[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Proposed Rules]
[Pages 7318-7364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02128]



[[Page 7317]]

Vol. 79

Thursday,

No. 25

February 6, 2014

Part III





National Labor Relations Board





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29 CFR Parts 101, 102, 103





Representation-Case Procedures; Proposed Rule

  Federal Register / Vol. 79 , No. 25 / Thursday, February 6, 2014 / 
Proposed Rules  

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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102, 103

RIN 3142-AA08


Representation-Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: As part of its ongoing efforts to more effectively administer 
the National Labor Relations Act (the Act or the NLRA) and to further 
the purposes of the Act, the National Labor Relations Board (the Board) 
proposes to amend 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. The Board 
believes that the proposed amendments would remove unnecessary barriers 
to the fair and expeditious resolution of questions concerning 
representation. The proposed amendments would simplify representation-
case procedures and render them more transparent and uniform across 
regions, eliminate unnecessary litigation, and consolidate requests for 
Board review of regional directors' pre- and post-election 
determinations into a single, post-election request. The proposed 
amendments would allow the Board to more promptly determine if there is 
a question concerning representation and, if so, to resolve it by 
conducting a secret ballot election.

DATES: Comments regarding this proposed rule must be received by the 
Board on or before April 7, 2014. Comments replying to comments 
submitted during the initial comment period must be received by the 
Board on or before April 14, 2014. Reply comments should be limited to 
replying to comments previously filed by other parties. No late 
comments will be accepted.
    The Board intends to issue a notice of public hearing to be held in 
Washington, DC, during the reply comment period, at which interested 
persons would be invited to share their views on the proposed 
amendments and to make any other proposals concerning the Board's 
representation case procedures.

ADDRESSES: The Board has established a docket for this action under 
Docket ID No. NLRB-2011-0002. All documents in the docket are listed on 
the http://www.regulations.gov Web site. You may submit comments 
identified by Docket ID No. NLRB-2011-0002 only by the following 
methods:
    Internet--Federal eRulemaking Portal. Electronic comments may be 
submitted through http://www.regulations.gov. To locate the proposed 
rule, search using the Docket ID No. NLRB-2011-0002. Follow the 
instructions for submitting comments.
    Delivery--Comments should be sent by mail or hand delivery to: Gary 
Shinners, Executive Secretary, National Labor Relations Board, 1099 
14th Street NW., Washington, DC 20570. Because of security precautions, 
the Board continues to experience delays in U.S. mail delivery. You 
should take this into consideration when preparing to meet the deadline 
for submitting comments. The Board encourages electronic filing. It is 
not necessary to send comments if they have been filed electronically 
with regulations.gov. If you send comments, the Board recommends that 
you confirm receipt of your delivered comments by contacting (202) 273-
3737 (this is not a toll-free number). Individuals with hearing 
impairments may call 1-866-315-6572 (TTY/TDD).
    Only comments submitted through http://www.regulations.gov, hand 
delivered, or mailed will be accepted; ex parte communications received 
by the Board will be made part of the rulemaking record and will be 
treated as comments only insofar as appropriate. Comments will be 
available for public inspection at http://www.regulations.gov and 
during normal business hours (8:30 a.m. to 5 p.m. EST) at the above 
address.
    The Board will post, as soon as practicable, all comments received 
on http://www.regulations.gov without making any changes to the 
comments, including any personal information provided. The Web site 
http://www.regulations.gov is the Federal eRulemaking portal, and all 
comments posted there are available and accessible to the public. The 
Board requests that comments include full citations or internet links 
to any authority relied upon. The Board cautions commenters not to 
include personal information such as Social Security numbers, personal 
addresses, telephone numbers, and email addresses in their comments, as 
such submitted information will become viewable by the public via the 
http://www.regulations.gov Web site. It is the commenter's 
responsibility to safeguard his or her information. Comments submitted 
through http://www.regulations.gov will not include the commenter's 
email address unless the commenter chooses to include that information 
as part of his or her comment.

FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary, 
National Labor Relations Board, 1099 14th Street NW., Washington, DC 
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 
(TTY/TDD).

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The National Labor Relations Board (Board or NLRB) is proposing to 
amend 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. The Board is proposing a 
number of changes to remove unnecessary barriers to the fair and 
expeditious resolution of questions concerning representation, to 
increase transparency and uniformity across regions, to provide parties 
with clearer guidance concerning representation case procedure, to 
eliminate unnecessary litigation, and to modernize the Board's 
representation procedures.
    The present proposal is, in essence, a reissuance of the proposed 
rule of June 22, 2011. 76 FR 36812. The Board is again proposing the 
same changes which were proposed in 2011, and asking for any comments 
the public may have on whether or how the Board should act on these 
proposals.
    In 2011, the Board accepted public comments on these proposals for 
60 days, and reply comments for an additional 14 days. The Board 
received 65,958 written comments, tens of thousands supporting the 
proposals and tens of thousands opposing them. The Board Members also 
conducted two full days of hearing, during which 66 individuals 
representing diverse organizations and groups gave oral statements and 
answered questions asked by the Board members, resulting in 438 
transcript pages of oral testimony. As described below, the Board also 
issued a final rule on December 22, 2011, which was set aside by the 
district court on procedural grounds relating to the voting process 
used by the Board for that rule. 76 FR 80138.
    The Board is incorporating by reference into this docket the 
complete administrative record in the 2011 proceeding. This includes 
all testimony and comments, as well as the final rule, and separate 
statements by Board Members in the Federal Register. All of these 
documents are publically available on the http://www.regulations.gov 
Web site at docket ID No. NLRB-2011-0002. This extensive record 
contains numerous arguments both for and against the

[[Page 7319]]

proposals. All of this material will be fully considered by the Board 
in deciding whether to issue any final rule.
    Because the 65,958 written comments and 438 transcript pages of 
oral testimony are part of this NPRM's docket and will be fully 
considered by the Board in deciding whether to issue a final rule, it 
is not necessary for any person or organization to resubmit any comment 
or repeat any argument that has already been made. However, the Board 
invites the submission of new information and argument, not previously 
submitted, during the comment period.
    As indicated above, the proposals here were first contemplated by 
the Board in a notice of proposed rulemaking on June 22, 2011. 76 FR 
36812. Following a period of public comment, on December 22, 2011, the 
Board issued a final rule, which adopted a limited number of the 
proposed amendments and deferred others for further consideration. 76 
FR 80138-89.
    The final rule was immediately challenged in federal district 
court. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 
21, 24 (D.D.C. 2012). The court struck down the rule on only one 
ground: That the Board lacked a quorum when it issued the final rule 
because Member Hayes was ``absent'' from the vote--rather than 
``abstaining'' from the vote, as the Board asserted. Id. at 28-30. 
Nonetheless, the court expressly stated:

    In [setting aside the rule], however, the Court emphasizes that 
its ruling need not necessarily spell the end of the final rule for 
all time. The Court does not reach--and expresses no opinion on--
Plaintiffs' other procedural and substantive challenges to the rule, 
but it may well be that, had a quorum participated in its 
promulgation, the final rule would have been found perfectly lawful. 
As a result, nothing appears to prevent a properly constituted 
quorum of the Board from voting to adopt the rule if it has the 
desire to do so. In the meantime, though, representation elections 
will have to continue under the old procedures.

Id. at 30.

    Thus, though the rule was struck down, the court invited the Board 
to reapply itself to the proposals contemplated in 2011. By the present 
proposal, the Board is undertaking to do just that, and inviting the 
public to comment.
    The discussion below is reprinted almost verbatim from the June 
2011 notice of proposed rulemaking, but the statistics have been 
updated, and a dissent by Members Miscimarra and Johnson and a response 
by the Board majority has been substituted for former Member Hayes' 
dissent and the Board majority's response from the June 22, 2011 NPRM. 
A more specific request for comments on employee privacy issues has 
been added in connection with the voter list proposals.

II. Background

    Section 7 of the National Labor Relations Act (the Act or the 
NLRA), 29 U.S.C. 157, vests in employees the right ``to bargain 
collectively through representatives of their own choosing . . . and to 
refrain from . . . such activity.'' The Act vests in the National Labor 
Relations Board (the Board) a central role in the effectuation of that 
right when employers, employees, and labor organizations are unable to 
agree on whether the employer should recognize a labor organization as 
the representative of the employees. Section 9 of the Act, 29 U.S.C. 
159, gives the Board authority to determine if such a ``question of 
representation'' exists and, if so, to resolve the question by 
conducting ``an election by secret ballot.''
    Congress left the procedures for determining if a question of 
representation exists and for conducting secret ballot elections almost 
entirely within the discretion of the Board. The Supreme Court has 
repeatedly recognized that ``Congress has entrusted the Board with a 
wide degree of discretion in establishing the procedure and safeguards 
necessary to insure the fair and free choice of bargaining 
representatives by employees.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 
330 (1946). ``The control of the election proceeding, and the 
determination of the steps necessary to conduct that election fairly 
were matters which Congress entrusted to the Board alone.'' NLRB v. 
Waterman S.S. Co., 309 U.S. 206, 226 (1940); see also Southern S.S. Co. 
v. NLRB, 316 U.S. 31, 37 (1942).
    Since 1935, the Board has exercised its discretion to establish 
standard procedures in representation cases largely through 
promulgation and revision of rules and regulations or internal 
policies.\1\ Thus, 29 CFR part 102, subpart C sets forth the Board's 
Rules and Regulations governing ``Procedure Under Section 9(c) of the 
Act for the Determination of Questions Concerning Representation of 
Employees and for Clarification of Bargaining Units and for Amendment 
of Certifications Under Section 9(b) of the Act.'' Subparts D and E set 
forth related rules and regulations governing ``Procedures for Unfair 
Labor Practice and Representation Cases Under Section 8(b)(7) and 9(c) 
of the Act'' and ``Procedure for Referendum Under Section 9(e) of the 
Act.'' 29 CFR part 101, subparts C, D and E set forth the Board's 
Statements of Procedures in the same three types of cases. The Board's 
Casehandling Manual at Sections 11000 through 11886 describes 
procedures in representation cases in greater detail, including the 
mechanics of elections.\2\
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    \1\ The Board's failure to rely on rulemaking in other areas has 
met widespread scholarly criticism. See R. Alexander Acosta, 
Rebuilding the Board: An Argument for Structural Change, over Policy 
Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 351-52 (2010); Merton 
C. Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the 
Administrative Procedure Act, 79 Yale L.J. 571 (1970); Samuel 
Estreicher, Policy Oscillation at the Labor Board: A Plea for 
Rulemaking, 37 Admin. L. Rev. 163 (1985); Jeffrey S. Lubbers, The 
Potential of Rulemaking by the NLRB, 5 FIU L. Rev. 411, 414-17, 435 
(Spring 2010); Kenneth Kahn, The NLRB and Higher Education: The 
Failure of Policymaking Through Adjudication, 21 UCLA L. Rev. 63 
(1973); Charles J. Morris, The NLRB in the Dog House--Can an Old 
Board Learn New Tricks?, 24 San Diego L. Rev. 9 (1987); Cornelius 
Peck, The Atrophied Rulemaking Powers of the National Labor 
Relations Board, 70 Yale L.J. 729 (1961); Cornelius J. Peck, A 
Critique of the National Labor Relations Board's Performance in 
Policy Formulation: Adjudication and Rule-Making, 117 U. Pa. L. Rev. 
254 (1968); David L. Shapiro, The Choice of Rulemaking or 
Adjudication in the Development of Administrative Policy, 78 Harv. 
L. Rev. 921 (1965); Carl S. Silverman, The Case for the National 
Labor Relations Board's Use of Rulemaking in Asserting Jurisdiction, 
25 Lab. L.J. 607 (1974); and Berton B. Subrin, Conserving Energy at 
the Labor Board: The Case for Making Rules on Collective Bargaining 
Units, 32 Lab. L.J. 105 (1981).
    \2\ The Casehandling Manual is prepared by the Board's General 
Counsel and is not binding on the Board. Hempstead Lincoln, 349 NLRB 
552, 552 n.4 (2007); Pacific Grain Products, 309 NLRB 690, 691 n.5 
(1992).
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    Congress intended that the Board adopt procedures that permit 
questions concerning representation to be resolved both quickly and 
fairly. As the Supreme Court has noted, ``[T]he Board must adopt 
policies and promulgate rules and regulations in order that employees' 
votes may be recorded accurately, efficiently and speedily.'' A.J. 
Tower Co., 329 U.S. at 330-31. The Board has repeatedly recognized 
``the Act's policy of expeditiously resolving questions concerning 
representation.'' \3\ ``In . . . representation proceedings under 
Section 9,'' the Board has observed, ``time is of the essence if Board 
processes are to be effective.'' \4\ Indeed, the Board's Casehandling 
Manual stresses that ``[t]he expeditious processing of petitions filed 
pursuant to the Act represents one of the most significant aspects of 
the Agency's operations.'' \5\
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    \3\ See, e.g., Northeastern University, 261 NLRB 1001, 1002 
(1982).
    \4\ Tropicana Products, Inc., 122 NLRB 121, 123 (1958).
    \5\ Pt. 2, Representation Proceedings, Section 11000.
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    Expeditious resolution of questions concerning representation is 
central to

[[Page 7320]]

the statutory design because Congress found that ``refusal by some 
employers to accept the procedure of collective bargaining lead[s] to 
strikes and other forms of industrial strife and unrest, which have the 
intent or the necessary effect of burdening and obstructing commerce.'' 
\6\ Thus, Congress found that the Board's expeditious processing of 
representation petitions and, when appropriate, conduct of elections 
would ``safeguard[] commerce from injury, impairment or interruption.'' 
\7\
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    \6\ 29 U.S.C. 151.
    \7\ Id.
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    One of the primary purposes of the original Wagner Act was to avoid 
``the long delays in the procedure . . . resulting from applications to 
the federal appellate courts for review of orders for elections.'' AFL 
v. NLRB, 308 U.S. 401, 409 (1940). The Senate Committee Report 
explained that one of the ``weaknesses in existing law'' was ``that the 
Government can be delayed indefinitely before it takes the first step 
toward industrial peace'' by conducting an election.\8\ For this 
reason, Congress did not provide for direct judicial review of either 
interlocutory orders or final certifications or dismissals in 
representation proceedings conducted under section 9 of the Act. 
Rather, in order to insure that elections were conducted promptly, 
judicial review was permitted only after issuance of an order under 
section 10 relying, in part, on the Board's certification under section 
9.
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    \8\ S. Rep. No. 573, 74th Cong., 1st Sess. pp. 5-6. See also H. 
Rep. No. 1147, 74th Cong., 1st Sess. p. 6.
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A. Evolution of Board Regulation of Representation Case Procedures

1. Legislative and Administrative Delegation of Authority To Process 
Petitions in Order To Expedite Resolution of Questions Concerning 
Representation
    The Board initially exercised its discretion over the conduct of 
representation elections through a procedure under which, in the event 
the parties could not agree concerning the conduct of an election, an 
employee of one of the Board's regional offices would develop a record 
at a pre-election hearing.\9\ At the close of the hearing, the record 
was forwarded to the Board in Washington, DC, which either directed an 
election or made some other disposition of the matter.\10\ However, 
requiring the Board itself to address all of the myriad disputes 
arising out of the thousands of representation petitions filed annually 
resulted in significant delays.
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    \9\ 29 CFR 102.63 and 102.64 (1959).
    \10\ 29 CFR 102.67 and 102.68 (1959).
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    Accordingly, in 1959, as part of the amendments of the NLRA 
effected by the Labor-Management Reporting and Disclosure Act, Congress 
revised Section 3(b) of the Act to authorize the Board to delegate its 
election-related duties to the directors of the Board's regional 
offices, subject to discretionary Board review.\11\ Section 3(b) 
provides:
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    \11\ Public Law 86-257 (codified as amended in 29 U.S.C. 
153(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 therefor 
with the Board by any interested person, the Board may review any 
action of a regional director delegated to him under this paragraph, 
but such a review shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
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director.

    As Senator Goldwater, a member of the Conference Committee which 
added the new section to the amendments, explained, ``[Section 3(b)] is 
a new provision, not in either the House or Senate bills, designed to 
expedite final disposition of cases by the Board, by turning over part 
of its caseload to its regional directors for final determination. . . 
. This authority to delegate to the regional directors is designed, as 
indicated, to speed the work of the Board.'' \12\
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    \12\ 105 Cong. Rec. 19770.
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    Soon after the authorizing amendment was adopted in 1959, the Board 
made the permitted delegation to its regional directors by amending its 
rules and regulations.\13\ Since the delegation, the Board's regional 
directors have resolved pre-election disputes and directed elections, 
subject to a procedure through which aggrieved parties can seek Board 
review of regional directors' pre-election decisions.\14\ The Board's 
amended rules made such review discretionary, only to be granted in 
compelling circumstances, and that process was subsequently upheld by 
the Supreme Court.\15\
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    \13\ 26 FR 3885 (May 4, 1961).
    \14\ 29 CFR 102.67 (1961).
    \15\ Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).
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    As intended by Congress, the implementation of the new procedure 
led to a significant decrease in the time it took to conduct 
representation elections. Immediately following the Board's amendment 
of its rules in 1961, the median number of days necessary to process 
election petitions to a decision and direction of election was roughly 
cut in half.\16\ By 1975, the Board was conducting elections in a 
median of 50 days from the filing of an election petition.\17\
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    \16\ See NLRB Office of the General Counsel, Summaries of 
Operations (Fiscal Years 1961-1962) (reporting that the ``median 
average'' number of days from petition to a decision and direction 
of election was reduced from 82 days in 1960 to 43 days in 1962).
    \17\ See U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE, 
COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, FACT-
FINDING REPORT, 68, 82 (1994) (``Dunlop Commission Fact Finding'').
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    The Board's next major improvement in the efficiency of its 
election procedures came in 1977. After a decade and a half of 
experience with the request for review procedure, the Board again 
amended its rules to reduce delay in elections after the Board granted 
review of a regional director's decision and direction of election or a 
preliminary ruling.\18\ Specifically, the Board established a procedure 
whereby the regional directors would proceed to conduct elections as 
directed, notwithstanding the Board's decision to grant review, unless 
the Board ordered otherwise. Under this procedure, the regional 
director impounds the ballots at the conclusion of the election, and 
delays tallying them until the Board issues its decision. Although this 
change did not have a significant effect on the overall median number 
of days from petition to election, it substantially decreased the time 
it took to conduct elections in the small number of cases in which the 
Board granted review.\19\ These procedures remain in place today.
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    \18\ See 42 FR 41117 (Aug. 15, 1977); Chairman's Task Force on 
the NLRB for 1976, Volume 1, Board Action on Recommendations of the 
Chairman's Task Force Memorandum to the Task Force, 3 (May 25, 
1977); Chairman's Task Force, Volume 7, Task Force Report Memorandum 
to the Board, 10-15 (January 28, 1977).
    \19\ See Dunlop Commission Fact Finding, 82. Comparing the 
change in figures from 1975 to 1985 demonstrates that the percentage 
of total elections conducted more than 60 days from the filing of a 
petition decreased from 20.1 percent to 16.5 percent, and the 
percentage of total elections conducted more than 90 days from the 
filing of a petition decreased from 11 percent to 4.1 percent.
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    The Board continued to focus on processing representation petitions 
expeditiously in the years following implementation of the vote and 
impound procedure. As a result, more than 90 percent of elections were 
conducted within 56 days of the filing of a petition during the last 
decade, with a median time of 37-39 days between petition and 
election.\20\
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    \20\ See NLRB Office of the General Counsel, Summary of 
Operations (Fiscal Years 2004-2012); Percentage of Elections 
Conducted in 56 Days in FY 13 and Median Days from Petition to 
Election, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections.

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[[Page 7321]]

    Notably, however, the nature of the Board's review of regional 
directors' decisions varies, depending on whether the decision was 
issued before or after the election.\21\ As described above, the Board 
has exercised its authority to delegate to its regional directors the 
task of processing petitions through the conduct of an election subject 
only to discretionary Board review. In contrast, the current rules 
provide that any party, unless it has waived the right in a pre-
election agreement, may in most cases obtain Board review of a regional 
director's resolution of any post-election dispute, whether concerning 
challenges to the eligibility of a voter or objections to the conduct 
of the election or conduct affecting the results of an election. The 
right to review of regional directors' post-election decisions has 
caused extended delay of final certification of election results in 
many instances.\22\
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    \21\ This is the case even when the issue addressed by the 
regional director is precisely the same one as, for example, when an 
eligibility issue is raised, litigated and decided pre-election and 
when the same issue is raised through a challenge and litigated and 
decided post-election.
    \22\ See, e.g., Manhattan Crowne Plaza, 341 NLRB 619 (2004) 
(exceptions concerning alleged threat contained in single, written 
memorandum pending before the Board for almost three years).
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2. Limiting the Pre-Election Hearing to Issues Genuinely in Dispute and 
Material to Determining if a Question Concerning Representation Exists
a. Identification and Joinder of Issues
    Other than the petition, the parties to a representation proceeding 
under section 9 of the Act are not required to file any other form of 
pleading. The current regulations do not provide for any form of 
responsive pleading, in the nature of an answer, through which non-
petitioning parties are required to give notice of the issues they 
intend to raise at a hearing. As a consequence, the petitioner is not 
required to join any such issues.
    The Board has, nevertheless, developed administrative practices in 
an effort to identify and narrow the issues in dispute before or at a 
pre-election hearing. The regional director's initial letter to an 
employer following the filing of a petition asks the employer to state 
its position ``as to the appropriateness of the unit described in the 
petition.'' \23\ In some cases, regions will conduct pre-hearing 
conferences either face-to-face or by telephone in an effort to 
identify and narrow the issues in dispute. Further, section 11217 of 
the Casehandling Manual provides, ``Prior to the presentation of 
evidence or witnesses, parties to the hearing should succinctly state 
on the record their positions as to the issues to be heard.'' However, 
none of these practices is mandatory, and they are not uniformly 
followed in the regions.
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    \23\ Casehandling Manual section 11009.1(e).
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    In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board 
observed, ``in order to effectuate the purposes of the Act through 
expeditiously providing for a representation election, the Board should 
seek to narrow the issues and limit its investigation to areas in 
dispute.'' In Bennett, the Board sustained a hearing officer's ruling 
preventing an employer from introducing evidence relevant to the 
supervisory status of two classes of employees and included employees 
in the two classes in the unit without further factual inquiry when the 
employer refused to take a position concerning whether the employees 
were supervisors. The Board reasoned:

    The Board's duty to ensure due process for the parties in the 
conduct of the Board proceedings requires that the Board provide 
parties with the opportunity to present evidence and advance 
arguments concerning relevant issues. However, the Board also has an 
affirmative duty to protect the integrity of the Board's processes 
against unwarranted burdening of the record and unnecessary delay. 
Thus, while the hearing is to ensure that the record contains as 
full a statement of the pertinent facts as may be necessary for 
determination of the case (NLRB Statement of Procedure Sec. 
101.20(c)), hearings are intended to afford parties ``full 
opportunity to present their respective positions and to produce the 
significant facts in support of their contentions.'' (emphasis 
added).

Id.
    In Allen Health Care Services, 332 NLRB 1308 (2000), however, the 
Board held that even when an employer refuses to take a position on the 
appropriateness of a petitioned-for unit, the regional director must 
nevertheless take evidence on the issue unless the unit is 
presumptively appropriate. The Board held that, ``absent a stipulated 
agreement, presumption, or rule, the Board must be able to find--based 
on some record evidence--that the proposed unit is an appropriate one 
for bargaining before directing an election in that unit.'' Id. at 
1309. The Board did not make clear in Allen whether a party that 
refuses to take a position on the appropriateness of a petitioned-for 
unit must nevertheless be permitted to introduce evidence relevant to 
the issue. The Casehandling Manual provides that parties should be 
given the following, equivocal notice in such circumstances: ``If a 
party refuses to state its position on an issue and no controversy 
exists, the party should be advised that it may be foreclosed from 
presenting evidence on that issue.'' Section 11217.
b. Identification of Genuine Disputes as to Material Facts
    The current regulations also do not expressly provide for any form 
of summary judgment or offer-of-proof procedures through which the 
hearing officer can determine if there are genuine disputes as to any 
material facts, the resolution of which requires the introduction of 
evidence at a pre-election hearing.
    The Board has developed such a procedure in reviewing post-election 
objections to the conduct of an election or conduct affecting the 
results of an election. The current regulations provide that any party 
filing such objections shall also file, within seven days, ``the 
evidence available to it to support the objections.'' 29 CFR 102.69(a). 
Casehandling Manual section 1132.6 further specifies, ``In addition to 
identifying the nature of the misconduct on which the objections are 
based, this submission should include a list of the witnesses and a 
brief description of the testimony of each.'' If an objecting party 
fails to file such an offer of proof or if the offer fails to describe 
evidence which, if introduced at a hearing, could require the election 
results to be overturned, the regional director dismisses the objection 
without a hearing. In the post-election context, the courts of appeals 
have uniformly endorsed the Board's refusal to hold a hearing when no 
party has created a genuine dispute as to any material fact. See, e.g., 
NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir. 1967), cert. denied, 
389 U.S. 917 (1967); NLRB v. Air Control Products of St. Petersburg, 
Inc., 335 F.2d 245, 249 (5th Cir. 1964).
    The Board has also endorsed an offer-of-proof procedure in pre-
election hearings when the petitioned-for unit is presumptively 
appropriate. See, e.g., Laurel Associates, Inc., 325 NLRB 603 (1998); 
Mariah, Inc., 322 NLRB 586, 587 (1996). In such circumstances, the 
Board has sustained a hearing officer's refusal to hear evidence after 
an employer has either refused to make an offer of proof or offered 
proof not sufficient to create a genuine dispute as to facts material 
to the question of whether the presumption of appropriateness can be 
rebutted.
    Because the current regulations do not describe a procedure for 
identifying genuine disputes as to material facts, there has been 
continuing uncertainty concerning the circumstances under which an 
evidentiary hearing is necessary. In Angelica Healthcare Services 
Group, Inc., 315 NLRB 1320

[[Page 7322]]

(1995), for example, the Board reversed the decision of an acting 
regional director to direct an election without a hearing when an 
incumbent union contended there was no question concerning 
representation because its collective-bargaining agreement with the 
employer barred an election. The Board stated, ``We find that the 
language of Section 9(c)(1) of the Act and Section 102.63(a) of the 
Board's Rules required the Acting Regional Director to provide `an 
appropriate hearing' prior to finding that a question concerning 
representation existed and directing an election.'' Id. at 1321. But 
the Board noted expressly, ``[W]e find it unnecessary to decide in this 
case the type of hearing that would be necessary to satisfy the Act's 
`appropriate hearing' requirement.'' Id. at 1321 n. 6.
c. Deferral of Litigation and Resolution of Issues Not Relevant to the 
Determination of Whether a Question Concerning Representation Exists
    Section 9(c) of the Act provides that, after the filing of a 
petition,

the Board shall investigate such petition and if it has reasonable 
cause to believe that a question of representation affecting 
commerce exists, it 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.

The statutory purpose of a pre-election hearing is thus to determine if 
a question concerning representation exists. If such a question exists, 
the Board conducts an election in order to answer the question.
    Whether individual employees are eligible to vote may or may not 
affect the outcome of an election, but it is not ordinarily relevant to 
the preliminary issue of whether a question concerning representation 
exists that an election is needed to answer. For that reason, the Board 
has consistently sustained regional directors' decisions to defer 
resolving questions of individual employees' eligibility to vote until 
after an election (in which the disputed employees may cast challenged 
ballots). In Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004), 
the Board characterized this procedure as the ``tried-and-true `vote 
under challenge procedure.''' See also HeartShare Human Services of New 
York, Inc., 320 NLRB 1 (1995). The Eighth Circuit has stated that 
``deferring the question of voter eligibility until after an election 
is an accepted NLRB practice.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 
1436 (8th Cir. 1994). Even when a regional director resolves such a 
dispute pre-election, the Board, when a request for review is filed, 
often defers review of the resolution, permitting the disputed 
individuals to vote subject to challenge. See, e.g., Medlar Elec., 
Inc., 337 NLRB 796, 796 (2002); Interstate Warehousing of Ohio, LLC, 
333 NLRB 682, 682-83 (2001); American Standard, Inc., 237 NLRB 45, 45 
(1978).
    In Barre-National, Inc., 316 NLRB 877 (1995), however, the Board 
considered whether a regional director had acted properly when he 
deferred both litigation and a decision concerning the eligibility of 
24 line and group leaders (constituting eight to nine percent of the 
unit) until after an election, over the objection of the employer 
contending that the leaders were supervisors. Quoting both section 
102.66(a) and 101.20(c) of the existing regulations, the Board held 
that the two sections ``entitle parties at [pre-election] hearings to 
present witnesses and documentary evidence in support of their 
positions.'' Id. at 878. For that reason, the Board held that the 
regional director had erred by deferring the taking of the employer's 
testimony until after the election. But the Board did not hold in 
Barre-National that the disputed issue had to be resolved before the 
regional director directed an election. In fact, the Board expressly 
noted, ``[O]ur ruling concerns only the entitlement to a preelection 
hearing, which is distinct from any claim of entitlement to a final 
Agency decision on any issue raised in such a hearing.'' Id. at 879 n. 
9. The Board further noted that ``reviewing courts have held that there 
is no general requirement that the Board decide all voter eligibility 
issues prior to an election.'' Id.
3. Provision of a List of Eligible Voters
    In elections conducted under Section 9 of the Act, there is no list 
of employees or potentially eligible voters generally available to 
interested parties other than the employer and, typically, an incumbent 
representative. The Board addressed this issue in Excelsior Underwear, 
Inc., 156 NLRB 1236, 1239-40 (1966), where it held:

    [W]ithin 7 days after the Regional Director has approved a 
consent-election agreement . . . or after the Regional Director or 
the Board has directed an election . . ., the employer must file 
with the Regional Director an election eligibility list, containing 
the names and addresses of all the eligible voters. The Regional 
Director, in turn, shall make this information available to all 
parties in the case. Failure to comply with this requirement shall 
be grounds for setting aside the election whenever proper objections 
are filed.

