, a week, a month, is the same amount of time whether you are a 
union or employer. However long the time from petition to election, it 
is the same for both parties.
    The Board's analysis does not play favorites between the parties. 
As the rule explains, if 10 days has always been enough for the union 
to campaign with the Excelsior list, then even 10 days from the 
petition would be enough for the employer (who needs no such list of 
employees) to campaign, too.\27\ 76 FR 80156 fn.79. And employers 
remain free to say whatever they want whenever they want (within 
established legal limits), regardless of whether an election petition 
is pending.
---------------------------------------------------------------------------

    \27\ Both Chamber of Commerce v. Brown, 554 U.S. 60 (2008), and 
Citizens United v. Federal Election Commission, 130 S.Ct. 876 
(2010), involved regulation of campaign spending, not campaign time. 
The dissent's application of those cases to the resource of time 
would also have some very strange consequences. For example, many 
comments argued that it was unfair to hold elections too quickly 
because unions enjoy an intrinsic advantage in that they can 
organize in secret before the petition is filed. If the dissent's 
analysis of Citizens United were accepted, then it would be 
unconstitutional for the Board to deliberately prolong the campaign 
in order to give the employer a leg up in the campaign. After all, 
the ability to organize in secret is an ``advantage'' that the 
unions lawfully have in the ``open marketplace of ideas protected by 
the First Amendment.'' To compensatorily grant employers additional 
time in order to equalize the playing field would be granting 
special privileges to employer speech through an unlawful ``anti-
distortion theory.''
    Suffice to say, I am doubtful that any such analysis is 
meaningful in this context. Time is not, in fact, literally money: 
Some concrete election date must be chosen in every case.
---------------------------------------------------------------------------

    The dissent mischaracterizes the discussion of employer speech in 
the rule. The rule does not discuss these employer speech opportunities 
in order to prove that faster elections would have some 
``antidistortion'' effect--indeed, the Board expressly disclaimed that 
purpose--but to prove that even a very fast election would not deprive 
employers of a meaningful opportunity to speak. 76 FR 80148-50 (``The 
Board, having carefully considered these pointedly contrasting 
comments, adopts neither position.'').
    Second, the dissent's argument is predicated on a basic 
misunderstanding of representation proceedings. Indeed, under the 
dissent's analysis, the entirety of Section 9 would have to be 
invalidated as unconstitutional in violation of the First Amendment.
    After all, the very purpose the dissent criticizes here was 
expressly embraced by Congress in the NLRA. ``[U]nless an election can 
promptly be held to determine the choice of representation, [the union] 
runs the risk of impairment of strength by attrition and delay while 
the case is dragging on through the courts, or else is forced to call a 
strike to achieve recognition by its own economic power. Such strikes 
have been called when election orders of the National Labor Relations 
Board have been held up by court review.'' H. Rep. No. 1147, 74th 
Cong., 1st Sess., pp. 6-7.
    If it would be unconstitutional for the Board to have considered 
the impairment of union strength caused by delay, then the Supreme 
Court in Inland Empire would not have cited this legislative history 
with such unqualified approval, nor would it have upheld the 
appropriate hearing of the Board in that case. Congress had foremost in 
its mind the intention to make representation proceedings more 
efficient so that elections could be held in a timely manner, with the 
ultimate goal of promoting collective bargaining and furthering the 
flow of commerce.
    This should be reiterated: To avoid strikes and economic damage, 
Congress wanted to give unions an opportunity to prove their strength 
by peaceful means while it was at its height and without delay. Why? So 
that unions would not be forced into using their moment of strength 
destructively out of fear that delay would erode their power.
    Again, to address this by crafting fair and timely representation 
procedures is a purpose that has been--repeatedly and expressly--
approved by the Supreme Court in A.J. Tower, Inland Empire, Magnesium 
Casting, and countless other cases. Elsewhere, the dissent itself 
appears to agree with this purpose as well, stating that ``the 
efficient and expeditious exercise of our statutory

[[Page 25559]]

mandate is an appropriate and important goal that is central to our 
mission.'' The about-face here, to argue that any effort at efficient 
and expeditious representation procedure is unconstitutional, remains 
unexplained.
    As the D.C. Circuit recognized in a related context, ``the force of 
the First Amendment * * * var[ies] with context,'' particularly in the 
sphere of labor relations. US Airways, Inc. v. NMB, 177 F.3d 985, 991 
(D.C. Cir. 1999) (emphasis in original); see also UAW-Labor Employment 
& Training Corp. v. Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) (noting 
that free speech rights are ``sharply constrained in the labor 
context''). The dissent runs roughshod over this principle and instead 
would twist the First Amendment into a strict limit on any constraint--
implicit, explicit, or incidental--on the time given for employer 
speech before the employees make their choice. This impermissibly 
elevates employer speech interests above both industrial peace and 
``the equal rights of the employees to associate freely.'' NLRB v. 
Gissel Packing Co., 395 U.S. 575, 617 (1969). To the extent that the 
rule removes unnecessary obstacles to the ``efficient, fair, uniform, 
and timely resolution of representation cases,'' 76 FR 80138, a modest 
reduction in the time between a petition and an election may result in 
some cases. To argue that this violates the Constitution is to ignore 
Gissel's teaching that ``the rights of employers to express their anti-
union views must be balanced with the rights of employees to 
collectively bargain.'' US Airways, 177 F.3d at 991 (applying Gissel). 
Indeed, the D.C. Circuit has instructed that ``[n]ot only is a 
`balancing' required, the NLRB calibrates the scales.'' Id. The Board's 
judgment here was reasonable.
    For all of these reasons, I continue to agree with the Board's 
final rule.

Separate Dissenting Statement by Member Hayes

Member Hayes, dissenting.

    Acting with imperious disdain for process, two members of what 
should be a five-member Board summarily concluded their own rulemaking 
deliberations on December 16, 2011, by adopting and issuing a rule 
overruling precedent and substantially revising longstanding Board 
election procedures.\28\ The Rule contains some elements of the 
proposal made public in a June 22, 2011, Notice of Proposed Rulemaking 
(NPRM),\29\ and reserves all others for further consideration. It 
eliminates the right to seek pre-election review of a regional 
director's decision and direction of election. It alters the role of 
the hearing officer in deciding what evidence may be introduced in a 
pre-election hearing. It generally prohibits the filing of briefs after 
a pre-election hearing. It eliminates the automatic right to seek Board 
review in post-election disputes, a right previously included in 
stipulated election agreements overwhelmingly favored by most parties 
to an election. Finally, the adopted Rule, founded on an impermissible 
interpretation of the Act, essentially eliminates the pre-election 
right to litigate all issues not deemed relevant to the question of 
representation. In this respect, the Rule significantly departs from 
the NPRM, which would at least have permitted pre-election litigation 
of genuine and material issues about the eligibility or unit placement 
of individuals who would constitute 20 percent or more of a bargaining 
unit.
---------------------------------------------------------------------------

    \28\ The Rule was published in the Federal Register on December 
22, 2011. 76 FR 80138.
    \29\ 76 FR 36812.
---------------------------------------------------------------------------

    Like a game show contestant with a parting gift, I was granted the 
opportunity to issue a post-deliberative ``personal statement'' of my 
views concerning the Rule, even as its validity is being contested in a 
Federal district court.\30\ I do so now.
---------------------------------------------------------------------------

    \30\ Chamber of Commerce v. NLRB, No. 11-2262 (D.D.C. filed Dec. 
20, 2011).
---------------------------------------------------------------------------

    It is my personal view, shared by many of the thousands of 
commenters to the NPRM, that my colleagues' Rule contravenes the Act 
and the Constitution. In whole and in several parts, in substance and 
in the process used to adopt it, it also reflects arbitrary and 
capricious decisionmaking that requires invalidation on judicial 
review. Finally, as with recent adjudicatory actions,\31\ this 
rulemaking action represents an abdication of the Board's 
representation case duties and reflects a compulsive effort by my 
colleagues to favor union organization over all opposition, no matter 
its legitimacy or statutory protection. Accordingly, I dissent.
---------------------------------------------------------------------------

    \31\ E.g., Specialty Healthcare and Rehabilitation Center of 
Mobile, 357 NLRB No. 83 (2011).
---------------------------------------------------------------------------

I. Background

    As described by my colleagues, publication of the NPRM was followed 
by a public hearing and a notice-and-comment period concluding on 
September 4, 2011. Before that, Chairman Liebman's term expired, 
leaving the Board with three sitting Members: newly-appointed Chairman 
Pearce, Member Becker, and myself.
    In November, acknowledging that time was dwindling in which to 
issue a Rule before the potential loss of a Board quorum upon the 
expiration of Member Becker's recess appointment, Chairman Pearce 
announced his intention to put forth a resolution to proceed on a 
proposed ``scaled-back'' rule.'' \32\ Accordingly, on November 30, 
Chairman Pearce, Member Becker, and I attended a public Board meeting 
to discuss and vote on the Chairman's proposed ``Board Resolution No. 
2011-1,'' which provided for the drafting, circulation and publication 
of a final rule containing eight elements from the original NPRM. The 
Resolution also provided that no final rule ``shall be published until 
it has been circulated among the members of the Board and approved by a 
majority of the Board.'' I voted against the Resolution, and my 
colleagues voted to approve it.
---------------------------------------------------------------------------

    \32\ Fact Sheet, National Labor Relations Board, ``Explanation 
of [R]esolution'' at http://www.nlrb.gov/publications/rules-regulations/notice-proposed-rulemaking/proposed-amendments-nlrb-election-rules-an.
---------------------------------------------------------------------------

    In the late afternoon of Friday, December 9, a draft of the Rule, 
consisting of 180 pages, was circulated by email to me and others by 
the Chairman.\33\ A revised draft was circulated early in the next 
week, followed on December 14 by a draft order from the Chairman 
directing that the Solicitor publish a Final Rule immediately upon its 
approval by a Board majority. The Order also provided for subsequent 
publication in the Federal Register of the statement of any dissenting 
Board Member then serving--obviously meaning me--if a draft of the 
dissent was circulated no less than 30 days prior to the April 30, 
2012, effective date of the Rule. Provision was also made for 
publication of a concurring statement, with the qualification that any 
separate dissent or concurrence ``shall represent the personal 
statement of the Member and shall in no way alter the Board's approval 
of the final rule or the final rule itself.''
---------------------------------------------------------------------------

    \33\ I discuss internal Board deliberations only to the extent 
that they have already been disclosed by the Acting General Counsel 
to parties in the current district court litigation challenging the 
Rule.
---------------------------------------------------------------------------

    Chairman Pearce and Member Becker approved a revised version of the 
Order on December 14. I voted against it in an email on December 15, 
noting in addition to my other reasons for opposition that the 
President had just announced two Board member nominations and that a 
third nomination was also pending. My email stated ``With the prospect 
of a full Board to address these proposed rule changes, I believe there 
is even less justification for proceeding on a divided 2-1 basis.''

[[Page 25560]]

    The draft Rule was further revised on December 15 and 16, then 
approved by the Chairman and Member Becker and issued on the later date 
without further action by me.\34\
---------------------------------------------------------------------------

    \34\ Not surprisingly, having had months to participate in the 
preparation and revision of the draft rule before I ever saw it, the 
Chairman has nevertheless taken the self-created opportunity to 
issue a concurring opinion responding to this dissent. By the 
Chairman's own declaration, joined by Member Becker, this post hoc 
opinion cannot vary from or supplement the Rule and its 
justification, as issued on December 16. I therefore find little 
need to respond directly to his numerous mischaracterizations of my 
arguments and actions in this proceeding.
---------------------------------------------------------------------------

II. The Rule Is Invalid Under Chevron Step One

    My colleagues assert that the Rule is authorized by Section 6 of 
the Act, that it is a reasoned interpretation of Sections 9 and 3 of 
the Act, and that as such it is entitled to substantial deference under 
Chevron USA Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837 
(1984). I have no quarrel with the general proposition that the Board 
has express authority under Section 6 of the Act to make rules 
governing the conduct of representation elections. However, the 
rulemaking authority granted to the Board is not unlimited. It must be 
exercised in a manner consistent with the Act. American Hospital Ass'n 
v. NLRB, 499 U.S. 606 (1991) (rules enacted through the Board's 
rulemaking authority must not conflict with the Act).
    Under step one of the Chevron analysis, a reviewing court first 
asks whether Congress has directly addressed the issue covered by 
agency action. Chevron, 467 U.S. at 842-43. If so, the court, and of 
course the Board, must give effect to Congress' intent. Id. In 
determining whether Congress has addressed the issue, the court employs 
traditional tools of statutory construction, including a review of 
legislative history. Id. at 843 n.9. Here, this inquiry leads 
inevitably to the conclusion that the Rule directly and substantially 
contravenes Congress' intent.

A. An Appropriate Pre-Election Evidentiary Hearing Under Section 9 Must 
Generally Include Litigation of Genuine and Material Unit Placement, 
Exclusion, and Eligibility Issues

    Since its inception, the Act has provided for an ``appropriate 
hearing'' as part of the investigatory process attendant to Board 
elections. While the original and revised versions of the Act do not 
explicitly define what constitutes an ``appropriate hearing,'' the text 
of the Act, its legislative history, and prior Board and court 
interpretations demonstrate that an ``appropriate hearing'' should 
encompass all relevant election issues--including individual 
eligibility and unit placement issues--not just whether a ``question of 
representation'' exists. At least since the Taft-Hartley amendments in 
1947, it is clear as well that Congress intended that the appropriate 
evidentiary hearing must be held before the election. Accordingly, the 
Rule's interpretation of the statute is impermissible under step one of 
the Chevron analysis and the Rule is invalid.
* * * * *
    Section 9(c) of the Wagner Act provided:

    Whenever a question affecting commerce arises concerning the 
representation of employees, the Board may investigate such 
controversy and certify to the parties, in writing, the name or 
names of the representatives that have been designated or selected. 
In any such investigation, the Board shall provide for an 
appropriate hearing upon due notice, either in conjunction with a 
proceeding under section 10 or otherwise, and may take a secret 
ballot of employees, or utilize any other suitable method to 
ascertain such representatives.

    Although ``appropriate hearing'' was not explicitly defined, the 
natural reading is that it was intended to be part of the investigation 
of the electoral controversy and was not limited to the issue of 
whether an election should be held. Instead, the reference to an 
``appropriate'' hearing connotes a relative, flexible standard, not 
rigid or limited as to the number and kind of issues to be litigated. 
Considered in the converse, the statutory language can certainly not be 
interpreted as dictating that litigation of unit eligibility and 
inclusion/exclusion issue is inappropriate.
    Further, Congress generally saw the development of a complete 
evidentiary record in hearings pertaining to election issues as 
necessary due process protection for the parties. See, e.g., S. Rep. 
74-573, at 14 (May 1, 1935), reprinted in 2 Legislative History of the 
NLRA, 1935, at 2314 (the ``entire election procedure becomes part of 
the record'' which provides a ``guarantee against arbitrary action by 
the Board''); H.R. Rep. 74-1147, at 23 (June 10, 1935), reprinted in 2 
Legislative History of the NLRA, 1935, at 3073 (``The [appropriate] 
hearing required to be held in any investigation provides an 
appropriate safeguard and opportunity to be heard.''). Consistent with 
this intent, the conduct of election hearings under the Wagner Act 
established a practice of developing a complete record in a 
nonadversarial proceeding on all pertinent issues which the Board must 
decide relevant to the conduct of the election. See e.g., Pacific 
Greyhound Lines, 22 NLRB 111, 123-124 fn. 37 (1940) (``The wide 
latitude such a hearing possibly may take is illustrated by the nature 
and number of issues with which the parties herein themselves were 
concerned and which were considered and decided by the Board in the 
Representation Proceedings.'').\35\
---------------------------------------------------------------------------

    \35\ As a result of a subsequent settlement agreement, the Board 
vacated the Decision and Order. See Pacific Greyhound Lines, 30 NLRB 
439 (1941). The case nevertheless retains its precedential value and 
illustrates the Board's comprehensive approach to a hearing on 
election issues. See Caterpillar Inc., 332 NLRB 1116, 1116-1117 
(2000)(Board decision vacated pursuant to a settlement may be cited 
as controlling precedent with respect to the legal analysis 
therein).
---------------------------------------------------------------------------

    Indeed, prior to the Taft-Hartley Act, questions about an 
``appropriate hearing'' dealt with whether it needed to be held before 
an election, not whether, if held pre-election, litigation of unit 
inclusion and eligibility should generally be foreclosed. In Inland 
Empire Dist. Council v. Millis, 325 U.S. 697 (1945), the Court 
concluded that, although the Wagner Act did not require the Board to 
hold a hearing before conducting an election (or that it even hold any 
election), if an election were to be conducted, the Board was required 
to hold an ``appropriate hearing'' as part of any investigation under 
Section 9(c). Id. at 706-707.
    The Court explained that the statutory purpose of Section 9(c) is 
``to provide for a hearing in which interested parties shall have full 
and adequate opportunity to present their objections before the Board 
concludes its investigation and makes its effective determination by 
the order of certification.'' Id. at 708. The Court concluded that the 
``appropriate hearing'' requirement was met because, in a post-election 
hearing, the Board permitted evidence to be introduced on all issues--
including the effects of a union's contractual relationships with the 
employer, voting eligibility of employees in the armed forces, 
exclusion of certain groups of employees, and the appropriate payroll 
date for voting eligibility.
    Following Inland Empire, the Board amended its Rules and 
Regulations in 1945, and initiated a process of conducting some 
elections prior to any hearing ``in cases which present no substantial 
issues.'' Article III, Section 3 of the Board's Rules and Regulations 
(as amended, effective November 27, 1945). These pre-hearing elections 
were a specific target of the 1947 Taft-Hartley amendments, which 
eliminated the Board's option of holding them and

[[Page 25561]]

made the ``appropriate hearing'' mandatory before the election. To this 
end, Section 9(c)(1) provides that:

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

    Section 9(c)(4), also added in 1947, further provides that

    Nothing in this section shall be construed to prohibit the 
waiving of hearings by stipulation for the purpose of a consent 
election in conformity with regulations and rules of decision of the 
Board.

    Even those critical of the Taft-Hartley Act changes acknowledge 
that an ``appropriate hearing'' before the election is now mandatory. 
``Section 9(c)(1) and Section 9(c)(4) of the Taft-Hartley Act, read in 
conjunction, require that an election hearing be held before the 
election takes place.'' Steven E. Abraham, How the Taft-Hartley Act 
Hindered Unions, 12 Hofstra Labor Law Journal 1, 12 (1994) (arguing for 
amending certain Taft-Hartley Act provisions considered to have 
contributed to the declining unionization rate). ``[T]he Board cannot 
run an election without first holding a hearing unless the parties 
consent * * *.'' Craig Becker, Democracy in the Workplace: Union 
Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495, 
519 fn. 102 (1993) (``Prior to the Taft-Hartley Act, the Board could 
postpone the hearing until after the election * * *. The Taft-Hartley 
Act stripped the Board of its discretion to conduct such `pre-hearing 
elections.' '') (internal citations omitted).
    While the amendments mandated that ``the hearing must invariably 
precede the election, neither the language of the statute nor the 
committee reports indicated that any change in its nature was 
intended.'' Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 133-34 (2d 
Cir. 1967). See also Becker, supra, at 516 fn. 91 (describing Board 
procedures after the Taft-Hartley amendments: ``If the Board finds that 
the petition creates a `question of representation,' it must hold a 
hearing * * * [where] the Board determines whether the unit * * * is 
appropriate * * *. [and] * * * also resolves individual eligibility 
questions.'') (internal citations omitted)
    The ordinary and natural meaning of Sections 9(c)(1) and (4) is 
that once a regional director determines that there is reasonable cause 
to believe a question concerning representation exists, a hearing must 
be held on all issues relevant to the conduct of an election unless 
waived. Of course, confirmation of the regional director's preliminary 
determination that a question concerning representation existed is a 
necessary predicate to a post-hearing direction of election, but if 
Congress had intended that the mandatory ``appropriate hearing'' be 
limited to litigation of that question, it failed to say so.
    The failure of Congress to impose that express limitation must be 
considered in light of the prior consistent interpretation by the Board 
and courts that an ``appropriate hearing'' under the Wagner Act 
required the Board to provide the parties an opportunity to raise and 
present evidence on all issues relevant to the election. As a matter of 
statutory interpretation, Congress is presumed to be aware of 
administrative or judicial interpretation of a statute's language, and 
if it amends the statute without changing that language, then Congress 
presumably intended to adopt that administrative interpretation. 
Lorillard v. Pons, 434 U.S. 575, 581 (1978). See also NLRB v. Gullett 
Gin Co., 340 U.S. 361, 365-366 (1951) (by adopting Taft-Hartley 
amendments ``without pertinent modification'' of provision at issue 
``Congress accepted the construction [of that provision] by the Board 
and approved by the courts.''). Nothing in the Taft-Hartley amendments 
to Section 9 changed the meaning of ``appropriate hearing,'' thus 
indicating Congress' intent to adopt that settled meaning of 
``appropriate hearing'' but now requiring that it must be held before 
the election.
    The legislative history of the Taft-Hartley Act confirms that 
Congress intended that the ``appropriate hearing'' be held before the 
election and that it continue to address all pertinent election issues. 
Some versions of the Taft-Hartley legislation included proposals 
permitting the Board's continuation of its prehearing elections 
procedures; Congress plainly rejected those proposals. After the House 
and Senate initially passed different versions of the legislation, the 
conference committee was appointed to resolve the differences, 
including in Section 9(c)(4). At the ``insistence'' of the House 
conferees, the resulting conference report recommended deleting the 
authority to conduct prehearing elections included in the Senate 
version of the legislation. 93 Cong. Rec. 6601 (June 5, 1947) 
(conference report) reprinted in 2 Legislative History of the LMRA, 
1947, at 1542. Both the House and the Senate adopted the conference 
report recommendation to delete the prehearing election option, thereby 
making ``appropriate hearings'' mandatory before an election in all 
cases. 93 Cong. Rec. 6549 (June 4, 1947) (House agreed to conference 
report) reprinted in1 Legislative History of the LMRA, 1947, at 899-
900; 93 Cong. Rec. 6695 (June 6, 1947) (Senate agreed to conference 
report) reprinted in 2 Legislative History of the LMRA, 1947, at 1620-
1621.
    In his analysis of the Act's provisions in the Congressional 
Record, Senator Taft explained the reason for changing Section 9(c)(4) 
and confirmed that Congress intended to preserve the Board's 
interpretation of an ``appropriate hearing'':

    The conferees dropped from [Section 9(c)(4)] a provision 
authorizing prehearing elections. That omission has brought forth 
the charge that we have thereby greatly impeded the Board in its 
disposition of representation matters. We have not changed the words 
of existing law providing a hearing in every case unless waived by 
stipulation of the parties. It is the function of hearings in 
representation cases to determine whether an election may properly 
be held at the time; and if so, to decide questions of unit and 
eligibility to vote. During the last year the Board has tried out a 
device of holding the election first and then providing the hearing 
to which the parties were entitled by law. Since its use has been 
confined to an inconsequential percentage of cases, and more often 
than not a subsequent hearing was still necessary and because the 
House conferees strenuously objected to its continuance it was 
omitted from the bill. 93 Cong. Rec. 7002 (June12, 1947), reprinted 
in 2 Legislative History of the LMRA, 1947, at 1625. (emphasis 
added)

    My colleagues attempt to minimize the significance of Senator 
Taft's statements as those of a single Senator made after the 
``dispositive vote'' on the Taft-Hartley legislation. 76 FR 80165 
fn.116. Although they were made after the initial Senate vote and 
passage of the legislation, Senator Taft's statements preceded further 
Senate debate and the crucial votes in the Senate and House to override 
President Truman's veto. 93 Cong. Rec. 7504 (June 20, 1947) reprinted 
in 1 Legislative History of the LMRA, 1947 at 922; 93 Cong. Rec. S-7692 
(June 23, 1947), reprinted in 2 Legislative History of the LMRA, 1947 
at 1656-1657. Moreover, Senator Taft's statements were not merely those 
of a single Senator. As the legislation's

[[Page 25562]]

principal Senate sponsor and Chairman of the Senate's Labor and Public 
Welfare Committee, Senator Taft had been instrumental in securing 
passage of the Act. His statements were to ``make clear the legislative 
intent,'' 93 Cong. Rec. 7000, reprinted in 2 Legislative History of the 
LMRA, 1947, at 1622, that a pre-election hearing that includes all 
election issues was mandatory. 93 Cong. Reg. 7002, reprinted in 2 
Legislative History of the LMRA, 1947, at 1625. Senator Taft's analysis 
of the legislation is authoritative and compelling evidence of 
Congress's intent.\36\
---------------------------------------------------------------------------

    \36\ I note the blatant inconsistency between my colleagues' 
reliance, at 76 FR 80160, on the statement of Senator Goldwater, a 
single legislator, in support of their interpretation of the 1959 
Sec. 3(b) amendments, and their dismissal, at 76 FR 80165 fn. 116., 
of the statement of Senator Taft as insignificant to the 
interpretation of Sec. 9(c)(1).
---------------------------------------------------------------------------

    The import of the Taft-Hartley amendments for determining the scope 
of an ``appropriate hearing,'' and whether it had to be held before the 
election, was discussed in NLRB v. SW. Evans & Son, 181 F.2d 427 (3d 
Cir. 1950). Although decided after the amendments had gone into effect, 
the case concerned the Board's pre-Taft-Hartley rule permitting a pre-
hearing election ``in cases which present no substantial issues.'' Id. 
at 430 Preliminarily, the court observed that ``the instant problem 
[whether a pre-election hearing is required] is hardly apt to recur, 
since the [Taft-Hartley Act] now makes mandatory a pre-election 
hearing.'' Id. at 429. The court then concluded that issues related to 
``unit, eligibility to vote, and timeliness of the election'' raised by 
the employer were ``substantial issues'' that the employer was entitled 
to litigate in a pre-election hearing under the extant rule. Id. at 
430-31. The inescapable inference from the court's opinion is that 
under the amended Section 9(c)(1), an appropriate hearing, which now 
must take place before the election, must permit litigation of all 
contested issues of substance, not just those necessary to confirm a 
preliminary investigatory determination that a question of 
representation exists.
    In 1959, Congress amended Section 3(b) of the Act to provide for 
Board delegation of its Section 9 representation case duties to 
regional directors in an effort to address a serious casehandling 
backlog at the Board level. During this legislative process, there were 
numerous unsuccessful proposals to revive the pre-hearing election that 
the Taft-Hartley Act eliminated.\37\ Instead, as further discussed in 
the following section, Congress resolved upon the delegation language, 
with an express reservation of the right of parties to file pre-
election requests for review of a regional director's post-hearing 
direction of election. The final language of Section 3(b), as an 
alternative to the pre-hearing elections proposals, was explained by 
Representative Barden, Chairman of the House Committee on Education and 
Labor in the Conference Report:
---------------------------------------------------------------------------

    \37\ See H.R. Rep. 86-741, at 24-25 (July 30, 1959), reprinted 
in 1 Legislative History of the LMRDA, 1959, at 782-83. See S. Rep. 
86-10, at 3 (January 28,1959), reprinted in 1 Legislative History of 
the LMRDA, 1959 at 82 (included in President Eisenhower's initial 
``20-point program''). See also S. 1555, 86th Cong. Sec.  705 (bill 
passed by the Senate on April 25, 1959), reprinted in 1 Legislative 
History of the LMRDA, 1959, at 581.

    There is one addition and that is this. The conferees adopted a 
provision that there should be some consideration given to 
expediting the handling of some of the representation cases. 
Therefore, the Board is authorized, but not commanded, to delegate 
to the regional directors certain powers which it has under section 
9 of the act. Upon an appeal to the Board by any interested party 
the Board would have the authority to review and stay any action of 
a regional director, delegated to him under section 9. But the 
hearings have not been dispensed with. There is not any such thing 
as reinstating authority or procedure for a quicky election. Some 
were disturbed over that and the possibility of that is out. The 
right to a formal hearing before an election can be directed is 
preserved without limitation or qualification. 105 Cong. Rec. 16629 
(September 4, 1959), reprinted in 2 Legislative History of the 
LMRDA, 1959 at 1714 (emphasis added), describing H.R. Rep. 86-1147, 
at 1 (September 3, 1959), reprinted in 1 Legislative History of the 
LMRDA, 1959, at 934 (conference report).\38\
---------------------------------------------------------------------------

    \38\ Senator Goldwater similarly described the new provision 
authorizing delegation of the Board's election powers to regional 
directors as a Conference Committee substitution adopted because of 
opposition by other conferees to any change in pre-election hearing 
procedure. 105 Cong. Rec. A8522 (October 2, 1959), reprinted in 2 
Legislative History of the LMRDA, 1959 at 1856.