    Although several Justices of the Supreme Court expressed the view 
that the requirement to produce what has become known as an ``Excelsior 
list'' should have been imposed through rulemaking rather than 
adjudication, the Court upheld the substantive requirement in NLRB v. 
Wyman-Gordon Co., 394 U.S. 759, 768 (1969).
    In Excelsior, the Board explained the primary rationale for 
requiring production of an eligibility list:

    As a practical matter, an employer, through his possession of 
employee names and home addresses as well as his ability to 
communicate with employees on plant premises, is assured of the 
continuing opportunity to inform the entire electorate of his views 
with respect to union representation. On the other hand, without a 
list of employee names and addresses, a labor organization, whose 
organizers normally have no right of access to plant premises, has 
no method by which it can be certain of reaching all the employees 
with its arguments in favor of representation, and, as a result, 
employees are often completely unaware of that point of view. This 
is not, of course, to deny the existence of various means by which a 
party might be able to communicate with a substantial portion of the 
electorate even without possessing their names and addresses. It is 
rather to say what seems to us obvious--that the access of all 
employees to such communications can be insured only if all parties 
have the names and addresses of all the voters.

156 NLRB at 1240-41 (footnote omitted). The Supreme Court endorsed this 
rationale in Wyman-Gordon, 394 U.S. at 767, ``The disclosure 
requirement furthers this objective [to ensure the fair and free choice 
of bargaining representatives] by encouraging an informed employee 
electorate and by allowing unions the right of access to employees that 
management already possesses.''
    The Board also articulated a second reason for requiring production 
of an eligibility list in Excelsior:

    The [voter] list, when made available, not infrequently contains 
the names of employees unknown to the union and even to its employee 
supporters. The reasons for this are, in large part, the same as 
those that make it difficult for a union to obtain, other than from 
the employer, the names of all employees; i.e., large plants with 
many employees unknown to their fellows, employees on layoff status, 
sick leave, military leave, etc. With little time (and no home 
addresses) with which to satisfy itself as to the eligibility of the 
``unknowns,'' the union is forced either to challenge all those who 
appear at the polls whom it does not know or risk having ineligible 
employees vote. The effect of putting the union to this choice, we 
have found, is to increase the number of challenges, as well as the 
likelihood that the challenges will be determinative of the 
election, thus requiring

[[Page 7323]]

investigation and resolution by the Regional Director or the Board. 
Prompt disclosure of employee names as well as addresses will, we 
are convinced, eliminate the necessity for challenges based solely 
on lack of knowledge as to the voter's identity. Furthermore, bona 
fide disputes between employer and union over voting eligibility 
will be more susceptible of settlement without recourse to the 
formal and time-consuming challenge procedures of the Board if such 
disputes come to light early in the election campaign rather than in 
the last few days before the election when the significance of a 
single vote is apt to loom large in the parties' calculations. Thus 
the requirement of prompt disclosure of employee names and addresses 
will further the public interest in the speedy resolution of 
questions of representation.

156 NLRB at 1242-43.
    Since Excelsior was decided, almost 50 years ago, the Board has not 
significantly altered its requirements despite significant changes in 
communications technology, including that used in representation 
election campaigns, and identification of avoidable problems in 
administering the requirement, for example, delays in the regional 
offices' transmission of the eligibility list to the parties.

B. Evolution of the Board's Electronic Filing and Service Requirements

    The Board's effort to promote expeditious case processing under the 
NLRA by utilizing advances in communications technology is nearly a 
decade old. The Board first began a pilot project in 2003, permitting 
the electronic filing of documents with the Agency.\24\ Thereafter, the 
use and scope of electronic filing by parties to NLRB proceedings 
expanded significantly. By January 2009, more than 12,000 documents had 
been filed electronically with the Board and its regional offices.\25\ 
The number of electronic filings has steadily increased in recent 
years, reaching a high of 38,147 in Fiscal Year 2013. The Board 
currently permits most documents in both unfair labor practice and 
representation proceedings to be filed electronically with only a 
limited number of expressly specified exceptions.\26\ The NLRB public 
Web site sets out instructions for the Agency's E-filing procedures in 
order to facilitate their use, and the instructions ``strongly 
encourage parties or other persons to use the Agency's E-filing 
program.'' \27\ However, included among documents that may not 
currently be filed electronically are representation petitions.\28\
---------------------------------------------------------------------------

    \24\ See 74 FR 5618, 5619 (Jan. 30, 2009), revising Sec.  
102.114 of the Board's Rules and Regulations, corrected 74 FR 8214 
(Feb. 24, 2009).
    \25\ Id., 74 FR at 5619.
    \26\ See NLRB Rules and Regulations Section 102.114(i); http://www.nlrb.gov, under Cases & Decisions/File Case Documents/E-file.
    \27\ See http://www.nlrb.gov, under E-filing Rules.
    \28\ See http://www.nlrb.gov, under What Documents Can I E-file?
---------------------------------------------------------------------------

    In 2008, the Board initiated another pilot project to test the 
ability of the Agency to electronically issue its decisions and those 
of its administrative law judges.\29\ Parties who register for 
electronic service of decisions in their cases receive an email 
constituting formal notice of the decision and an electronic link to 
the decision. The NLRB public Web site sets out instructions for 
signing up for the Agency's electronic issuance program.\30\
---------------------------------------------------------------------------

    \29\ See 74 FR at 5619.
    \30\ See http://www.nlrb.gov, under What is E-Service?
---------------------------------------------------------------------------

    In 2009, the Board revised its regulations to require that service 
of e-filed documents on other parties to a proceeding be effectuated by 
email whenever possible, which aligned Board service procedures more 
closely with those in the federal courts, and acknowledged the widely 
accepted use of email for legal and official communications.\31\
---------------------------------------------------------------------------

    \31\ See 74 FR 8214 (Feb. 24, 2009), correcting 74 FR 5618; NLRB 
Rules & Regulations Sec.  102.114(a) and (i).
---------------------------------------------------------------------------

    In 2010, the Board took further notice of the spread of electronic 
communications in its decision in J. Piccini Flooring, 356 NLRB No. 9 
(2010), to require that respondents in unfair labor practice cases 
distribute remedial notices electronically when that is their customary 
means of communicating with employees. The Board recognized that the 
use of email, internal and external Web sites, and other electronic 
communication tools, is now the norm for the transaction of business in 
many workplaces, among unions, and by the government and the public it 
serves. The Board concluded that its ``responsibility to adapt the Act 
to changing patterns of industrial life'' \32\ required it to align its 
remedial requirements with ``the revolution in communications 
technology that has reshaped our economy and society.'' J. Piccini 
Flooring, slip op. at 4.
---------------------------------------------------------------------------

    \32\ NLRB v. Weingarten, 420 U.S. 251, 266 (1975).
---------------------------------------------------------------------------

C. Purposes of the Proposed Amendments

    The Board now proposes to revise its rules and regulations to 
better insure ``that employees' votes may be recorded accurately, 
efficiently and speedily'' and to further ``the Act's policy of 
expeditiously resolving questions concerning representation.'' \33\
---------------------------------------------------------------------------

    \33\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946); 
Northeastern University, 261 NLRB 1001, 1002 (1982).
---------------------------------------------------------------------------

    The proposed amendments would remove unnecessary barriers to the 
fair and expeditious resolution of questions concerning representation. 
In addition to making the Board processes more efficient, the proposed 
amendments are intended to simplify the procedures, to increase 
transparency and uniformity across regions, and to provide parties with 
clearer guidance concerning the representation case procedure.
    The proposed amendments would provide for more timely and complete 
disclosure of information needed by both the Board and the parties to 
promptly resolve matters in dispute. The proposed amendments are also 
intended to eliminate unnecessary litigation concerning issues that may 
be, and often are, rendered moot by election results. In addition, the 
proposed amendments would consolidate Board review of regional 
directors' determinations in representation cases in a single, post-
election proceeding and would make review discretionary after an 
election as it currently is before an election. The Board anticipates 
that the proposed amendments would leave a higher percentage of final 
decisions about disputes arising out of representation proceedings with 
the Board's regional directors who are members of the career civil 
service. Finally, the proposed amendments are intended to modernize the 
Board's representation procedures, in particular, through use of 
electronic communications technology to speed communication among the 
parties, and between the parties and the Board, and to facilitate 
communication with voters.
    Given the variation in the number and complexity of issues that may 
arise in a representation proceeding, the amendments do not establish 
inflexible time deadlines or mandate that elections be conducted a set 
number of days after the filing of a petition. Rather, the amendments 
seek to avoid unnecessary litigation and establish standard and fully 
transparent practices while leaving discretion with the regional 
directors to depart from those practices under special circumstances.
    Consistent with Executive Order 13563, Improving Regulation and 
Regulatory Review, section 6(a) (January 18, 2011), the proposed 
amendments would eliminate redundant and outmoded regulations.\34\ The 
proposed

[[Page 7324]]

amendments would eliminate one entire section of the Board's current 
regulations and consolidate the regulations setting forth procedures 
under section 9 of the Act, currently spread across three separate 
parts of the regulations, into a single part. The Board anticipates 
that, if the proposed amendments are adopted, the cost of invoking and 
participating in the Board's representation case procedures would be 
reduced for parties, and public expenditure in administering section 9 
of the Act would be similarly reduced.
---------------------------------------------------------------------------

    \34\ While the Executive Order is not binding on the Board as an 
independent agency, the Board has, as requested by the Office of 
Management and Budget, given ``consideration to all of its 
provisions.'' Office of Management and Budget, Memorandum for the 
Heads of Executive Departments and Agencies, and of Independent 
Regulatory Agencies: Executive Order 13563, ``Improving Regulation 
and Regulatory Review'' 11-12 (Feb. 2, 2011), www.whitehouse.gov/omb/memoranda. In regard to section 2(c) of the Order, concerning 
seeking the views of those who are likely to be affected prior to 
publication of a notice of proposed rulemaking, the Board determined 
that public participation would be more orderly and meaningful if it 
was based on the specific proposals described herein and thus the 
Board has provided for the comment and reply periods and public 
hearing described above. As noted, the Board has also incorporated 
into the docket for this NPRM all comments and oral testimony 
submitted in response to the June 22, 2011 NPRM.
---------------------------------------------------------------------------

    While the proposed amendments are designed to eliminate unnecessary 
barriers to the speedy processing of representation cases, the proposed 
amendments, like previous congressional and administrative reforms 
aimed at expediting the conduct of elections, do not in any manner 
alter existing regulation of parties' campaign conduct or restrict any 
party's freedom of speech.
    The Board invites comments on each of the proposed rule changes 
described below.\35\
---------------------------------------------------------------------------

    \35\ The Board has provided for an initial 60-day comment period 
followed by a 7-day reply comment period. In addition, the Board 
intends to issue a notice of public hearing to be held in 
Washington, DC, during the reply comment period in order to receive 
oral comments on the proposed amendments. As noted, the Board will 
also consider all comments and oral testimony submitted in response 
to the June 22, 2011 NPRM, in deciding whether to issue a final 
rule, and the comments and oral testimony have been incorporated 
into this docket. The Board believes that all persons interested in 
the proposed amendments--including those best able to provide 
informed comment on the details of the Board's representation case 
procedures, the attorneys and other practitioners who regularly 
participate in representation proceedings--will have ample time and 
opportunities to do so within the comment periods.
---------------------------------------------------------------------------

D. Summary of Current Representation Case Procedures

    Every year, thousands of election petitions are filed in NLRB 
regional offices by employees, unions, and employers to determine if 
employees wish to be represented by a labor organization for purposes 
of collective bargaining with their employer.\36\ A lesser number are 
filed by employees to determine whether the Board should decertify an 
existing representative.\37\ Under current procedures, the petitioner 
is not required to serve the petition on other interested parties. For 
example, a labor organization is not required to serve a petition 
through which it seeks to be certified as the representative of a unit 
of employees on the employees' employer. Rather, that task is imposed 
on the regional office. In addition, the petitioner is not required, at 
the time of filing, to supply evidence of the type customarily required 
by the Board to process the petition. For example, a labor organization 
is not required to file, along with its petition, evidence that a 
substantial number of employees support the petition (the ``showing of 
interest''). Rather, the petitioner is permitted to file such evidence 
within 48 hours of the filing of the petition.
---------------------------------------------------------------------------

    \36\ In 2013, 2,035 such petitions were filed. See 
Representation Petitions--RC and Employer-Filed Petitions--RM, 
http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections.
    \37\ In 2013, 472 such petitions were filed. See Decertification 
Petitions--RD, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections.
---------------------------------------------------------------------------

    After a petition is filed, the regional director serves the 
petition on the parties and also submits additional requests to the 
employer. The regional director serves on the employer a generic notice 
of employees' rights,\38\ with a request that the employer post the 
notice, and a commerce questionnaire, seeking information relevant to 
the Board's jurisdiction to process the petition,\39\ which the 
employer is requested to complete. The regional director also asks the 
employer to provide a list of the names of employees in the unit 
described in the petition, together with their job classifications, for 
the payroll period immediately preceding the filing of the petition. 
Finally, the regional director solicits the employer's position on the 
appropriateness of the unit described in the petition.
---------------------------------------------------------------------------

    \38\ Form NLRB-5492, Notice to Employees.
    \39\ Form NLRB-5081.
---------------------------------------------------------------------------

    After the filing of a petition, Board agents conduct an ex parte, 
administrative investigation to determine if the petition is supported 
by the required form of showing. In the case of a petition seeking 
representation or seeking to decertify an existing representative, for 
example, this showing would be that 30 percent of employees in the unit 
support the petition.
    Shortly after a petition is filed, the regional director serves a 
notice on the parties named in the petition setting a pre-election 
hearing. In many cases, the parties, often with Board agent assistance, 
are able to reach agreement regarding the composition of the unit and 
the date, time, place, and other mechanics of the election, thereby 
eliminating the need for a hearing and a formal decision and direction 
of election by the regional director.\40\ Parties may enter into three 
types of pre-election agreements: a ``consent-election agreement 
followed by a regional director's determination of representatives,'' 
providing for final resolution of post-election disputes by the 
regional director; a ``stipulated election-agreement followed by a 
Board determination,'' providing for resolution of post-election 
disputes by the Board; and a ``full consent-election agreement,'' 
providing for final resolution of both pre- and post-election disputes 
by the regional director.\41\ In cases in which parties are unable to 
reach agreement, a Board agent conducts a hearing at which the parties 
may introduce evidence on issues including: (1) Whether the Board has 
jurisdiction to conduct an election; (2) whether there are any bars to 
an election in the form of existing contracts or prior elections; (3) 
whether the election is sought in an appropriate unit of employees; and 
(4) the eligibility of particular employees in the unit to vote. 
Parties can file briefs with the regional director within one week 
after the close of the hearing.
---------------------------------------------------------------------------

    \40\ In the last decade, between 89 and 92 percent of 
representation elections have been conducted pursuant to either a 
consent agreement or stipulation. NLRB Office of the General 
Counsel, Summaries of Operations (Fiscal Years 2004-2012); 
Percentage of Elections Conducted Pursuant to Election Agreements in 
FY 13, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections.
    \41\ See 29 CFR 101.19.
---------------------------------------------------------------------------

    After the hearing's close, the regional director will issue a 
decision either dismissing the petition or directing an election in an 
appropriate unit. The regional director may defer the resolution of 
whether certain employees are eligible to vote until after the 
election, and those employees will be permitted to vote under 
challenge.
    Parties have a right to request Board review of a regional 
director's decision and direction of election within 14 days after it 
issues. Neither the filing nor grant of a request for review operates 
as a stay of the direction of election unless the Board orders 
otherwise. If the Board does not rule on the request before the 
election, the ballots are impounded pending a Board ruling. Consistent 
with the Board's current Statements of Procedures, the regional 
director ``will normally not schedule an election until a date between 
the 25th and 30th day after the date of the decisions, to permit

[[Page 7325]]

the Board to rule on any request for review which may be filed.'' \42\
---------------------------------------------------------------------------

    \42\ 29 CFR 101.21(d).
---------------------------------------------------------------------------

    Within seven days after the regional director's decision issues, 
the employer must file a list of employees in the bargaining unit and 
their home addresses with the regional director. The regional director, 
in turn, makes the list available to all other parties in order to 
allow all parties to communicate with eligible employees about the 
upcoming election and to reduce the necessity for election-day 
challenges based solely on the parties' lack of knowledge of voters' 
identities. The non-employer parties must have this list at least ten 
days before the date of the election unless they waive that right.
    The regional director has discretion to set the dates, times, and 
location of the election. The regional director typically exercises 
that discretion after consultation with the parties and solicitation of 
their positions on the election details.
    Once the regional director sets the dates, times, and locations of 
the election, the regional office prepares a notice of election to 
inform eligible voters of those details.\43\ The regional director 
serves the notice on the employer, which is responsible for posting the 
notice in the workplace for at least three days before the election.
---------------------------------------------------------------------------

    \43\ Form NLRB-707 or Form NLRB-4910 (in the case of a mail 
ballot election).
---------------------------------------------------------------------------

    If a manual election is held, each party to the election may be 
represented at the polling site by an equal number of observers who are 
typically employees of the employer. Observers have the right to 
challenge the eligibility of any voter for cause, and the Board agent 
conducting the election must challenge any voter whose name is not on 
the eligibility list. Ballots of challenged voters, including any 
voters whose eligibility was disputed at the pre-election hearing but 
not resolved by the regional director, are segregated from the other 
ballots in a manner that will not disclose the voter's identity.
    Representatives of all parties may choose to be present when 
ballots are counted. Elections are decided by a majority of votes cast. 
Challenges may be resolved by agreement before the tally. If the number 
of unresolved challenged ballots is insufficient to affect the results 
of an election in which employees voted to be represented, the unit 
placement of any individuals whose status was not resolved may be 
resolved by the parties in collective bargaining or determined by the 
Board if a petition for unit clarification is filed. If the number of 
unresolved challenged ballots is insufficient to affect the results of 
an election in which employees voted not to be represented, the results 
are certified unless objections are filed.
    Within one week after the tally of ballots has been prepared, 
parties may file with the regional director objections to the conduct 
of the election or to conduct affecting the results of the election. A 
party filing objections has an additional week to file a summary of the 
evidence supporting the objections.
    The regional director may initiate an investigation of any such 
objections and unresolved, potentially outcome-determinative 
challenges, and notice a hearing only if they raise substantial and 
material factual issues. If they do not, the regional director will 
issue a supplemental decision or a report disposing of the challenges 
or objections. If there are material factual issues that must be 
resolved, the regional director will notice a post-election hearing 
before a hearing officer to give the parties an opportunity to present 
evidence concerning the objections or challenges. After the hearing's 
close, the hearing officer will issue a report resolving any 
credibility issues and containing findings of fact and recommendations. 
Depending upon the type of election, a party may file exceptions to the 
hearing officer's report either with the regional director or the 
Board, whereupon the regional director or the Board will issue a 
decision. If the right is not waived in a pre-election agreement, a 
party may appeal a regional director's disposition of election 
objections or challenges by filing exceptions with the Board.

III. Authority

    Section 6 of the NLRA, 29 U.S.C. 156, provides, ``The Board shall 
have authority from time to time to make, amend, and rescind, in the 
manner prescribed by subchapter II of chapter 5 of Title 5 [the 
Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations 
as may be necessary to carry out the provisions of this Act.'' The 
Board interprets Section 6 as authorizing the proposed amendments to 
its existing rules.
    The Board believes that the proposed amendments relate almost 
entirely to ``rules of agency organization, procedure or practice'' and 
are therefore exempt from the Administrative Procedure Act's notice and 
comment requirements under 5 U.S.C. 553(b)(A), but the Board has 
decided nevertheless to issue this Notice of Proposed Rulemaking and 
seek public comments.

IV. Overview of the Amendments

Part 101, Subparts C-E

    The Board's current regulations are divided into part 102, 
denominated Rules and Regulations, and part 101, denominated Statement 
of Procedures. Because the regulations in part 102 are procedural, 
however, the two sets of provisions governing representation 
proceedings in Sec. Sec.  102.60-102.88 and 101.17-101.30 are almost 
entirely redundant. Describing the same representation procedures in 
two separate parts of the regulations may create confusion.
    Section 101.1 states that part 101 is a statement of ``the general 
course and method by which the Board's functions are channeled and 
determined'' and is issued pursuant to 5 U.S.C. 552(a)(1)(B). The Board 
believes that such a description of procedures would better serve the 
statutory purpose of informing the public concerning Agency procedures 
and practices if it were incorporated into the Board's procedural rules 
in part 102. The proposed amendments would thus eliminate those 
sections of part 101 related to representation cases, Sec. Sec.  101.17 
through 101.30, and incorporate into part 102 the few provisions of 
current part 101 that are not redundant or superfluous.
    A separate statement of ``the general course and method by which 
the Board's functions are channeled and determined'' in representation 
proceedings is also set forth in section I(D) above. To the extent any 
amendments are adopted by the Board, the preamble of the final rule 
will contain a statement of the general course and method by which the 
Board's functions will be channeled and determined under the 
amendments. Moreover, the Board will continue to publish and update its 
detailed Casehandling Manual, Part Two of which describes the Board's 
representation case procedures. The Manual is currently available on 
the Board's Web site.

Part 102, Subpart C--Procedure Under Section 9(c) of the Act for the 
Determination of Questions Concerning Representation of Employees and 
for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act

Sec. 102.60 Petitions

    The proposed amendments would permit parties to file petitions 
electronically. In conformity with ordinary judicial and administrative 
practice, the amendments also require

[[Page 7326]]

that the petitioner serve a copy of the petition on all other 
interested parties. For example, a labor organization filing a petition 
seeking to become the representative of a unit of employees is required 
to serve the petition on the employer of the employees. This will 
insure that the earliest possible notice of the pendency of a petition 
is given to all parties.
    The proposed amendments would also require service of two 
additional documents that would be available to petitioners in the 
regional offices and on the Board's public Web site. The first 
document, which would substitute for and be an expanded version of the 
Board's Form 4812, would inform interested parties of their rights and 
obligations in relation to the representation proceeding. The second 
document the petitioner would serve along with the petition would be a 
Statement of Position form, which would substitute for NLRB form 5081, 
the Questionnaire on Commerce Information. The contents and purpose of 
the proposed Statement of Position form is described further below in 
relation to Sec.  102.63.

Sec. 102.61 Contents of Petition for Certification; Contents of 
Petition for Decertification; Contents of Petition for Clarification of 
Bargaining Unit; Contents of Petition for Amendment of Certification

    Section 102.61 describes the contents of the various forms of 
petitions that may be filed to initiate a representation proceeding 
under section 9 of the Act. The Board would continue to make each form 
of petition available at the Board's regional offices and on its Web 
site. The proposed amendments would add to the contents of the 
petitions in two respects. First, the revised petition would contain 
the allegation required in section 9. In the case of a petition seeking 
representation, for example, the petition would contain a statement 
that ``a substantial number of employees . . . wish to be represented 
for collective bargaining.'' 29 U.S.C. 159(c)(1)(a)(i). Second, the 
petitioner would be required to designate, in the revised petition, the 
individual who will serve as the petitioner's representative in the 
proceeding, including for purposes of service of papers.
    The proposed amendments would also require that the petitioner file 
with the petition whatever form of evidence is an administrative 
predicate of the Board's processing of the petition rather than 
permitting an additional 48 hours after filing to supply the evidence. 
When filing a petition seeking to be certified as the representative of 
a unit of employees, for example, petitioners would be required 
simultaneously to file the showing of interest supporting the petition. 
The Board's preliminary view is that parties should not file petitions 
without whatever form of evidence is ordinarily necessary for the Board 
to process the petition. However, the proposed amendments are not 
intended to prevent a petitioner from supplementing its showing of 
interest, consistent with existing practice, so long as the 
supplemental filing is timely. Also consistent with existing practice, 
the amendments do not require that such a showing be served on other 
parties. The amendments are not intended to change the Board's 
longstanding policy of not permitting the adequacy of the showing of 
interest to be litigated. See, e.g., Plains Cooperative Oil Mill, 123 
NLRB 1709, 1711 (1959) (``[T]he Board has long held that the 
sufficiency of a petitioner's showing of interest is an administrative 
matter not subject to litigation.''); O.D. Jennings & Co., 68 NLRB 516 
(1946). Nor are the proposed amendments intended to alter the Board's 
current internal standards for determining what constitutes an adequate 
showing of interest.\44\
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    \44\ See Casehandling Manual section 11023.1.
---------------------------------------------------------------------------

    The proposed amendments are not intended to permit or proscribe the 
use of electronic signatures to support a showing of interest under 
Sec.  102.61(a)(7) and (c)(8) as well as under Sec.  102.84. The Board 
continues to study the use of such signatures for these purposes. See 
Government Paperwork Elimination Act, Public Law 105-277 section 
1704(2) (1998) (providing that Office of Management and Budget shall 
ensure that, commencing not later than five years after the date of 
enactment of the Act, executive agencies provide ``for the use and 
acceptance of electronic signatures, when practicable''); OMB, 
Implementation of the Government Paperwork Elimination Act, available 
at http://www.whitehouse.gov/omb/fedreg_gpea2/; Electronic Signatures 
in Global and National Commerce Act, Public Law 106-229 sections 
104(b)(1) and (2) (2000). The Board specifically seeks comments on the 
question of whether the proposed regulations should expressly permit or 
proscribe the use of electronic signatures for these purposes.

Sec. 102.62 Election Agreements; Voter List

    Existing Sec.  102.62 describes the three types of agreements 
parties may enter into following the filing of a petition. The proposed 
amendments would not in any manner limit parties' ability to enter into 
such agreements, including the two forms of agreement that entirely 
eliminate the need for a pre-election hearing. In fact, the Board 
anticipates that the proposed amendments would facilitate parties' 
entry into these forms of election agreements through an earlier and 
more complete identification of disputes and disclosure of relevant 
information. The proposed amendments explain the common designations 
used to refer to each type of agreement in current Sec.  101.19 in 
order to more clearly inform the public what each form of agreement 
provides. The proposed amendments would revise the second type of 
agreement, described in Sec.  102.62(b) (the so-called stipulated 
election agreement), to eliminate parties' ability to agree to have 
post-election disputes resolved by the Board and to provide instead 
that the parties may agree that Board review of a regional director's 
resolution of such disputes may be sought through a request for review. 
This is consistent with the changes proposed in Sec. Sec.  102.65 and 
102.67 eliminating the authority of regional directors to transfer 
cases to the Board at any time and making Board review of regional 
directors' disposition of post-election disputes discretionary in cases 
where the parties have not addressed the matter in a pre-election 
agreement.
    The proposed amendments (in Sec.  102.62 as well as in Sec.  
102.67(j)) would codify and revise the requirement created in Excelsior 
Underwear, Inc., 156 NLRB 1236 (1966), and approved by the Supreme 
Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 768 (1969), for 
production and service of a list of eligible voters. The proposed 
amendments would require that both telephone numbers and, where 
available, email addresses be included along with each unit employee's 
name and address on the eligibility list. The proposed amendments would 
further require that the list include each employee's work location, 
shift, and classification. The changes in the existing requirement for 
provision of a list of eligible voters embodied in the proposed 
amendments are intended to better advance the two objectives 
articulated by the Board in Excelsior.
    The provision of only a physical address no longer serves the 
primary purpose of the Excelsior list. Communications technology and 
campaign communications have evolved far beyond the face-to-face 
conversation on the doorstep imagined by the Board in Excelsior. As 
Justice Kennedy observed in Denver Area Educational Telecommunications

[[Page 7327]]

Consortium, Inc. v. FTC, 518 U.S. 727, 802-803 (1996) (Kennedy, J., 
dissenting):

    Minds are not changed in streets and parks as they once were. To 
an increasing degree, the most significant interchanges of ideas and 
shaping of public consciousness occur in mass and electronic media. 
The extent of public entitlement to participate in those means of 
communication may be changed as technologies change.

Similarly, in J. Picini Flooring, 356 NLRB No. 9 at 2-3 (2010) 
(footnotes omitted), the Board recently observed,

    While . . . traditional means of communication remain in use, 
email, postings on internal and external Web sites, and other 
electronic communication tools are overtaking, if they have not 
already overtaken, bulletin boards as the primary means of 
communicating a uniform message to employees and union members. 
Electronic communications are now the norm in many workplaces, and 
it is reasonable to expect that the number of employers 
communicating with their employees through electronic methods will 
continue to increase. Indeed, the Board and most other government 
agencies routinely and sometimes exclusively rely on electronic 
posting or email to communicate information to their employees. In 
short, ``[t]oday's workplace is becoming increasingly electronic.''