    Thus, the amendment to Section 3(b) did not expressly or implicitly 
alter the scope of the pre-election ``appropriate hearing'' required to 
be held on contested issues. In 1961, when the Board amended its Rules 
and Regulations to delegate its powers pursuant to Section 3(b)'s 
authorization, the amended rules likewise remained consistent with the 
traditional broad view of an ``appropriate hearing.'' Section 101.20(c) 
stated, in relevant part: ``The hearing, which is nonadversary in 
character, is part of the investigation in which the primary interest 
of the Board's agents is to insure the record contains as full a 
statement of the pertinent facts as may be necessary for determination 
of the case. The parties are afforded full opportunity to present their 
respective positions and to produce the significant facts in support of 
their contentions.'' Section 102.66(a) stated, in relevant part: ``Any 
party shall have the right to appear at any hearing in person, by 
counsel, or by other representative, and any party and the hearing 
officer shall have power to call, examine, and cross-examine witnesses 
and to introduce into the record documentary and other evidence.'' 
Section 102.64(a) stated, in relevant part: ``It shall be the duty of 
the hearing officer to inquire fully into all matters and issues 
necessary to obtain a full and complete record upon which the Board or 
the regional director may discharge their duties under section 9(c) of 
the Act.''
    Were there any doubt remaining about the required scope of a 
mandatory appropriate pre-election hearing--and there should have been 
none--it was put to rest in trio of Board decisions in the 1990s. 
First, the Board held in Angelica Healthcare Services Group, 315 NLRB 
1320 (1995), that an acting regional director erred by denying a union 
a hearing on a contested contract bar issue before directing a 
decertification election to be held. The Board remanded the case for a 
hearing, but found no need to decide in advance ``the type of hearing 
that would be necessary to satisfy the Act's `appropriate hearing' '' 
requirement. Id. at 1321 fn.6.
    The question left unanswered in Angelica Healthcare was addressed 
in Barre-National, 316 NLRB 877 (1995). The regional director in that 
case precluded the employer from presenting evidence at a pre-election 
hearing about the supervisory status of a group of employees 
constituting 8 to 9 percent of the potential unit. Instead, the 
regional director only permitted the employer to make an offer of 
proof, then directed an election at which the disputed employees were 
allowed to vote subject to challenge. Resolution of their alleged 
supervisory status was deferred to the post-election challenge 
procedure. The Board held that the regional director erred by refusing 
to allow the employer to present the evidence of supervisory status 
and, therefore, the pre-election hearing ``did not meet the 
requirements of the Act and the Board's Rules and Statements of 
Procedure.'' Id. at 878. It thereby confirmed the longstanding 
statutory interpretation and Board practice requiring that an 
appropriate pre-election hearing must include full evidentiary 
litigation of contested issues, including those related to unit

[[Page 25563]]

inclusion/exclusion and voter eligibility.\39\
---------------------------------------------------------------------------

    \39\ At the same time, the Board confirmed the longstanding 
practice of deferring to the post-election stage a decision on 
issues involving the voting eligibility of a minimal number of 
individuals. 316 NLRB at 878 fn. 9.
---------------------------------------------------------------------------

    In attempting to reconcile the Board's rationale in Barre-National 
with the new Rule's direction that pre-election hearing litigation 
should be limited to issues concerning whether a question concerning 
representation exists, my colleagues mischaracterize the Board's 
holding as resting only on the hearing requirements in Section 
102.66(a) and 101.20(c) of the existing regulations, not the Act 
itself, because of the Board's use of the conjunctive ``and'' rather 
than ``or''. 76 FR 80165. They assert that their revision of Section 
102.66(a) and the elimination of Section 101.20(c) thus ``removes the 
basis for the Board's holding in Barre-National'' and that they will 
``no longer follow Barre-National.'' 76 FR 80164, 80165.
    The majority's reliance on the use of ``and,'' rather than ``or'' 
in support of a claim that the Rule does not overrule Barre-National is 
semantic nonsense, and disingenuous to boot. Clearly and expressly, the 
Board relied on the requirements of Section 9(c)(1) of the Act and its 
implementation in the cited Rules in concluding that the regional 
director in Barre-National denied the employer a full pre-election 
evidentiary hearing on a unit inclusion/exclusion issue to which it was 
entitled. As the concurring and partial dissenting opinions make clear, 
the root source of that entitlement is the Act, not the implementing 
Rules.\40\ A Board panel confirmed this view in North Manchester 
Foundry, Inc, 328 NRLB 372 (1999). The hearing officer, affirmed by the 
regional director, precluded litigation of contested unit placement 
issues, deferring any litigation and decision to post-election 
challenge and objection procedures. Relying on Barre-National's holding 
that such a limitation on litigation at the pre-election hearing ``did 
not meet the requirements of the Act or of the Board's Rules and 
Statements of Procedure,'' the Board remanded the proceeding to the 
regional director to reopen the hearing for the required presentation 
of evidence on disputed unit placement issues.\41\
---------------------------------------------------------------------------

    \40\ See Barre-National, 316 NRLB at 880 (Member Stephens, 
concurring) (``[I]n my view, the statute--even apart from our 
implementing rules and regulations--entitles parties to preelection 
testimonial hearings''); and (Member Cohen, dissenting) (``My 
colleagues concede, as they must, that the Regional Director 
violated the procedures of the Act, as well as the Rules of the 
Board, by not permitting the Employer to adduce evidence on the 
issue of supervisory status'').
    \41\ 328 NRLB at 372-373.
---------------------------------------------------------------------------

    Manifestly, the decisions in Angelica Healthcare, Barre-National, 
and North Manchester Foundry, despite resting in part on the Board's 
implementing regulations, all explicitly rely on the requirement in 
Section 9(c)(1) that an appropriate pre-election hearing must include 
full litigation of all legitimate contested election issues. Just as 
manifestly, my colleagues' Rule limiting pre-election litigation to 
issues relevant to questions concerning representation, leaving all 
else to the post-election stage of proceedings, overrules this 
precedent and flies in the face of the statutory language, legislative 
history, and decades of consistent Board practice and precedent. The 
Rule's restriction is an impermissible interpretation of the Act.

B. Elimination of Pre-Election Requests for Review Cannot Be Reconciled 
With the Language and Intent of Section 3(b)

    The Board is * * * authorized to delegate to its regional 
directors its powers under section 9 to determine the unit 
appropriate for the purpose of collective bargaining, to investigate 
and provide for hearings, and determine whether a question of 
representation exists, and to direct an election or take a secret 
ballot under subsection (c) or (e) of section 9 and certify the 
results thereof, except that upon the filing of a request therefore 
with the Board by any interested person, the Board may review any 
action of a regional director delegated to him under this paragraph, 
but such a review shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
director.

    As set forth above, Section 3(b) of the Act permits the Board to 
``delegate to its regional directors'' the Board's authority in 
representation cases, but is conditioned on the right of ``any 
interested person'' to seek Board review and a potential Board-ordered 
``stay'' of ``any action.'' The inclusion in Section 3(b) of a 
potential Board ``stay of any action'' by the regional directors shows 
that Congress clearly intended that a party have the right to seek pre-
election Board review following a hearing because it clearly preserved 
the right to request a Board ordered ``stay'' of the election. This was 
viewed as a necessary check on the exercise of delegated powers.\42\ 
See, e.g., Avon Prods., 262 NLRB 46, at 48 fn.8 (1982) (explaining that 
the Board should have stayed the election following the employer's 
request for review of unit inclusion of a large number of employees).
---------------------------------------------------------------------------

    \42\ Representative Barden clarified that the legislative intent 
was that ``the regional directors in making any decisions or rulings 
pursuant to a delegation permitted by that section would be subject 
to and bound by [established Board] precedents and rules and 
regulation [and that] * * * an appeal to the Board is provided to 
prevent and/or remedy any abuse of discretion or departure from 
Board precedent or Board rules and regulations by the regional 
directors.'' 105 Cong. Rec. A8061 (September 4, 1959) reprinted in 2 
Legislative History of the LMRDA, 1959, at 1812. See also 
Representative Kearns (``To make certain Board policy is followed by 
regional directors, provision is made for appeal to the Board.'') 
105 Cong. Rec. A4307-4308 (May 21,1959) reprinted in 2 Legislative 
History of the LMRDA, 1959, at 1749-1750.
---------------------------------------------------------------------------

    The statutory provision permitting the stay of an election will 
have no meaning if, as the Rule provides, a party is no longer able to 
obtain pre-election Board review of a regional director's direction of 
election. Obviously, the Board cannot stay an election if, as the Rule 
provides, the right to seek review is foreclosed until after the 
election.\43\ Section 3(b) contemplates that the Board, in some cases, 
will exercise its discretion to order a stay of a direction of election 
where there are unresolved questions that could affect the results of 
the election. For purposes of a Chevron step one analysis, it does not 
matter whether the Board has rarely exercised this discretion or 
whether, in the absence of express statutory language, it is rational 
to permit pre-election requests for review.\44\ The Rule impermissibly 
contravenes the Act by failing to give meaningful effect to an express 
term of Section 3(b). It is invalid to eliminate a party's right to 
seek pre-election review (and a potential ``stay'' of the election) 
simply because such requests are often denied.\45\
---------------------------------------------------------------------------

    \43\ Although the Rule ostensibly provides the possibility for 
an appeal by ``special permission'' in an ``extraordinary'' 
situation, that possibility is entirely illusory. The ``new, 
narrower standard'' my colleagues impose limits ``special 
permission'' to ``extraordinary circumstances where it appears that 
the issue will otherwise evade review.'' 76 FR 80162(emphasis 
added). This severely narrow standard offers no meaningful 
alternative to seek review that compensates for the Final Rule's 
elimination of Sec. 3(b)'s right to seek pre-election Board review. 
See, e.g., 76 FR 80141 (``the Board has decided * * * to eliminate 
the parties' right to file a pre-election request for review of a 
regional director's decision and direction of election, and instead 
to defer all requests for Board review until after the election''); 
76 FR 80172 (final rule ``adopts'' proposals ``to eliminate the 
preelection request-for-review procedure'').
    \44\ As stated below, I find that the Rule's elimination of pre-
election requests for review is also impermissibly arbitrary and 
capricious.
    \45\ There is no support for the view that the elimination of a 
party's right to seek pre-election review ``carr[ies] out 3(b)'s 
instruction that Board review shall not * * * operate as a stay 
unless specifically ordered by the Board.'' On the contrary, as set 
forth above, this language in 3(b) that, ``review shall not * * * 
operate as a stay'' will be rendered meaningless by the Final Rule's 
elimination of the right to pre-election review.
---------------------------------------------------------------------------

    In sum, the Rule contravenes decades of Board practice consistent 
with the plain meaning of the language of the Act and Congressional 
intent manifested in

[[Page 25564]]

legislative history.\46\ The Rule cannot be upheld under Chevron step 
one because it represents an impermissible limitation on the intended 
scope of an ``appropriate hearing'' that, since enactment of the Taft-
Hartley Act, must be held prior to an election on all genuine and 
material contested issues. It is likewise contrary to Congressional 
intent that delegation to regional directors of duties in 
representation matters be conditioned on the right of parties to seek 
pre-election review by the Board of a regional director's action and to 
obtain an order from the Board staying an election while reviewing such 
action.
---------------------------------------------------------------------------

    \46\ My colleagues, of course, may not rely on precedent holding 
that an administrative agency is ``not estopped from changing a view 
[it] believes to have been grounded upon a mistaken legal 
interpretation.'' Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 
(1993). That authority is good only so long as the new 
interpretation ``is otherwise legally permissible and is adequately 
explained.'' Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, 1481 
(D.C. Cir. 1989). The Rule is neither. Moreover, where as here, the 
rule overturns the Board's 65 year-old interpretation, little if any 
deference is due. ``An agency interpretation of a relevant provision 
which conflicts with the agency's earlier interpretation is 
`entitled to considerably less deference' than a consistently held 
agency view.'' INS v. Cardoza-Fonseca, 480 U.S. 421, 447 n. 30 
(1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).
---------------------------------------------------------------------------

III. The Rule Is Arbitrary and Capricious

    The Administrative Procedure Act, which governs the proceedings 
of administrative agencies and related judicial review, establishes 
a scheme of ``reasoned decisionmaking.'' * * * Not only must an 
agency's decreed result be within the scope of its lawful authority, 
but the process by which it reaches that result must be logical and 
rational. Courts enforce this principle with regularity when they 
set aside agency regulations which, though well within the agencies' 
scope of authority, are not supported by the reasons that the 
agencies adduce.\47\
---------------------------------------------------------------------------

    \47\ Allentown Mack Sales and Service, Inc. v. NLRB, 522 U.S. 
359, 374 (1998).

    Even if one were to find that Congress has not directly addressed 
issues in Section 9 and Section 3(b) of the Act in a manner contrary to 
the Rule's electoral revisions, the Rule in general and in several 
particulars still does not warrant deference under the Administrative 
Procedure Act (APA) \48\ or Chevron step two \49\ because the Rule is 
``arbitrary or capricious.'' United States v. Mead Corp., 533 U.S. 218, 
227 (2001). See also American Hosp. Ass'n, 499 U.S. at 618-20 (applying 
arbitrary and capricious standard in its consideration of the Board's 
rule on acute care hospital bargaining units). ``Normally, an agency 
rule would be arbitrary and capricious if the agency has relied on 
factors which Congress has not intended it to consider, entirely failed 
to consider an important aspect of the problem, offered an explanation 
for its decision that runs counter to the evidence before the agency, 
or is so implausible that it could not be ascribed to a difference in 
view or the product of agency expertise.'' Motor Vehicle Mfrs. Ass'n of 
the United States, Inc. v. State Farm Mut. Automobile. Ins. Co., 463 
U.S. 29, 43 (1983). The Rule is arbitrary under multiple counts of the 
State Farm test.
---------------------------------------------------------------------------

    \48\ 5 U.S.C. 706(2)(A).
    \49\ As the D.C. Circuit has observed, inquiry at the second 
step of Chevron, i.e., whether an agency has made a permissible 
statutory interpretation, overlaps with the APA's ``arbitrary and 
capricious standard.'' See Shays v. FEC. 414 F.3d 76, at 96-97 
(2005), and cases cited there.
---------------------------------------------------------------------------

 A. What delay does the rule rationally address?

    My colleagues repeatedly assert in both the NPRM and the Rule that 
their purpose is to address the problems of ``delay'' and ``unnecessary 
litigation'' in election case processing. As a general matter, who 
could quarrel with such a proposition? Further, anecdotal 
identification of representation cases which took too long to bring to 
conclusion is about as difficult as shooting ducks in a barrel. Yet my 
colleagues never meaningfully define the purported systemic problems 
they seek to address. Neither do they set forth any rational measures 
or standards by which one might understand the contours of the 
problems, much less evaluate whether their Rule is reasonably drawn to 
correct them. Instead, they reason in reverse, pronouncing solutions 
first, then identifying affected procedures as problems.
    The Rule nominally addresses two types of delay: Delay from the 
time of the petition to an election, and delay from the time of an 
election until certification of results or representative. 
Notwithstanding the Acting General Counsel's characterization of the 
agency's performance as ``outstanding'' \50\ and ``excellent'' \51\ 
when measured by current agency median time targets, my colleagues 
implicitly find that the targets for these stages are too long. They 
never quite say why. Instead, they simply contend that it will take 
less time to process cases with their procedural revisions.
---------------------------------------------------------------------------