    The same evolution is taking place in pre-election campaign 
communication. The Board's experience with campaigns preceding 
elections conducted under section 9 of the Act indicates that employers 
are, with increasing frequency, using email to communicate with 
employees about the vote. See, e.g., Humane Society for Seattle, 356 
NLRB No. 13, slip op. at 4 (2010) (``On September 27, the Employer's 
CEO, Brenda Barnette, sent an email to employees asking that they 
consider whether ACOG was the way to make changes at SHS. On September 
29, HR Director Leader emailed employees a link to a third-party 
article regarding `KCACC Guild's petition and reasons the Guild would 
be bad for SHS.''); Research Foundation of the State University of New 
York at Buffalo, 355 NLRB No. 170, slip op. at 19 (2010) (``On January 
12, Scuto sent the first in a series of email's [sic] to all Employer 
postdoctoral associates concerning the Petitioner's efforts to form a 
Union at the Employer[,] . . . . explaining the Employer's position on 
unionization . . . .''); Black Entertainment Television, 2009 WL 
1574462, at *1 (NLRB Div. of Judges June 5, 2009) (employer notified 
several employees by email to attend a meeting in which senior vice-
president spoke one-on-one with the employees regarding the election 
scheduled for the following day). For these reasons, the proposed rule 
would require that both telephone numbers and, where available, email 
addresses be included on the Excelsior list.\45\
---------------------------------------------------------------------------

    \45\ In Trustees of Columbia University, 350 NLRB 574, 576 
(2007), the Board rejected an objection based on an employer's 
refusal to include email addresses in the Excelsior list of 
employees on board a ship that was at sea for most of the pre-
election period. In so doing, the Board held only that, ``given the 
Employer's undisputed compliance with its Excelsior obligations as 
they stood as of the date of the Union's request, we are unwilling, 
on the facts of this case, to characterize that compliance as 
objectionable conduct.'' Id. at 576.
---------------------------------------------------------------------------

    In addition, the list currently required under Excelsior does 
little to further the second purpose for requiring its production--to 
identify issues concerning eligibility and, if possible, to resolve 
them without the necessity of a challenge. In many cases, the names on 
the list are unknown to the parties. The parties may not know where the 
listed individuals work or what they do. Only through further factual 
investigation, for example, consulting other employees who may work 
with the listed, unknown employees or contacting the unknown employees 
themselves at their home addresses, can the parties potentially 
discover the facts needed to assess eligibility. It would further the 
purpose of narrowing the issues in dispute--and thereby avoid 
unnecessary challenges and litigation--if the list also contained work 
location, shift, and classification.
    The proposed amendments would further require that the eligibility 
list be provided in electronic form unless the employer certifies that 
it does not possess the capacity to produce the list in the required 
form. In 1966, most employers maintained employee lists only on paper. 
Today, many, if not most, employers maintain electronic records. Yet 
when producing an Excelsior list, employers are still permitted to 
print out a copy of their electronic records and provide a paper list 
to the regional office which, in turn, mails or faxes a copy to the 
other parties. Requiring production of the list in electronic form 
would further both purposes of the Excelsior requirement.
    The proposed amendments would require that the employer serve the 
eligibility list on the other parties electronically at the same time 
it is filed with the regional office. The Board's existing rule, as 
announced in Excelsior, requires only that the employer file the list 
with the regional director. 156 NLRB at 1240 (1966). Excelsior further 
provides that the regional director shall make the list available to 
all parties. It is the Board's experience in administering elections 
that this two-step process has caused needless administrative burden, 
avoidable delay in receipt of the list, and unnecessary litigation when 
the regional office, for a variety of reasons, has not promptly made 
the list available to all parties. See, e.g., Special Citizens Futures 
Unlimited, 331 NLRB 160, 160-62 (2000); Alcohol & Drug Dependency 
Services, 326 NLRB 519, 520 (1998); Red Carpet Bldg. Maintenance Corp., 
263 NLRB 1285, 1286 (1982); Sprayking, Inc., 226 NLRB 1044, 1044 
(1976). If adopted, the proposed amendments would eliminate this 
unnecessary administrative burden--as well as potential source of delay 
and resulting litigation--by providing for direct service of the list 
by the employer on all other parties. The regional office would make 
the list available upon request to the parties.
    The proposed amendments would also shorten the time for production 
of the eligibility list from the current seven days to two days, absent 
agreement of the parties to the contrary or extraordinary circumstances 
specified in the direction. The Board's preliminary view is that 
advances in electronic recordkeeping and retrieval, combined with the 
provision of a preliminary list as described below in relation to Sec.  
102.63, render the full seven-day period unnecessary. This conclusion 
is also supported by the fact that the median size of units ranged 
between 23 and 28 employees from 2004 to 2013.\46\
---------------------------------------------------------------------------

    \46\ See Median Size of Bargaining Units in Elections, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections.
---------------------------------------------------------------------------

    Finally, the Board recognizes that the voter list proposals may 
implicate concerns about individual privacy and the dissemination of 
personal information. Accordingly, it has proposed an amendment that 
would impose a restriction on use of the eligibility list, barring 
parties from using it for any purposes other than the representation 
and related proceedings. The Board specifically seeks comments 
regarding this restriction and whether other restrictions, either 
alternatively or in addition to the above, should be imposed. Comments 
are also invited concerning whether, and in what circumstances, 
employees should be afforded the opportunity to choose whether and how 
any personal information might be disclosed, and whether giving such an 
option to employees would be inconsistent with the Excelsior Board's 
judgment that a fair election requires that all parties to a 
representation case proceeding have access to communicate with all the 
voters. Comments could discuss possible alternatives to disclosure, 
such

[[Page 7328]]

as the desirability and feasibility of the Agency hosting protected 
communications portals (e.g., sealed-off email systems) to facilitate 
electronic communication between the nonemployer parties and employees 
without those parties receiving employee email addresses. Any such 
comments should also consider the costs which might be imposed by these 
various possibilities, both on the agency and on private parties, and 
how the Agency should balance employees' privacy interests with the 
public interests in fair and free elections and in the expeditious 
resolution of questions concerning representation. In sum, the Board is 
interested in constructive suggestions on these matters.

Sec. 102.63 Investigation of Petition by Regional Director; Notice of 
Hearing; Service of Notice; Initial Notice to Employees of Election; 
Statement of Position Form; Withdrawal of Notice

    The proposed amendments provide that, absent special circumstances, 
the regional director would set the hearing to begin seven days after 
service of the notice of hearing. This provision reflects the current 
practice of some regions, but would make the practice explicit and 
uniform, thereby rendering Board procedures more transparent and 
predictable. Under the proposed amendments, parties served with a 
petition and description of representation procedures, as described 
above in relation to Sec.  102.60, will thus be able to predict with a 
high degree of certainty when the hearing will commence even before 
service of the notice. The Board intends that the proposed amendments 
would be implemented consistent with the Board's decision in Croft 
Metal, Inc., 337 NLRB 688, 688 (2002), requiring that, ``absent unusual 
circumstances or clear waiver by the parties,'' parties ``receive 
notice of a hearing not less than 5 days prior to the hearing, 
excluding intervening weekends and holidays.'' The proposed amendments 
would thus not require any party to prepare for a hearing in a shorter 
time than permitted under current law. Rather, as the Board held in 
Croft Metal, 337 NLRB at 688, ``By providing parties with at least 5 
working days' notice, we make certain that parties to representation 
cases avoid the Hobson's choice of either proceeding unprepared on 
short notice or refusing to proceed at all.'' The Board specifically 
seeks comments on the feasibility and fairness of this time period and 
all other such periods proposed in this Notice as well as the wording 
and scope of the exceptions thereto.
    The proposed amendments provide that, with the notice of hearing, 
the regional director would serve a revised version of the Board's Form 
5492, currently headed Notice to Employees. Under the proposed 
amendments, the revised form would bear the heading Initial Notice to 
Employees of Election, would specify that a petition has been filed as 
well as the type of petition, the proposed unit, and the name of the 
petitioner, and would briefly describe the procedures that will follow. 
The Board anticipates that the Initial Notice would also provide 
employees with the regional office's Web site address, through which 
they can obtain further information about the processing of the 
petition, including obtaining a copy of any direction of election and 
Final Notice to Employees of Election as soon as they issue. Employers 
would be required to post the revised Initial Notice to Employees of 
Election unlike current Form 5492.
    The proposed amendments further provide that the regional director 
would serve the petition, the description of procedures in 
representation cases, and the Statement of Position form on all non-
petitioning parties.
    The proposed amendments would further require that the regional 
director specify in the notice of hearing the due date for Statements 
of Position. The Statements of Position would be due no later than the 
date of the hearing. In relation to small units, the regional director 
may choose to make the Statements of Position due on the date of the 
hearing and they may be completed at that time with the assistance of 
the hearing officer.
    The Statement of Position form would replace NLRB Form 5081, the 
Questionnaire on Commerce Information. Under the proposed rules, its 
completion would be mandatory only insofar as failure to state a 
position would preclude a party from raising certain issues and 
participating in their litigation. The statement of position 
requirement is modeled on the mandatory disclosures described in Fed. 
R. Civ. P. 26(a) as well as on contention interrogatories commonly 
propounded in civil litigation.
    The Board anticipates that early receipt of the Statement of 
Position form will assist parties in identifying issues that must be 
resolved at a pre-election hearing and thereby facilitate entry into 
election agreements. Parties who enter into one of the forms of 
election agreement described in Sec.  102.62 would not be required to 
complete a Statement of Position under the proposed amendments.
    The Statement of Position form would solicit the parties' position 
on the Board's jurisdiction to process the petition; the 
appropriateness of the petitioned-for unit; any proposed exclusions 
from the petitioned-for unit; the existence of any bar to the election; 
the type, dates, times, and location of the election; and any other 
issues that a party intends to raise at hearing. In those cases in 
which a party takes the position that the proposed unit is not an 
appropriate unit, the party would also be required to state the basis 
of the contention and identify the most similar unit it concedes is 
appropriate.\47\ In those cases in which a party intends to contest at 
the pre-election hearing the eligibility of individuals occupying 
classifications in the proposed unit, the party would be required to 
both identify the individuals (by name and classification) and state 
the basis of the proposed exclusion, for example, because the 
identified individuals are supervisors. Finally, parallel to the 
amendment to the contents of petitions described in relation to Sec.  
102.61 above, the non-petitioning parties would be required to 
designate, in their Statement of Position, the individual who will 
serve as the party's representative in the proceeding, including for 
service of papers.
---------------------------------------------------------------------------

    \47\ This requirement would codify parties' existing practice 
where they contend that the petitioned-for unit is not appropriate 
because the smallest appropriate unit includes additional 
classifications or facilities. See, e.g., Westinghouse Electric 
Corp., 137 NLRB 332 (1962).
---------------------------------------------------------------------------

    The Board believes that the Statement of Position form would ask 
parties to do no more than they currently do in preparing for a pre-
election hearing. In addition, the Board's preliminary belief is that, 
by guiding such preparation, the proposed Statement of Position form 
would reduce the time and other resources expended in preparing to 
participate in representation proceedings.
    In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board 
observed, ``[I]n order to effectuate the purposes of the Act through 
expeditiously providing for a representation election, the Board should 
seek to narrow the issues and limit its investigation to areas in 
dispute.'' The Board's regional offices currently attempt to identify 
and narrow the issues through a number of procedures. In some cases, 
regions will conduct pre-hearing conferences either face-to-face or by 
telephone in an effort to identify and narrow the issues in dispute. 
Further, section 11217 of the Casehandling Manual provides, ``Prior to 
the presentation of evidence or witnesses, parties to the hearing 
should

[[Page 7329]]

succinctly state on the record their positions as to the issues to be 
heard.'' The proposed amendments would incorporate the principles 
underlying these commendable practices, but would give all parties 
clear, advance notice of their obligations, both in the rules 
themselves and in the statement of procedures and Statement of Position 
form. The amendments are not intended to preclude any other formal or 
informal methods used by the regional offices to identify and narrow 
the issues in dispute prior to or at pre-election hearings.
    The proposed amendments provide that, as part of its Statement of 
Position, the employer would be required to provide a list of all 
individuals employed by the employer in the petitioned-for unit. The 
list would include the same information described above in relation to 
Sec.  102.62 except that the list served on other parties would not 
include contact information.
    As explained above in section I(A)(3) and in relation to Sec.  
102.62, a central purpose of requiring the employer to prepare and file 
an eligibility list is to insure that all parties have access to the 
information they need to evaluate whether individuals should be in the 
unit and are otherwise eligible to vote, so that the parties can 
attempt to resolve disputes concerning eligibility rather than prolong 
them ``based solely on lack of knowledge.'' Excelsior, 156 NLRB at 
1243. The Board further observed in Excelsior that ``bona fide disputes 
between employer and union over voting eligibility will be more 
susceptible of settlement without recourse to the formal and time-
consuming challenge procedures of the Board if such disputes come to 
light early in the election campaign rather than in the last few days 
before the election.'' But that purpose is not well served by provision 
of the list of eligible voters seven days after a decision and 
direction of election. It is prior to and during the hearing that the 
parties are most actively engaged in attempting to resolve such 
disputes. For this reason, the proposed amendments would require filing 
and service of a list of individuals providing services to the employer 
in the petitioned-for unit by a date no later than the opening of the 
pre-election hearing.
    For the same reasons, the proposed amendments further provide that, 
if the employer contends that the petitioned-for unit is not 
appropriate, the employer also would be required to file and serve a 
similar list of individuals in the most similar unit that the employer 
concedes is appropriate.
    Under the proposed amendments, the list filed with the regional 
office, but not the list served on other parties, would contain 
available email addresses, telephone numbers, and home addresses. The 
regional office could then use this additional information to begin 
preparing the electronic distribution of the Final Notice of Election 
discussed below in relation to Sec.  102.67.

Sec. 102.64 Conduct of Hearing

    The proposed amendments to Sec.  102.64 are intended to insure that 
the hearing is conducted efficiently and is no longer than necessary to 
serve the statutory purpose of determining if there is a question 
concerning representation. Congress instructed the Board to conduct a 
pre-election hearing to determine if there is a question concerning 
representation that should be resolved through an election. But 
Congress did not intend the hearing to be used by any party to delay 
the conduct of such an election. The proposed amendments would make 
clear that, ordinarily, resolution of disputes concerning the 
eligibility or inclusion of individual employees is not necessary in 
order to determine if a question of representation exists and, 
therefore, that such disputes will be resolved, if necessary, post-
election. The proposed amendments would also make clear that the duty 
of the hearing officers is to create an evidentiary record concerning 
only genuine disputes as to material facts. Finally, the proposed 
amendments would provide that the hearing shall continue from day to 
day until completed absent extraordinary circumstances.

Sec. 102.65 Motions; Interventions

    Consistent with the effort to avoid piecemeal appeal to the Board, 
as discussed below in relation to Sec.  102.67, the proposed amendments 
to Sec.  102.65 would narrow the circumstances under which a request 
for special permission to appeal will be granted. The proposed 
amendments provide that such an appeal would only be granted under 
extraordinary circumstances when it appears that the issue will 
otherwise evade review. To further discourage piecemeal appeal, the 
amendments provide that a party need not seek special permission to 
appeal in order to preserve an issue for review post-election. Finally, 
consistent with current practice, the amendments provide that neither 
the filing of a request for special permission to appeal nor the grant 
of such a request will stay an election or any other action or require 
impounding of ballots unless specifically ordered by the Board.
    The proposed amendments provide that any intervenors, like the 
original non-petitioning parties, would be required to file or make a 
Statement of Position.
    The proposed amendments also make clear that neither a regional 
director nor the Board will automatically delay any decision or action 
during the time permitted for filing motions for reconsideration, 
rehearing, and to reopen the record.

Sec. 102.66 Introduction of Evidence; Rights of Parties at Hearing; 
Subpoenas

    The proposed amendments to Sec.  102.66 are intended to limit the 
evidence offered at hearings to that evidence which is relevant to a 
genuine dispute as to a fact material to an issue in dispute. The 
amendments would thus give parties the right to introduce evidence 
``relevant to any genuine dispute as to any material fact.'' This 
standard was derived from Rule 56 of the Federal Rules of Civil 
Procedure. The proposed amendments would not prevent any party from 
presenting evidence concerning any relevant issue if there is a genuine 
dispute as to any material fact. In other words, the proposed 
amendments would accord parties full due process of law consistent with 
that accorded in the federal courts.
    The amendments would further describe a process to be followed by 
the hearing officer to identify issues in dispute and determine if 
there are genuine disputes as to facts material to those issues. The 
hearing officer would open the hearing by reviewing, or assisting the 
non-petitioning parties to make, Statements of Position. The petitioner 
would then be required to respond to any issues raised in the non-
petitioning parties' Statements of Position, thereby joining the 
issues. No party would be permitted to offer evidence or cross-examine 
witnesses concerning an issue it did not raise in its Statement of 
Position or did not join in response to another party's Statement of 
Position. However, any party would be permitted to present evidence as 
to statutory jurisdiction,\48\ and the petitioner would be permitted to 
present evidence as to the appropriateness of

[[Page 7330]]

the unit if the nonpetitioning parties decline to take a position on 
that issue. In addition, the hearing officer would retain discretion to 
permit parties to amend their Statements of Position and responses for 
good cause, such as newly discovered evidence.
---------------------------------------------------------------------------

    \48\ Under the proposed amendments, the Board will continue its 
longstanding practice of presuming that an employer satisfies the 
Board's discretionary jurisdictional standards when the employer 
refuses to voluntarily provide information requested by the Board in 
order to apply those standards. See, e.g., Seaboard Warehouse 
Terminals, Inc., 123 NLRB 378, 382-83 (1959); Tropicana Products, 
Inc., 122 NLRB 121, 123-24 (1958).
---------------------------------------------------------------------------

    Consistent with the amendment's intent to defer both litigation and 
consideration of disputes concerning the eligibility or inclusion of 
individual employees until after the election, no party would be 
precluded from challenging the eligibility or inclusion of any voter 
during the election on the grounds that no party raised the issue in a 
Statement of Position or response thereto.
    The proposed amendments would implement the decision in Bennett 
Industries, Inc., 313 NLRB 1363 (1994). The proposed amendments would 
also be consistent with Allen Health Care Services, 332 NLRB 1308 
(2000), in which the Board held that even when an employer refuses to 
take a position on the appropriateness of a petitioned-for unit, the 
regional director must nevertheless take evidence on the issue unless 
the unit is presumptively appropriate. The proposed amendments would 
thus permit the petitioner to offer evidence in such circumstances and 
merely preclude non-petitioners, which have refused to take a position 
on the issue, from offering evidence or cross-examining witnesses.
    Consistent with both Bennett Industries and Allen Health Care, the 
proposed amendments would preclude any party from subsequently raising 
an issue or offering evidence or cross-examining witnesses at the pre-
election hearing related to an issue (other than statutory 
jurisdiction) it did not raise or join in a Statement of Position or 
response thereto. In the case of exclusions from the proposed unit, for 
example, if no party timely asserts that an individual should be 
excluded, the Board would include the individual subject to challenge 
during the election, as explained above. If no party objects to a 
proposed exclusion, the Board would exclude the individual. In relation 
to the appropriateness of the unit, if all parties agree the unit is 
appropriate, the Board would so find unless it appears on its face to 
be a statutorily inappropriate unit or to be inconsistent with settled 
Board policy. If any party refuses to take a position on the 
appropriateness of the unit, that party would be precluded from 
contesting the appropriateness and offering evidence relating to the 
appropriateness of the unit. Such preclusion is consistent with 
existing precedent and clarifies parties' rights under Allen Health 
Care.
    Under the proposed amendments, after the issues are properly 
joined, the hearing officer would require the parties to make an offer 
of proof concerning any relevant issue in dispute and would not proceed 
to take evidence unless the parties' offers create a genuine issue of 
material fact. An offer of proof may take the form of an oral or 
written statement of the party or its counsel identifying the witnesses 
it would call to testify and summarizing their testimony. The 
requirement of an offer of proof is thus similar to that which exists 
under current procedures for a party filing objections post-
election.\49\ The requirement is also consistent with existing practice 
in relation to a presumptively appropriate unit. See, e.g., Laurel 
Associates, Inc., 325 NLRB 603 (1998); Mariah, Inc., 322 NLRB 586, 587 
(1996). The proposed amendments thus adopt standard practice in the 
federal and state courts and before other agencies. See, e.g., Fed. R. 
Civ. P. 56. The proposed amendments rest on the proposition that, if no 
disputed issues are identified or there are no disputed facts material 
to such issues, there is no need for an evidentiary hearing.
---------------------------------------------------------------------------

    \49\ See Casehandling Manual section 1132.6 (``In addition to 
identifying the nature of the misconduct on which the objections are 
based, this submission should include a list of the witnesses and a 
brief description of the testimony of each.'')
---------------------------------------------------------------------------

    The Board's preliminary view is that ``an appropriate hearing'' 
does not mean an evidentiary hearing when either no issues are in 
dispute or no party has been able to make an offer of proof creating a 
genuine dispute as to any material fact. As Judge Learned Hand observed 
in 1949,

    Neither the statute, nor the Constitution, gives a hearing where 
there is no issue to decide. . . . The Constitution protects 
procedural regularity, not as an end in itself, but as a means of 
defending substantive interests. Every summary judgment denies a 
trial upon issues formally valid. Where, as here, the evidence on 
one side is unanswerable, and the other side offers nothing to match 
or qualify it, the denial of a trial invades no constitutional 
privilege. These considerations are particularly appropriate when we 
consider that the Board must conduct its duties in a summary way; 
not, we hasten to add, without observing all the essentials of fair 
administration, but with as much dispatch as is consistent with 
those.

Fay v. Douds, 172 F.2d 720, 725 (2d Cir. 1949).\50\
---------------------------------------------------------------------------

    \50\ Although Judge Hand's analysis of the issue discussed in 
the text remains sound, the jurisdictional basis for Fay being heard 
in federal court prior to a final order in an unfair labor practice 
case has been ``effectively discarded by all circuits'' in 
subsequent decisions. Robert A. Gorman & Matthew W. Finkin, Labor 
Law: Unionization and Collective Bargaining Sec.  4.11 (2d ed. 
2004). See, e.g., NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 
99, 107 (3d Cir. 1979); Squillacote v. International Bhd. of 
Teamsters, Local 344, 561 F.2d 31, 39 (7th Cir. 1977) (collecting 
cases).
---------------------------------------------------------------------------

    The common type of joinder of issues and offer-of-proof procedures 
set forth in the proposed amendments, which parallel even more common 
pleading and summary judgment procedures in the federal and state 
courts, are fully consistent with the statutory requirement of ``an 
appropriate hearing'' and all parties' rights to due process of law.
    The proposed amendments would make clear that, although the 
Statement of Position form asks the non-petitioning parties to state 
their positions on the type, dates, times, and location of the 
election, and the eligibility period, and that the hearing officer 
should solicit all parties' positions on these issues, consistent with 
existing practice, the resolution of these issues remains within the 
discretion of the regional director, and the hearing officer shall not 
permit them to be litigated.
    The proposed amendments would provide that, if, at any time during 
the hearing, the hearing officer determines that the only genuine 
issues remaining in dispute concern the eligibility or inclusion of 
individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the hearing officer will close 
the hearing.
    Congress specified that a hearing take place before an election in 
order to insure that the Board determine that a question concerning 
representation exists prior to directing that an election be held in 
order to resolve the question. Thus, Section 9(c) provides that, after 
the filing of a petition,

the Board shall investigate such petition and if it has reasonable 
cause to believe that a question of representation affecting 
commerce exists, it 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.

Congress did not, however, direct that every disputed issue related to 
the conduct of an election be litigated in the pre-election hearing or 
resolved prior to the conduct of the election.
    Litigation and resolution of individual eligibility issues prior to 
elections is not the norm within our political system. In Board-
supervised elections, it often results in unnecessary litigation and a 
waste of administrative resources as the eligibility of potential 
voters is litigated

[[Page 7331]]

and decided even when their votes end up not affecting the outcome of 
the election. If a majority of employees vote against representation, 
even assuming all the disputed votes were cast in favor of 
representation, the disputed eligibility questions become moot. If, on 
the other hand, a majority of employees choose to be represented, even 
assuming all the disputed votes were cast against representation, the 
Board's experience suggests that the parties are often able to resolve 
the resulting unit placement questions in the course of bargaining and, 
if they cannot do so, either party may file a unit clarification 
petition to bring the issue back before the Board.\51\ As the Eighth 
Circuit observed, ``The NLRB's practice of deferring the eligibility 
decision saves agency resources for those cases in which eligibility 
actually becomes an issue.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 
(8th Cir. 1994). The Sixth Circuit similarly found that ``[s]uch a 
practice enables the Board to conduct an immediate election.'' Medical 
Center at Bowling Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir. 1983).
---------------------------------------------------------------------------

    \51\ See New York Law Publishing Co., 326 NLRB No. 93, slip op. 
at 2 (2001) (``The parties may agree through the course of 
collective bargaining on whether the classification should be 
included or excluded. Alternatively, in the absence of such an 
agreement, the matter can be resolved in a timely invoked unit 
clarification petition.'')
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    The proposed revision of this section of the rules together with 
the elimination of section 101.20(c) removes the basis for the Board's 
holding in Barre-National, Inc., 316 NLRB 877 (1995), that the hearing 
officer must permit full litigation of all eligibility issues in 
dispute prior to the direction of an election, absent consent of all 
parties to defer litigation of the issues. Congress specified that a 
hearing must be held to determine if ``a question concerning 
representation exists.'' Adjudication of the eligibility of the 24 
individuals at issue in Barre-National was not necessary to determine 
whether a question concerning representation existed. Moreover, the 
Board did not hold in Barre-National that the disputed issue had to be 
resolved before the regional director directed and conducted an 
election. In fact, the Board expressly noted, ``our ruling concerns 
only the entitlement to a preelection hearing, which is distinct from 
any claim of entitlement to a final agency decision on any issue raised 
in such a hearing.'' Id. at 878 n. 9. The Board further noted that 
``reviewing courts have held that there is no general requirement that 
the Board decide all voter eligibility issues prior to an election.'' 
Id. As observed above, the Board has frequently deferred final 
adjudication of such issues until after election, permitting disputed 
individuals to vote subject to challenge. Thus, the Board's holding in 
Barre-National required that an evidentiary hearing be held on the 
eligibility issue, potentially delaying the conduct of the election for 
a significant period of time, but the Board both in that case and in 
many others has permitted resolution of the issue to be deferred until 
after the election. Such an outcome serves no apparent purpose. 
Therefore, the proposed amendments would revise the regulations that 
formed the basis of the holding in Barre-National to permit deferral of 
both litigation and resolution of disputes that need not be resolved in 
order to determine that a question of representation exists.
    The unit's scope must be established and found to be appropriate 
prior to the election. But the Board is not required to and should not 
decide all questions concerning the eligibility or inclusion of 
individual employees prior to an election. The Board's preliminary view 
is that deferring both the litigation and resolution of eligibility and 
inclusion questions affecting no more than 20 percent of eligible 
voters represents a reasonable balance of the public's and parties' 
interest in prompt resolution of questions concerning representation 
and employees' interest in knowing precisely who will be in the unit 
should they choose to be represented.
    The proposed amendments are consistent with, but seek to improve, 
the Board's current practice concerning post-election rulings on 
eligibility and inclusion. In a variety of circumstances, most 
typically when the Board has granted a pre-election request for review 
concerning the scope of the unit or employee eligibility, but not ruled 
on the merits until after the election, the Board has addressed the 
question of when a post-election change in the unit described in the 
notice of election requires a new election. The Board has uniformly 
held that a change representing no more than 20 percent of the unit 
does not require a new election. See, e.g., Morgan Manor Nursing and 
Rehabilitation Center, 319 NLRB 552 (1995) (20 percent); Toledo 
Hospital, 315 NLRB 594 (1994) (19.5 percent). In Morgan Manor, the 
Board stated that ``the exclusion of one classification from a 
facilitywide service and maintenance unit comprised of employees in 
nine other specifically named classifications, represents a numerical 
change which we . . . do not view as signifying a sufficient change in 
unit size to warrant setting aside of the election.'' 319 NLRB at 553. 
Similarly, in Toledo Hospital, the Board found, ``We do not view the 
change in the size of the unit here (19.5 percent . . .) as signifying 
a sufficiently significant change in character and scope to warrant 
setting aside the election.'' 315 NLRB at 594. In a small number of 
cases,\52\ courts of appeals have reversed the Board's conclusion that 
a new election was not necessary when the size of the unit was altered 
by less than 20 percent.\53\ These courts have based their holdings on 
the particular nature of the change in the unit, concluding that it 
significantly altered the scope or character of the original unit. More 
importantly, these courts found that, by informing employees that they 
were voting to be represented in one unit and then changing the scope 
and character of the unit after the election, the Board was 
``misleading the voters as to the scope of the unit.'' NLRB v. Lorimar 
Productions, Inc., 771 F.2d 1294, 1302 (9th Cir. 1985) (involving 
approximately 35 percent reduction in size of unit); see also NLRB v. 
Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir. 
1977)(per curiam)(unpublished) (``Where employees are led to believe 
that they are voting on a particular bargaining unit and that 
bargaining unit is subsequently modified post-election, such that the 
bargaining unit, as modified, is fundamentally different in scope or 
character . . ., the employees have effectively been denied the right 
to make an informed choice in the representation election.'')
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    \52\ The Board has identified only two such cases, cited in the 
following footnote.
    \53\ See NLRB v. Beverly Health and Rehabilitation Services, 120 
F.3d 262 (4th Cir. 1997) (per curiam) (unpublished) (reversing 
Morgan Manor, cited in text, involving a 20 percent reduction in 
size of unit); NLRB v. Parsons School of Design, 793 F.2d 503 (2d 
Cir. 1986) (involving a less than 10 percent reduction in size of 
unit).
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    The Board's preliminary view is that adoption of a bright-line 
numerical rule requiring that questions concerning the eligibility or 
inclusion of individuals constituting no more than 20 percent of all 
potentially eligible voters be litigated and resolved, if necessary, 
post-election, best serves the interests of the parties and employees 
as well as the public interest in efficient administration of the 
representation case process.\54\ In order

[[Page 7332]]

to insure that prospective voters are in no way misled as to the scope 
of the unit, under the proposed amendments, if resolution of 
eligibility or inclusion disputes is deferred, the Final Notice to 
Employees of Election would so inform employees (including an 
explanation of how the dispute will be resolved) and the disputed 
employees would be permitted to vote subject to challenge as explained 
below in relation to Sec.  102.67.
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    \54\ The Board has permitted regional directors to defer 
resolution of the eligibility of an even higher percentage of 
potential voters. See, e.g., Northeast Iowa Telephone, 341 NLRB 670, 
671 (2004) (``While we recognize that allowing 25 percent of the 
electorate to vote subject to challenge is not optimal, the 
Employer's opportunity to raise its supervisory issues remains 
preserved through appropriate challenges and objections to the 
election or through a subsequent unit clarification petition.'')
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    Consistent with existing practice, the proposed amendments also 
provide that a party that has been served with a subpoena may be 
required to file or orally present a motion to quash prior to the five 
days provided in section 11(1) of the Act. Both the Board and federal 
courts have construed the five days provided in the Act as a maximum, 
not a minimum. The Casehandling Manual provides:

    There is case authority which holds that the 5-day period is a 
maximum and not a minimum. Absent a showing of prejudice, the 
subpoenaed party may be required to file and argue its petition to 
revoke and, if ordered by the Administrative Law Judge or hearing 
officer, produce subpoenaed testimony and documents at hearing in 
less than 5 days from receipt of the subpoena. See Packaging 
Techniques, Inc., 317 NLRB 1252, 1253-54 (1995) and NLRB v. 
Strickland, 220 F.Supp. 661, 665-66 (DCW. Tenn., 1962), affd. 321 
F.2d 811, 813 (6th Cir. 1963).

Section 11782.4; see also Brennan's French Restaurant, 129 NLRB 52, 54 
n.2 (1960) (judge's ruling found moot by Board). The proposed 
amendments would codify existing practice vesting discretion in the 
hearing office to determine how much time a party served with a 
subpoena should be accorded to move to quash up to the statutory 
maximum of five days. As the judge reasoned in Packaging Techniques, 
317 NLRB at 1254, ``the case law suggests a common sense application of 
the rule.''
    Finally, the proposed amendments provide that at the close of the 
hearing, parties would be permitted to make oral arguments on the 
record. Parties would be permitted to file briefs only with the 
permission of the hearing officer and within the time permitted by and 
subject to any other limitations imposed by the hearing officer. Given 
the recurring and often uncomplicated legal and factual issues arising 
in pre-election hearings, it is the Board's preliminary view that 
briefs are not needed in every case to permit the parties to fully and 
fairly present their positions or to facilitate prompt and accurate 
decisions.

Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; 
Action by the Regional Director; Review of Action by the Regional 
Director; Statement in Opposition to Appeal; Final Notice of Election; 
Voter List

    Consistent with the proposed amendment to Sec.  102.66, the 
proposed amendments to Sec.  102.67 would provide that if the regional 
director finds at any time that the only issues remaining in dispute 
concern the eligibility or inclusion of employees who would constitute 
less than 20 percent of the unit if they were found to be eligible to 
vote, the regional director shall direct that those individuals be 
permitted to vote subject to challenge. The proposed amendments would 
further provide that the Final Notice to Employees of Election shall 
explain that such individuals are being permitted to vote subject to 
challenge and the procedures through which their eligibility will be 
resolved.
    The proposed amendments would give the regional director discretion 
to issue a direction of election with a decision to follow no later 
than the time of the tally of votes. Because the proposed amendments 
would defer the parties' right to request Board review of pre-election 
rulings until after the election, in order to avoid delaying the 
conduct of the election, regional directors may exercise their 
discretion to defer issuance of the decision up to the time of the 
tally without prejudice to any party.
    Because the parties will have fully stated their positions on the 
type, dates, times, and locations of the election either in their 
Statements of Position or at the hearing, under the proposed amendments 
the regional director would address these election details in the 
direction of election and issue the Final Notice to Employees of 
Election with the direction. Consistent with both the statutory purpose 
for conducting elections and existing practice, the proposed amendments 
would provide that the regional director shall set the election for the 
earliest date practicable.
    Both the decision and direction of election and the Final Notice to 
Employees of Election would be electronically transmitted to all 
parties when they have provided email addresses to the regional office. 
When the parties have provided email addresses of affected employees, 
the regional office would also transmit the notice electronically to 
those employees.\55\ In addition, the employer would be required to 
post the Final Notice to Employees of Election in those places where it 
customarily posts notices to employees as well as electronically if the 
employer customarily uses electronic means to communicate with its 
employees. Because of the potential unfairness of conclusively 
presuming that the employer received the notice if it does not inform 
the region to the contrary within five work days, the proposed 
amendments would also eliminate the provision in Sec.  103.20 creating 
such a conclusive presumption.
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    \55\ The proposed rules provide in Sec. Sec.  102.62, 102.63, 
and 102.67 that both the preliminary and final eligibility lists 
include telephone numbers as well as email addresses (when 
available) both to facilitate use of the final list for the purposes 
described in Excelsior and to permit the regions potentially to test 
the use of automated phone calls for the purpose of providing prompt 
notice of the election to each eligible voter.
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    Because of the provision of a mandatory and more detailed initial 
notice of election, as described in relation to Sec.  102.60 above, for 
manual and electronic posting of the final notice by employers, and for 
electronic transmission of the final notice of election to individual, 
eligible voters, in all cases where such notice is feasible, the 
proposed rules would also reduce the minimum time between the posting 
of the final notice and the election from three to two work days.
    The Board anticipates that continuing advances in electronic 
communications and continuing expanded use of email may, in the near 
future, enable regional offices in virtually all cases to transmit the 
final notice of election directly to all eligible voters, rendering 
employer posting of the final notice of election unnecessary. The Board 
similarly anticipates that the proposed amendments' adoption of dual 
notice procedures will be an interim measure. During this interim 
period, while the employer remains obligated to post the final notice 
of election, the Board does not intend that the failure of a regional 
office to provide electronic notice to any eligible voter would be the 
basis for overturning the results of an election under the proposed 
amendments.
    The proposed amendments would make the same changes in the form, 
content, and service of the list of eligible voters that the employer 
must file after a direction of election as were described above in 
relation to Sec.  102.62 after entry into any form of consent or 
stipulated election agreement. In addition, because of advances in 
recordkeeping technology and because in most cases the employer will 
have provided a preliminary list of employees in the proposed or 
alternative units as described in relation to Sec.  102.63 above, the 
proposed amendments would also

[[Page 7333]]

reduce the time during which the list must be filed and served from 
seven days to two work days. Consistent with existing practice, 
reflected in Mod Interiors, Inc., 324 NLRB 164 (1997), and Casehandling 
Manual section 11302.1, an election shall not be scheduled for a date 
earlier than ten days after the date by which the eligibility list must 
be filed and served, unless this requirement is waived by the 
petitioner and any other parties whose names will appear on the ballot.
    The proposed amendments would eliminate the regional director's 
authority to transfer a case at any time to the Board for decision. 
This authority has rarely been used and, when it has been used, has led 
to extended delays in the disposition of petitions. See, e.g., 
Centurion Auto Transport, Inc., 329 NLRB 394 (1999) (transferred 
December 1994, decided September 1999); Roadway Package System, Inc., 
326 NLRB 842 (1998) (transferred May 1995, decided August 1998); PECO 
Energy Co., 322 NLRB 1074 (1997) (transferred Sept 1995, decided 
February 1997); Johnson Controls, Inc., 322 NLRB 669 (1996) 
(transferred June 1994, decided December 1996).
    As under the current rules, if the regional director dismisses the 
petition, parties would be permitted to file a request for review with 
the Board. If the regional director directs an election, however, the 
proposed amendments would defer all parties' right to request Board 
review until after the election. The proposed amendments would retain 
the provisions for a request for special permission to appeal a 
determination by the regional director, modified as described above in 
relation to Sec.  102.65 above.
    The Board's current Statements of Procedures provide that elections 
``normally'' are delayed for a period of at least 25 days after the 
regional director directs that an election should be conducted, in 
order to provide the parties an opportunity to request Board review of 
the regional director's determinations.

    The parties have the right to request review of any final 
decision of the Regional Director, within the times set forth in the 
Board's Rules and Regulations, on one or more of the grounds 
specified therein. Any such request for review must be a self-
contained document permitting the Board to rule on the basis of its 
contents without the necessity of recourse to the record, and must 
meet the other requirements of the Board's Rules and Regulations as 
to its contents. The Regional Director's action is not stayed by the 
filing of such a request or the granting of review, unless otherwise 
ordered by the Board. Thus, the Regional Director may proceed 
immediately to make any necessary arrangements for an election, 
including the issuance of a notice of election. However, unless a 
waiver is filed, the Director will normally not schedule an election 
until a date between the 25th and 30th days after the date of the 
decision, to permit the Board to rule on any request for review 
which may be filed.

29 CFR 101.21(d).

    Thus, while the rules provide for discretionary review and 
expressly provide that requesting such review shall not operate as a 
stay of the election, the Statements of Procedures suggest that there 
should normally be a waiting period of 25-30 days. This is the case 
even though such requests are filed in a small percentage of cases, are 
granted in an even smaller percentage,\56\ and result in orders staying 
the conduct of elections in virtually no cases at all. For these 
reasons, such a waiting period appears to serve little purpose even 
under the existing rules permitting a pre-election request for review.
---------------------------------------------------------------------------

    \56\ A comparison of the total number of elections to the total 
number of grants of review (including grants of review after 
petitions were dismissed) during the period 2004 to 2013 reveals 
that review was granted in less than 1 percent of all representation 
cases in which an election was conducted and in approximately 15 
percent of those cases in which a request was filed. See NLRB Annual 
Reports (Fiscal Years 2004-2009) and NLRB Office of the General 
Counsel, Summaries of Operations (Fiscal Years 2004-2012). Data for 
2010-2013, after publication of the Annual Reports was discontinued, 
was produced from the NLRB's electronic filing system.
---------------------------------------------------------------------------

    The proposed amendments would eliminate the pre-election request 
for review and the accompanying waiting period. All pre-election 
rulings would remain subject to review post-election if they have not 
been rendered moot.
    The Board anticipates that the proposed amendments would eliminate 
unnecessary litigation concerning issues that may be and often are 
rendered moot by the election results and thereby reduce the expense of 
participating in representation proceedings for the parties as well as 
the government. Similarly, by consolidating all Board review post-
election, the proposed rules would relieve parties of the burden of 
petitioning for pre-election review in order to preserve issues that 
may be rendered moot by the election results and, even if that is not 
the case, would allow parties to raise all issues in a single petition 
and thereby preserve both private and public resources. In other words, 
the Board anticipates that the proposed amendments would not simply 
shift litigation from before to after elections, but would 
significantly reduce the total amount of litigation.

Sec. 102.68 Record; What Constitutes; Transmission to Board

    The proposed amendments to this section would conform its contents 
to the amendments to other sections.

Sec. 102.69 Election Procedure; Tally of Ballots; Objections; Requests 
for Review of Directions of Elections, Hearings; Hearing Officer 
Reports on Objections and Challenges; Exceptions to Hearing Officer 
Reports; Requests for Review of Regional Director Reports or Decisions 
in Stipulated or Directed Elections

    The proposed amendments to Sec.  102.69 would maintain the current 
time period (seven days after the tally) for the filing of objections 
to the conduct of the election or to conduct affecting the results of 
the election. The current rules provide a filing party with an 
additional seven days to file an offer of proof. The proposed 
amendments would require that a party filing objections simultaneously 
file a written offer of proof supporting the objections as described 
above in relation to Sec.  102.66(b). The proposed change is based on 
the view that objections to a secret-ballot election should not be 
filed by any party lacking factual support for the objections and, 
therefore, that a filing party should be able to describe the facts 
supporting its objections at the time of filing. The proposed 
amendments codify existing practice permitting parties to file, but not 
serve, evidence in support of objections.
    The proposed amendments would also codify existing practice 
permitting the regional director to investigate the objections by 
examining evidence offered in support thereof to determine if a hearing 
is warranted. Thus, if there are potentially determinative challenges 
or the regional director determines that objections together with an 
accompanying offer of proof raise a genuine issue of material fact, the 
proposed amendments would require that the regional director serve a 
notice of hearing setting the matters for hearing within 14 days of the 
tally or as soon thereafter as practicable. If the resolution of 
questions concerning the eligibility of individuals in the unit was 
deferred by the hearing officer, as described in Sec.  102.66 above, 
and the votes of such individuals are potentially outcome 
determinative, the deferred questions would be addressed in the post-
election hearing. The proposed amendments would further provide that 
any such hearing would open with the parties stating their positions on 
any challenges and objections, followed by

[[Page 7334]]

offers of proof as described above in relation to Sec.  102.66.
    The proposed amendments would provide that if no potentially 
determinative challenges exist and no objections are filed, any party 
may file a request for review of the regional director's decision and 
direction of election within 14 days of the tally. If there are 
potentially determinative challenges or objections, a request for 
review of the regional director's decision and direction of election 
may be filed within 14 days of the regional director's disposition of 
the post-election disputes and may be consolidated with any request for 
review of post-election rulings.
    The proposed amendments would create a uniform procedure in those 
cases in which there are potentially outcome determinative challenges 
or the regional director determines that objections together with an 
accompanying offer of proof raise genuine issues of material fact that 
must be resolved. Adopting the procedure currently contained in 
Sec. Sec.  102.69(d) and (e), the proposed amendments would provide 
that, in such cases, the regional director shall provide for a hearing 
before a hearing officer who shall, after such hearing, issue a report 
containing recommendations as to the disposition of the issues. Within 
14 days after issuance of such a report, any party may file exceptions 
with the regional director. Finally, consistent with the proposed 
changes described above in relation to Sec.  102.62, the proposed 
amendments would make Board review of a regional director's resolution 
of post-election disputes discretionary in cases involving directed 
elections as well as those involving stipulated elections.\57\ The 
Board anticipates that this proposed change would leave a higher 
percentage of final decisions concerning disputes arising out of 
representation proceedings with the Board's regional directors who are 
members of the career civil service.
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    \57\ The Board anticipates that permitting it to deny review of 
regional directors' resolution of post-election disputes--when a 
party's request raises no compelling grounds for granting such 
review--would eliminate the most significant source of 
administrative delay in the finality of election results. Together 
with simultaneous filing of objections and offers of proof and 
prompt scheduling of post-election hearings, when they are 
necessary, the Board anticipates that the proposed amendments would 
reduce the period of time between the tally of votes and 
certification of the results. Such an outcome would reduce the time 
during which employers are uncertain about their legal obligations 
because, after a tally showing a majority vote in favor of 
representation, employers violate the duty to bargain by 
unilaterally changing the status quo only if a representative is 
ultimately certified. See Mike O'Conner Chevrolet, 209 NLRB 701, 703 
(1974).
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Subparts D and E, Sec. Sec.  102.73 Through 102.88, Procedures for 
Unfair Labor Practice and Representation Cases Under Section 8(b)(7) 
and 9(c) of the Act and Procedures for Referendum Under Section 9(e) of 
the Act

    The proposed amendments in these two subparts are intended solely 
to conform their provisions to the amendments in Subpart C described 
above.

Subpart I--Service and Filing of Papers

Sec. 102.112 Date of Service; Date of Filing

    The proposed amendments would correct an omission concerning the 
effective date of service by electronic mail.

Sec. 102.113 Methods of Service of Process and Papers by the Agency; 
Proof of Service

    The proposed amendments would add electronic mail as an approved 
method of service of Board papers other than complaints, compliance 
specifications, final decisions and orders in unfair labor practice 
cases, and subpoenas. The existing rules include regular mail, private 
delivery service and facsimile transmission (with consent), along with 
personal service and certified and registered mail. Section 102.114 has 
provided for service of parties' papers by electronic mail since 2009.

Sec. 102.114 Filing and Service of Papers; Form of Papers; Manner and 
Proof of Filing and Service; lectronic filings

    The proposed amendments to this section are intended solely to 
conform its provisions to the amendments in Subpart C described above.

Part 103, Subpart B--Election Procedures

Sec. 103.20 Posting of Election Notices

    The proposed amendments eliminate this section, the only section of 
part 103 of the regulations governing procedures in representation 
proceedings, and integrate its contents into part 102, modified as 
explained above in relation to Sec.  102.67.

Request for Comment Regarding Blocking Charges

    Just as the Board seeks through the proposed amendments to prevent 
any party from using the hearing process established under section 9 of 
the Act to delay the conduct of an election though unnecessary 
litigation, the Board also believes that no party should use the unfair 
labor practice procedures established under sections 8 and 10 to 
unnecessarily delay the conduct of an election. As set forth in the 
Casehandling Manual, ``The Agency has a general policy of holding in 
abeyance the processing of a petition where a concurrent unfair labor 
practice charge is filed by a party to the petition and the charge 
alleges conduct that, if proven, would interfere with employee free 
choice in an election, were one to be conducted.'' Section 11730. This 
``blocking charge'' policy is not set forth or implemented in the 
current rules, but it has been applied by the Board in the course of 
adjudication.\58\
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    \58\ See, e.g., Bally's Atlantic City, 338 NLRB 443 (2002). See 
generally Berton B. Subrin, The NLRB's Blocking Charge Policy: 
Wisdom or Folly?, 39 LAB. L.J. 651 (1988).
---------------------------------------------------------------------------

    The Board therefore specifically invites comment on whether any 
final amendments should include changes in the current blocking charge 
policy as described in sections 11730 to 11734 of the Casehandling 
Manual or whether any changes in that policy should be made by the 
Board through means other than amendment of the rules. The Board 
further specifically invites interested parties to comment on whether 
the Board should provide that (1) any party to a representation 
proceeding that files an unfair labor practice charge together with a 
request that it block the processing of the petition shall 
simultaneously file an offer of proof of the type described in relation 
to Sec. Sec.  102.66(b) and 102.69(a); (2) if the regional director 
finds that the party's offer of proof does not describe evidence that, 
if introduced at a hearing, would require that the processing of the 
petition be held in abeyance, the regional director shall continue to 
process the petition; (3) the party seeking to block the processing of 
a petition shall immediately make the witnesses identified in its offer 
of proof available to the regional director so that the regional 
director can promptly investigate the charge as required by section 
11740.2(c) of the Casehandling Manual; (4) unless the regional director 
finds that there is probable cause to believe that an unfair labor 
practice was committed that requires that the processing of the 
petition be held in abeyance, the regional director shall continue to 
process the petition; (5) if the Regional Director is unable to make 
such a determination prior to the date of the election, the election 
shall be conducted and the ballots impounded; (6) if the regional 
director finds that

[[Page 7335]]

there is probable cause to believe that an unfair labor practice was 
committed that would require that the processing of the petition be 
held in abeyance under current policy, the regional director shall 
instead conduct the election and impound the ballots; (7) if the 
regional director finds that there is probable cause to believe that an 
unfair labor practice was committed that would require that the 
petition be dismissed under section 11730.3 of the Casehandling Manual, 
the regional director shall instead conduct the election and impound 
the ballots; (8) the blocking charge policy is eliminated, but the 
parties may continue to object to conduct that was previously grounds 
for holding the processing of a petition in abeyance and the objections 
may be grounds for both overturning the elections results and 
dismissing the petition when appropriate; or (9) the blocking charge 
policy should be altered in any other respect.

V. Response to Dissent

    The comments of our dissenting colleagues, set forth below, make 
clear that the Board is unanimous in its goal to improve the Board's 
representation case procedures. We acknowledge, and share, our 
colleagues' commitment to a constructive dialogue about the important 
issues involved in this rulemaking. The dissent presents arguments 
concerning both the process followed by the Board in issuing this NPRM 
and the content of the proposed amendments. We address here the 
process-related points, and some of the broader issues raised by the 
dissent concerning the substance of the proposals. These latter issues, 
along with the more specific points made in the dissent concerning 
particular aspects of the proposed reforms, will be examined carefully 
in the course of the Board's consideration of the NPRM. We look forward 
to further exchanges of ideas among the Board members on these issues, 
especially in light of the public comments.
    First, our decision to issue the NPRM in its original form, which 
the dissent specifically criticizes, reflects our judgment that such 
re-issuance is the most efficient and effective rulemaking process to 
follow at this time. The NPRM presents a range of possible changes to 
the Board's representation case procedures aimed at more effectively 
administering the Act. We believe that the original NPRM still frames 
the issues well and raises the appropriate concerns and questions for 
public comment; that relevant circumstances have not changed in any 
significant way since the NPRM first issued in June of 2011; and that 
its re-issuance is the most efficient and fair mechanism to elicit 
broad and detailed public input. All Board Members have had the 
opportunity to consider the matters presented, and a majority has 
decided that the proposal issued in 2011 deserves full consideration by 
the Board at this time.
    Contrary to the dissent's implication, the proposal does not in any 
way suggest the Board's prejudgment of the merits of the proposals and, 
likewise, does not imply rejection of any of the matters raised in 
prior comments. The NPRM is simply a mechanism for examining possible 
changes to the Board's election procedures and soliciting public 
participation, not a declaration that the Board has committed itself to 
adopting all the proposals. In our view, the function of a proposed 
rule is to raise--not resolve--issues that should be considered. This 
is consistent with the APA's notice-and-comment process, which is 
fundamentally predicated on the rulemaking agency's open mind: We are 
in no way ``unduly tether[ed]'' to the proposal.
    Indeed, the NPRM is being re-issued precisely for the purpose of 
providing a legally appropriate, administratively efficient, and 
demonstrably fair process for considering all the issues and comments 
raised in the prior proceeding, while giving an opportunity for any 
additional commentary. This allows all the material submitted to be 
carefully considered in a single consolidated proceeding. Over 65,000 
comments were filed in response to the original NPRM, and over 400 
pages of transcript were added to the record from the public hearing 
held in July, 2011. Reissuing the proposal is a procedurally 
appropriate mechanism for the Board to consider all of the previous 
submissions while also inviting comments regarding any new issues that 
may have arisen, so that all may be considered when making a 
determination whether or how to change the representation case 
procedures. Many members of the public devoted a substantial amount of 
time to addressing these issues in response to the original NPRM, and 
we believe they should not be required to duplicate prior efforts in 
order to have their views considered by the Board.
    We also believe that circumstances have not significantly changed 
since June 22, 2011, when the NPRM was initially issued. While the 
Board adopted a limited set of the proposed amendments on December 22, 
2011, those changes were effective for less than a month before the 
United States District Court for the District of Columbia struck down 
the rule and held that ``representation elections will have to continue 
under the old procedures.'' The Board then immediately suspended 
processing cases under the December 2011 amendments and returned to its 
previously existing rules.
    Likewise, neither the Board's decision in Specialty Healthcare & 
Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), affd sub. nom, 
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 
2013), nor the General Counsel's Section 10(j) initiative against 
discriminatory discharges during election campaigns has had, or is 
likely to have, a significant impact on representation case processing 
by the Board. Accordingly, neither development undermines the premises 
of the NPRM. Specialty Healthcare held (slip op. 14) in relevant part 
that ``the traditional community of interest test . . . will apply as 
the starting point for unit determinations in all cases not governed by 
the Board's Health Care Rule,'' and sets forth a clear test--using a 
formulation drawn from Board precedent and endorsed by the District of 
Columbia Circuit--for those cases in which an employer contends that a 
proposed bargaining unit is inappropriate because additional groups of 
employees are excluded from the bargaining unit. These issues are not 
addressed by the NPRM, which does not affect the appropriateness of 
bargaining units. Likewise, Specialty Healthcare does not implicate 
representation-case procedures, which are addressed by the NPRM. Before 
Specialty Healthcare, regional directors were required to determine 
whether the petitioned-for unit was appropriate prior to directing an 
election but were not required to resolve all individual eligibility 
issues in the pre-election decision, and both remain true after 
Specialty Healthcare.
    As for the General Counsel's 2010 Section 10(j) initiative, the 
proposals contained in the NPRM are not designed to deter, minimize, or 
counteract unfair labor practices by either employers or unions during 
representation campaigns. Rather, the NPRM proposals concern 
representation case procedures. Limiting unfair labor practices is 
beyond the scope of this rulemaking, and, contrary to the dissent's 
implication, the NPRM is not designed to shorten the time it takes to 
conduct an election in order to reduce the opportunity for unlawful 
restraint and coercion of employees. The extensive

[[Page 7336]]

commentary by the dissent on this issue is beside the point.\59\
---------------------------------------------------------------------------

    \59\ Nevertheless, we agree with the dissent that the Act 
deserves to be enforced vigorously in all contexts, and look forward 
to working with our colleagues on ways we can enforce the unfair 
labor practice provisions of the Act more effectively.
---------------------------------------------------------------------------

    Secondly, the NPRM does not ``contradict specific provisions in the 
Act'' as the dissent claims in arguing that all voter eligibility 
issues must be litigated and resolved in a pre-election hearing. The 
only issue required by Section 9(c)(1) to be resolved at the pre-
election hearing is ``whether a question of representation exists.'' 
The proposed rule requires that such a hearing be conducted and 
provides an orderly and efficient process for resolving this issue, 
absent the parties voluntarily entering into an election agreement. It 
ensures that a pre-election hearing will provide a record upon which 
the regional director can determine the scope and appropriateness of 
the voting unit. This determination would be made prior to the 
election, and a written unit description would be provided to the 
employees in the notice of election. The dissent does not claim 
otherwise. As to voter eligibility issues, Section 9 of the Act neither 
grants parties the right to litigate all individual eligibility issues 
at a pre-election evidentiary hearing, nor does it mandate the pre-
election resolution of all voter eligibility issues. Current practice 
already defers resolution of voter eligibility issues in certain 
circumstances. Indeed, the traditional election-day challenge procedure 
results in the resolution of eligibility issues after the election has 
taken place. These long-standing procedures are not inconsistent with 
the Act and do not violate any congressional command. Under the NPRM, 
the resolution of issues affecting voter eligibility would be deferred 
until after the election in those circumstances where the issues do not 
affect enough voters to justify delaying the election, and the 
resolution of the issues is unnecessary to determine whether the 
proposed unit is appropriate or to ensure compliance with other 
statutory provisions, such as Section 9(b)(1). Nothing in the NPRM 
would alter the fact that other voter eligibility issues can and will 
be resolved prior to the election.
    The only remaining question is what purpose it serves to take 
evidence at the pre-election hearing on issues which will not be 
resolved before the election. The dissent urges that ALL eligibility 
issues--even those whose resolution has historically been deferred 
until after the election--be litigated in the pre-election hearing. It 
serves no statutory purpose to litigate every individual eligibility 
issue at the pre-election hearing, and we do not believe, at least at 
this preliminary stage of the rulemaking process, that the Board should 
oblige the parties and the regional offices to incur the cost of 
litigating issues that are likely to be mooted by the results of the 
election itself. In like manner, the hearing process is further managed 
in the NPRM through procedures designed to avoid the litigation of 
issues which are irrelevant to whether there is a question of 
representation or as to which the parties are not in dispute--changes 
which would be consistent with the statute for the same reasons. The 
NPRM presents this weighing of the relative costs, delays, burdens, and 
benefits of the proposed procedural changes for comment.
    The legislative history cited by the dissent does not preclude the 
proposed rule changes. The dissent argues that the 1947 Congress 
intended to foreclose the Board from deferring voter eligibility issues 
until after the election. But the Act clearly says nothing of the kind. 
Indeed, Congress knew about the Board's challenge procedure--which 
expressly deferred decision of voter eligibility until after the 
election--and chose not to forbid this procedure. Still more 
significantly, though it changed the timing of the hearing, the crucial 
language defining the scope of the hearing--the terms ``appropriate 
hearing'' and ``question of representation''--were left entirely 
unchanged in 1947. These terms are all original to the 1935 Act. Thus, 
the dissent errs in relying on Senator Taft's statements twelve years 
later, in 1947, about how he viewed statutory language that was not 
being changed; these statements are ``in no sense a part of the 
legislative history.'' Huffman v. OPM, 263 F.3d 1341, 1354 (Fed. Cir. 
2001), and cases discussed therein. For the same reason the 1947 
amendments could not ``repudiat[e]'' Supreme Court caselaw definitively 
interpreting unamended statutory terms. See discussion of the Supreme 
Court's Inland Empire decision at note 97 of the dissent. Similarly, 
the legislative history cited by the dissent regarding changes to the 
statute which were rejected by Congress cannot be read into the 
statute. Failed enactments, also raised by the dissent, are just that--
failed. They do not make law. See Solid Waste Agency of N. Cook County 
v. U.S. Army Corps of Engineers, 531 U.S. 159, 169-70 (2001).
    The proposed rule would not change the role of the hearing officer 
at the pre-election hearing in any way contrary to the statutory 
requirement that the hearing officer ``not make any recommendations'' 
with respect to the existence of a question of representation. Indeed, 
Sec.  102.66(i) of the proposed rule specifically provides that the 
hearing officer ``shall make no recommendations,'' precisely the same 
language in Sec.  102.66(e) of the current rules. Nor, contrary to the 
dissent, does the NPRM direct hearing officers to exclude ``most 
evidence'' from the pre-election hearing. Proposed Sec.  102.64 
provides that it is the duty of the hearing officer at the pre-election 
hearing to ``obtain a full and complete record'' so that the regional 
director can discharge his duties under Section 9(c) and determine 
whether a question of representation exists. The hearing officer would 
not be given an improper role under the amendments and the NPRM does 
not suggest any changes inconsistent with Section 9(c)(1).
    Likewise, the NPRM does not deny Regional Director or Board review 
of representation issues. Appeal to both remains available under the 
proposed rule. See Sec. Sec.  102.65, 102.67, 102.69. Nor does the 
proposed rule conflict with Section 3(b) of the Act. Nothing in the 
proposal would change a party's right to seek a stay of regional 
proceedings--which has always required special permission--and pre-
election Board review would similarly be obtainable by special 
permission under the proposals. As the Supreme Court has stated in a 
related context: ``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.'' NLRB v. Duval Jewelry Co. of Miami, Inc., 357 U.S. 1, 6-7 
(1958). This is consistent with the plain language of Section 3(b), by 
which ``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).
    Contrary to the dissent's assertions, the primary purpose of the 
rule is not ``to shorten the timeframe applicable to all elections,'' 
either to ``limit unlawful restraint and coercion'' or to diminish 
freedom of speech. Instead, the NPRM attempts to focus on identifying 
and minimizing unnecessary barriers to the fair and expeditious 
resolution of questions concerning representation. Unnecessary 
litigation, even when not accompanied by delay, can and should be 
eliminated. It is costly and wasteful to employees, to employers, to 
unions, to the Agency, and ultimately to the