    \50\ NLRB General Counsel Memorandum 11-03, ``Summary of 
Operations Fiscal Year 2010'' at ``Introduction'' (Jan. 10, 2011), 
available at http://www.nlrb.gov/publications/general-counsel-memos.
    \51\ NLRB General Counsel Memorandum 12-03, ``Summary of 
Operations Fiscal Year 2011'' at ``Introduction'' (Mar. 3, 2012), 
available at http://www.nlrb.gov/publications/general-counsel-memos.
---------------------------------------------------------------------------

    Implicit in their analysis, however, is the conviction that the 
primary contributor to delay is litigation, either in pre-election 
hearings, filing of briefs, pre-election requests for review, or 
nondiscretionary Board review of post-election contested issues. 
Eliminate this, they say, and the problem of delay is significantly 
lessened, subject of course to their further review of the remaining 
reserved proposals in the NPRM.
    In sum, my colleagues view litigation as the devil's work, and the 
devil presumably works for those who oppose a rapid electoral process 
ending in a union's certification as employees' bargaining 
representative.\52\ Not only does litigation cause delay per se, 
regardless of the merits of issues raised or their importance to the 
parties and employee voters, but it is susceptible to abuse. Further, 
at least prior to an election, delay from litigation affords more time 
for employers to go on an unfair labor practice rampage to eliminate 
union support as well as its union supporters, according to some 
commenters to the rulemaking, including pro-union authors of some 
highly questionable academic ``studies.'' \53\
---------------------------------------------------------------------------

    \52\ There is, of course, an exception to this presumption. That 
is the contrary presumption of legitimacy in litigation of union 
unfair labor practice charges that support the Board's current 
blocking charge policy, with resultant delays of months or even 
years.
    \53\ John Logan, Erin Johansson, & Ryan Lamare, ``New Data: NLRB 
Process Fails to Ensure A Fair Vote'' (June 2011), http://laborcenter.berkeley.edu/laborlaw/NLRB_Process_June2011.pdf.; Kate 
Bronfenbrenner & Dorian Warren, ``The Empirical Case for 
Streamlining the NLRB Certification Process: The Role of Date of 
Unfair Labor Practice Occurrence'' (2011), http://iserp.columbia.edu/sites/default/files/working_papers/working_paper_cover_2011-final.pdf.; and Kate Bronfenbrenner, ``No Holds 
Barred: The Intensification of Employer Opposition to Organizing'' 
(May 20, 2009), http://www.epi.org/page/-/pdf/bp235.pdf?nocdn=1; My 
colleagues tiptoe to the edge of endorsing these studies, but claim 
not to do so. They nevertheless clearly do share with the authors 
the presumption that employer representation case litigation is 
presumptively illegitimate, or an unnecessary impediment to 
elections, while union unfair labor practice charges are 
presumptively legitimate and, as such, an accurate reflection of 
unlawful employer interference with elections. The latter 
presumption informs and, alone, irreparably flaws the authors' 
studies.
---------------------------------------------------------------------------

    It cannot be disputed that the efficient and expeditious exercise 
of our statutory mandate is an appropriate and important goal that is 
central to our mission. But labeling litigation as a generic and 
principal cause of undefined delay and abuse, warranting immediate 
remediation over all other possible causes of delay, is an

[[Page 25565]]

impermissibly arbitrary way of meeting that goal.

B. Failure To Consider the Board's Own Statistical Evidence

    ``There are some propositions for which scant empirical evidence 
can be marshaled,'' \54\ but that is certainly not the case in this 
rulemaking venture. The Board has access to a vast and detailed wealth 
of representation casehandling information that can readily be obtained 
through its own records. ``[T]he agency must examine the relevant data 
and articulate a satisfactory explanation for its action including a 
`rational connection between the facts found and the choice made.' '' 
State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United 
States, 371 U.S. 156, 168 (1962)). See also Business Roundtable et al 
v. SE.C., 647 F.3d 1144 (D.C. Cir., 2011) (finding SEC acted 
arbitrarily and capriciously by relying on insufficient empirical data 
supporting its rule and by completely discounting contrary studies). No 
such effort was made here, evincing an arbitrary disregard for 
identifying the real problem areas in representation case processing.
---------------------------------------------------------------------------

    \54\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 
S.Ct. 1800, 1813 (2009).
---------------------------------------------------------------------------

    First, there is the matter of the Agency's official performance 
goals. I find perplexing my colleagues' indifference to these published 
goals and statistical evidence of whether the Board meets or exceeds 
them. These are, after all, the reported standards by which we annually 
ask Congress and the public to evaluate how well we are doing our job 
of processing election petitions. They are also the measures by which 
the performance of senior agency managers is evaluated. In any case, in 
the absence of any standard or measure presented by my colleagues to 
replace the Agency's published goals as measures of efficiency, these 
measures would seem to be the rational starting point for an assessment 
of what cases took too long to process.
    According to information in the Acting General Counsel's recent 
summary of operations for Fiscal Year (FY) 2011: \55\
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    \55\ General Counsel Memorandum 12-03, supra at Introduction and 
p.2-3.

--The Board closed 84.7% of all representation cases within 100 days, 
just short of the performance goal of 85%.
--The Regions conducted 1,423 initial representation elections, of 
which 89.0% were held pursuant to agreement of the parties. In FY 2010, 
1,790 initial elections were held, with a 92.1% election agreement 
rate. The target election agreement rate is 85% of elections.
--The median time to proceed to an election from the filing of a 
petition was 38 days, the same rate achieved in FY 2010, and well below 
the target median of 42 days.
--91.7% of all initial representation elections were conducted within 
56 days of the filing of the petition, above the target rate of 90%. In 
FY 2010, 95.1% of elections were conducted within 56 days.
--Regional directors issued 203 pre-election decisions in contested 
representation cases after hearing in a median of 33 days from the 
filing of the petition, well below the target median of 45 days. In FY 
2010, regional directors issued 185 pre-election decisions in a median 
time of 37 days.
--In 45 cases, post-election objections and/or challenges were filed 
requiring the conduct of an investigative hearing. Decisions or 
Supplemental Reports were issued in those cases in a median of 62 days. 
The goal is a median of 80 days.
--Post-election objections and/or challenges that could be resolved 
without a hearing were filed in 70 cases. Decisions or Supplemental 
Reports in those cases issued in a median of 21 days. The goal is a 32-
day median.

    The foregoing statistics fail to disclose any widespread problem of 
delay in election case processing. They do invite inquiry into the 
approximately 15% of cases that took more than 100 days to close and 
the approximately 8% of those that took more than 56 days to move from 
petition to election. My colleagues made no such investigation. 
Commenter Samuel Estreicher did. Referring to a study of Board 
casehandling statistics for 2008, he said

    It is not clear, however, that the median [time from petition to 
election] can be significantly reduced without the agency also 
addressing the ``long tail'' of the distribution--the fact that in 
2008, for example, 251 of 2024 (or 12.43% of) elections were held 
more than 56 days after the filing of the petition. The causes of 
delay in these cases warrant further study. There may well be a 
substantial overlap between these cases and the 284 petitions that 
were ``blocked'' in 2008 (pursuant to the Board's ``blocking 
charge'' policy) where the median time in 2008 between petition and 
election was 139 days compared to 38 days overall.

    My colleagues' response to Professor Estreicher was effectively to 
say they would get to that study of blocking charges later, if at all, 
but the Rule's revisions should come first. They give a similar 
response to suggestions that the Board could effectively and 
immediately attack representation case delay, without any rule 
revisions, by cleaning its own house. Indeed, my review of the Board's 
internal computerized case information system indicated that on the 
date of the Rule's publication there were at least 20 election cases 
that had been pending before the Board for more than 100 days. The 
Board, not any systemic flaw in extant rules, is responsible for this 
clearly unacceptable delay. Nevertheless, rather than focusing on 
deciding these cases, my colleagues choose their Rule-first approach. 
They rationalize that the reduction of cases reaching the Board as a 
result of the Rule will give them more time to attend to such matters. 
I address that embarrassing rationale in a subsequent section.
    I asked members of my staff to conduct a study of the Board's 
internal computerized case tracking information system maintained by 
the Acting General Counsel's personnel in order to ascertain the 
details of cases that took longer than the 56/100 day time targets to 
process. The results of that study, which is instructive even if 
concededly not exhaustive, indicate that the Rule may do little to 
speed up overall election case processing.
    The staff study confirmed Professor Estreicher's observation that 
when cases take longer than 100 days to process, much of the ``delay'' 
can be attributed to the effects of post-election case processing, 
blocking charges, or delays in case deliberations by the Board itself. 
There is little evidence that, as a systemic matter, conducting pre-
election hearings, permitting the filing of post-hearing briefs, and 
processing pre-election requests for review unreasonably delayed an 
election or the ultimate conclusion of cases. In some cases where there 
was arguable delay prior to the election, explanations for this had 
nothing to do with the hearing and its aftermath. Instead, the 
additional time before an election resulted from a post-hearing 
scheduling agreement by the parties or the need to accommodate a 
seasonal workforce pattern of employment.
    The aforementioned statistical studies, as limited as they may be, 
are some evidence that my colleagues' Rule is misdirected if intended 
to achieve greater efficiency in representation election casehandling. 
But the more salient point underscoring the arbitrary nature of the 
Rule's substance is that my colleagues have made no effort themselves 
to examine such data and to establish a ``rational connection

[[Page 25566]]

between the facts found and the choice made.'' \56\
---------------------------------------------------------------------------

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

C. The Pre-Election Rule Revisions

1. Stipulated Election Agreements
    In recent years, about 90% or more of representation elections were 
expeditiously held pursuant to election agreements. The stipulated 
election agreement was by far the preferred alternative to the consent 
agreement.\57\ The stipulated agreement resolved all pre-election 
disputes but preserved the automatic right to Board review of a 
regional director or hearing officer's disposition of post-election 
challenges and objections. The Rule now eliminates that right, 
substituting for mandatory review a discretionary request for review 
procedure that currently exists for the disposition of pre-election 
issues.\58\ Without any empirical support, my colleagues contend that 
this will have no deterrent effect on the percentage of pre-election 
agreements.
---------------------------------------------------------------------------

    \57\ In 2008, 1579 elections were held pursuant to stipulation, 
while only 75 consent elections were held. NLRB Annual Report FY 
2008. In 2009, 1370 elections were held pursuant to stipulation, 
while only 41 consent elections were held. NLRB Annual Report FY 
2009.
    \58\ Even in the absence of an election agreement, the Rule 
eliminates the automatic right of review in cases where a regional 
director makes the discretionary choice of issuing a report and 
recommendations on post-election issues.
---------------------------------------------------------------------------

    This is a classic case of ``if it ain't broke, don't fix it.'' It 
seems natural that parties would negotiate resolution of known pre-
election issues but at the same time assure the possibility of highest 
agency review of unforeseen election conduct and eligibility issues 
that arise during the critical election period. It also seems natural 
that the willingness of parties to compromise on pre-election issues 
would be adversely affected by the elimination of the right to agree to 
mandatory post-election Board review. Not so, claim my colleagues. In 
deciding whether to enter into an election agreement, parties will 
still prefer one that preserves even a limited right of Board review 
over one that provides for final disposition of post-election issues at 
the regional level.\59\ In all other respects, they contend, parties 
will continue to consider the same factors previously considered when 
deciding whether to enter into an election agreement at all.
---------------------------------------------------------------------------

    \59\ 76 FR 80161.
---------------------------------------------------------------------------

    Of course, my colleagues could be wrong, and it was their 
rulemaking responsibility to give more than cursory thought, if that, 
to this possibility. The assurance of mandatory, as opposed to 
discretionary, Board review of challenge and objections issues could be 
a prime consideration to some employers in agreeing to forego what 
otherwise must be litigated pre-election issues, even under the Rule's 
limitations, and, perhaps more importantly, to resolve most eligibility 
and unit placement issues prior to an election rather than litigate 
them post-election as determinative challenges. If the percentage of 
election agreements diminishes by even a few points as a result of this 
changed calculus, the consequent increase in pre- and post-election 
litigation will almost certainly wipe out what little actual redress of 
perceived delay is effected by the Rule's implementation.
    My colleagues' willingness to undertake such speculative risk 
without adequate consideration of its potential adverse consequences is 
at least partially explained by their apparent agreement with 
commenters who contend that employers use the election agreement 
process to extort unwarranted concessions from unions, who capitulate 
in order to avoid the delay attendant to litigation of disputed issues. 
Again, this view is based on the presumption that employers could not 
really have legitimate issues to raise in litigation. If there are 
legitimate disputes, and I dare to say this can be the case, then the 
process of negotiating an election agreement in which an employer 
waives such litigation rights in exchange for concessions about unit 
scope, unit placement, or election details, seems to fairly resemble 
the give-and-take bargaining that would ensue after a petitioning union 
wins an election and is certified.
    In sum, apart from other reasons, discussed below, I find the 
Rule's elimination of mandatory Board review of post-election disputes 
to be arbitrary and capricious. The resultant elimination of a highly-
favored process that encouraged the negotiated resolution of all pre-
election issues is not only wholly unsubstantiated but also contrary to 
the purpose for which the Rule is purportedly drawn.
2. Pre-Election Hearings
    As previously discussed, the Rule's limitation of issues that can 
be litigated in a pre-election hearing is impermissibly contrary to the 
language and Congressional intent for Section 9(c)(1). Even if the 
Board had the discretion to impose this limitation, it has failed to 
offer a rational justification for doing so.
    Obviously, the length of the hearing itself is not a significant 
problem. Even under current rules permitting litigation of disputed 
issues other than those relevant to whether a question concerning 
representation exists, the average hearing lasts one day and few last 
more than two. Further, while hearing officers must currently create a 
complete record, they clearly have had the ability under existing 
procedures to limit the introduction of evidence on issues where a 
party bears the burden of proof and fails to take a position.\60\
---------------------------------------------------------------------------

    \60\ See Bennett Industries, Inc., 313 NLRB 1363 (1994).
---------------------------------------------------------------------------

    My colleagues are essentially concerned with the time it takes to 
get to a hearing and the time it takes to get from a hearing to an 
election. Accordingly, they seek to limit the number of pre-election 
hearings by limiting the issues that can be litigated, and they 
eliminate the pre-election review process and the attendant recommended 
25-day waiting period prior to the election.
    Although it can take longer to get to an election when the Board 
conducts a pre-election hearing, an initial question is how much 
longer? My staff's review of agency statistics indicates that more than 
half of the pre-election hearing cases are closed within 100 days of 
the petition, thus meeting the agency performance goals.\61\ Also, in 
recent years, the median days from petition to election in cases with 
pre-election hearings is about 64 days, just 8 days above the agency 
performance goal for elections where no hearing is held.
---------------------------------------------------------------------------

    \61\ In FY 2010, 43% of cases that went to a pre-election 
hearing (68 of 158) closed in more than 100 days; in FY 2009, 45% 
(57 of 127), and 51% (78 of 152) in FY 2008.
---------------------------------------------------------------------------

    Nevertheless, my colleagues repeat as a mantra the claim that their 
revisions will alleviate unnecessary litigation and delay because ``the 
issues in dispute in such litigation are often rendered moot by the 
election results or resolved by the parties post-election.'' \62\
---------------------------------------------------------------------------

    \62\ 76 FR 80141.
---------------------------------------------------------------------------

    Once again, my colleagues offer no empirical support whatsoever for 
a stated premise, in this instance the premise that the now-deferred 
issues are often rendered moot.\63\ One would think, at the very least, 
that they would want to examine case statistics from recent years to 
get an idea of what issues would still have to be litigated pre-
election and what issues that will now be deferred would still have to 
be

[[Page 25567]]

litigated in the post-election hearing. It seems logical that some 
issues will indeed be mooted by the election outcome. It seems just as 
logical that some issues will survive, particularly in light of the 
strong possibility that the deferral of unit eligibility and placement 
issues without limitation for the number of individuals involved will 
greatly increase the number of elections with a determinative number of 
challenged ballots. If so, then the Rule only backloads litigation, 
with no real shortening of the time to process a representation case 
from petition to closing.
---------------------------------------------------------------------------

    \63\ My colleagues define mootness relative to a particular 
election. Of course, the failure to resolve a ``mooted'' issue may 
well contribute to what would be unnecessary uncertainty, 
litigation, and delay in the processing of a rerun election or an 
election following a new union campaign. The more individuals whose 
status is left in limbo by the Rule's revisions, the greater is the 
likelihood of this happening.
---------------------------------------------------------------------------

    In any event, balanced against any potential net gain in the time 
for election case processing is the need to resolve many, if not most, 
disputed election issues sooner rather than later. In other words, even 
if litigation means an election will be held at a later time, is the 
delay reasonably necessary and could it even expedite final resolution 
of the election process? See, e.g., Excelsior Underwear, Inc., 156 NLRB 
1236, 1243 (1966), reasoning the early identification of ``bona fide 
disputes between employer and union over voting eligibility'' may avoid 
resorting to ``the formal and time-consuming challenge procedures.''
    My colleagues may not think so, but there are employees, employers, 
and unions who believe that there is value in the early resolution of 
individual issues that do not bear on whether an election should be 
held at all. In particular, employees quite reasonably would like to 
know if they are eligible to vote and will be part of a bargaining unit 
that the union seeks to represent. Telling them they can cast a 
challenged ballot, with their eligibility possibly to be resolved 
later, is hardly an inducement to participate in the electoral process. 
Further, individuals whose status as supervisors is disputed would 
reasonably like to have that issue resolved before an election, as 
would their employer and the participating union. It is unbecomingly 
blas[eacute] of my colleagues to state that, because resolution of this 
issue would in any event not undo the effect of antecedent actions 
taken in the election campaign, there is no problem with postponing 
such resolution until after the election, if then. They are aware, I 
believe, that an employer can lawfully discharge or discipline a 
statutory supervisor for engaging in union activity, even if the 
individual mistakenly believed he was an employee, or was told so by 
the union.
    My colleagues also rely on the traditional Board practice of 
deferring final decision on some individual eligibility and unit status 
issues until after an election. They describe the Board's practice as 
``regular'' and ``frequently'' used, but once again make no effort to 
provide statistical support for this characterization. It is certainly 
true that over the years, an informal guideline has evolved in Board 
law and practice that permits the holding of elections in appropriate 
circumstances when it remains unclear whether a small number of voters 
belong in the voting unit by permitting the disputed individuals to 
vote under challenge. Usually, the number of such challenges does not 
exceed about 10-12% of the unit. See, e.g., Silver Cross Hospital, 350 
NLRB 114, 116 fn. 10 (2007) (the Board permitted two employees, which 
was about 11% of the unit, to vote under challenge.) This practice is 
not, however, per se. It merely informs the Board's consideration of 
individual cases when difficult issues or insufficient record evidence 
would otherwise tie up processing the case for some time. The Board 
considers whether there is a cognizable possibility that votes cast by 
a small percentage of a voting unit will make no difference in the 
outcome of the election, and the parties may have a final outcome 
regarding the question concerning representation sooner. This is not 
done without thought or without recognition of the risk that failing to 
resolve disputes before the election may lead to more litigation. By 
this discretionary case-by-case practice, the Board has recognized 
practical exceptions to its established standards of litigating and 
resolving all disputes before an election, including voter eligibility 
and unit placement questions.
    The fact that the Board has deferred some pre-election issues for a 
limited number of individuals in an indeterminate number of cases 
hardly justifies doing so axiomatically for an unlimited number of 
individuals. Although decided under the pre-Taft Hartley ``substantial 
issue'' rule for pre-election hearings, the court's opinion in SW. 
Evans & Son speaks directly and critically to my colleagues' rationale 
for doing so.

    It is a simple matter, from the vantage point of hindsight, to 
determine the substantiality of issues raised, as the petitioner 
suggests, on the basis of election results which, fortuitously, may 
be such as could remain unaffected by the ultimate conclusion of 
those issues. But the problem of substantiality, in our view, is one 
to be determined prospectively. Indeed, were it otherwise, the very 
purpose of the amendment to the Rules and Regulations, to avoid 
delay, would be annulled. We are of the opinion that the respondent 
here raised substantial issues and under the Rules and Regulations 
of the Board it was entitled to a pre-election hearing.\64\
---------------------------------------------------------------------------

    \64\ 181 F.2d at 431.
---------------------------------------------------------------------------

3. Post-Hearing Briefs
    Under current rules, parties are afforded the opportunity to file 
post-hearing briefs within seven days after the pre-election hearing, 
or later with special permission. Whether or not required as a matter 
of minimum due process, the right to file post-hearing briefs has 
become an established Board practice. Yet, my colleagues now claim that 
this practice ``often delays issuance of the regional director's 
decision and direction of election, thereby delaying resolution of the 
question of representation even when the issue or issues in dispute can 
be accurately and fairly resolved without briefing.'' (emphasis added) 
\65\ Accordingly, the Rule generally prohibits the filing of post-
hearing briefs, except in the event of the hearing officer's ``special 
permission.'' \66\
---------------------------------------------------------------------------

    \65\ 76 FR 80141.
    \66\ 76 FR 80185.
---------------------------------------------------------------------------

    I need not belabor this issue. Recall that the Acting General 
Counsel's annual summary for FY 2011 stated that regional directors 
issued 203 pre-election decisions in contested representation cases 
after hearing in a median of 33 days from the filing of the petition, 
well below the target median of 45 days. Nevertheless, my colleagues 
once again proceed on a factually unsubstantiated premise that a 
particular, long-established feature of Board pre-election procedure 
``often'' delays the issuance of a regional director's decision. Is 
there any comment in the record by a regional director, past or 
present, to this effect? Is there any apparent reason why, in cases 
where the issues litigated are straightforward and few, a regional 
director or regional staff could not commence the drafting of a 
decision prior to receipt of briefs? \67\ For that matter, is there any 
comment in the record that parties routinely submit briefs in such 
simple cases?
---------------------------------------------------------------------------

    \67\ In fact, the Agency's internal training program expressly 
instructs decision-writers to begin drafting pre-election regional 
directors' decisions before the briefs arrive. See NLRB Professional 
Development Program Module 5: Drafting Regional Director Pre-
Election Decisions, last updated May 23, 2004, Participants Guide 
and Instructors Guide.
---------------------------------------------------------------------------

    On the other hand, my colleagues are totally dismissive of the 
potential value of post-hearing briefs in narrowing factual disputes, 
defining issues, and possibly creating grounds for settlement that 
would obviate the need for a regional director's decision and expedite 
the electoral process. Even if there is no settlement, is there any

[[Page 25568]]

record support for my colleagues' view that post-hearing briefs are 
apparently so worthless that they should only be allowed in the rare 
case where a hearing officer gives special permission? \68\
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    \68\ It is quite clear to me, as it will be to regional 
personnel, that a hearing officer's discretion to grant motions to 
file briefs is severely limited by the ``special permission'' 
language. Notably, my colleagues gave no apparent consideration to 
the alternative of a broad discretionary standard that would enable 
a hearing officer to make a real case-by-case evaluation of whether 
a post-hearing brief would benefit the regional director's 
decisionmaking.
---------------------------------------------------------------------------

    It is obvious that my colleagues' real objective in generally 
eliminating the filing of post-hearing briefs has no rational 
relationship to whether such a practice unreasonably delays the 
electoral process. They are simply shortening the pre-election timeline 
wherever they can, without any real consideration of the merits of the 
practice eliminated.\69\
---------------------------------------------------------------------------

    \69\ Indeed, my colleagues state that the ``temptation to use 
the threat of unnecessary litigation to gain * * * strategic 
advantage is heightened by * * * the right to take up to seven days 
to file a post-hearing brief * * *.''
---------------------------------------------------------------------------

4. Pre-Election Requests for Review
    I have previously discussed why the elimination of pre-election 
requests for review is impermissibly contrary to Section 3(b) of the 
Act and Congressional intent. The same action is indefensibly arbitrary 
and capricious.
    This action is part and parcel of the backloading of representation 
case issues also mandated by the Rule's deferral of litigation of unit 
eligibility and placement issues, and it warrants the same criticisms. 
My colleagues again parrot the factually unsubstantiated claim that 
contested issues will ``often'' be mooted by the election results. If 
not, they say, rather than bifurcating the resolution of all contested 
issues in a representation case, final resolution of litigated pre-
election issues can still wait and be decided in a single proceeding 
with post-election issues. Of course, the supposed bifurcation would 
only occur if there are post-election issues other than those for which 
a request for review will now be deferred.\70\
---------------------------------------------------------------------------

    \70\ This not unlikely circumstance gives the lie to my 
colleagues' characterization of the pre-election request for review 
as interlocutory.
---------------------------------------------------------------------------

    My colleagues also denigrate the pre-election request for review 
process as essentially useless, given how rarely the Board grants 
review, in which case a decision generally issues after the election, 
and even more rarely that it stays an election.\71\ They miss the point 
that in those cases where review is denied, the Board action provides 
finality. They also fail to acknowledge that in cases where a regional 
director improperly directs an election and review would otherwise be 
granted, the Rule will result in such elections being run 
unnecessarily, See, e.g., Sanctuary At Mcauley Employer, Cases 7-RC-
23402, et. al (April 8, 2011) (granting the employer's request for 
review of the regional director's direction of election which raised a 
substantial issue with respect to whether the unit managers were 
statutory supervisors); State Bar of New Mexico, 346 NLRB 674 (2006) 
(the Board determined that the employer, the State Bar of New Mexico, 
is exempt from the Boards jurisdiction, reversed the regional 
director's direction of election and dismissed the petition); In re 
Canal Carting, Inc., 339 NLRB 969 (2003) (the Board granted the 
employer's request for review of the regional director's direction of 
election, finding a contract bar to the union's petition). It is 
illogical to go forward with an election if the regional director erred 
in finding a question concerning representation. Thus, whether or not 
the Board grants review, the pre-election request for review promotes 
efficiency by ensuring that the regional director has properly ruled on 
the existence of a question concerning representation, as well as on 
other issues under current pre-election procedure.
---------------------------------------------------------------------------

    \71\ As previously discussed, the right to petition for that 
rare stay is statutorily mandated.
---------------------------------------------------------------------------

    This is all of little matter to my colleagues. Their primary 
purpose in eliminating the pre-election request for review is to 
eliminate the companion recommended minimum 25-day waiting period for 
scheduling an election after a regional director's decision and 
direction of election. In their view, this delay is unwarranted because 
the request for review is unnecessary, and they reject any suggestion 
that there might be alternate justifications for a post-decisional 
waiting period. Inasmuch as I believe the pre-election request for 
review process is mandated by the Act and has substantial value in 
bringing final resolution to litigated issues as quickly as possible, 
and that my colleagues have failed to articulate a rational basis for 
its elimination, I need not posit an alternative justification for the 
process. However, I think there could well be both an agency 
administrative justification for at least some post-decisional time to 
arrange the details of election. More importantly, as discussed below, 
I believe that in at least some instances it will be critically 
important to provide some post-decisional time for employers to 
exercise their free speech rights to communicate their view on 
unionization to employees

D. The Post-Election Rule Revision

    One justification for my colleagues' elimination of 
nondiscretionary Board review of post-election challenge and objections 
issues is jaw-droppingly pretentious. They claim that ``[t]he final 
rule will enable the Board to separate the wheat from the chaff, and to 
devote its limited time to cases of particular importance.'' \72\ 
Shortly thereafter, my colleagues reason that ``the discretionary 
review provided for in the final rule parallels that used by the 
Supreme Court to ensure uniformity among the circuit courts of 
appeals.'' \73\ I am afraid that my colleagues take their analogy to 
the Supreme Court's discretionary review far too literally. The Board 
is an administrative agency, and the Board members comprise the only 
forum for internal administrative review of regional actions. However 
mundane the supposed chaff of cases may seem to them, it is our duty to 
provide employees and parties in those cases the same decisional 
attention, guidance, and care as in ``cases of particular importance.''
---------------------------------------------------------------------------

    \72\ 76 FR 80159.
    \73\ 76 FR 80160.
---------------------------------------------------------------------------

    Beyond that, how in common sense can my colleagues maintain that 
the Board has such limited time as to warrant departing from the 
current nondiscretionary review practice? This is not 1959, when 
Congress enacted Section 3(b)'s delegation authority to address the 
Board's undisputed inability to handle its pending caseload.\74\ In 
1959, there were 9,347 representation case filings, 8,840 case 
closings, and 2,230 cases pending at the end of the year. The Board 
itself decided 1880 cases.\75\
---------------------------------------------------------------------------

    \74\ In any event, the delegation was primarily, if not 
exclusively concerned with permitting regional directors to make 
unit determinations prior to an election. See Magnesium Casting Co. 
v. NLRB, 401 U.S. 137, at 138, 141 (1971). See also Meyer Dairy, 
Inc. v. NLRB, 429 F.2d 697 (10th Cir. 1970) (the ``section 3(b) 
amendment delegated to the Regional Directors the Board's powers to 
make unit determinations in representation proceedings * * *.'').
    \75\ Twenty-Fourth Annual Report of the National Labor Relations 
Board for Fiscal Year Ended June 30, 1959, Appendix A--Tables 1 and 
3.
---------------------------------------------------------------------------