[[Page 7337]]

public. Indeed, the mere threat of unnecessary litigation is unfair as 
parties can be unjustly compelled to enter stipulations on unreasonable 
terms or on terms they cannot intelligently evaluate, simply to avoid 
the costs and delays inherent in litigation. Reducing unnecessary delay 
is therefore an important purpose of the proposed changes. And, 
notwithstanding the dissent's expressed ``disappoint[ment] . . . that 
the NPRM fails to squarely state that it is designed to accelerate 
representation elections, '' in fact, the NPRM clearly regards more 
timely elections as a natural and salutary effect of eliminating 
unnecessary and duplicative litigation procedures. But reducing 
unnecessary delay is by no means the sole purpose of the proposed 
changes. As the NPRM explains, the proposals are not only designed to 
remove unnecessary barriers to the fair and expeditious resolution of 
questions concerning representation, but also to simplify 
representation-case procedures and render them more transparent and 
uniform across regions, to reduce the cost of representation 
proceedings to the public and the agency by eliminating unnecessary 
litigation, and to modernize the Board's representation procedures.
    The dissent observes that the median time for conducting elections 
in all cases is 38 days (which it asserts means that most elections are 
conducted promptly) and thus that the NPRM should focus not on the 
election process as a whole, but only on the relatively rare instances 
where elections are delayed--as the dissent interprets delay. The 
dissent's position is mistaken. Many of the proposed changes to our 
representation-case procedure will impact only cases which currently 
involve a pre-election hearing. The current median time for conducting 
elections in those cases is much longer than 38 days. For most of the 
past decade, when a pre-election hearing was conducted, the median 
number of days from petition to election has hovered in the mid-60s. 
This undeniably significant difference highlights the flawed factual 
predicate for the dissent's position.
    The dissent also argues that the Board's ability to meet current 
agency time targets for elections undercuts the need for rulemaking. 
But those time targets have never been intended to establish an ideal 
standard. Rather, they reflect judgments about what, as a practical 
matter, could be achieved based on the Agency's then-current 
procedures--including, of course, any built-in inefficiencies. The 
history of congressional and administrative efforts in the 
representation-case area represents a progression of reforms aimed at 
reducing the amount of time required to ultimately resolve questions 
concerning representation, which, as Congress has found, can disrupt 
the workplace. With each reform, the waiting time before employees have 
an opportunity to vote has been reduced. The result has been widely 
viewed as progress, and the achievement of the full measure of time 
savings by agency employees has been lauded as success. The Board 
conceives of the proposed amendments as the next step for the agency in 
improving its performance of this critical part of its statutory 
mission. In sum, that the Board seeks to, and does, meet its current 
time targets in most instances may be commendable, but it is also 
irrelevant to whether additional improvements may be made by amending 
the rules.\60\
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    \60\ Thus, it is only under the dissent's faulty reasoning that 
our colleagues can claim that there is ``no election delay'' in 
cases where the agency is meeting its time targets.
---------------------------------------------------------------------------

    The dissent faults the NPRM for failing to propose a minimum time 
period between the petition and election, to preserve the parties' 
opportunity to campaign. Notably, the Act itself does not set forth any 
such minimum time period to campaign; Congress has rejected proposals 
that would have set forth a minimum time period; and the Board's 
current rules and regulations do not set forth any such time periods. 
Contrary to the dissent's suggestion, the General Counsel's time 
targets for representation case processing do not reflect any judgment 
by this or any other Board that any particular time is a necessary 
minimum for campaigning. Even the dissent disclaims knowledge of the 
``precise point in time when shortening the timetable applicable to all 
Board-conducted elections impermissibly denies employers, unions and 
employees the right to engage in speech protected by the Act and the 
First Amendment.'' Our tentative conclusion at this point is that these 
matters are likely not amenable to resolution in this rulemaking. If, 
as applied in particular cases, there is an apparent lack of adequate 
time to campaign, this can be addressed by the Board in the context of 
the particular case. Again, the proposed rules themselves do not compel 
any particular number of days or time periods for holding or not 
holding elections.\61\
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    \61\ Relatedly, the Board does not anticipate that employees 
will have to face ``vote now, understand later'' dilemmas under the 
proposed rules. The Board recognizes that there is value to 
providing employees with greater guidance than they receive under 
the current representation case procedures. It is for that very 
reason that the Board is proposing in Sec. Sec.  102.63 and 102.67 
that the initial notice that must be posted before any pre-election 
hearing is held will notify employees of their rights and of the 
filing of the petition, and that the final notice of election will 
notify employees if the regional director directs that certain 
employees be permitted to vote subject to challenge and what that 
means. In short, the NPRM proposals are designed to give employees 
more, not less, information, than they currently enjoy.
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    Finally, the dissent faults the Board for failing to address 
specific issues responsible for delaying elections. However, the 
dissent itself fails to identify any such issues other than blocking 
charges, as to which, as the dissent acknowledges, the NPRM already 
invites comments. The proposals also address delay in conducting 
elections that may be attributable to the Board in cases where no 
blocking charges have been filed. The dissent recommends in addition 
that the Board consider unspecified reforms of the Board's internal 
procedures concerning election-related issues. We agree that internal 
Board case-management practices, which are not addressed by the Board 
in rulemaking, can affect the timeliness of representation-case 
processing. While efforts have been made in this area over the past 
several years, we welcome discussions among the members of the Board 
concerning further improvements that might be possible.

VI. Dissenting Views of Members Philip A. Miscimarra and Harry I. 
Johnson III

    Members Philip A. Miscimarra and Harry I. Johnson III, dissenting.
    We dissent from this Notice of Proposed Rulemaking (``NPRM''). Like 
our colleagues, we believe the Board should do everything within its 
power to ensure that representation elections give effect to employee 
free choice consistent with the National Labor Relations Act (``NLRA'' 
or ``Act''). We support rulemaking if it is necessary to address 
relevant issues consistent with the Board's authority and the Act's 
requirements. We are not irrevocably committed to the status quo, nor 
do we criticize our colleagues for their desire to more effectively 
protect and enforce the rights and obligations of parties subject to 
the Act. We share the same desire, and remain committed to work as a 
full Board to further our responsibilities to everyone covered by the 
Act.
    Our points of departure relate to important considerations about 
this NPRM that, in our view, make it contrary to the Act and ill-
advised.
    First, the process governing Board-conducted elections is compelled 
by the statute to a significant degree. The Act

[[Page 7338]]

gives the Board a single-minded responsibility ``in each case'' 
regarding elections, which is to ``assure to employees the fullest 
freedom in exercising the rights guaranteed by [the] Act.'' \62\ The 
Act protects the right of employees to ``engage in'' protected 
concerted activities and ``to refrain from any or all of such 
activities.'' \63\ The Board's conduct of elections may not be tilted 
against or in favor of any party or outcome.\64\ Finally, the rules 
governing union representation and collective bargaining are 
complicated and unknown to many or most employees and employers in the 
United States. The NPRM does not adequately take into account these 
considerations, and it contradicts specific provisions in the Act. 
Among other things, the NPRM would impermissibly conduct expedited 
elections before a hearing is held regarding fundamental questions such 
as who is actually eligible to vote, thereby resulting in an ``election 
now, hearing later.'' The NPRM would improperly shorten the time needed 
for employees to understand relevant issues, compelling them to ``vote 
now, understand later.'' It would also curtail the right of employers, 
unions and employees to engage in protected speech.
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    \62\ NLRA Sec. 9(b), 29 U.S.C. 159(b) (emphasis added).
    \63\ Id. Sec. 7, 29 U.S.C. 157.
    \64\ See, e.g., NLRB v. Action Automotive, 469 U.S. 490, 498 
(1985) (the Act ``mandate[s] that the Board remain wholly neutral as 
between the contending parties in representation elections'') 
(internal quotation omitted). See also note 80, infra.
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    Second, the substance of the NLRA includes rights, obligations and 
restrictions affecting how employers, unions and employees may conduct 
themselves during election campaigns. Most important, the Act prohibits 
employers and unions from restraining or coercing employees in the 
exercise of protected rights.\65\ To the extent the NPRM treats the 
substantive issue of unlawful restraint and coercion as a reason to 
shorten the timeframe applicable to all elections, the NPRM advocates a 
``cure'' that is not rationally related to the disease. Nothing in the 
NPRM directly addresses unlawful election conduct by employers or 
unions, nor does the NPRM invite public comment regarding different or 
better remedies in these situations. The same disconnect exists between 
the proposed revisions and the NPRM's claim of unacceptable delay. If 
some elections involve excessive delay--and objective evidence shows 
this occurs at most in only a very small percentage of Board-conducted 
elections--this is not a rational basis for rewriting the procedures 
governing all elections. This deficiency warrants particular scrutiny 
because the proposed changes, in other respects, accomplish what 
Congress has indicated the Board may not do regarding important 
election issues, which is to conduct the ``election now, hearing 
later,'' and to cause employees to ``vote now, understand later.''
---------------------------------------------------------------------------

    \65\ See NLRA Sec. 8(a)(1) and 8(b)(1)(A), 29 U.S.C. 158(a)(1), 
158(b)(1)(A). Pre-election conduct found unlawful under these 
provisions can invalidate a representation election's outcome. In 
the event of violations, the Board is empowered to fashion remedies 
effectuating the policies of the Act. Moreover, Section 10(j) 
authorizes the Board, even before a violation is proven in an unfair 
labor practice proceeding, to seek a federal court injunction that 
can require an unlawfully discharged employee's reinstatement with 
backpay and benefits, the rescission of unlawful changes, and other 
measures.
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    Third, the new NPRM does not reflect a de novo examination of 
important election-related issues. The NPRM is identical in substance 
to the 2011 proposed rule regarding representation elections published 
on June 22, 2011 (hereinafter ``2011 election proposal''), after which 
the Board received more than 65,000 sets of public comments, 
supplemented by oral presentations by 66 individuals during two days of 
hearing in July of that year. The NPRM updates some election statistics 
from the 2011 election proposal but attempts no significant qualitative 
evaluation of that information. There is no collection of other new 
data relevant to assess whether the NPRM is necessary at this time or 
whether alternative measures might more effectively address whatever 
election issues might be genuine reasons for concern. Likewise, the 
NPRM fails to consider the potential impact of more recent Board 
initiatives such as the General Counsel's increased emphasis on ``nip-
in-the-bud'' lawsuits to obtain injunctions against discriminatory 
discharges or the Board's Specialty Healthcare standard \66\ regarding 
whether particular employees should be excluded from a petitioned-for 
bargaining unit. In substance and structure, the new NPRM--like the 
Board's 2011 election proposal--advocates an array of changes that are 
difficult to understand, especially in the aggregate, while changing 
existing procedures that reflect decades of real world experience 
balancing rights under the Act. Although the NLRA authorizes the Board 
to adopt ``such rules and regulations as may be necessary to carry out 
the provisions of [the] Act,'' \67\ no reasons articulated in the NPRM 
warrant a wholesale rewrite, in one stroke, of the procedures governing 
every representation election conducted by the Board.\68\
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    \66\ Specialty Healthcare and Rehabilitation Center of Mobile, 
Inc., 357 NLRB No. 174 (2011), enfd. sub nom. Kindred Nursing 
Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). Specialty 
Healthcare and its progeny demonstrate the importance of determining 
whether certain employees should be included in or excluded from 
whatever bargaining units may result from representation elections. 
However, this dissent should not be regarded as passing judgment on 
the merits of the Specialty Healthcare standard.
    \67\ NLRA Sec. 6, 29 U.S.C. 156.
    \68\ The broad-ranging nature and complexity of the NPRM--and 
the extent of public interest as reflected in more than 65,000 
comments on the 2011 proposed election rule--contrasts sharply with 
the Board's 1989 rule governing acute care hospital bargaining unit 
determinations. The 1989 rule, though much more limited in scope 
than the NPRM, involved a much longer rulemaking process with more 
extensive opportunities for public comment. Former Member Hayes 
described as follows the 1989 rulemaking regarding acute care 
hospital bargaining unit determinations: ``The need for this effort 
was obvious, based on years of litigation highlighting specific 
problems and differences among the Board, the courts of appeals, and 
health care industry constituents. The initial July 2, 1987 notice 
of proposed rulemaking was followed by a series of four public 
hearings, the last one held over a 7-day period, in October 1987. 
Thereafter, the written comment period was extended. Another 
rulemaking notice followed on September 1, 1988. It reviewed the 
massive amount of oral testimony (3545 pages and 144 witnesses) and 
written comments (1500 pages filed by 315 individuals and 
organizations) received during the prior year and announced a 
revised rule with another 6-week period for written comment. The 
final rule was published on April 21, 1989, almost 2 years after the 
initial notice.'' 76 FR 36812, 36830 (June 22, 2011) (Member Hayes, 
dissenting).
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    Fourth, we are receptive to potential regulatory reforms that 
improve Board procedures and enhance our enforcement of the law 
regarding representation elections. In Part D of this dissent, we 
outline an alternative path that, if pursued, would permit the full 
Board to consider different potential rulemaking regarding election 
reforms that would advance the interests of employees, unions and 
employers. We also believe that our approach, if backed by the full 
Board, would receive substantial support within all three of these 
groups. Our suggested approach would bolster the Board's long track 
record of conducting elections with an extremely high degree of 
integrity and transparency. The most important threshold question to 
address, in any event, would be whether and why further rulemaking of 
any kind is necessary.
    To repeat, we are not reflexively committed to the status quo. We 
do not fault our colleagues for their desire to advance the Board's 
enforcement of the Act. We have the same desire, but we hope the full 
Board--after a de novo review of all public comments regarding this 
NPRM and its 2011 predecessor--will refrain from implementing the 
current NPRM. If further review supports a conclusion by the Board that

[[Page 7339]]

new proposed rulemaking is necessary, we advocate the approach outlined 
in Part D.

A. The NPRM's Procedures Contradict Requirements in the Act and Are 
Ill-Advised

    1. Background: What the NPRM Would Change. It is difficult to 
summarize the changes reflected in the NPRM because they are so 
numerous and implicate so many disparate aspects of the Board's 
longstanding election procedures. However, the uniform thrust of the 
proposed changes is to greatly reduce the time between a representation 
petition's filing and the election. The NPRM does not directly 
articulate an objective to conduct elections as quickly as possible, 
but this is the inevitable consequence of the NPRM's changes, as is 
implicit in the many references to efficiency, promptness, and the 
avoidance of unnecessary proceedings and needless delay.\69\
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    \69\ The NPRM clearly subordinates important Board procedures in 
the interest of having elections occur more quickly. The Proposed 
Rule refers, for example, to the ``expeditious resolution of 
questions concerning representation,'' to allowing the Board ``to 
more promptly determine if there is a question concerning 
representation and, if so, to resolve it by conducting a secret 
ballot election,'' to the ``expeditious processing of representation 
petitions,'' to ``delays in the regional offices' transmission of 
the eligibility list to the parties,'' to ``shorten[ing] the time 
for production of the eligibility list,'' and to a ``progression of 
reforms to reduce the amount of time required to ultimately resolve 
questions concerning representation.''
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    The NPRM's keystone concept is to have elections occur before 
addressing important election-related issues, and the NPRM would 
relegate these issues to a post-election hearing. Ironically, among the 
issues subject to this ``election now, hearing later'' approach would 
be questions about voter eligibility. Yes, this means the election 
would take place first, and only later would there be a hearing 
regarding issues as fundamental as: (i) Who can actually vote, (ii) 
which employees who cast votes would, in the end, be excluded from the 
bargaining unit and would not even have their votes counted, (iii) 
whether people who represent themselves as employee-voters during the 
campaign may actually be supervisors (i.e., representatives of one of 
the campaigning parties), (iv) whether other people who appear to be 
supervisors may actually be employee-voters, and (v) whether the union-
represented workforce, if the union prevails, will ultimately exclude 
important employee groups whose absence would adversely affect the 
outcome of resulting negotiations.
    These are indisputably important issues. They are not only relevant 
to the election campaign, they can profoundly affect what type of 
bargaining relationship would exist after the election if the union 
prevails, and the inclusion or exclusion of certain groups may 
positively or negatively affect employee bargaining leverage. For 
employees, the ``election now, hearing later'' approach would create a 
new norm where essential issues do not even receive potential pre-
election consideration by the Board. This exacerbates the NPRM's 
shortening of the period between petition-filing and the election 
which, as noted previously, creates a situation where employees will be 
forced to ``vote now, understand later.'' \70\
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    \70\ It is true, as our colleagues point out, that the NPRM does 
not completely eliminate the pre-election hearing, nor does the NPRM 
rule out the possibility that a particular hearing officer might 
permit the introduction of evidence regarding voter eligibility or 
supervisory status, for example. However, the NPRM expressly states 
that it dramatically narrows the scope and duration of pre-election 
hearings, and it relegates all but the most basic issues to post-
election proceedings. Therefore the NPRM clearly will not result in 
pre-election hearings where voter eligibility and other fundamental 
issues continue to be addressed. The NPRM explicitly states 
otherwise. Further, the inclusion or exclusion of such evidence 
would be determined by hearing officers who, under Section 9(c)(1), 
29 U.S.C. 159(c)(1), are not even permitted to make 
``recommendations'' about relevant issues. See note 109, infra.
    We also recognize that, under existing Board procedures, 
elections may take place while some questions remain unresolved, and 
some employees may cast votes that, if challenged, are ruled upon in 
post-election proceedings. In all such cases, however, the Act gives 
parties the right to present evidence regarding these issues at a 
pre-election hearing. And based upon such evidence, the Act requires 
that the Regional Director and the Board consider requests to stay 
the election until such issues are resolved. See text accompanying 
note 108, infra. In addition to dramatically shortening the time 
period between petition-filing and the election, the NPRM would 
impermissibly curtail the right to present any evidence at the pre-
election hearing regarding many fundamental issues, which in turn 
would prevent the Regional Director and the Board even from 
considering whether the resolution of such issues is important 
enough to warrant staying the election. Id.
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    The NPRM would also change who decides election issues within the 
NLRB's agency structure, mostly by cutting the Board out of the 
process. Ironically, the statute makes the Board responsible for 
representation elections,\71\ with two caveats: (1) Pre-election 
hearings are presided over by hearing officers, although Congress in 
1947 severely limited their authority by prohibiting hearing officers 
even from making ``recommendations'' about election issues; \72\ and 
(2) in 1959, Congress permitted the delegation of election 
responsibilities to Regional Directors, but conditioned this on a 
statutory right to seek Board review regarding ``any action'' by 
Regional Directors, including pre-election requests to ``stay'' the 
election.\73\ The NPRM essentially turns this arrangement upside down. 
Hearing officers--who the NPRM directs to exclude most evidence from 
the pre-election hearing--become the sole judge and jury regarding such 
matters, and the absence from the record of that evidence precludes any 
review of those matters by Regional Directors and the Board. In 
contrast to the statutory mandate making ``any action'' by Regional 
Directors subject to requests for Board review, the NPRM eliminates the 
existing pre-election right to seek Board review, and adopts a ``new 
narrower standard'' governing ``extraordinary'' situations where 
parties have been able to request ``special permission'' for an appeal 
to the Board. Finally, the NPRM provides that post-election Board 
review--currently a guaranteed option--would become discretionary in 
all cases. Under the NPRM, therefore, many or most election issues 
would never be decided by Board members.
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    \71\ NLRA Sec. 9(c)(1), 29 U.S.C. 159(c)(1).
    \72\ Id. See also note 109, infra.
    \73\ NLRA Sec. 3(b), 29 U.S.C. 153(b).
---------------------------------------------------------------------------

    The NPRM proposes equally dramatic changes in other election 
procedures. It would require all employers to submit a near-immediate 
binding, comprehensive, written response to the petition (where the 
employer forever waives available arguments and defenses not set forth 
in this position statement); it would require employers to disclose 
employee email addresses and phone numbers in an expanded ``Excelsior'' 
list to be transmitted electronically to the union; it would make many 
other time deadlines much shorter; and it would implement other changes 
too numerous to summarize here.
    The NPRM acknowledges the importance of transparency in public 
policymaking. This makes it most disappointing, then, that the NPRM 
fails to squarely state that it is designed to accelerate 
representation elections, although our colleagues acknowledge it will 
have that effect. Here, the NPRM, like the Board's 2011 election 
proposal, leaves critical questions unanswered:
    (1) As a result of the NPRM, precisely how short will election 
periods be?
    (2) How short is too short to assure employees the ``fullest 
freedom'' of choice as required by the Act?
    (3) Conversely, on what basis has the Board ruled out the 
possibility that employees need more time than presently available to 
understand

[[Page 7340]]

relevant issues and to make an informed free choice about union 
representation?
    (4) To the extent that the NPRM promotes efficiency or conserves 
the Board's resources, why are these objectives more important than (i) 
the right of employees to have sufficient time and information to 
understand relevant issues before voting, and (ii) the right of 
employees, unions and employers to engage in protected speech regarding 
election issues?
    (5) Why doesn't the NPRM propose a mandatory minimum time period 
between petition-filing and an election, which could permit the 
adoption of procedural improvements without impairing the protected 
employee, union, and employer rights referenced above?
    We do not know the answers to these important questions, and we 
hope they will be the subject of public comment as part of this 
rulemaking and then receive careful consideration by our colleagues.
    2. The NLRA's Requirements. In contrast to the complicated array of 
changes advocated in the NPRM, the National Labor Relations Act is 
straightforward: Its fundamental purpose is to guarantee employee free 
choice when employees vote in elections regarding union representation. 
Sections 1 and 7 refer to ``the exercise by workers of full freedom of 
association'' encompassing the right of employees to have 
``representatives of their own choosing.'' \74\ Section 7 protects the 
right of employees to ``engage in'' protected activities and ``to 
refrain from any or all of such activities.'' \75\ Sections 8(a) and 
8(b) prohibit actions by employers and unions that ``restrain'' or 
``coerce'' employees in the exercise of protected rights.\76\ Section 
8(c) and other provisions of the Act protect the free speech rights of 
employees, employers and unions, consistent with similar guarantees 
afforded by the First Amendment.\77\ Section 9(a) provides for unions 
to represent employees in an appropriate unit to the extent they are 
``designated or selected . . . by the majority of the employees in 
[the] unit.'' \78\ And Section 9(b)--specifically pertaining to 
elections--refers to the Board's obligation ``in each case'' to 
``assure to employees the fullest freedom in exercising the rights 
guaranteed by [the] Act.'' \79\
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    \74\ NLRA Sec. 1, 7, 29 U.S.C. 151, 157 (emphasis added).
    \75\ Id. Sec. 7, 29 U.S.C. 157 (emphasis added).
    \76\ 29 U.S.C. 158(a)(1), 158(b)(1)(A).
    \77\ Section 8(c) of the Act reads: ``The expressing of any 
views, argument, or opinion, or the dissemination thereof, whether 
in written, printed, graphic, or visual form, shall not constitute 
or be evidence of an unfair labor practice under any of the 
provisions of this Act, if such expression contains no threat of 
reprisal or force or promise of benefit.'' Although Section 8(c) 
does not directly address representation elections, it has long been 
recognized by the Board and the courts as protecting speech 
generally, consistent with the First Amendment. See NLRB v. Gissel 
Packing Co., 395 U.S. 575, 617 (1969) (``[A]n employer's free speech 
right to communicate his views to his employees is firmly 
established and cannot be infringed by a union or the National Labor 
Relations Board.''); see also Chamber of Commerce v. Brown, 554 U.S. 
60, 67-68 (2008) (Section 8(c) reflects a ``policy judgment, which 
suffuses the NLRA as a whole, as favoring uninhibited, robust, and 
wide-open debate in labor disputes.'') (internal quotation omitted); 
Healthcare Ass'n of N.Y. State v. Pataki, 471 F.3d 87, 98-99 (2d 
Cir. 2006) (Section 8(c) ``serves a labor law function of allowing 
employers to present an alternative view and information that a 
union would not present.''); United Rentals, Inc., 349 NLRB 190, 191 
(2007) (``[T]ruthful statements that identify for employees the 
changes unionization will bring inform employee free choice which is 
protected by Section 7 and the statements themselves are protected 
by Section 8(c).''). Section 7 of the Act has been interpreted as 
broadly protecting the right of employees to engage in speech 
regarding election issues. Letter Carriers v. Austin, 418 U.S. 264, 
277 (1974) (``The primary source of protection for union freedom of 
speech under the NLRA, however, particularly in an organizational 
context, is the guarantee in Sec.  7 of the Act of the employees' 
rights `to form, join, or assist labor organizations.''').
    The First Amendment is clearly implicated in Board regulations 
that impermissibly curtail free speech guarantees since federal 
regulation constitutes quintessential state action for purposes of 
the United States Constitution. See Chamber of Commerce v. Brown, 
supra at 68 (noting that the Court recognized ``the First Amendment 
right of employers to engage in noncoercive speech about 
unionization'' even before Section 8(c) was enacted).
    \78\ Id. Sec. 159(a) (emphasis added).
    \79\ Id. Sec. 159(b) (emphasis added).
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    When it comes to preserving the ``fullest freedom'' of employees to 
exercise their protected rights in an NLRB-conducted election, the Act 
makes additional considerations extremely important:
     Congress has mandated that the Board remain neutral while 
preserving employee choice, which is consistent with the Act's 
protection of employee rights to ``engage in'' concerted activities and 
to ``refrain from any or all of such activities.'' \80\
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    \80\ NLRA Sec. 7, 29 U.S.C. 157. The need for neutrality in the 
Board's procedures exists to the same degree applicable to the 
Board's case adjudications. In fact, concern that the Board's 
procedures detracted from the agency's neutrality were among the 
reasons Congress adopted the Taft-Hartley amendments in 1947. See S. 
Rep. 80-105, 80th Cong., at 3, reprinted in 1 Comm. on Lab. and Pub. 
Welfare, Subcomm. on Lab., 93d Cong., Legislative History Of The 
Labor Management Relations Act, 1947 (hereinafter ``LMRA Hist.''), 
at 407 (Senate report stating that ``as a result of certain 
administrative practices which developed in the early period of the 
act, the Board has acquired a reputation for partisanship, which the 
committee seeks to overcome, by insisting on certain procedural 
reforms''). The ``procedural reforms'' insisted upon by Congress in 
1947, and reaffirmed in 1959, included a repudiation of precisely 
the type of arrangement incorporated into the NPRM. See notes 93 and 
97, infra, and accompanying text. See also note 64, supra.
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     The great majority of employees in the United States lack 
familiarity with important NLRA principles and many complex principles 
that govern union representation and collective bargaining.\81\ In 
2011, the Board found that ``nonunion employees are especially unlikely 
to be aware of their NLRA rights,'' \82\ and the Board acknowledged 
that ``to the extent that lack of contact with unions contributed to 
lack of knowledge of NLRA rights 20 years ago, it probably is even more 
of a factor today.'' \83\
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    \81\ The Board based this finding on ``several factors,'' 
including ``the comparatively small percentage of private sector 
employees who are represented by unions and thus have ready access 
to information about the NLRA; the high percentage of immigrants in 
the labor force, who are likely to be unfamiliar with workplace 
rights in the United States; studies indicating that employees and 
high school students about to enter the work force are generally 
uninformed about labor law; and the absence of a requirement that, 
except in very limited circumstances, employers or anyone else 
inform employees about their NLRA rights.'' 76 FR 54006, 54014-15 
(2011). As a result, the Board has attempted to expand its outreach 
efforts, including distribution of a mobile app regarding the NLRB 
and the Act, which we fully support. See ``National Labor Relations 
Board Launches Mobile App,'' Aug. 30, 2013 (http://www.nlrb.gov/news-outreach/news-story/national-labor-relations-board-launches-mobile-app). 76 Fed. Reg. at 54,014-15. In fact, we favor having 
Agency resources directed to a higher profile public relations 
campaign regarding the NLRB mobile app and other outreach efforts.
    In 2011, the Board attempted to increase familiarity with the 
Act's requirements by adopting a rule requiring employers to post 
notices advising employees about the Act (id.), but this rule has 
been permanently suspended after appellate courts ruled that it 
exceeded the Board's authority. Chamber of Commerce of the United 
States v. NLRB, 721 F.3d 152 (4th Cir. 2013); National Ass'n of 
Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013).
    \82\ 76 FR at 54016 (emphasis added).
    \83\ Id. (emphasis added).
---------------------------------------------------------------------------