    In Fiscal Year 2011, 2,634 representation case petitions were filed 
in the regions, a decrease of 11.2% from 2,969 in FY 2010. In addition, 
the Board's pending caseload is at a near-historical low.\76\ According 
to statistics compiled by the Board's Executive Secretary, as of 
January 3, 2012, there were 137 pending unfair labor practice

[[Page 25569]]

cases and 31 pending representation cases. That caseload is not likely 
to increase in light of the dramatic decline in regional intake. In 
these circumstances, I think it is clear that the Board has time and 
staff enough to handle both the wheat and chaff of post-election issues 
raised before us under the existing practice of mandatory review.
---------------------------------------------------------------------------

    \76\ GC Memorandum 12-03, supra at p. 2.
---------------------------------------------------------------------------

    There is the additional problem of my colleagues' failure to 
rationalize the significant difference between the existing rule and 
the new Rule as to the review standard imposed for post-election issue 
litigation. Under the practice of mandatory review, the Board would 
engage in de novo review of the entire record with respect to factual 
findings, other than credibility findings, of the decision maker 
below.\77\ Under the Rule's discretionary review standard, the Board 
will only grant review of regional factual finding based on a showing 
that the finding was clearly erroneous and prejudicial. This standard 
is not often likely to be met.
---------------------------------------------------------------------------

    \77\ My colleagues mistakenly rely on Stretch-Tex, 118 NLRB 1359 
(1956), for the proposition that the Board's review of a hearing 
officer's factual findings is, in general, ``highly deferential.'' 
76 FR 811059. The standard referred to, as in the unfair labor 
counterpart case of Standard Dry Wall Products, 91 NLRB 544 (1950), 
enfd. 188 F.2d 362 (3d Cir. 1951), is limited to contested 
credibility findings. Otherwise, the de novo review standard 
applies. Id. at 545.
---------------------------------------------------------------------------

    My colleagues assert that the change in review standards is of 
little consequence because the Board affirms the majority of post-
election decisions made at the regional level. This may be true as to 
decisional outcome, but there have been numerous Board decisions 
reversing the hearing officer's or regional director's findings in 
post-election cases.\78\ Also, in many cases, even if the Board has 
affirmed the decision below, it has modified or clarified the 
supporting findings.\79\ There also have been many cases in which a 
Board member or members dissent to the factual findings below.\80\ The 
Rule's discretionary review standard affords far less opportunity for 
reversal, clarification, or dissent with respect to such findings and 
their application to the controlling legal principles.\81\
---------------------------------------------------------------------------

    \78\ See, e.g., Sweetwater Paperboard and United, 357 NLRB No. 
142 (2011); Go Ahead North America, LLC, 357 NLRB No. 18 (2011); 
Rivers Casino, 356 NLRB No. 142. (2011); Trustees of Columbia 
University, 350 NLRB 574 (2007); Madison Square Garden CT, LLC, 350 
NLRB 117 (2007); In re Woods Quality Cabinetry Co. 340 NLRB 1355 
(2003); Manhattan Crowne Plaza, 341 NLRB 619 (2004).
    \79\ See, e.g., Automatic Fire Systems, 357 NLRB No. 190 (2012); 
Enterprise Leasing Company-Southeast, LLC, 357 NLRB No. 159 (2011).
    \80\ See, e.g., FJ Foodservice Employer, Case 21-RC-21310 
(December 30, 2011) 2011 WL 6936395; Mastec DirectTV Employer, 356 
NLRB No. 110 (2011); American Medical Response, 356 NLRB No. 42 
(2010).
    \81\ The majority cites to Mental Health Association, Inc., 356 
NLRB No. 151 (2011), as an example of a case which did not require 
Board review because it involved the application of settled 
precedent. However, the Board modified the hearing officer's 
findings because it disagreed with part of the hearing officer's 
analysis and found it unnecessary to rely on another part. Id. at 
slip op. 1, fn. 4
---------------------------------------------------------------------------

    The aforementioned Board decisions focusing on factual findings may 
not be of much import as to major legal issues, but they are of great 
significance in assuring the public and reviewing courts that the law 
is being uniformly and consistently applied. While the Board may 
delegate representation case duties under Section 3(b), it cannot 
abdicate its administrative responsibility as principal overseer of the 
exercise of those duties. That is exactly what it has done through the 
Rule's substitution of a post-election discretionary review process for 
a mandatory review process.
    Discretionary Board review under a clearly erroneous and 
prejudicial standard greatly increases the possibility that individual 
regions will reach different nonreviewable results in factually 
identical or similar circumstances.\82\ This decisional balkanization 
will introduce uncertainty and lack of uniformity in representation 
case law. It will effectively create a system in which parties have to 
litigate issues in light of regional precedent, in spite of the well-
established Board doctrine that regional directors' decisions do not 
have precedential value.\83\ It is particularly concerning that the 
Board will now be deciding few appeals involving election misconduct 
because the issues raised in such appeals go to the essence of employee 
free choice, and narrow factual distinctions have often made the 
difference in determining whether specific conduct has had an 
objectionable effect on that choice.
---------------------------------------------------------------------------

    \82\ I note that my critique of this aspect of the Rule has 
nothing to do with the expertise and competence of regional 
directors and hearing officers, for whom I have great respect. 
However, as with administrative law judges deciding unfair labor 
practice cases, expert and accomplished persons sitting in review of 
the same or similar set of facts can reach different conclusions of 
law. It is the Board's responsibility to reconcile those 
differences.
    \83\ E.g., Rental Uniform Service, Inc., 330 NLRB 334, 336 fn.10 
(1999), citing S.H. Kress & Co., 212 NLRB 132 fn. 1 (1974).
---------------------------------------------------------------------------

    Finally, I note that the elimination of mandatory post-election 
Board review, coupled with the deferral of many issues to the post-
election phase of proceeding, may well cause an increase in ``test of 
certification'' cases for employers denied discretionary review by the 
Board of issues that previously would entail mandatory de novo review. 
Whether or not any employer would be successful in securing judicial 
reversal of a regional director's decision is beside the point. Any 
test-of-certification delays final resolution of the representation 
procedure, and that delay can sometimes be substantial.

E. The Chairman and Member Becker Arbitrarily Departed From Well 
Settled Board Procedure in Promulgating the Rule

    ``Because the arbitrary and capricious standard focuses on the 
rationality of an agency's decisionmaking process rather than on the 
rationality of the actual decision, `[i]t is well-established that an 
agency's action must be upheld, if at all, on the basis articulated by 
the agency itself.' '' \84\ ``Not only must an agency's decreed result 
be within the scope of its lawful authority, but the process by which 
it reaches that result must be logical and rational.'' \85\ In 
proceedings leading to adoption and issuance of the Rule, my colleagues 
abruptly departed from established Board decisonmaking practices and 
policies.\86\
---------------------------------------------------------------------------

    \84\ Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 
(10th Cir. 1994), quoting from State Farm, 463 U.S. at 50.
    \85\ Allentown Mack, 522 U.S. at 374.
    \86\ I adhere to the view expressed in my dissent to the NPRM, 
and echoed by many commenters, that there were numerous procedural 
deficiencies in the overall rulemaking process that collectively 
evidence an arbitrary process inappropriate to the scale of proposed 
revision in election procedures. See 76 FR 36829-36830. However, in 
this dissent, I find it necessary to rely only on those arbitrary 
processes attendant to the published Rule from the time of its 
initial November 2011 proposal to its final approval by Chairman 
Pearce and Member Becker on December 16.
---------------------------------------------------------------------------

    1. Departure from practice of not overruling precedent without the 
affirmative vote of at least three Board members.
    At least since the mid-1980s, it has been Board practice that the 
power to overrule precedent will be exercised only by the affirmative 
vote of three members of the Board. See, e.g., Hacienda Resort Hotel & 
Casino, 355 NLRB No. 154 (2010); DaimlerChrysler Corp., 344 NLRB 1324 
fn. 1 (2005); International Transportation Service Inc., 344 NLRB 279, 
279 fn. 2 (2005); Tradesmen International, 338 NLRB 460 (2002); Temple 
Security, 337 NLRB 372, 373 fn. 7 (2001); G.H. Bass Caribbean, Inc., 
306 NLRB 823, 833 fn. 2 (1992); Atlantic Interstate Messengers, Inc. 
274 NLRB 1144 fn. 3 (1985); and Redway Carriers, Inc., 274 NLRB 1359 
fn. 4 (1985). This practice provides some degree of stability, 
predictability, and credibility in our agency

[[Page 25570]]

decisionmaking, even as Board membership changes and political winds 
shift accordingly. Individuals reliant on Board law are at least 
assured that the law will not be changed by a ``minority majority'' 
\87\ consisting of only two members of the congressionally intended 
full body of five.
---------------------------------------------------------------------------

    \87\ I borrow this phrase from Jonathan Remy Nash, ``The 
Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief 
of Quorum Requirements'' (August 11, 2008). U of Chicago, Public Law 
Working Paper No. 227. Available at SSRN: http://ssrn.com/abstract=1217876 or  http://dx.doi.org/10.2139/ssrn.1217876.
---------------------------------------------------------------------------

    The three-affirmative-vote requirement has been consistently 
followed by both Republican and Democrat Board Members. See Ryan Iron 
Works, Inc., 345 NLRB 893, 895 fn. 13 (2005) (Republicans), and Ingram 
Barge, Co., 336 NLRB 1259, 1259 fn. 1 (2001) (Democrats).\88\ Circuit 
courts have acknowledged the Board's practice as a reasonable 
institutional means of ensuring the stability of Board decisions. See 
Local Joint Exec. Bd. of Las Vegas v. NLRB, 657 F.3d 865, 872 (9th Cir. 
2011); Progressive Electric, Inc. v. NLRB, 453 F.3d 538, 552 (D.C. Cir. 
2006); and International Transportation Service, Inc. v. NLRB, 449 F.3d 
160, 165 (D.C. Cir. 2006). Chairman Pearce and I both adhered to the 
practice in Hacienda Resort Hotel & Casino, supra, notwithstanding our 
acute awareness that the reviewing Ninth Circuit might disagree with 
the resultant Board decision that was based on extant precedent.\89\
---------------------------------------------------------------------------

    \88\ In the 27 years of this practice, my colleagues cite only 
two 1997 cases where two members of a three-member Board did not 
adhere to it.
    \89\ That is, in fact, what happened. See Local Joint Exec. Bd. 
of Las Vegas v. NLRB, 657 F.3d at 870-876.
---------------------------------------------------------------------------

    In publishing the Rule, my colleagues readily acknowledge that they 
have failed to follow this established practice. As discussed below, 
none of the three arguments made in their defense provides a reasoned 
explanation for their action. Accordingly, the Rule is invalidly based 
on an arbitrary and capricious process.\90\
---------------------------------------------------------------------------

    \90\ I emphasize here that I am addressing an internal action 
requirement, not a statutory quorum requirement. I leave to others 
the question whether issuance of the rule runs afoul of the Board's 
quorum requirement, as discussed and defined by the Supreme Court in 
New Process Steel L.P. v. NLRB, 560 U.S. ----, 130 S.Ct. 2635, 2639-
42 (2010).
---------------------------------------------------------------------------

    My colleagues first contend that they were not required to adhere 
to the three-affirmative-vote practice in this rulemaking proceeding 
because the Rule is ``purely procedural'' and thus does ``not implicate 
the sorts of reliance interests that underlie the Board's practice.'' 
\91\ They further contend that, inasmuch as the Rule is procedural, it 
is exempt from the APA's notice-and-comment rulemaking requirements.
---------------------------------------------------------------------------

    \91\ 76 FR 80138, 80146.
---------------------------------------------------------------------------

    Putting aside the question whether, having chosen to engage in 
informal notice-and-comment rulemaking under the APA, my colleagues can 
even claim that the Rule is purely procedural, I find they have not 
provided a rational explanation for this claim. A procedural rule is 
``one that does not itself `alter the rights or interests of parties, 
although it may alter the manner in which the parties present 
themselves or their viewpoints to the agency.' '' Chamber of Commerce 
of the United States v. United States Department of Labor, 174 F.3d 
206, 211 (D.C. Cir. 1999). A substantive rule, in contrast, ``has a 
`substantial impact' upon private parties and `puts a stamp of [agency] 
approval or disapproval on a given type of behavior.' '' Id. Courts 
have found that this ``distinction is often difficult to apply as even 
a purely procedural rule can affect the substantive outcome of an 
agency proceeding.'' Id. Because of this difficulty, courts apply the 
notice-and-comment exemption set forth in Section 553(b)(3)(A) of the 
APA ``with an eye toward balancing the need for public participation in 
agency decisionmaking with the agency's competing interest in 
`retaining latitude in organizing its internal operations.' '' Id. 
``[T]he question whether a rule is substantive or procedural for the 
purposes of Sec.  553b is functional, not formal. That is why [courts] 
examine how the rule affects not only the `rights' of aggrieved 
parties, but their `interests' as well. Id. at 212,, citing Batterton 
v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980).
    The Rule here affects every party subject to the Board's 
jurisdiction in representation cases and alters the Board's 
representation case procedures in a sweeping manner. It substantially 
limits the right to a pre-election hearing, eliminates the right to 
pre-election Board review of a regional director's direction of 
election, eliminates the right to automatic Board review of post-
election issues, changes the standard for Board review of many 
contested electoral issues, and substantially impacts the rights of 
employees and employers to engage in communications about election 
issues prior to the election. These changes represent more than 
``incidental inconveniences.'' Chamber of Commerce, 174 F.3d at 211-
212. They clearly affect the rights and interests of parties subject to 
the Board's representation case procedures and thus are of a 
substantive, not procedural, nature.
    Accordingly, not only is the Rule substantive in impact, it also 
does implicate the same reliance interests that underlie the 
adjudicatory practice requiring three affirmative votes for change. 
Although not dispositive, I suggest that the filing of over 60,000 
comments, pro and con, in response to the NPRM supports the conclusion 
that the Rule is something more than a modest procedural revision. The 
public perception is that something more is at stake here.
    My colleagues next contend that they are not bound by the three-
affirmative-vote practice because the concern for ``stability of legal 
rules'' that it addresses only applies in case adjudication, not 
rulemaking proceedings. In doing so, they note that the Administrative 
Conference of the United States (ACUS) has cited the greater stability 
inherent in notice and comment rulemaking in recommending its increased 
use by the Board.\92\
---------------------------------------------------------------------------

    \92\ 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).
---------------------------------------------------------------------------