     The Board has found that many employers--and even some 
union officials--lack familiarity with important NLRA principles and 
many complex principles that govern union representation and collective 
bargaining.\84\
---------------------------------------------------------------------------

    \84\ Id. at 54017 (emphasis added). In the words of a union 
official cited by the Board with approval in 2011: ``Having been 
active in labor relations for 30 years I can assure you that both 
employees and employers are confused about their respective rights 
under the NLRA. Even union officers often do not understand their 
rights. Members and non-members rarely understand their rights. 
Often labor management disputes arise because one or both sides are 
misinformed about their rights.'' Id. at 54017 n.88 (emphasis 
added).
---------------------------------------------------------------------------

     Employers and unions have protected rights to engage in 
protected speech prior to an election. As noted, the Supreme Court has 
characterized Section 8(c) as reflecting a ``policy judgment, which 
suffuses the NLRA as a whole, as `favoring uninhibited,

[[Page 7341]]

robust, and wide-open debate in labor disputes,' stressing that 
`freewheeling use of the written and spoken word . . . has been 
expressly fostered by Congress and approved by the NLRB.' '' \85\
---------------------------------------------------------------------------

    \85\ Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008) 
(quoting Letter Carriers v. Austin, 418 U.S. 264, 272-73 (1974)). 
See also Thomas v. Collins, 323 U.S. 516, 532 (1945) (``The right . 
. . to discuss, and inform people concerning, the advantages and 
disadvantages of unions and joining them is protected not only as 
part of free speech, but as part of free assembly.''); Thornhill v. 
Alabama, 310 U.S. 88, 102-103 (1940) (``[I]n the circumstances of 
our times the dissemination of information concerning the facts of a 
labor dispute must be regarded as within that area of free 
discussion that is guaranteed by the Constitution.'').
---------------------------------------------------------------------------

    3. The NPRM's Problems and Deficiencies. Unfortunately, the NPRM 
does not adequately take into account the above considerations and it 
is contrary to the Act.\86\ This is especially evident in the following 
respects.
---------------------------------------------------------------------------

    \86\ See NLRB v. Brown, 380 U.S. 278, 291 (1965) (``Reviewing 
courts are not obliged to stand aside and rubberstamp their 
affirmance of administrative decisions that they deem inconsistent 
with a statutory mandate or that frustrate the congressional policy 
underlying a statute.'')
---------------------------------------------------------------------------

    First, we do not understand the reasons for embarking on the path 
outlined in the NPRM, because it describes the Board's very successful 
track record conducting timely elections. Casehandling statistics since 
2011 indicate no significant variation from those described in the 2011 
proposed election rule. See 76 FR at 36813-36814. In 1960, the median 
time from petition to a direction of election was 82 days, with more 
time obviously elapsing before the elections occurred (id. at 36814 
n.16). By 1975, only 20.1 percent of all elections occurred more than 
60 days after the filing of a petition, and this percentage decreased 
to 16.5 percent by 1985 (id. at 36814 n.19). Since at least 2001, the 
Board has applied a well-known target to have elections conducted 
within a median of 42 days after the petition-filing.\87\ Over the past 
decade, elections have occurred within a median of approximately 38 
days after the filing of a petition, and in fiscal 2010, the average 
time from petition to an election was 31 days.\88\ Another significant 
Board target is to hold 90% of all elections within 56 days of the 
filing of the petition. The Board has consistently done better than 
that standard.\89\ In fact, in 2013, 94.3% of elections were held 
within that 56-day period.\90\ Thus, it is fair to conclude that in 
2013, by the Board's own measures, less than 6% of elections were 
unduly ``delayed.'' Some elections take too long to resolve, but in 
recent years these cases have been few in number.\91\ We are not saying 
the Board's work here is done. However, the available data do not 
provide a rational basis for engaging in a wholesale reformulation of 
the Board's election procedures.\92\
---------------------------------------------------------------------------

    \87\ NLRB's 2004 Performance and Accountability Report: 
Protecting Workplace Democracy, 15-17 and 67 (undated), 
www.nlrb.gov/reports-guidance/reports/performance-and-accountability. In the early 1990s, the Agency's articulated goal 
was to hold elections within a median of 50 days after the filing of 
the petition. See General Counsel's Memorandum, GC 93-16, ``Major 
Accomplishments of the Office of the General Counsel for Fiscal 
Years (1990-1993),'' 3 (Nov. 24, 1993), www.nlrb.gov/reports-guidance/general-counsel-memos.
    \88\ General Counsel's Memorandum, GC-11-09, ``Report on 
Midwinter ABA PP Committee,'' 19 (March 16, 2011), www.nlrb.gov/reports-guidance/general-counsel-memos.
    \89\ NLRB Summaries of Operations, fiscal years 2007-2012, and 
Performance Accountability Reports, 2004-2013, www.nlrb.gov/reports-guidance/reports. See GC-11-09, supra note 88, at 18-19.
    \90\ NLRB Performance Accountability Report, fiscal year 2013, 
www.nlrb.gov/reports-guidance/reports.
    \91\ As indicated in the Appendix to this dissent, our initial 
review of internal case-processing statistics indicates that pre-
election issues do not cause an overall delay in case processing 
except for a tiny fraction of cases. Case-processing statistics also 
indicate that the regional offices' processing of representation 
petitions from filing to election, including the holding of pre-
election hearings, is a highly efficient and effective operation. We 
provide a very preliminary analysis in an Appendix to foster 
discussion about the scope and nature of the purported problems with 
representation case processing. We encourage commenters to provide 
their own evaluation of the specific reasons for delay in particular 
cases based on relevant statistics that are publicly available or 
disclosable under the Freedom of Information Act.
    The majority discounts the Board's excellent track record (for 
example, the fact that elections have occurred within a median of 38 
days after petition-filing over the past decade) by focusing only on 
cases involving pre-election hearings. For example, they indicate 
that for these cases, the median time from petition-filing to an 
election has been about 64-65 days in recent years (and only 59 days 
in fiscal year 2013). Any criticism of the 38-day median does not 
detract from our preliminary case-processing analysis in the 
Appendix because that analysis does not even reference the 38-day 
median. Moreover, the pre-election hearing statistics do not depict 
a problem that warrants an overhaul of the procedures governing all 
elections. Just looking at pre-election hearing cases, the 
conducting of elections within a median of 59-65 days means that the 
hearing and related processes (i.e., the writing and consideration 
of briefs, issuance of a decision and direction of election, and the 
processing of potential requests for Board review) only required 
three or four weeks beyond the overall 38-day median. These hearing 
statistics are indicative of efficient and timely case-handling, not 
a lack of efficiency, especially given the importance of relevant 
issues and the statutory mandate that the Board hold an 
``appropriate hearing'' in all contested representation cases.
    \92\ In many other contexts--which the NPRM does not propose to 
change--the Board routinely imposes lengthy delays, ranging up to 
three years, before employee sentiments about union representation 
are given effect. For example, under the Board's longstanding 
contract bar rule, the Board refrains from conducting any election 
for up to three years while a collective-bargaining agreement is in 
effect (during which a petition will be accepted only during a 30-
day open period occurring between 60 and 90 days prior to contract 
expiration or the three-year anniversary date of the contract). 
Absorbent Cotton Co., 137 NLRB 908, 909 (1962); Gen. Cable Corp., 
139 NLRB 1123, 1128 (1962). The Act also imposes a statutory 
election bar that prevents any election from being directed for a 
12-month period following any other valid election. NLRA Sec. 
9(c)(3), 29 U.S.C. 159(c)(3). Recent Board decisions also routinely 
impose delays of six months to a year in successorship situations 
where employees change their sentiments regarding union 
representation. UGL-UNICCO Service Co., 357 NLRB No. 76 (2011).
---------------------------------------------------------------------------

    Second, Congress at least twice rejected the ``election now, 
hearing later'' and ``vote now, understand later'' approaches reflected 
in the NPRM. In particular, Congress has repudiated the notion that the 
Board may conduct elections before important issues such as voter 
eligibility are the subject of an ``appropriate hearing,'' where such 
issues would be deferred to a post-election hearing. In 1947, after the 
Board actually conducted such ``pre-hearing elections'' for a brief 
period, Congress explicitly prohibited this practice in language added 
to Sections 9(c)(1) and (4) of the Act.\93\ In 1959, the ``election 
now, hearing later'' and ``vote now, understand later'' approaches 
received renewed consideration to the point of being adopted in the 
Senate-passed version of the Landrum-Griffin Act amendments.\94\ 
Significantly, though authorizing the Board to conduct elections on an 
expedited basis while deferring important issues to a post-election 
hearing, the Senate-passed bill explicitly prohibited elections from 
occurring fewer than 30 days after the filing of a petition. Then-
Senator John F. Kennedy--who chaired the Conference Committee--stated 
that at least 30 days were required between the petition's filing and 
the election to ``safeguard against rushing employees into an election 
where they are unfamiliar with

[[Page 7342]]

the issues.'' \95\ Ultimately, Congress still refused to adopt the 
Senate-passed arrangement because elections would take place too 
quickly,\96\ and Congress reaffirmed the requirement that the Board 
conduct an ``appropriate hearing'' before any contested election, and 
precluded the Board from deferring voter eligibility and other issues 
to post-election hearings.\97\
---------------------------------------------------------------------------

    \93\ For a short time before the Taft-Hartley amendments were 
adopted in 1947, the Board permitted pre-hearing elections, and 
Congress repudiated this practice by adding language in Sections 
9(c)(1) and (4) requiring the Board to conduct an ``appropriate 
hearing'' before any election, and permitting ``the waiving of 
hearings'' only ``by stipulation'' of all parties. 29 U.S.C. 
159(c)(1), (4); 61 Stat. 136 (1947), 29 U.S.C. 141 et seq., 
reprinted in 1 LMRA Hist. 1 et seq. (1974); NLRB v. SW. Evans & Son, 
181 F.2d 427, 429-30 (3d Cir. 1950); H.R. Rep. 86-741, at 24 (1959), 
reprinted in 1 NLRB, Legislative History Of The Labor-Management 
Reporting And Disclosure Act, 1959, 782 (1974) (hereinafter ``LMRDA 
Hist.'') (``During the last 19 months of the Wagner Act . . . a form 
of prehearing election was used by the NLRB.''); S. Rep. 86-187, at 
30 (1959), reprinted in 1 LMRDA Hist. 426 (the practice of holding 
prehearing elections ``was tried in the last year and a half prior 
to passage of the Taft-Hartley Act, but it was eliminated in that 
[A]ct''). In 1959, Congress rejected a proposal to permit pre-
hearing elections that was part of the Senate-passed version of the 
LMRDA. See note 97, infra, and accompanying text.
    \94\ See S. 1555, 86th Cong. Sec.  705 (as passed by the Senate 
on April 25, 1959), reprinted in 1 LMRDA Hist. 581.
    \95\ 105 Cong. Rec. 5361 (1959), reprinted in 2 LMRDA Hist. 1024 
(emphasis added). To the same effect, Senator Kennedy stated ``there 
should be at least a 30-day interval between the request for an 
election and the holding of the election,'' and he opposed proposals 
that, in his words, failed to provide ``at least 30 days in which 
both parties can present their viewpoints.'' 105 Cong. Rec. 5770 
(1959), reprinted in 2 LMRDA Hist. 1085 (statement of Sen. Kennedy); 
see also H.R. Rep. 86-741, at 25 (1959), reprinted in 1 LMRDA Hist. 
783 (minimum 30-day pre-election period was designed to ``guard [] 
against `quickie' elections'').
    \96\ Representative Graham Barden, when describing the Senate-
passed bill's abandonment, explained that pre-election ``hearings 
have not been dispensed with. There is not any such thing as 
reinstating authority or procedure for a quicky election. Some were 
disturbed over that and the possibility of that is out. The right to 
a formal hearing before an election can be directed is preserved 
without limitation or qualification.'' 105 Cong. Rec. 16629 (1959), 
reprinted in 2 LMRDA Hist. 1714. Cf. H.R. Rep. 86-741, at 76 (1959), 
reprinted in 1 LMRDA Hist. 834 (indicating that Representative 
Barden was Chairman of the House Committee on Education and Labor; 
H.R. Rep. 86-1147, at 42 (1959), reprinted in 1 LMRDA Hist. 946 
(indicating that Representative Barden was the ranking House 
Conference Committee Manager). See also 105 Cong. Rec. A8062 (1959), 
reprinted in 2 LMRDA Hist. 1813 (opposing ``pre-hearing or so-called 
quickie election'' with indication that ``right to a hearing is a 
sacred right''); H.R. Rep. 86-741, at 24-25 (1959), reprinted in 1 
LMRDA Hist. 782-83 (mandatory period between petition-filing and 
election ``guards against `quickie' elections''); 105 Cong. Rec. 
A8522 (1959), reprinted in 2 LMRDA Hist. 1856 (referencing 
opposition to pre-hearing election proposal).
    \97\ The core concepts underlying the NPRM (``election now, 
hearing later'' and ``vote now, understand later'') were not simply 
matters of peripheral concern when Congress--in 1947 and again in 
1959--rejected the notion of having expedited elections without a 
hearing regarding fundamental election issues like voter eligibility 
and supervisor status. Based on the original Wagner Act (which did 
not require elections but provided for an ``appropriate hearing'' if 
an election was conducted), the Supreme Court decided in 1945 that 
the ``appropriate hearing'' requirement could be satisfied by a 
post-election hearing. Inland Empire Dist. Council v. Millis, 325 
U.S. 697, 707 (1945). As noted above, the Board then conducted a 
number of prehearing elections prior to 1947, which relegated 
important election-related issues to a post-election hearing. See 
note 93, supra, and accompanying text. Thus, when the Taft-Hartley 
amendments explicitly prohibited elections without an ``appropriate 
hearing'' before the election, this not only repudiated a practice 
that had been adopted by the Board, it repudiated the Supreme 
Court's Inland Empire decision. Id.
    In 1959, the resurrected concept of having expedited elections, 
followed by the consideration of important issues in post-election 
hearings, was part of President Eisenhower's original ``20-point 
program'' that prompted Congress to adopt the Landrum-Griffin Act. 
See S. Rep. 86-10, at 3 (1959), reprinted in 1 LMRDA Hist. 82 (``In 
order to speed up the orderly processes of election procedures, to 
permit the Board under proper safeguards to conduct representation 
elections without holding a prior hearing where no substantial 
objection to an election is made.''). Not only was this ``election 
first, hearing later'' concept considered throughout the 1959 
legislative debates, it was adopted in the Senate version of the 
Landrum-Griffin amendments, with a requirement that there be no 
fewer than 30 days between a petition's filing and an election. In 
the words of then-Senator John F. Kennedy, a minimum 30-day period 
was required in all cases to prevent employees from being forced to 
vote while they were ``unfamiliar with the issues.'' See note 95, 
supra, and accompanying text. One version of the Senate approach 
even provided for a minimum period of 45 days between a petition's 
filing and the Board-conducted election. See S. 1555, 86th Cong. 
Sec.  705 (as passed by the Senate on April 25, 1959), reprinted in 
1 LMRDA Hist. 581. Ultimately, the Senate bill's ``election first, 
hearing later'' approach was consciously abandoned, and Congress 
thus decided, for a second time, that it was not permissible for the 
Board to conduct representation elections unless they were preceded 
by an ``appropriate hearing'' that included evidence regarding 
bargaining unit and voter eligibility issues, among other things. 
See note 96, supra, and accompanying text.
    Congress' failure to pass electoral initiatives in the Labor Law 
Reform Act of 1977-1978 represented yet another rejection of the 
``vote now, understand later'' approach. See Cong. Res. Serv., 
Digest of Public General Bills and Resolutions, Final Issue, Part 1, 
501-02 (95th Cong. 2d Sess. 1979) (recounting passage of bill in 
House on Oct. 6, 1977; failure of four cloture motions in Senate 
from June 13-22, 1978; closest votes 58-41 on June 14 and 58-39 on 
June 15).
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    Third, it is especially objectionable for the NPRM to exclude from 
pre-election hearings \98\ evidence regarding who is eligible to vote. 
To state the obvious, when people participate in an election, it is 
significant whether they actually have a right to vote, whether their 
vote will be counted, and whether the election's outcome will even 
affect them.\99\ In this respect, the NPRM's approach would be 
intolerable in every other voting context, whether it involved a 
national political election or high school class president. Thus, for 
good reason, the ``appropriate hearing'' requirement has consistently 
been deemed to require that pre-election hearings encompass evidence 
regarding fundamental questions including voter eligibility.\100\ The 
Board's recent

[[Page 7343]]

decisions have highlighted the importance of determining what employees 
may be excluded from petitioned-for bargaining units, which prompted a 
Board majority in Specialty Healthcare to change the legal standard 
governing such determinations.\101\ In any event, by accelerating 
elections and especially by deferring an appropriate hearing about 
important issues like supervisor status and other voter eligibility, 
the NPRM will be ``rushing employees into an election where they are 
unfamiliar with the issues.'' \102\
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    \98\ Under the NPRM, hearing officers ostensibly have the 
right--in their discretion--to permit certain excluded issues to be 
considered in particular cases. As noted previously, however, this 
is another area in which the NPRM is contrary to the Act, because 
Section 9(c)(1), 29 U.S.C. 159(c)(1), precludes hearing officers 
from having the authority even to make ``recommendations'' regarding 
such issues, much less conclusively determine, by excluding any 
creation of a record regarding such issues, that they will not be 
considered by the Board or Regional Directors prior to the election.
    \99\ An array of problems and incongruities stem from the broad 
exclusion of voter eligibility issues from pre-election hearings. 
Under the NPRM, there will be more situations where many employees 
cast votes in NLRB-conducted elections where, based on the post-
election resolution of eligibility issues, the employees learn their 
votes were not even counted and, even if the union prevailed, the 
ineligible employees are excluded from any bargaining. Without a 
pre-election hearing regarding whether certain individuals are 
eligible voters versus statutory supervisors, many employees will 
not know there is even a question about whether fellow voters--with 
whom they may have discussed many issues--will later be declared 
supervisor-agents of the employer. Many employers will be placed in 
an untenable situation regarding such individuals based on 
uncertainty about whether they could speak as agents of the employer 
or whether their individual actions--though not directed by the 
employer--could later become grounds for overturning the election. 
Also, employees ultimately included in the bargaining unit will not 
know--at the time they voted--whether they will have the support of 
other employees who, after the election, end up being excluded from 
the bargaining unit. Congress clearly intended that parties would 
have the right to present evidence regarding such issues in the 
``appropriate hearing'' required before any non-stipulated election. 
As noted previously, the point here is not that such issues require 
resolution before every election; the NPRM adopts the broad-based 
position that these issues should not even be the subject of 
evidence in the pre-election hearing. This is all the more 
perplexing given that Congress repeatedly reaffirmed the need for a 
pre-election hearing to permit evidence regarding such important 
issues and, in every case, potential pre-election Board review of 
``any action'' by Regional Directors. NLRA Sec. 3(b), 29 U.S.C. 
153(b).
    \100\ Regarding the NPRM's provisions for Board-conducted 
elections without even permitting a pre-election hearing about who 
is eligible to vote, the NPRM is on the wrong side of history and 
common sense. See NLRA Sec. 9(c)(1), (4), 29 U.S.C. 159(c)(1), (4) 
(requiring an ``appropriate hearing upon due notice'' before an 
election, unless there is a ``waiver . . . for the purpose of a 
consent election''). The Senate Report on S. 1958, 74th Cong. 
(1935), which became the Wagner Act, stated that ``the units must be 
determined before it can be known what employees are eligible to 
participate in a choice of any kind,'' and NLRA Section 9(b) was 
described as ``similar'' to the Section 2 of the Railway Labor Act 
amendments, enacted in 1934, providing that ``the Board shall 
designate who may participate in the election and establish the 
rules to govern the election.'' S. Rep. 74-573, at 14 (1935), 
reprinted in 2 NLRB, Legislative History Of The National Labor 
Relations Act, 1935, at 2313 (hereinafter ``NLRA Hist.'') (emphasis 
added). Regarding the Taft-Hartley Act's rejection of the ``election 
first, hearing later'' concept, Senator Taft--cosponsor of the 
legislation--stated, ``It is the function of hearings in 
representation cases to determine whether an election may properly 
be held at the time; and if so, to decide questions of unit and 
eligibility to vote.'' 93 Cong. Rec. 7002 (1947), reprinted in 2 
LMRA Hist. 1625 (supplemental analysis of LMRA by Senator Taft) 
(emphasis added). Regarding the Landrum-Griffin amendments adopted 
in 1959, Representative Graham Barden--Chairman of the House 
Committee on Education and Labor, and the ranking House conferee--
stated that ``[t]he right to a formal hearing before an election can 
be directed is preserved without limitation or qualification.'' 105 
Cong. Rec. 16629 (1959), reprinted in 2 LMRDA Hist. 1714 (emphasis 
added), describing H.R. Rep. 86-1147, at 1 (1959), reprinted in 1 
LMRDA Hist. 934 (conference report). Chairman Barden stated: ``The 
right to a hearing is a sacred right. . . .'' 105 Cong. Rec. A8062 
(1959), reprinted in 2 LMRDA Hist. 1813 (emphasis added). Consistent 
with these requirements, the Board itself has repeatedly held that 
Section 9(c)(1) requires that pre-election hearings provide the 
opportunity to present evidence regarding who is eligible to vote 
and questions regarding supervisor status, among other things. See, 
e.g., Barre-National, Inc., 316 NLRB 877 (1995) (finding that 
hearing officer's refusal to permit evidence regarding supervisory 
status ``did not meet the requirements of the Act'' even though the 
hearing officer--like the NPRM--would have permitted the individual 
to vote under challenge, subject to post-election proceedings to 
determine supervisory status). See also Angelica Healthcare Services 
Group, 315 NLRB 1320 (1995); North Manchester Foundry, Inc., 328 
NLRB 372 (1999); Avon Prods., Inc., 262 NLRB 46, 48-49 (1982).
    \101\ Specialty Healthcare and Rehabilitation Center of Mobile, 
Inc., supra note 66.
    \102\ 105 Cong. Rec. 5361 (1959), reprinted in 2 LMRDA Hist. 
1024 (statement of Sen. John F. Kennedy). See also 105 Cong. Rec. 
5770 (1959), reprinted in 2 LMRDA Hist. 1085 (statement of Sen. John 
F. Kennedy) (election timetable must be long enough so ``both 
parties can present their viewpoints''); H.R. Rep. 86-741, at 25 
(1959), reprinted in 1 LMRDA Hist. 783 (minimum 30-day pre-election 
period was designed to ``guard [] against `quickie' elections'').
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    Fourth, the NPRM reflects an incorrect premise that, when adopting 
and amending the NLRA, Congress placed primary emphasis on speed, 
efficiency, and the need to minimize NLRB litigation. We agree it is 
desirable to avoid inefficiency and protracted delays in the electoral 
process.\103\ However, the Act's detailed provisions require that NLRB 
proceedings consider evidence regarding important issues. Indeed, in 
addition to at least twice rejecting the ``election now, hearing 
later'' and ``vote now, understand later'' approaches reflected in the 
NPRM, Congress enacted other amendments requiring the Board to abandon 
procedures--ostensibly justified by administrative efficiency--because 
Congress placed primary importance on having issues resolved without 
administrative shortcuts, so that Board members would do the 
``deciding'' to ensure that all decisions would reflect ``the 
considered opinions of the Board members.'' \104\
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    \103\ Understandably, Board and court cases speak favorably 
about having ``employees' votes . . . recorded accurately, 
efficiently and speedily.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 
330 (1946). See also AFL v. NLRB, 308 U.S. 401, 409 (1940) (the 
Wagner Act was designed in part to avoid ``long delays in the 
procedure . . . for review of orders for elections''); Northeastern 
Univ., 261 NLRB 1001, 1002 (1982) (referring to ``expeditiously 
resolving questions concerning representation''); Tropicana Prods., 
Inc., 122 NLRB 121, 123 (1958) (``[T]ime is of the essence if Board 
processes are to be effective.''). Yet, nothing in these cases 
suggests speed or efficiency should be pursued at the expense of the 
Act's principal purpose, which is to safeguard the ``fullest 
freedom'' of employees to vote in elections that determine whether 
or not they will be union-represented. NLRA Sec. 9(b), 29 U.S.C. 
159(b).
    \104\ H.R. Rep. No. 80-245, at 25 (1947), reprinted in 1 LMRA 
Hist. 316; S. Rep. 80-105, 80th Cong., at 8-9, 1 LMRA Hist. 415. 
After the Wagner Act's adoption, the Board created a ``Review 
Section'' of attorneys to review transcripts and draft decisions, 
which a Senate report characterized as disposing of cases ``in an 
institutional fashion.'' Id. Congress amended the Act to prohibit 
the Board even from employing attorneys for the purpose of reviewing 
transcripts, apart from each Board member's own legal assistants. 
Id. Thus, NLRA Section 4, 29 U.S.C. 154, added to the Act in 1947, 
states: ``The Board may not employ any attorneys for the purpose of 
reviewing transcripts of hearings or preparing drafts of opinions 
except that any attorney employed for assignment as a legal 
assistant to any Board member may for such Board member review such 
transcripts and prepare such drafts.'' Congress also amended Section 
9(c)(1) by adding language prohibiting hearing officers from even 
formulating ``recommendations'' apart from presiding over the 
hearing to produce a record for Board review. See note 109, infra, 
and accompanying text. In 1959, Congress permitted the Board to 
delegate responsibility to Regional Directors regarding 
representation-election issues, but the Act explicitly conditioned 
this delegation on each party's right to have the Board review ``any 
action'' by Regional Directors. Id. This delegation did not expand 
or modify the authority of hearing officers.
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    Fifth, we do not know the precise point in time when shortening the 
timetable applicable to all Board-conducted elections impermissibly 
denies employers, unions, and employees the right to engage in speech 
protected by the Act and the First Amendment.\105\ However, by further 
reducing the time between petition-filing and the election, the NPRM 
curtails the ability of parties to exercise their right to engage in 
protected speech. Particularly because the consequences of an election 
can be long-lasting--regardless of whether employees vote for or 
against union representation--the NPRM limits the right of all parties 
to engage in protected speech at precisely the time when their free 
speech rights are most important.
---------------------------------------------------------------------------

    \105\ See note 77, supra, and accompanying text.
---------------------------------------------------------------------------

    Sixth, the NPRM--though making elections occur more quickly--will 
significantly lengthen the period it takes to completely resolve 
election questions, with significantly greater confusion and potential 
adverse consequences for everyone. Under established Board law, the 
election date marks the commencement of the statutory obligation to 
bargain and the duty to refrain from making any unilateral changes 
regarding wages, hours, benefits, and working conditions.\106\ Yet, by 
having elections take place first, with fundamental issues that have 
not even been the subject of a hearing, employers and unions will not 
even definitively know what employees are even covered by any 
bargaining that takes place. This will create greater uncertainty and 
much less predictability for everyone, not the least of whom will be 
the employees who have already voted, contrary to another of the 
Board's primary mandates, which is to foster greater labor relations 
stability, not less.\107\
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    \106\ See, e.g., Mike O'Connor Chevrolet, 209 NLRB 701 (1974).
    \107\ Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362-63 
(1949) (``To achieve stability of labor relations was the primary 
objective of Congress in enacting the National Labor Relations 
Act.''); First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 678-79 
(1981) (management ``must have some degree of certainty beforehand . 
. . without fear of later evaluations labeling its conduct an unfair 
labor practice''); NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 
(7th Cir. 1961) (recognizing that a ``basic policy of the Act [is] 
to achieve stability of labor relations'').
---------------------------------------------------------------------------