    My colleagues fail to explain, however, how departing from the 
Board's established practice to permit a minority majority to conclude 
a sweeping, substantive rulemaking initiative does not raise concerns 
about the stability of Board law. Indeed, nothing in the ACUS 
recommendation suggests that rulemaking by the Board can or should be 
carried out on the vote of just two Board members or that the Board, 
when engaged in informal notice-and-comment rulemaking, should apply 
different voting practices than it does when engaged in rulemaking 
through case adjudication.
    Assuming, arguendo, that a rule adopted pursuant to informal 
notice-and-comment rulemaking is likely to be more permanent than an 
adjudicated rule, that would seem to provide greater reason to require 
the affirmative votes of three Board members for such an undertaking. 
On the other hand, I venture that the product of rulemaking is now not 
much less vulnerable to reversal than an adjudicated rule as a 
consequence of change in Board membership and policy preference. All 
that is required is another proposed rule revision, another notice-and-
comment period, and a rationally justified final rule.\93\ My 
colleagues have now established that such action may be undertaken with 
the approval of only two of three sitting Board members, and so they 
cast doubt on the stability of the very Rule they endorse. Their

[[Page 25571]]

reservation for further consideration of other elements of the NPRM 
just makes the state of representation case law even more uncertain, as 
does their simultaneous adjudicatory assault on extant law.\94\ As a 
result, any way one looks at it, my colleagues have failed to provide a 
reasoned explanation for departing from the agency's three-affirmative-
vote practice.
---------------------------------------------------------------------------

    \93\ Of course, according to my colleagues' reasoning, any 
subsequent rule revision of their Rule would be procedural and would 
be exempt from the APA notice-and-comment requirement.
    \94\ See, e.g., 2 Sisters Food Group, 357 NLRB No. 168 (2011). 
In a decision issued only one week after publication of the Rule, 
Chairman Pearce and Member Becker articulated guidelines for 
exercise of a regional director's discretion to determine whether to 
hold an election away from an employer's premises, substantially 
increasing the likelihood that an election will be held off premise 
whenever a petitioning union objects to an on-site election. Id., 
slip op. at 4-8. Moreover, Member Becker's partial dissent advocated 
overruling precedent to hold that an employer cannot compel employee 
attendance in a captive audience meeting about unionization at any 
time during the critical pre-election period. Id. slip op. at 10-14. 
It requires no great prescience to surmise that this issue will soon 
be revisited.
---------------------------------------------------------------------------

    Lastly, my colleagues contend that they were not required to adhere 
to the three-affirmative-vote practice because the Rule does not 
overrule any Board decisions. In my view, the policy supporting this 
practice mandates its application to the revision of rules that have a 
substantive effect on the interests of those involved in representation 
case proceedings regardless of whether the revision overrules specific 
case precedent. However, even a cursory review of the Rule establishes 
that my colleagues misrepresent its effect on precedent as well.
    In both Barre-National, Inc. and North Manchester Foundry, Inc., 
discussed supra, the Board reversed regional director actions that 
denied employers the opportunity to present evidence on eligibility 
issues. As previously stated, my colleagues' defense of the Rule's 
narrow interpretation of Section 9(c)(1) misleadingly suggests that 
these cases are not to the contrary. The Rule clearly overrules this 
precedent.
2. Departure From Board Process With Respect to Dissenting Board 
Members
    As stated in the Background section of this statement, the Rule was 
issued pursuant to the votes of Chairman Pearce and Member Becker on 
November 30 to proceed with drafting a final rule, and votes by the 
same two Board Members on December 15 to direct the Solicitor to issue 
the Final Rule upon its approval by a majority. I voted against each 
action. On December 16, my colleagues modified and approved the Rule. 
Without further action by me, the Rule issued and was forwarded by the 
Solicitor for publication in the Federal Register. This marked the 
first known instance in Board history in which Board members 
intentionally refused to provide a colleague a reasonable period of 
time in which to prepare and issue a dissenting statement 
simultaneously with the controlling decisional document.
    My colleagues utterly fail to justify their ad hoc action. As an 
initial matter, they assert that nothing in law compelled them to wait 
to issue the Rule until after I had an opportunity to review and 
prepare my dissent to it. Indeed, I can cite to no statute or case 
expressly holding that they were required to do so. This does not, 
however, answer the question whether their action should be considered 
arbitrary and capricious.
    As an initial matter, my colleagues ignore the importance of 
dissents in society, law, and federal administrative practice. In this 
regard, dissent is a bedrock principle of our democracy and has become 
deeply engrained in American culture. See Lee v. Weisman, 505 U.S. 577, 
607 (1992) (Justice Blackmun concurring) (``Democracy requires the 
nourishment of dialog and dissent''); see also Johnson v. Raemisch, 557 
F.Supp. 964, 969-970 (2008), citing Cass Sunstein, Why Societies Need 
Dissent 210-212 (2003) (``Dissents have contributed to American 
democracy by forcing the majority to articulate justifications for 
widespread practices and by exposing the weaknesses of long held 
beliefs'').
    Specific to law, dissents are a useful tool in effecting well-
reasoned legal decisions. Indeed, Supreme Court Justice Ruth Bader 
Ginsburg has stated that dissents are important because they can ``lead 
the author of the majority opinion to refine and clarify her initial 
circulation'' and may be persuasive enough to ``attract the votes 
necessary to become the opinion of the Court.'' See Hon. Ruth Bader 
Ginsburg, The Role of Dissenting Opinions, 95 Minn.L.Rev. 1, 4 (2010). 
My experience as a Board Member confirms Justice Ginsburg's 
observation. On numerous occasions, circulated dissents have prompted 
substantial revision of prior draft majority opinions, and in some 
instances an initial dissent ultimately became the Board's final 
decision.
    It is true, as my colleagues state, that the APA does not require 
permitting dissents to promulgated rules. It is also true that the APA 
does not prohibit or expressly endorse prohibition of dissent. 
Consistent with the above, dissents are common in the federal 
administrative decisionmaking processes. See, e.g., United States Dept. 
of Homeland Security, Transportation Security Administration and AFGE, 
65 FLRA 242 (2010) (Member Beck dissenting); and Chambers v. Dept. of 
the Interior, 103 MSPR 375 (2006) (Member Sapin dissenting). And, in 
recent years, dissents have become a widely accepted practice in 
federal agency rulemaking proceedings. See Position Limits for Futures 
and Swaps, 76 FR 71626, 71699, 71700 (Nov. 18, 2011) (to be codified at 
17 CFR part 151) (Commissioners Jill Sommers and Scott O'Malia 
dissenting); Demand Response Compensation in Organized Wholesale Energy 
Markets, 76 FR 16658, 16679 (March 15, 2011) (to be codified at 18 CFR 
part 35) (Commissioner Philip D. Moeller dissenting); Representation 
Election Procedure, 75 FR 26062, 26083 (May 11, 2010) (codified at 29 
CFR part 1202, 1206) (Chairman Elizabeth Dougherty dissenting); and 
Market-based Rates for Wholesale Sales of Electric Energy, Capacity, 
and Ancillary Services by Public Utilities, 72 FR 39904, 40046 (July 
20, 2007) (codified at 18 CFR part 35) (Commissioner Philip D. Moeller 
dissenting). Thus, while my colleagues may not have been legally 
required to accommodate my dissenting opinion in this matter, by 
failing to do so they removed an important component from the 
decisionmaking process and acted inconsistently with good federal 
administrative practice.
    More to the point, my colleagues fail to identify a single instance 
in which the Board has for any reason issued a rule by adjudication or 
rulemaking without permitting prior circulation and simultaneous 
publication of a dissent. As they note, I previously dissented to the 
NPRM in this rulemaking,\95\ and I dissented to both the Final Rule 
\96\ and the Notice of Proposed Rulemaking \97\ in the recent employee 
rights notice-posting rulemaking proceeding. There was also a dissent 
by Member Johansen to the Final Rule on appropriate bargaining units in 
the health care industry.\98\ In other words, while the number of major 
Board rulemaking proceedings has been few, there has been a 
simultaneous dissent in every one.
---------------------------------------------------------------------------

    \95\ 76 FR 36812, 36829.
    \96\ 76 FR 54006, 54037 (Aug. 30, 2011).
    \97\ 75 FR 80410, 80415 (Dec. 22, 2010).
    \98\ 54 FR 16336, 16347 (Apr. 21, 1989).
---------------------------------------------------------------------------

    My colleagues suggest that there is no imperative to permit dissent 
because notice-and-comment rulemaking, as opposed to case adjudication, 
is, ``in effect, a dialogue between the administrative agency and the 
public--not an intramural debate between or among agency officials.'' 
\99\ They also

[[Page 25572]]

suggest that my participation in events prior to issuance of the Rule 
has been sufficient for purposes of expressing my view. With all due 
respect, that is utter nonsense, and my colleagues would say the same 
were they in my position. In adjudicated cases of major import, many of 
which involve adoption of rules in representation cases, the Board 
frequently invites and gets public comment well beyond the position 
statements of the particular parties involved.\100\ I have never heard 
it suggested that this diminishes or defeats the right of a Board 
member to circulate a written dissent in advance of a final published 
decision and to have that dissent published simultaneously. Nor have I 
heard it said, for instance, that a Board member's participation in an 
oral argument obviates the need to accommodate a subsequent dissent by 
that member.
---------------------------------------------------------------------------

    \99\ 76 FR 80107.
    \100\ See, e.g., Specialty Healthcare, supra; Lamons Gasket, 357 
NLRB No. 72 (2011); UGL UNICCO Service Co., 357 NLRB No. 76 (2011).
---------------------------------------------------------------------------

    At least facially, my colleagues articulate a credible concern that 
an individual Board member not be allowed to veto a rule or adjudicated 
decision by inaction or delay. I agree. That is why the Board has since 
2001 operated under ES Memo 01-01, a Board-approved procedural order 
concerning the ``Timely Circulation of Dissenting/Concurring 
Opinions.'' ES Memo 01-01 provides for issuance of a Board decision in 
an adjudicated case without a dissent if 90 days have passed following 
the majority approval of a draft without action by the remaining Board 
Member or Members.
    Obviously, application of that order in this proceeding would have 
precluded issuance of the Rule until 90 days after its December 16, 
2011, approval. Once again, however, my colleagues rely on the 
distinction without difference that this is a rulemaking proceeding to 
which ES Memo 01-01 does not expressly apply, as opposed to the Board's 
frequent rulemaking in adjudicatory proceedings, to which it clearly 
does apply. In the alternative, they suggest that ES Memo 01-01 is 
satisfied by my opportunity to circulate a post-issuance statement, 
which they have already declared in the December 15 Order to be a 
personal statement ``and shall in no way alter the Board's approval of 
the final rule or the final rule itself.'' I think not.
    Nevertheless, suppose there were no ES Memo 01-01, only an unbroken 
76-year practice in all published decisions and notice-and-comment 
rules giving no indication whatsoever that the Board has ever denied an 
individual member the reasonable opportunity to participate in the 
deliberative process by circulating a dissent prior to final action and 
to have that dissent published simultaneously. By what rational 
standard can my colleagues deny me that opportunity on delay grounds, 
where the nearly 200 page draft of the Rule was circulated in the late 
afternoon of Friday December 9 and approved for final issuance by my 
colleagues five working days later?
    This brings me to my colleagues' final defense of their action. 
That is, they say they were entitled to issue the Rule out of 
apprehension that the rulemaking process would be indefinitely delayed 
or even derailed, not as any consequence of my action, but solely 
because Member Becker's term was about to expire. As they stated in the 
Rule, echoing earlier statements by the Chairman prior to and at the 
November 30 open meeting, ``The Board's decision in this regard is 
informed by the possibility that after Member Becker's service ends at 
the end of the current congressional session, no later than January 3, 
2012, the Board will be reduced to two Members, and under the Supreme 
Court's recent New Process decision, supra, may be unable to act on the 
proposed rule for a considerable period of time.'' \101\
---------------------------------------------------------------------------

    \101\ 76 FR 80146 fn. 25. I note that for this same reason, the 
Chairman and Member Becker summarily proposed and approved a 
December 9 emergency memorandum that effectively suspended ES 01-01 
in several adjudicatory proceedings by providing for issuance of 
decisions approved by them on and after December 16 with any dissent 
by me to follow. As it happened, there was no need to invoke this 
procedure in any of the subject cases.
     The Chairman notes that I joined in approving several 
contingent rules to assure the maintenance of administrative 
routines, to the extent legally permissible, in the event the Board 
lost its quorum. The Chairman was fully aware at the time that these 
actions did not in any way imply that I endorsed the idea that a 
pending loss of quorum justified the suspension of customary 
decisional practices in contemplation of a major change in Board law 
and procedure, and it is unfortunate that he now suggests otherwise.
---------------------------------------------------------------------------

    As I noted in voting against the December 15 order, the 
apprehension expressed about a prolonged disruption of Board operations 
was somewhat allayed by the President's December 14 announcement of the 
intent to nominate two new Board members, Richard Griffin and Sharon 
Block. As it came to pass, they and pending nominee Terence Flynn 
received recess appointments on January 4, 2012. Even were that not the 
case, vacancies and turnover in agency membership do not generally 
qualify as a rational justification for departure from agency 
processes. In a case on point, the DC Circuit rejected the impending 
termination of a Securities and Exchange Commissioner's term as a 
ground for excusing compliance with APA notice-and-comment 
requirements. The court distinguished from truly exigent or emergency 
circumstances ``the not uncommon circumstance facing commissions when 
their membership changes during the course of a rulemaking, which may 
involve appeals and remands and thus extend for a period of years. 
Although the Commission's membership would change after June 30, 2005, 
and the even division among the remaining Commissioners could delay 
further action on the Rule, which the Commission considered necessary 
to redress `a serious breakdown in management controls,' * * * the risk 
of such delay is hardly atypical and does not satisfy the narrow 
exception.'' \102\
---------------------------------------------------------------------------