    Seventh, other aspects of the NPRM deviate from the Act's 
requirements or are ill-advised.
     The NPRM purports to eliminate a party's right, before any 
election, to seek review from the full Board regarding Regional 
Director decisions. This is directly contrary to Section 3(b) of the 
Act, added by Congress in 1959, which permitted the Board to delegate 
to Regional Directors the responsibility to decide representation 
election issues, subject to the explicit condition that parties must 
have the right to seek Board review of ``any action of a Regional 
Director,'' including requests to ``stay'' the election.\108\
---------------------------------------------------------------------------

    \108\ NLRA Sec. 3(b), 29 U.S.C. 153(b). The NPRM eliminates the 
right to seek pre-election Board review, but it purports to leave 
open the possibility that parties in an ``extraordinary'' situation 
may still seek ``special permission'' to appeal a Regional 
Director's ruling to the Board, and even this would also be subject 
to a ``new, narrower standard.'' This extremely limited opportunity 
to seek ``special permission'' to appeal an ``extraordinary'' issue 
to the Board--which the NPRM clearly states would be highly 
disfavored--is qualitatively different from what Section 3(b) 
requires, which is the right to seek Board review regarding ``any 
action'' taken by Regional Directors including every ruling (or 
refusal to rule) on all issues.
---------------------------------------------------------------------------

     The NPRM authorizes hearing officers to exclude all 
evidence from pre-election hearings regarding fundamental election 
issues such as (i) what employees are part of the bargaining unit, and 
what employees are not; and (ii) whether certain individuals qualify as 
statutory ``supervisors'' (who are excluded from collective bargaining, 
who can lawfully speak for the employer with employees regarding 
election issues, and whose misconduct is attributable to the employer) 
rather than non-supervisory employees (who are eligible to vote in the 
election). The NPRM deprives parties of the right to file post-hearing 
briefs in all cases unless there is ``special permission of

[[Page 7344]]

the hearing officer,'' and even then parties may only address 
``subjects permitted by the hearing officer.'' These provisions are 
contrary to Section 9(c)(1) of the Act, added by Congress in 1947, 
which prohibits hearing officers even from making ``recommendations'' 
about issues raised in pre-election hearings.\109\ Under the NPRM, the 
hearing officer does not merely make recommendations, the hearing 
officer impermissibly becomes the sole judge and jury regarding all 
issues that the hearing officer is directed to exclude from the pre-
election hearing.
---------------------------------------------------------------------------

    \109\ 29 U.S.C. 159(c)(1). The Act's legislative history reveals 
that, in 1947, Congress specifically amended the Act to divest 
hearing officers of the authority even to make ``recommendations'' 
because Congress intended to require every Board member--and nobody 
else--to do the ``deciding'' regarding all hearing issues. See also 
S. Rep. No. 80-105, at 8-9 (1947), reprinted in 1 LMRA Hist. 414-15 
(``One of the major criticisms of the Board's performance . . . has 
been that the members themselves . . . have fallen into the habit of 
delegating the reviewing of the transcripts of the hearings and 
findings'' resulting in decisions that fail to reflect the 
``considered opinions of the Board members.''); id. at 25, reprinted 
in 1 LMRA Hist. 431 (``By the amendment, [the] hearing officer's 
duties are confined to presiding at the hearing.''); H.R. Rep. No. 
80-245, at 25 (1947), reprinted in 1 LMRA Hist. 316 (``[T]he members 
of the Board will be expected to do their own deciding.'') 
(describing H.R. 3020, 80th Cong. (1935)); S. Rep. No. 80-105, at 3 
(1947), reprinted in 1 LMRA Hist. 409 (The amendments reorganize the 
Board's structure ``by placing upon the members individual 
responsibility in performing their judicial functions.''); 93 Cong. 
Rec. 3953 (1947), reprinted in 2 LMRA Hist. 1011 (``[T]he hearing 
officer . . . shall make no recommendations; he shall simply pass on 
the hearing to the Board, and the Board itself shall pass on the 
question of representation, and shall do so on the basis of the 
facts that are shown in the hearing.'').
    In 1959, Congress authorized the Board to delegate the running 
of hearings to Regional Directors, but this delegation did not 
change limitations on the authority of hearing officers, and it was 
explicitly conditioned on giving parties the right to seek Board 
review of ``any action of a regional director,'' including pre-
election rulings or refusals to rule on voter eligibility issues, 
supervisor status, and requests to ``stay'' the election, among 
other things. NLRA Sec. 3(b), 29 U.S.C. 153(b). As noted in the 
text, apart from vesting improper authority in hearing officers, the 
NPRM also improperly purports to eliminate the parties' right to 
seek any pre-election Board review of Regional Director decisions 
and actions.
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     Although the NPRM delays the consideration of fundamental 
issues until after the election, it accelerates and expands the hearing 
requirements applicable to employers. In particular, the NPRM requires 
a near-immediate submission by every employer regarding virtually 
everything that may relate to the election. This comprehensive, written 
response is required ``no later than the date of the hearing,'' which 
would require its submission within 7 days after petition-filing 
(assuming the notice of hearing were served on that date), absent 
special circumstances, and the NPRM provides that the employer forever 
waives every argument and defense not set forth in this position 
statement.
     The NPRM would impose new disclosure requirements 
affecting personal employee information. Within 7 days after a 
petition's filing, the employer is required to electronically transmit 
a list of employee names (even though evidence regarding individual 
voter eligibility would be deferred until after the election). As part 
of the ``Excelsior list'' disclosures, employers would be required to 
electronically transmit employee names, telephone numbers, and possibly 
email addresses no later than 2 days after the Regional Director 
schedules the election. The NPRM does not specify whether the required 
disclosures encompass personal and/or work information, and it does not 
consider the fundamental question of whether and to what extent 
``Excelsior'' disclosure requirements should be changed by the 
widespread use of social media and alternative vehicles for 
communication.\110\
---------------------------------------------------------------------------

    \110\ For example, constitutional principles regarding privacy 
and technology have both come a long way since 1969, when the 
Supreme Court affirmed the Excelsior rule in NLRB v. Wyman-Gordon 
Co., 394 U.S. 759 (1969). As described in the NPRM and Part D of 
this dissent, we invite public comment regarding existing and 
alternative vehicles for potential election-related communications, 
including the option of providing for employees to consent regarding 
any disclosure of personal information, or the possibility that 
giving employees their own Agency-sponsored and -protected email 
accounts could avoid having an automatic surrender (with no means to 
register disagreement) of employees' home addresses and personal 
phone numbers, and businesses' own proprietary email accounts.
---------------------------------------------------------------------------

     The NPRM would eliminate pre-election hearings as to 
important issues at the discretion of the hearing officer, and this 
would be compounded by making any post-election review by the Board 
discretionary. Thus, the NPRM contemplates the Board may never review 
pre- or post-election decisions of the hearing officer or the Regional 
Director. Again, this is contrary to Section 9(c)(1) of the Act (which 
precludes hearing officers even from making ``recommendations'' 
regarding pre-election issues) and Section 3(b) of the Act (which gives 
parties the pre- and post-election right to have the Board consider 
pre- and post-election requests for review of ``any action of a 
Regional Director,'' including pre-election requests to ``stay'' the 
election.)
    Finally, the NPRM stands in marked contrast to other contexts in 
which Congress, courts, and federal agencies have emphasized the need 
to ensure that individuals exercising free choice regarding 
representation or other significant matters in a group setting have 
more time, not less, to receive information and to evaluate their 
options:
    (a) Employers in union and nonunion work settings are required to 
give employees (or their unions) a minimum of 60 days' written notice 
in advance of any plant closing or mass layoff \111\ so they can have 
the ``information necessary for each of them to take responsible 
action.'' \112\ The 60-day period is a minimum, and is ``not intended 
to discourage . . . longer periods of advance notice.'' \113\
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    \111\ Worker Adjustment and Retraining Notification Act, 29 
U.S.C. 2101 et seq. (``WARN'').
    \112\ 54 FR 16059 (1989) (preamble accompanying Department of 
Labor regulations interpreting WARN).
    \113\ 20 CFR 639.2.
---------------------------------------------------------------------------

    (b) Congress has required that employees be given at least 45 days 
before being required to sign a one-time waiver of age discrimination 
claims in exchange for severance pay or other benefits.\114\ The 45-day 
period begins running only after employees have received complete 
written information regarding members of the ``class, unit, or group of 
individuals covered,'' including the positions and ages of people being 
retained versus separated, among other things, and they must be given 7 
additional days to revoke any waiver agreement.
---------------------------------------------------------------------------

    \114\ This requirement is part of the Older Workers Benefit 
Protection Act (``OWBPA''), Pub. L. No. 101-433, 104 Stat. 978 
(1990). OWBPA added Section 7(f) to the federal Age Discrimination 
in Employment Act (``ADEA''), 29 U.S.C. 626(f), which articulates 
the minimum requirements for a waiver of ADEA rights to be 
considered enforceable as a ``knowing and voluntary'' agreement. The 
45-day period is a prerequisite to enforceability of any age 
discrimination waiver requested in connection with ``an exit 
incentive or other employment termination program offered to a group 
or class of employees.'' ADEA Sec. 7(f)(1)(F)(ii), 29 U.S.C. 
626(f)(1)(F)(ii).
---------------------------------------------------------------------------

    (c) In order to give class action plaintiffs enough time to decide 
whether to opt-out of a Rule 23 class action, the Federal Judicial 
Center states that a minimum notice period of 30 days is necessary, and 
it recommends 60-90 days.\115\
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    \115\ Federal Judicial Center, Judges' Class Action Notice and 
Claims Process Checklist and Plain Language Guide, 4 (2010), http://
www.fjc.gov/public/pdf.nsf/lookup/NotCheck.pdf/$file/NotCheck.pdf.
---------------------------------------------------------------------------

    (d) For Fair Labor Standards Act collective actions, courts 
generally allow at least 30 days--and a median of 60 days--for 
potential plaintiffs to opt into the action.\116\
---------------------------------------------------------------------------

    \116\ See Charlotte Alexander, Would an Opt In Requirement Fix 
the Class Action Settlement? Evidence from the Fair Labor Standards 
Act, 80 Miss. L.J. 443, 489-91 (2010).
---------------------------------------------------------------------------

    (e) Department of Labor guidelines implementing the requirements of 
LMRDA Title IV for conducting

[[Page 7345]]

elections of local union officials refer to a timeline providing 4 to 6 
weeks from the nomination of candidates to the election date.\117\
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    \117\ Office of Labor-Management Standards, Conducting Local 
Union Officer Elections: A Guide for Election Officials, 4 (2010), 
http://www.dol.gov/olms/regs/compliance/localelec/localelec.pdf.
---------------------------------------------------------------------------

    (f) In addition to applying its own 56-day and 42-day targets 
regarding representation elections,\118\ the Board has established a 
30-day open period for the filing of a rival union or decertification 
election petition during the term of a collective bargaining agreement. 
Such petitions must be given to the Board between 60 and 90 days prior 
to the agreement's expiration.\119\ This means that, even in situations 
involving multi-year collective-bargaining agreements where employees 
may have had nearly three years to assess the merits of collective-
bargaining representation by the incumbent union, they are still 
afforded 30 days to decide whether to take the formal step of filing a 
petition seeking to oust the incumbent.
---------------------------------------------------------------------------

    \118\ See notes 88-90, supra, and accompanying text.
    \119\ Leonard Wholesale Meats, 136 NLRB 1000 (1962) (petition 
must be filed more than 60 days but less than 90 days before the 
expiration of the contract), modifying in relevant part Deluxe Metal 
Furniture Company, 121 NLRB 995, 999, 1000 (1958).
---------------------------------------------------------------------------

    (g) It is particularly relevant to recognize a substantial body of 
judicial precedent that governs campaigning in political 
elections.\120\ Numerous courts have ruled that all but the most 
narrowly drawn durational limitations on political electioneering are 
impermissible government restrictions of free speech.\121\ Further, the 
Supreme Court has declared: ``It is simply not the function of 
government to select which issues are worth discussing or debating in 
the course of a political campaign.'' \122\ Neither should it be the 
Board's function to curtail opportunities for discussion and debate in 
representation elections.
---------------------------------------------------------------------------

    \120\ Courts have long recognized the similarities between 
representation elections and political elections. See Wirtz v. 
Hotel, Motel & Club Emp. Union, Local 6, 391 U.S. 492, 504 (1968) 
(when creating representation elections, ``Congress' model of 
democratic elections was political elections in this country''); 
NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 733 (9th Cir. 
1985) (``Congress intended representation elections to follow the 
model of elections for political office.''). See also NLRB v. A.J. 
Tower Co., supra at 332 (rationale for opposing post-election 
challenges in political elections also applies to representation 
elections). Therefore, the courts' regulation of conduct in 
political elections may be particularly instructive in the Board's 
regulation of representation elections and provide support for the 
assertion that individual free choice in representation elections 
requires more time and information, not less.
    \121\ See, e.g., Mills v. Alabama, 384 U.S. 214 (1966) 
(invalidating state ban on election-day newspaper editorials); 
Emineth v. Jaeger, 901 F. Supp. 2d 1138 (D. N.D. 2012) (enjoining 
state ban on all electioneering on election day); Curry v. Prince 
George's Cnty., Md., 33 F. Supp. 2d 447, 454-55 (D. Md. 1999) 
(invalidating county ban on display of political signage for all but 
45 days before and 10 days after a political election).
    \122\ Republican Party of Minnesota v. White, 536 U.S. 765, 782 
(2002), citing Brown v. Hartlage, 456 U.S. 46, 60 (1982).
---------------------------------------------------------------------------

    In short, a substantial universe of laws, regulations, and legal 
decisions specifically address the time needed for people to review and 
understand important issues before casting a vote or signing on the 
dotted line. All of these have one thing in common: They require more 
time, not less. Against the backdrop of these examples, we have 
difficulty believing that federal labor law works in reverse. The 
thrust of the NPRM--unintended or not--is that employees make better 
choices when they vote first, and understand later. Congress and other 
state and federal regulators have rejected such reasoning. Given that 
the Board's primary responsibility is to safeguard employee free 
choice, especially in elections, the NPRM is deficient in its failure 
to carefully evaluate these other available sources of information. 
These are additional issues that deserve careful consideration and will 
hopefully be the subject of public comment in this rulemaking.

B. The NPRM Does Not Address Substantive Election Misconduct or Target 
Election Cases That Involve Too Much Delay

    The NLRA involves more than procedures in representation cases. The 
Act's substance consists of important election-related rights, 
obligations, and constraints, including the prohibition against 
restraint or coercion by employers or unions regarding any employee's 
exercise of protected rights.\123\ As noted previously, the reasons for 
reissuing this NPRM are far from clear, and no overt justification 
involves unlawful conduct during election campaigns. However, it is 
well known that many union advocates have argued for greatly expedited 
representation elections based on alleged employer misconduct that, it 
is claimed, adversely affects the outcome.\124\ To the extent that 
unlawful election-related conduct is the problem, the NPRM leaves this 
virtually unaddressed. The NPRM proposes no changes regarding the 
Board's treatment of unlawful election conduct by employers or unions, 
nor does the NPRM invite public comment regarding better ways to remedy 
these situations.
---------------------------------------------------------------------------

    \123\ See note 65, supra, and accompanying text.
    \124\ These arguments were referenced in the preamble 
accompanying the final election rule adopted by the Board in 2011 
(which has now been rescinded). See 76 FR 80138 (2011) (prior final 
rule regarding representation case procedures with explanatory 
preamble). The preamble noted that many labor organizations cited 
research studies indicating that shorter election periods would 
result in ``fewer unfair labor practices,'' although the preamble 
also acknowledged that various management-side organizations 
``question[ed] the validity of such studies.'' Id. at 80149 n.33. 
For present purposes, we find it unnecessary to comment on this 
debate. However, it is predictable in contested elections that the 
union will favor representation, the employer will oppose it, and 
advocacy by both sides is entirely permissible under the Act. 
Indeed, election campaigns are intended to provide the opportunity 
for such advocacy. Conversely, unlawful conduct by any party should 
not be countenanced, and the Board already has authority to address 
such misconduct. As noted in Part D below, if the Board determines 
that future rulemaking is necessary, we would support directly 
addressing whether and how the Board could devise more effective 
ways to deal with election-related misconduct by employers and 
unions.
---------------------------------------------------------------------------

    Moreover, to the extent that the NPRM seeks to address unacceptable 
election delay, the objective evidence shows such delay occurs, at 
most, in only a very small percentage of Board-conducted elections. 
These relatively few cases do not provide a rational basis for 
rewriting the procedures governing all elections.
    Thus, the graph below, based on a breakdown of all NLRB initial 
elections conducted between 2008 and 2010, illustrates this point. In 
more than 90 percent of those cases, elections occurred within 56 days 
after the filing of the petitions (these cases are reflected in the 
graph area appearing in white, marked ``A''). As noted previously, this 
represents a dramatic improvement over the Board's track record since 
the early 1960s. Conversely, less than 10 percent of the cases 
identified in the graph involved elections that occurred more than 56 
days after petition-filing (these delayed cases are reflected in the 
graph area shaded in black, which is barely visible, to the right of 
the 56-day line).

[[Page 7346]]

[GRAPHIC] [TIFF OMITTED] TP06FE14.008

    The case distribution in the graph shows there is no evidence of 
delay evenly apportioned across the universe of Board-conducted 
elections, i.e., delay affecting a large group of cases to a 
significant degree. In fact, the graph is far from a standard bell 
curve; it does not show any kind of significant distribution of cases 
greater than 56 days between petition-filing and election.\125\ We are 
not the first to note this wildly uneven statistical distribution in 
the context of an asserted ``systemwide delay'' problem. An earlier 
study addressing the same distribution findings accurately described 
the scattering of cases along the extended time continuum beyond 56 
days as the ``long tail'' of election cases.\126\ In other words, 
empirical data seem to disprove the existence of a systemwide delay 
problem, and instead demonstrate that delay is only an issue confined 
to a discrete minority of cases, possibly for issues unique to those 
cases.
---------------------------------------------------------------------------

    \125\ As noted previously, 56 days is the Board's own 
traditional target for conducting at least 90 percent of elections, 
a target that the Board has surpassed in recent years. See notes 88-
90, supra, and accompanying text.
    \126\ See John-Paul Ferguson, The Eyes of the Needles: A 
Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. & 
Lab. Rel. Rev. 3, 10 n.9 (Oct. 2008).
---------------------------------------------------------------------------

    The NPRM contains many references to increased speed and 
efficiency, but fails here by making no differentiation between the 
overwhelming majority of elections that already take place quickly and 
the relatively small number that do not. Instead, the NPRM rewrites the 
procedures that govern all cases, the overwhelming number of which 
already take place quickly.
    Suppose, for instance, that the U.S. Fish and Wildlife Service had 
a mandate to stop the poaching of manatees which reside almost 
exclusively in Florida.\127\ It would defy logic and common sense to 
deploy anti-poaching rangers in all 50 states, when most states do not 
even have bodies of water where manatees live. This is precisely the 
approach reflected in the NPRM. It applies almost entirely to elections 
that do not involve significant delay, while failing to target the 
specific causes of delay in those few cases where employees are denied 
the opportunity to vote in a timely manner.
---------------------------------------------------------------------------

    \127\ Manatees, sometimes known as ``sea cows,'' are large 
aquatic marine mammals considered to be relatives of the elephant. 
See http://en.wikipedia.org/wiki/Manatee; http://www.defenders.org/florida-manatee/basic-facts. The Florida manatee is Florida's state 
marine mammal. Id.
---------------------------------------------------------------------------

    Every federal agency has a responsibility to take action that bears 
a rational relation to relevant facts and the matters being 
addressed.\128\ In this respect, the NPRM involves poor public policy 
and is not rational, even putting aside the many ways in which it is 
contrary to statutory mandates (see Part A above). At a minimum, there 
needs to be a better fit between rulemaking in this important area and 
any problems that ostensibly warrant Agency action.
---------------------------------------------------------------------------

    \128\ Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. 
State Farm Mut. Automobile. Ins. Co., 463 U.S. 29, 43 (1983).
---------------------------------------------------------------------------

C. The NPRM Does Not Reflect a De Novo Examination of Important 
Election Issues

    We recognize and appreciate that our colleagues have afforded the 
opportunity for renewed public comment on this NPRM. However, the NPRM 
does not reflect a de novo examination of relevant issues. Although the 
Board has four new members and the year is 2014, the NPRM is 
essentially the same document that the Board issued in 2011. We have 
three problems with this approach.
    First, it is disappointing that the current Board has not 
undertaken a de novo examination of relevant issues before conceiving 
and issuing yet another comprehensive set of proposed election 
regulations. The Board is an independent agency first and foremost. We 
would serve the public better by ``listening first, formulating later'' 
instead of ``formulating first, listening later.'' Once the NPRM has 
issued, it necessarily reflects a conscious set of public policy 
choices or preferences. It follows that the NPRM's issuance may unduly 
tether the Board majority to the proposed regulations. Just as the 
exchange of views during bargaining leads to improved outcomes and 
furthers industrial peace, so does engagement with the public. The Act 
itself disfavors the assumption that there is a ``perfect initial 
offer'' leaving nothing to discuss. See General Electric, 150 NLRB 192 
(1964), enf'd 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 
(1970). It would be a good practice if the Board took this lesson to 
heart before it formulates any regulatory proposal.
    Second, the NPRM does not evaluate more recent Agency initiatives 
relevant in assessing whether the NPRM is necessary now or whether 
alternative measures might more effectively address whatever underlying 
issues motivate the NPRM. The Act's election process is a dynamic 
system, with its inherent fairness dependent on factors beyond the 
simple passage of time between petition and election. Indeed, many of

[[Page 7347]]

these factors are under the Board's control, such as internal Board 
initiatives, General Counsel initiatives and the underlying 
representation case law. For example, the NPRM does not specifically 
address measures that the Board itself might take to speed up its own 
decisions in representation cases, rather than shortening election 
timeframes by forcing a regulatory mandate on the parties. The NPRM 
does not reflect any changes based on the General Counsel's new 
initiative to promote ``nip-in-the-bud'' injunctions against 
discriminatory discharges during election campaigns. One might easily 
consider this approach more protective of employee rights than simply 
decreasing the time employees have to listen to all sides, exchange 
views with one another, and make up their minds. Similarly, the NPRM 
does not recognize the impact of Specialty Healthcare,\129\ which makes 
smaller units easier to organize more quickly and highlights the 
importance of questions regarding the inclusion or exclusion of certain 
employee groups from the bargaining unit.
---------------------------------------------------------------------------

    \129\ Supra note 66.
---------------------------------------------------------------------------

    Third, the Board majority's ``reboot'' of the 2011 election 
proposal does not inspire confidence in the current Board's issuance of 
a new election NPRM. The NPRM proposal published on June 22, 2011 
generated more than 65,000 sets of written public comments, with a 
further 66 individuals representing nearly as many different 
organizations making oral presentations to the Board. We commend our 
colleagues for incorporating by reference the entire administrative 
record of the 2011 rulemaking, including ``numerous arguments both for 
and against the proposals,'' rather than requiring the public to 
resubmit the same comments. It is also important to recognize that the 
NPRM states ``[a]ll of this material will be fully considered by the 
Board in deciding whether to issue any final rule'' (emphasis added). 
However, we regret that the current Board has not fully considered this 
voluminous material before determining the contours of the new NPRM 
issued today.
    The conduct of elections lies at the heart of the Board's statutory 
responsibilities, and the current Board's rulemaking regarding these 
issues should not involve an examination that commences after a new 
proposed rule has already been published. It would be far better to 
take a different approach--if an NPRM is deemed necessary--based on de 
novo review of relevant issues by the current Board.

D. The Board Should Consider an Alternative Path Regarding Potential 
Election Reforms

    We fully agree that the Board should do everything within its power 
to conduct representation elections in a way that gives effect to 
employee free choice. We also support rulemaking to the extent 
necessary to address relevant issues consistent with the Board's 
authority and the Act, and we agree that the Board should work 
aggressively in carrying out its statutory responsibilities to everyone 
covered by the Act.
    Our opposition to the NPRM stems from its variance from choices 
already made by Congress, in addition to provisions that predictably 
will cause unfairness and adverse consequences for many parties. The 
most important threshold question to address, of course, is whether and 
why rulemaking is necessary. Regarding the substance of any rulemaking, 
we strongly believe the Board should consider a different approach 
which, if pursued in the future, would focus on the following issues. 
We believe the Board will benefit from public comment regarding each of 
these suggestions.
    1. Address the ``Speed'' Issue. The Board should acknowledge that 
freedom of choice requires a reasonable minimum time period, before the 
election, to avoid ``rushing employees into an election where they are 
unfamiliar with the issues.'' \130\ As noted previously, the Board has 
applied a target time period of 42 days for the scheduling of contested 
elections,\131\ which constitutes--at least implicitly--an indication 
that 42 days is more appropriate than a shorter standard period. The 
Act's legislative history--especially the extensive consideration of 
potential ``election first, hearing later'' arrangements in 1959--
reflected an across-the-board consensus that fewer than 30 days was too 
short. Congress has adopted 60- and 45-day time period requirements 
governing WARN notification and age discrimination waivers regarding a 
``group'' or class of employees, and other minimum time periods have 
been deemed appropriate in other contexts. Consistent with these 
minimum time periods, the Board should consider public comments 
regarding the creation of a minimum time period between a petition's 
filing and any contested election. The establishment of a guaranteed 
minimum period would permit everyone to consider other election-related 
proposals on their own merit, and there would also be greater 
consistency in assuring employees their ``fullest freedom'' of choice 
in representation elections.\132\
---------------------------------------------------------------------------

    \130\ 105 Cong. Rec. 5361 (1959), reprinted in 2 LMRDA Hist. 
1024 (statement of Sen. John F. Kennedy). See also note 97, supra, 
and accompanying text.
    \131\ See note 88, supra, and accompanying text.
    \132\ NLRA Sec. 9(a), 29 U.S.C. 159(a).
---------------------------------------------------------------------------

    2. Address the Specific Issues Responsible for Delayed Elections. 
The Board has an excellent overall track record when conducting prompt 
elections. Yet, as noted above, there have been particular cases--few 
in number--where elections and related issues have taken too long to 
resolve. Rather than engaging in a wholesale revision of the procedures 
applicable to all elections, the Board should closely examine the 
particular reasons that have contributed to those relatively few 
elections that have involved unacceptable delay (depicted as the 
statistical long ``tail'' in the above graph and described in the 
Appendix accompanying this dissent). Here, we agree with the majority 
that a prime candidate for potential change is the Board's ``blocking 
charge'' doctrine (which permits parties to indefinitely delay an 
election by filing certain unfair labor practice charges). More 
generally, however, given that the Board's history of conducting 
elections now spans nearly 80 years, there is no lack of data regarding 
factors that have contributed to the relatively small number of cases 
involving too much time. This data should be carefully examined, with a 
view towards targeting the problem cases, rather than reformulating the 
procedures governing all elections.
    3. Consider Reforms to the Board's Internal Procedures So Election 
Issues Are Addressed More Quickly. One of the biggest contributors to 
the delays associated with resolving election-related issues is the 
time that particular cases are pending before the Board, rather than in 
regional offices. Many Board procedures are mandated by the Act. 
However, we firmly believe that the Board has not exhausted the 
available avenues to expedite the internal processing of election cases 
so they can be decided more quickly by the Board. This is an area 
uniquely suited for the Board to take the initiative and formulate 
changes since the Board is most familiar with its own procedures. In 
any election-related rulemaking, the Board should propose and solicit 
public input regarding a variety of different ways it could ``fast 
track'' its own role in reviewing and resolving election issues.
    4. Aggressively Pursue Measures to Prevent and Remedy Unlawful 
Election Conduct. To the extent that unlawful

[[Page 7348]]

employer or union conduct occurs during any election, this is already 
prohibited by the Act, and warrants aggressive Board enforcement and 
the formulation of effective remedies. As noted above, one of the 
greatest deficiencies in the NPRM is its failure to address these 
substantive issues in any meaningful way. The Act deserves to be 
enforced by the Board, and to be respected by the parties, as much as 
any other federal or state legal requirements. The Board should propose 
ways in which the Board can more effectively handle litigation 
regarding alleged substantive misconduct, which can include injunctions 
and other interim remedies pursued under Section 10(j) of the Act. The 
Board should also consider more aggressive use of potential civil and 
criminal contempt sanctions to the extent available under the Act and 
federal law. Of course, the Board may not presume the existence of 
unlawful conduct, and much of the Board's statutory responsibility 
involves the adjudication of unfair labor practices if they are 
alleged. However, when violations of the Act occur, including instances 
where they affect elections, they should be dealt with promptly and 
aggressively by the Board, and we support further consideration of ways 
in which employer or union violations can be more effectively remedied.
    5. Deal More Directly with the Need to Preserve and Enhance 
Privacy. As noted above, we live in an age where advanced technology is 
available to nearly all the workers that the Board strives to serve. 
Current discourse regarding such technology involves concerns about 
preserving privacy and restricting the broad-based dissemination of 
personal information. We support the NPRM's solicitation of public 
input concerning the safeguarding of privacy interests regarding 
personal information, and the possibility of giving employees the 
opportunity to choose whether and how any personal information might be 
disclosed.
    Like our colleagues, we are interested in public comment regarding 
a possible Agency-sponsored protected communications portal (e.g., a 
sealed-off email system) for use by petitioners and employees rather 
than the forced surrender of private information by employees and 
employers, and whether such an approach could reduce Board litigation 
regarding ancillary issues implicated in the involuntary disclosure of 
email addresses, phone numbers, and other personal information.\133\ We 
join in our colleagues' request for constructive input regarding this 
option and any alternative views or related concerns in this important 
area.
---------------------------------------------------------------------------

    \133\ For example, reliance by the Board on an Agency-sponsored 
communications portal or currently existing vehicles for 
communication could eliminate the need for Board litigation 
regarding an array of issues otherwise implicated in forced employer 
or employee disclosure of personal or business email addresses and 
phone numbers, including alleged surveillance of communications on 
employer email systems, the potential invalidation of lawful 
policies stating that employees and others can have no expectation 
of privacy when using employer-provided technological resources, 
alleged discriminatory employer restrictions on non-business 
computer use, alleged misuse of personal information by unions, and 
the potential ``spamming'' of personal or business email accounts, 
among other things.
---------------------------------------------------------------------------

    Summary. We believe that these types of initiatives, if backed by 
the full Board, could receive substantial support from unions, 
employees, and employers, among others. Our approach would bolster the 
Board's enviable track record of conducting elections with integrity 
and transparency. In any event, the most important starting point is to 
have a de novo examination of whether and why there should be further 
rulemaking. This would provide an essential foundation by identifying 
issues to be addressed, and it would instill greater public confidence 
in any resulting Board initiatives.