    \102\ Chamber of Commerce of the United States v. SEC, 443 F.3d 
890, 908 (DC Cir. 2006).
     Consolidated Alum. Corp. v. TVA, 462 F.Supp. 464, 476 (M.D. 
Tenn. 1978), is not to the contrary. In Consolidated, the court held 
that TVA's deviation from its well-settled traditions regarding rate 
adjustments was not ``totally unjustified'' because the impending 
loss of a quorum was a good reason to make a decision. But the court 
did not rely solely on the pending loss of a quorum as in finding 
the agency action was not arbitrary and capricious. Instead, the 
court found that the agency's action before its loss of a quorum was 
necessary for the agency to avoid a violation both of its statutory 
requirements and its covenants with the holders of its bonds. See 
id. at 476. The Board confronted no similar potential for statutory 
or contractual violations here.
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    Further, my colleagues' determination to proceed with issuance of 
the Rule sharply contrasts with the practice of past Boards confronting 
the same situation. During the course of a rulemaking initiative in the 
mid-1990s, the Board considered the possibility of issuing a proposed 
Rule prior to the departure of one member, with dissenting opinions to 
follow, but ultimately decided to adhere to traditional agency 
decisionmaking practices. See William B. Gould IV, Labored Relations 
85-88 (2000).
    Again in December 2007, a five-member Board with a three-member 
Republican appointee majority faced the imminent expiration of the 
terms of Chairman Battista and Members Walsh and Kirsanow. As is well 
known, an attempt was made to provide for continued post-expiration 
decisionmaking by then-Members Liebman and Schaumber. That attempt was 
ultimately invalidated over two years later by the Supreme Court's New 
Process decision.\103\ Even had the Court ruled differently, however, 
it was understood by all that the two

[[Page 25573]]

remaining Board members would only be able decide those routine cases 
in which they agreed on the disposition of all issues under extant 
precedent. In December 2007, there were cases of significance pending 
in which a majority had approved a consensus draft, but expected 
dissents were not finalized. Unlike Chairman Pearce and Member Becker, 
the choice was made not to issue decisions in those circumstances, even 
at the risk of prolonged delay or a different ultimate outcome.
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    \103\ New Process Steel L.P. v. NLRB, U.S., 130 S.Ct. at 2639-42 
(2010).
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* * * * *
    Thus, not a single one of my colleagues' asserted reasons for 
abruptly departing from long-established Board procedural practices 
holds water here. Their actions in issuing the Rule and in approving 
the November 30 and December 15 orders were ``a totally unjustified 
departure from well settled agency procedures of long standing.'' \104\ 
As such, they were arbitrary and capricious, requiring that the Rule be 
invalidated.
---------------------------------------------------------------------------

    \104\ Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. 
Council, Inc., 435 U.S. 519, 542 (1978).
---------------------------------------------------------------------------

IV. The Rule Limiting a Pre-Election Evidentiary Hearing Is Not a 
Logical Outgrowth of the Notice of Proposed Rulemaking

    In at least one critical respect, the Rule is also invalid because 
it differs too sharply from the proposed rule. The NPRM proposed 
revised rules that would have permitted litigation in pre-election 
hearings of individual eligibility and unit inclusion issues affecting 
20 percent or more of the potential bargaining unit. The adopted Rule 
is far more restrictive, effectively eliminating the right to litigate 
all issues not deemed relevant to the question of representation.
    In order for the required notice to be deemed adequate in notice-
and-comment rulemaking under the APA, a final rule must relate back to 
the proposed rule published in the Federal Register.\105\ To determine 
whether an agency has met these requirements, courts will consider 
whether the final rule is a ``logical outgrowth'' of the proposed rule. 
Shell Oil Co. v. EPA, 950 F.2d 741, 747, 750-51 (D.C. Cir. 1992) (en 
banc).\106\ Although foreseeable differences between a proposed rule 
and a final rule will not normally cause notice to be deemed 
insufficient, the final rule is invalid if deviation from the proposal 
is too sharp. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 
F.2d 506, 547 (D.C. Cir. 1983); American Federation of Labor v. 
Donovan, 757 F.2d 330, 338-339 (D.C. Cir. 1985); and Northwest Tissue 
Center v. Shalala, 1 F.3d 522, 528 fn. 7 (7th Cir. 1993).
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    \105\ As previously stated, my colleagues err in claiming that 
the Rule is purely procedural and not subject to the APA's notice-
and-comment requirements.
    \106\ See generally, Philip M. Kannan, The Logical Outgrowth 
Doctrine in Rulemaking, 48 Admin. L. Rev. 213 (1996).
---------------------------------------------------------------------------

    Here, the majority's final rule on pre-election evidentiary 
hearings is not a logical outgrowth of the proposed rule. For reasons 
previously stated, the proposed rule was invalid under a Chevron step 
one analysis because of its impermissibly restrictive interpretation of 
what Section 9 requires. Any public concern about notice of this 
restrictive interpretation might reasonably be subdued by the express 
indication in the proposed rule that, in practical effect, the change 
from the current Board procedural norm would be to increase from 10 to 
20 percent the number of individuals whose eligibility issues would be 
deferred to post-election litigation. However, the NPRM gave the public 
no notice of the possibility that any and all unit inclusion and voter 
eligibility issues would generally be deferred. Consequently, when my 
colleagues determined to make this change, it was incumbent upon them 
to follow a supplemental notice-and-comment procedure.
    The majority's claim that it has deferred the 20% issue to another 
day is disingenuous and misleading. Moreover, their suggestion that the 
regional directors' discretion in this area remains unchanged is 
absurd. Quite simply, the Rule to go into effect nationwide on April 30 
does not retain the 20% language, while it explicitly overrules the 
prior discretionary practice of deferring unit inclusion and 
eligibility involving up to 10% of a unit. Even if not intended, the 
change from the NPRM to the adopted Rule constitutes a bait and switch. 
The public is not expected to extrapolate from the Agency's published 
proposals its unspoken thoughts or guess what the agency really means. 
Shell Oil Co., 950 F.2d at 751. The public has not had a meaningful 
opportunity to comment, and the Board has not had a meaningful 
opportunity to consider this necessary input. Consequently, this aspect 
of the Rule is invalid for the further reason of the failure to comply 
with the APA's notice and comment requirements.

V. The Rule Impermissibly Burdens First Amendment Free Speech Rights 
\107\

    An employer's right to engage in free speech in the labor relations 
context has long been recognized by the Supreme Court. See NLRB v. 
Virginia Electric & Power Co., 314 U.S. 469, 477-479 (1941) (nothing in 
the Act prohibits employers from expressing their views about 
unions).\108\ This right only has meaning if there is a realistic 
opportunity for the employer to speak to employees about the choice of 
representation, when that choice has been defined by the filing of an 
election petition. Furthermore, and of paramount importance in 
assessing the Rule's validity under the First Amendment, government 
regulations cannot, absent compelling circumstances, be drawn to 
redress perceived distortions in the debate about unionization. That is 
effectively what the Rule does, and I firmly believe that is what my 
colleagues intend it to do, notwithstanding their denials.
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    \107\ I emphasize that I find no need in the following analysis 
to rely on Sec. 8(c) of the Act.
    \108\ See also Thomas v. Collins, 323 U.S. 516, 537-538 (1944) 
(``employers' attempts to persuade to action with respect to joining 
or not joining unions are within the First Amendment's guaranty.'').
---------------------------------------------------------------------------

    As previously stated, the point of limiting pre-election hearings 
and eliminating post-hearing briefs, pre-election requests for review, 
and the customary post-decisional waiting period is not rationally 
related to systemic problems of procedural delay. It is transparently 
and rationally related to shortening by three weeks or more the time 
from the filing of a petition, when support for unionization is often 
at its peak, to the day of the election.\109\ The record in this 
proceeding is replete with claims and counterclaims about when an 
employer learns about a unionization campaign and, if so inclined, 
begins to oppose it. I readily concede than many employers know about a 
campaign long before a petition is filed, and that some employers make 
their opposition to unions quite clear before there even is a campaign. 
On the other hand, it seems that my colleagues do concede there are 
some employers who only learn of the unionization effort when notified 
of a petition's filing, and that prior to then they have attended to 
business operations without expressing to their employees any views 
about the merits of unionization. As

[[Page 25574]]

long as this possibility exists, and in the absence of any objective 
measure in our record of its frequency, the Board is required to 
consider it in evaluating the consequences of a rule in which at least 
some employers will have less time than previously to communicate with 
their employees about the unionization campaign.
---------------------------------------------------------------------------

    \109\ The majority claims that the Rule does not necessarily 
shorten the time between the petition and the election because it 
does not establish any rigid timelines. Really? In that case, there 
is no point at all to the pre-hearing elements of their Rule, the 
express purpose of which is to ``directly speed Board processing of 
representation cases.'' 76 FR 80150.
---------------------------------------------------------------------------

    What consideration do my colleagues provide in this regard? 
Feigning a neutral attitude towards the electoral outcome, they 
emphasize their belief that employers always have the upper hand in 
campaign communications.\110\ My colleagues and pro-union commenters 
depict an employer on the day a petition is filed as sophisticated and 
fully knowledgeable about labor unions, collective-bargaining, and 
election procedures. For those sorry few who are caught unaware and 
unprepared, labor consultants and counsel will seek them out to offer 
their services. In any event, through daily contact with employees in 
the workplace, and with the opportunity to engage in such lawful 
activities as captive audience speeches, any employer can quickly and 
effectively present the case against unionization. As if that were not 
enough to tip the balance against unions, because elections are 
generally held on an employer's premises, the employer has the great 
advantage of a ``last word'' with employees just before they vote.\111\
---------------------------------------------------------------------------

    \110\ 76 FR 80153-80155.
    \111\ 76 FR 80155. But see 2 Sisters Food Group, discussed infra 
at fn.66.
---------------------------------------------------------------------------

    In sum, it does not really concern my colleagues that the Rule 
should limit the time in which an employer can exercise First Amendment 
rights of free speech about unionization because any such effect 
permissibly redresses an unfair balance of power between unions and 
employers in the battle for employee support. The problem with this 
position is that it runs directly counter to the Supreme Court's 
decision in Citizens United v. Federal Election Commission, 130 S.Ct. 
876 (2010). The Court there held that the government cannot prohibit 
independent expenditures in support of a political candidate based on 
the source's corporate identity.\112\ Relevant to this proceeding, the 
Court explicitly overruled Austin v. Michigan Chamber of Commerce, 494 
U.S. 652 (1990), and rejected the ``anti-distortion theory'' in Austin 
that corporate spending limitations could be premised on preventing 
``corporations from obtaining an unfair advantage in the political 
marketplace by using resources amassed in the economic marketplace.'' 
Citizens United, 130 S.Ct. at 904 (citations omitted). The Court 
reasoned that First Amendment protections cannot turn on a speaker's 
financial ability and that Austin ``interferes with the `open 
marketplace' of ideas protected by the First Amendment.'' Id. at 907, 
citing New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 
208 (2008). In short, ``the concept that government may restrict the 
speech of some elements of our society in order to enhance the relative 
voice of others is wholly foreign to the First Amendment.'' Id. at 904, 
quoting Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
---------------------------------------------------------------------------

    \112\ 130 S.Ct. at 913.
---------------------------------------------------------------------------

    My colleagues' Rule has the same impermissible ``anti-distortion'' 
purpose applied to the ``uninhibited, robust and wide-open debate in 
labor disputes'' that is an essential part of Federal labor 
policy.\113\ By limiting the time for employer speech, they seek to 
enhance the relative voice of a union and its proponents. The Rule far 
transcends any Board election speech regulation that would fall within 
the ``narrow zone'' deemed permissible by the Brown Court.\114\ 
Further, given the discriminatory purpose and effect of the Rule, which 
fall more heavily on employers than unions, it cannot be justified as a 
reasonable and neutral time, place, and manner limitation of speech. 
The Rule is clearly contrary to the First Amendment.
---------------------------------------------------------------------------

    \113\ See Chamber of Commerce v. Brown, 554 U.S. 60, 68 (2008).
    \114\ ``The NLRB has policed a narrow zone of speech to ensure 
free and fair elections under the aegis of Sec.  9 of the NLRA, 29 
U.S.C. 159. Whatever the NLRB's regulatory authority within special 
settings such as imminent elections, however, Congress has clearly 
denied it the authority to regulate the broader category of 
noncoercive speech * * *'' Brown, 554 U.S. at 74.
---------------------------------------------------------------------------

 V. Conclusion

    The current, longstanding Board representation case procedure, now 
doomed to imminent and radical revision absent judicial intervention, 
has worked well for most election participants. It could be better. The 
ideal objective would be to have a system in which no representation 
case takes longer from start to finish than reasonably necessary, by 
objective standards, (1) to provide participants an opportunity to 
resolve legitimate disputes, (2) to provide a meaningful opportunity 
during the critical pre-election period for proponents and opponents of 
unionization to exercise their free speech rights, and (3) to assure 
adequate Board involvement in oversight of duties delegated to the 
regional directors. I would enthusiastically support and participate in 
a broad-based agency and public effort to carefully review and 
selectively reform our electoral procedure to meet this objective. That 
is not what has happened in this rulemaking.
    Stripped of considerable legalistic dross, my colleagues' Rule 
belies an entirely different, single-minded purpose. They believe that 
unions should be winning more representation elections, and they revise 
the Board's electoral procedures to accomplish that end. Their effort 
contravenes the Act, lacks the requisite rational justification, and 
infringes on First Amendment rights. That is reason enough as a matter 
of law for the Rule to be invalidated.

[[Page 25575]]

    From the agency perspective, there is further reason to object. 
With this Rule, the recent adjudicatory overruling of related 
representation case law, and the prospect of further change both in the 
reserved elements of the NPRM and in pending representation cases, my 
colleagues have deviated so far beyond the norm of partisan shifts in 
agency policymaking as to imperil the Board's legitimacy in the eyes of 
the Congress that created it and in eyes of a substantial portion of 
the public that it serves.\115\ To an increasing number of persons 
outside and inside this venerable agency, it now appears to be directed 
by a myopic conviction that all law and procedure must be channeled to 
assuring the prize of workforce unionization, no matter how 
incompatible that conviction may be with the Taft-Hartley Act, or the 
reality that less than 10 percent of private sector employees have 
chosen collective-bargaining representation. With this Rule, I 
fervently believe that my colleagues imperil the Board's future, and as 
such, they may in the end do far more to damage the interests they 
promote than to further them.
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    \115\ It is no coincidence that a 2000 article by two union 
lawyers criticized the so-called Clinton Board for acting only 
within ``the increasingly confined (indeed, relatively 
insignificant) doctrinal terrain on which the conflict over U.S. 
labor policy is enacted,'' even as Congress complained that actions 
by that Board and the General Counsel veered too far from the 
elusive standard of neutrality. Jonathan P. Hiatt and Craig Becker, 
Drift and Division on the Clinton NLRB, 16 Lab. Law. 103 (2000). The 
authors of that article contended that far more radical and 
fundamental changes in Board law were necessary to revive the 
interest of American workers in unionization.
---------------------------------------------------------------------------

    I now dissent from the Rule. Notwithstanding judicial doctrines of 
deference to agency action, it should be invalidated. Even if not, it 
would behoove the current Board to rescind the Rule and start over in 
search of electoral revisions that would really address what can 
reasonably be defined as systemic delay.

    Signed in Washington, DC, on April 23, 2012.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2012-10263 Filed 4-26-12; 4:15 pm]
BILLING CODE 7545-01-P