E. Conclusion

    As noted above, we do not fault our colleagues for endeavoring to 
improve the Board's handling of representation elections. We 
acknowledge that the Board shoulders the ``special function of applying 
the general provisions of the Act to the complexities of industrial 
life.'' \134\ Neither the Act nor Board members are frozen in time. We 
hope it will be possible to reach agreement regarding these important 
issues.
---------------------------------------------------------------------------

    \134\ NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963) 
(citation omitted).
---------------------------------------------------------------------------

    However, the Board lacks the authority to adopt changes that are 
contrary to legislative choices made by Congress. And putting aside 
this issue, it would be far better to have rulemaking regarding a more 
manageable set of potential changes, which could provide a much more 
orderly process for evaluating and explaining necessity, consistency 
with the Act, and potential better alternatives. The scope and 
magnitude of the complex technical changes proposed in the NPRM span 
virtually every stage of the election process, and this makes it 
extremely difficult even to conduct a meaningful appraisal of 
particular changes or the NPRM as a whole.
    Our colleagues and many others strongly believe that policy 
adjustments regarding the Act are long overdue. We believe 
representation elections must be conducted fairly, and there are some 
changes that we support. But the NPRM directly implicates the Act's 
cornerstone requirement, vested exclusively in the Board, which is to 
safeguard employee freedom of choice. As to this issue, the Board is 
not permitted to write from a clean slate. Indeed, more than 50 years 
ago, arguments were raised that ``the time has come for a reevaluation 
of the basic content of collective bargaining,'' and the Supreme Court 
stated: ``[T]hat is for Congress. . . . [W]e do not see how the Board 
can do so on its own.'' \135\ The same admonition applies with equal 
force here.
---------------------------------------------------------------------------

    \135\ NLRB v. Insurance Agents' Int'l Union, 361 U.S. 477, 500 
(1960).
---------------------------------------------------------------------------

    For these reasons, we dissent from this NPRM.

Appendix to Dissenting Opinion: How many representation cases involve 
delays based on pre-election issues the NPRM would remove from the pre-
election hearing?

    As noted in Part A of our dissent, we believe the NPRM fails to 
adequately target the causes responsible for delayed representation 
cases. In the hope of providing a starting point for further analysis 
in public comments, we conducted an extremely preliminary examination 
of available case-processing statistics during the relatively short 
time available for the current Board's consideration of this NPRM. We 
have relied on the Board's own operational and performance standards 
looking at all representation cases involving initial elections in a 
three-year period (fiscal years 2008-2010).\136\ Over this three-year 
period, the Board handled a total of 5664 representation cases 
involving initial elections.
---------------------------------------------------------------------------

    \136\ In the Board's published Final Election Rule, now 
withdrawn, the prior Board majority criticized former Member Hayes' 
consideration of the Agency's case processing goals as measures of 
the timely processing of cases, essentially asserting that these 
goals have no independent normative value. The majority also 
dismissed as irrelevant public comments that raise the question 
whether delay in case processing is demonstrable. See Final Rule, 76 
FR at 80155. However, the operational goals applied by the Board for 
decades, that were created and relied upon by bipartisan Board 
majorities, certainly provide an appropriate starting point for 
evaluating the Board's track record handling representation cases. 
We also invite public comment regarding alternative methods and 
metrics.
---------------------------------------------------------------------------

    This preliminary examination reinforces our view that the NPRM does 
not effectively identify or address the reasons for delays in the 
resolution of some representation cases. Our review focused on the 
following variables and

[[Page 7349]]

produced several observations as summarized below.
    First, we identified representation cases involving initial 
elections where there was an unacceptable overall delay (from petition-
filing until the final resolution of the case, regardless of whether 
there was a hearing and how quickly the election occurred). Using the 
Board's internal benchmark, we regard cases as involving an 
unacceptable overall ``delay'' if they were closed more than 100 days 
after petition-filing. During the three-year period, approximately 85 
percent of the cases were closed within 100 days, and only 15 percent 
involved an overall delay.\137\
---------------------------------------------------------------------------

    \137\ The proportion of representation cases involving initial 
elections where an overall delay occurred was 16.5 percent in fiscal 
year 2008, 15.6 percent in fiscal year 2009, and 13.7 percent in 
fiscal year 2010.
---------------------------------------------------------------------------

    Second, 5,185 cases--91 percent of the total--were stipulated 
elections or consent elections that did not even involve contested pre-
election proceedings. The NPRM's changes would be applicable to all of 
these cases even though pre-election hearing issues were not even in 
dispute and, therefore, could not have contributed to any delay.
    Third, over the three-year period, contested issues required pre-
election hearings in 479 cases, amounting to nine percent of the total. 
A majority of these cases involving pre-election hearings--269 cases or 
five percent of the total--did not involve any overall delay (i.e., 
they were closed within 100 days after petition-filing).
    Fourth, 210 cases involving pre-election hearings and an overall 
delay--roughly four percent of the total--also had a pre-election delay 
(i.e., between petition-filing and the election).\138\ However, only 16 
percent of these cases involved a delay based on disputed issues that 
the NPRM would remove from the pre-election hearing, and this 
constitutes less than 1 percent of the total number of representation 
cases over the three-year period.\139\ By comparison, as noted in Part 
B of our dissent, the NPRM would change the timetable and procedures 
applicable to all representation elections.
---------------------------------------------------------------------------

    \138\ For purposes of this review, consistent with the Board's 
own benchmarks, we considered elections to have been ``delayed'' if 
they occurred more than 56 days after the filing of the petition.
    \139\ The ``overall delay'' cases that also had delayed 
elections, based on pre-election hearing issues that the NPRM 
purports to address, involved questions like supervisor status or 
voter eligibility which, under the NPRM, would be relegated to post-
election proceedings. Delayed elections in other cases were 
attributable to hearing issues or other factors that would be 
unaffected by the NPRM (e.g., questions regarding statutory 
coverage, blocking charges).
---------------------------------------------------------------------------

    The following breakdown summarizes all representation cases 
involving pre-election hearings and an overall delay (more than 100 
days between petition-filing and the Board's closing of the case) and 
indicates how many involved delayed elections (more than 56 days 
between petition-filing and the election) attributable to disputed pre-
election issues that would be changed by the NPRM:

                     Representation Cases Involving Pre-Election Hearings and Overall Delays
             [More than 100 days between petition-filing and being closed), fiscal years 2008-2010]
----------------------------------------------------------------------------------------------------------------
                                                                                   Percent of
                                                                                  total hearing     Percent of
                          Description                               Number of         cases           total
                                                                      cases         involving     representation
                                                                                  overall delay       cases
----------------------------------------------------------------------------------------------------------------
Elections occurred within 56 days (i.e., no election delay)....              56              27              1.1
Election delays attributable to issues unaffected by NPRM......             120              57              2.3
Election delays caused by issues the NPRM would remove from pre-             34              16               .6
 election hearings.............................................
                                                                ------------------------------------------------
    Totals.....................................................             210             100              4
----------------------------------------------------------------------------------------------------------------

VII. Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et 
seq., requires agencies promulgating proposed rules to prepare an 
initial regulatory flexibility analysis and to develop alternatives, 
wherever possible, when drafting regulations that will have a 
significant impact on a substantial number of small entities. The focus 
of the RFA is to ensure that agencies ``review rules to assess and take 
appropriate account of the potential impact on small businesses, small 
governmental jurisdictions, and small organizations, as provided by the 
[RFA].'' E.O. 13272, Sec. 1, 67 FR 53461 (``Proper Consideration of 
Small Entities in Agency Rulemaking''). An agency is not required to 
prepare an initial regulatory flexibility analysis for a proposed rule 
if the Agency head certifies that the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b).
    As explained below, the Board concludes that the proposed 
amendments will not affect a substantial number of small entities. In 
any event, the Board further concludes that the proposed amendments 
will not have a significant economic impact on such small entities. 
Accordingly, the Agency Chairman has certified to the Chief Counsel for 
Advocacy of the Small Business Administration (``SBA'') that the 
proposed amendments will not have a significant economic impact on a 
substantial number of small entities.
    The RFA does not define either ``significant economic impact'' or 
``substantial'' as it relates to the number of regulated entities. 5 
U.S.C. 601. In the absence of specific definitions, ``what is 
`significant' or `substantial' will vary depending on the problem that 
needs to be addressed, the rule's requirements, and the preliminary 
assessment of the rule's impact.'' See A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act, Office of Advocacy, 
U.S. Small Business Administration at 17 (available at www.sba.gov) 
(``SBA Guide'').
    The Board has determined that the proposed amendments would not 
affect a substantial number of small entities within the meaning of 5 
U.S.C. 605(b). There are approximately six million private employers in 
the United States, the vast majority of which are classified as small 
entities under the Small Business Administration's standards.\140\

[[Page 7350]]

Nearly all of those employers are subject to the Board's 
jurisdiction.\141\ Because, under section 9 of the Act, parties have 
filed fewer than 3,300 petitions per year for the past five years and 
the Board has conducted fewer than 1,800 elections per year for the 
past five years,\142\ the number of small employers participating in 
representation proceedings each year is less than one-tenth of one 
percent of the small employers in this country. Moreover, the employers 
that would be affected by the proposed amendments are not concentrated 
in one or a few sectors, but are found in every sector and industry 
subject to the Board's jurisdiction. Accordingly, the Board finds that 
the proposed amendments would not affect a substantial number of small 
entities within the meaning of 5 U.S.C. 601.
---------------------------------------------------------------------------

    \140\ The Small Business Administration estimates that of the 
roughly six million private sector employers in 2007, all but about 
18,300 were small businesses with fewer than 500 employees. Source: 
SBA Office of Advocacy estimates based on data from the U.S. 
Department of Commerce, Bureau of the Census, and trends from the 
U.S. Department of Labor, Bureau of Labor Statistics, Business 
Employment Dynamics.
    \141\ The principal private sector employers exempt from the 
Board's jurisdiction are employers of agricultural laborers and 
firms covered by the Railway Labor Act, 45 U.S.C. 151. See section 2 
of the National Labor Relations Act, 29 U.S.C. 152 (2), (3). 
Employers whose connection to interstate commerce is so slight that 
they do not satisfy the Board's discretionary jurisdictional 
standards are also treated as exempt. See 29 U.S.C. 164(c); An 
Outline of Law and Procedure in Representation Cases, Chapter 1, 
found on the Board's Web site, www.nlrb.gov.
    \142\ See NLRB Office of the General Counsel, Summaries of 
Operations (Fiscal Years 2009-2012); Number of Petitions Filed in 
FY13 and Number of Elections Held in FY13, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections (reporting that the 
annual number of representation elections conducted decreased from 
1,790 to 1,594).
---------------------------------------------------------------------------

    In any event, the Board estimates that the net effect of the 
proposed amendments could be to decrease costs for small entities. 
While certain of the proposed amendments--when viewed in isolation--
could result in small cost increases, those costs should be more than 
offset by the many efficiencies in the Board's representation 
procedures created by the proposed amendments. For example, by 
permitting electronic filing, providing greater transparency and 
compliance assistance, reducing the length of evidentiary hearings, 
deferring litigation of issues that may be rendered moot by elections, 
deferring requests for review that may be rendered moot by elections, 
consolidating requests for review into a single proceeding, and making 
such review discretionary, the proposed amendments should help small 
entities conserve resources that they might otherwise expend when they 
are involved in a representation case under the Board's current rules 
and regulations.
    To the extent that any individual requirements--isolated from the 
proposed amendments' overall efficiencies--could impose additional 
costs on small entities, those added costs would be de minimus. Indeed, 
even when aggregated, the potential additional costs that a small 
entity could face in a given representation proceeding would still be 
minimal. For example, four new requirements in the proposed amendments 
might impose a cost on small employers: (1) Posting and electronic 
distribution of the Board's preliminary election notice and electronic 
distribution of the final notice; (2) completing the substantive 
portions of the Statement of Position form at or before any pre-
election hearing; (3) providing the petitioner and the regional 
director with a list of the names and job information, and providing 
the regional director with contact information, for the employees at 
issue at or before any pre-election hearing; and (4) providing the 
petitioner and the regional director with additional job and contact 
information concerning employees eligible to vote following approval of 
an election agreement or issuance of a direction of election.
    The proposed amendments' new notice requirements would involve 
merely posting paper copies of notices that will be sent to the 
employer by the regional director, as well as taking the few minutes to 
electronically distribute electronic versions of those notices, also 
supplied by the regional director, if the employer already regularly 
communicates with its employees over email or via a Web site. The 
substantive portions of the Statement of Position form would only 
require a small employer to reduce to writing the positions on several 
issues that it would need to formulate, in any event, to effectively 
prepare for a pre-election hearing and which parties largely must 
already articulate at such a hearing under the current rules. And by 
entering into an election agreement, as do the vast majority of 
employers under the Board's current rules, a small employer would not 
have to complete the Statement of Position at all. The additional 
information to be supplied regarding voting employees should already be 
contained in employers' records, increasingly in readily retrievable 
electronic form, thereby allowing small employers to assemble such 
electronic lists without expending significant resources. Moreover, the 
typically small sizes of bargaining units at issue in Board elections 
(with medians ranging from 23 to 26 employees over the last decade) 
suggests that small employers will not be significantly burdened by 
having to provide the additional information.
    For these reasons, the Board concludes that several of the proposed 
amendments would result in little to no adverse economic impact on the 
relatively few small entities who participate in representation 
proceedings each year, while the proposed amendments as a whole should 
actually reduce the costs incurred in connection with representation 
proceedings. Accordingly, the proposed amendments will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    These proposed amendments would not impose any information 
collection requirements. Accordingly, they are not subject to the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
    The NLRB is an agency covered by the PRA. 44 U.S.C. 3502(1) and 
(5). The PRA establishes rules for such agencies' ``collection of 
information.'' 44 U.S.C. 3507.
    The Board has considered whether any of the provisions of the 
proposed amendments provide for a ``collection of information'' covered 
by the PRA. Specifically, the Board has considered the following 
proposed provisions that contain petition and response requirements, 
posting requirements, and requirements that lists of employees or 
eligible voters be filed:
    (1) Under the proposed amendments, as under the current rules, 
parties seeking to initiate the Board's representation procedures are 
required to file a petition with the Board containing specified 
information relevant to the Board's adjudication of the specific 
question raised by the filing of the petition. Under the proposed 
amendments, non-petitioning parties to such representation proceedings 
are required to file a Statement of Position setting forth the parties' 
positions and specified information relevant to the Board's 
adjudication of the question raised by the petition. Employers are 
currently asked to supply the portion of the information specified in 
the proposed amendments relating to their participation in interstate 
commerce.
    (2) Under the proposed amendments, employers are required to post 
an initial and final notice to employees of an election. The second 
posting requirement exists currently. Employers are currently asked but 
not required to post the first notice (in a different form).
    (3) Finally, under the proposed amendments, as under current case 
law, employers are required to file a list of eligible voters prior to 
an election. Under the proposed amendments, a preliminary list of 
employees is required at or before the pre-election

[[Page 7351]]

hearing. For the reasons given below, the Board believes that none of 
these actions constitutes a collection of information covered by the 
PRA.
    The PRA exempts from the definition of ``collection of 
information'' ``a collection of information described under section 
3518(c)(1)'' of the Act. 44 U.S.C. 3502(3)(B).
    Section 3518(c) provides:
     Except as provided in paragraph (2), this subchapter shall 
not apply to the collection of information--
    [cir] During the conduct of--
    [cir] An administrative action or investigation involving an agency 
against specific individuals or entities;
     This subchapter applies to the collection of information 
during the conduct of general investigations . . . undertaken with 
reference to a category of individuals or entities such as a class of 
licensees or an entire industry.

44 U.S.C. 3518(c). The legislative history of this provision makes 
clear that it is not limited to prosecutorial proceedings. The Senate 
Report on the PRA states, ``Section 3518(c)(1)(B) is not limited to 
agency proceedings of a prosecutorial nature but also include[s] any 
agency proceeding involving specific adversary parties.'' S. Rep. No. 
96-930, at 56 (1980).
    The Board believes that all of the above-described provisions of 
the proposed amendments fall within the exemption created by sections 
3502(3)(B) and 3518(c)(1)(B)(ii). A representation proceeding under 
section 9 of the NLRA is ``an administrative action or investigation 
involving an agency.'' A representation proceeding is also ``against 
specific individuals or entities'' within the meaning of section 
3518(c)(1)(B)(ii). The Board's decisions in representation proceedings 
are binding on and thereby alter the legal rights of the parties to the 
proceedings. For example, the employer of any employees who are the 
subject of a petition is a party to the resulting representation 
proceeding.\143\ If the Board finds in a representation proceeding that 
a petition has been filed concerning an appropriate unit and that 
employees in that unit have voted to be represented, the Board will 
thereafter certify the petitioner as the employees' representative for 
purposes of collective bargaining with the employer. As a direct and 
automatic consequence of the Board's certification, the employer is 
legally bound to recognize and bargain with the certified 
representative. If the employer refuses to do so, it commits an unfair 
labor practice.\144\ If such an employer is charged with a refusal to 
bargain, it is precluded from relitigating in the unfair labor practice 
proceeding any issues that were or could have been raised in the 
representation proceeding.\145\ Finally, if such an employer seeks 
review of the Board's order in the unfair labor practice proceeding or 
the Board seeks to enforce its order in a court of appeals, the record 
from the representation proceeding must be filed with the court and 
``the decree of the court enforcing, modifying, or setting aside in 
whole or in part the order of the Board shall be made and entered upon 
the pleadings, testimony, and proceedings set forth in such 
transcript.'' 29 U.S.C. 159(d); see also Boire v. Greyhound Corp. 376 
U.S. 473, 477-79 (1964).\146\
---------------------------------------------------------------------------

    \143\ See, e.g., Pace University v. NLRB, 514 F.3d 19, 23 (D.C. 
Cir. 2008); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 786-88 
(7th Cir. 1953).
    \144\ See, e.g., Country Ford Trucks, Inc. v. NLRB, 229 F.3d 
1184, 1191 (D.C. Cir. 2000); C.J. Krehbiel Co. v. NLRB, 844 F.2d 
880, 882, 886 (D.C. Cir. 1988).
    \145\ See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 
(1941).
    \146\ Similarly, a union that has been certified or recognized 
as the representative of employees in an appropriate unit has a 
legal right to continue to be recognized as the exclusive 
representative of such employees. See Scepter, Inc. v. NLRB, 280 
F.3d 1053, 1056 (D.C. Cir. 2002). However, if a petition is filed 
under section 9 seeking to decertify such a union, which is a party 
to the resulting representation proceeding, see Brom Mach. & Foundry 
Co. v. NLRB, 569 F.2d 1042, 1044 (8th Cir. 1978), and at the 
conclusion of the proceeding the Board certifies the results of an 
election finding that less than a majority of the voters cast 
ballots in favor of continued representation by the union, the union 
loses its legal right to represent the employees. Retail Clerks 
Int'l Ass'n v. Montgomery Ward & Co., 316 F.2d 754, 756-57 (7th Cir. 
1963).
---------------------------------------------------------------------------

    Three limitations on the filing and posting requirements in the 
proposed amendments lead to the conclusion that they fall within the 
statutory exemption. First, the amendments impose requirements only on 
parties to the representation case proceeding, an administrative action 
or investigation against specific individuals or entities within the 
scope of section 3518(c)(1)(B)(ii). Second, any adverse consequences 
for failing to provide the requested information are imposed only on 
persons and entities that are party to the representation proceeding. 
Third, the possible adverse consequences that may result from 
noncompliance do not reach beyond the representation case proceeding. 
The proposed amendments impose no consequences on any party based on 
its failure to file or provide information requested in a petition or 
statement of position form other than to prevent the party from 
initiating a representation proceeding or to restrict a party's rights 
to raise issues or participate in the adjudication of issues in the 
specific representation proceeding and any related unfair labor 
practice proceeding. Similarly, as is the case currently,\147\ no 
consequences attach to a failure to post either notice or to file the 
eligibility list beyond the overturning of an election conducted as 
part of the specific proceeding.
---------------------------------------------------------------------------

    \147\ See John E. Higgins, Jr., The Developing Labor Law 595, 
607 (5th ed. 2006) (noting that failure to provide Excelsior list or 
post notice of election constitutes grounds for setting aside 
election).
---------------------------------------------------------------------------

    Sections 102.62(e), 102.63(a) and 102.67(i) of the proposed 
amendments require that an employer which is party to a representation 
proceeding post an Initial Notice to Employees of Election subsequent 
to the filing of a petition and, if an election is agreed to or 
directed, a Final Notice to Employees of Election. The Board will make 
available both notices to the employer in paper and electronic form, 
and employers will be permitted to post exact duplicate copies of the 
notices. The Board does not believe these posting requirements are 
subject to the PRA for the reasons explained above. Moreover, the Board 
does not believe that the notice posting requirements constitute a 
``collection of information'' as defined in section 3502(3) of the PRA 
for an additional, independent reason. The notice posting requirements 
do not involve answers to questions or any form of reporting. Nor do 
they involve a ``recordkeeping requirement'' as that term is defined in 
section 3502(13) of the PRA. The proposed notice posting requirements 
do not require any party to ``maintain specified records.'' The Board 
notes that this construction is consistent with the Office of 
Management and Budget's regulations construing and implementing the 
PRA, which provide that ``[t]he public disclosure of information 
originally supplied by the Federal government to [a] recipient for the 
purpose of disclosure to the public'' is not considered a ``collection 
of information'' under the Act. See 5 CFR 1320.3(c)(2). For all of 
these reasons, the Board concludes that the posting requirements are 
not subject to the PRA.
    Accordingly, the proposed amendments do not contain information 
collection requirements that require approval of the Office of 
Management and Budget under the Paperwork Reduction Act.

List of Subjects

29 CFR Part 101

    Administrative practice and procedure, Labor management relations.

29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

[[Page 7352]]

29 CFR Part 103

    Labor management relations.

    In consideration of the foregoing, the National Labor Relations 
Board proposes to amend chapter I of title 29, Code of Federal 
Regulations, as follows:

PART 101--STATEMENTS OF PROCEDURES

0
1. The authority citation for part 101 continues to read as follows:

    Authority:  Sec. 6 of the National Labor Relations Act, as 
amended (29 U.S.C. 151, 156), and sec. 552(a) of the Administrative 
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under 
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).

Subpart C--[Removed and Reserved]

0
2. Remove and reserve subpart C, consisting of Sec. Sec.  101.17 
through 101.21.

Subpart D--[Removed and Reserved]

0
3. Remove and reserve subpart D, consisting of Sec. Sec.  101.22 
through 101.25.

Subpart E--[Removed and Reserved]

0
4. Remove and reserve subpart E, consisting of Sec. Sec.  101.26 
through 101.30.

PART 102--RULES AND REGULATIONS, SERIES 8

0
5. The authority citation for part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and 
(k)). Sections 102.143 through 102.155 also issued under section 
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 
504(c)(1)).

Subpart C--Procedure Under Section 9(c) of the Act for the 
Determination of Questions Concerning Representation of Employees 
\2\ And for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act
---------------------------------------------------------------------------

    \2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the 
Act is governed by subpart D of this part.
---------------------------------------------------------------------------

0
6. Revise Sec.  102.60 to read as follows:


Sec.  102.60  Petitions.

    (a) Petition for certification or decertification. A petition for 
investigation of a question concerning representation of employees 
under paragraphs (1)(A)(i) and (1)(B) of section 9(c) of the Act 
(hereinafter called a petition for certification) may be filed by an 
employee or group of employees or any individual or labor organization 
acting in their behalf or by an employer. A petition under paragraph 
(1)(A)(ii) of section 9(c) of the Act, alleging that the individual or 
labor organization which has been certified or is being currently 
recognized as the bargaining representative is no longer such 
representative (hereinafter called a petition for decertification), may 
be filed by any employee or group of employees or any individual or 
labor organization acting in their behalf. Petitions under this section 
shall be in writing and signed, and either shall be sworn to before a 
notary public, Board agent, or other person duly authorized by law to 
administer oaths and take acknowledgments or shall contain a 
declaration by the person signing it, under the penalty of perjury, 
that its contents are true and correct (see 28 U.S.C. 1746). One 
original of the petition shall be filed. A person filing a petition by 
facsimile or electronically pursuant to Sec.  102.114(f) or (i) of this 
part shall also file an original for the Agency's records, but failure 
to do so shall not affect the validity of the filing by facsimile or 
electronically, if otherwise proper. Except as provided in Sec.  102.72 
of this subpart, such petitions shall be filed with the regional 
director for the Region wherein the bargaining unit exists, or, if the 
bargaining unit exists in two or more Regions, with the regional 
director for any of such Regions with a certificate of service on all 
parties named in the petition. Along with the petition, the petitioner 
shall serve a description of procedures in representation cases and a 
Statement of Position form. Prior to the transfer of the record to the 
Board, the petition may be withdrawn only with the consent of the 
regional director with whom such petition was filed. After the transfer 
of the record to the Board, the petition may be withdrawn only with the 
consent of the Board. Whenever the regional director or the Board, as 
the case may be, approves the withdrawal of any petition, the case 
shall be closed.
    (b) Petition for clarification of bargaining unit or petition for 
amendment of certification. A petition for clarification of an existing 
bargaining unit or a petition for amendment of certification, in the 
absence of a question concerning representation, may be filed by a 
labor organization or by an employer. Where applicable the same 
procedures set forth in paragraph (a) of this section shall be 
followed.
0
7. Revise Sec.  102.61 to read as follows:


Sec.  102.61  Contents of petition for certification; contents of 
petition for decertification; contents of petition for clarification of 
bargaining unit; contents of petition for amendment of certification.

    (a) RC Petitions. A petition for certification, when filed by an 
employee or group of employees or an individual or labor organization 
acting in their behalf, shall contain the following:
    (1) The name of the employer.
    (2) The address of the establishments involved.
    (3) The general nature of the employer's business.
    (4) A description of the bargaining unit which the petitioner 
claims to be appropriate.
    (5) The names and addresses of any other persons or labor 
organizations who claim to represent any employees in the alleged 
appropriate unit, and brief descriptions of the contracts, if any, 
covering the employees in such unit.
    (6) The number of employees in the alleged appropriate unit.
    (7) A statement that a substantial number of employees in the 
described unit wish to be represented by the petitioner. Evidence 
supporting the statement shall be filed with the petition in accordance 
with paragraph (f) of this section, but shall not be served on any 
other party.
    (8) A statement that the employer declines to recognize the 
petitioner as the representative within the meaning of section 9(a) of 
the Act or that the labor organization is currently recognized but 
desires certification under the act.
    (9) The name, affiliation, if any, and address of the petitioner, 
and the name, title, address, telephone number, fax number, and email 
address of the individual who will serve as the representative of the 
petitioner and accept service of all papers for purposes of the 
representation proceeding.
    (10) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (11) Any other relevant facts.
    (b) RM Petitions. A petition for certification, when filed by an 
employer, shall contain the following:
    (1) The name and address of the petitioner, and the name, title, 
address, telephone number, fax number, and email address of the 
individual who will serve as the representative of the petitioner and 
accept service of all papers for purposes of the representation 
proceeding.
    (2) The general nature of the petitioner's business.
    (3) A brief statement setting forth that one or more individuals or 
labor

[[Page 7353]]

organizations have presented to the petitioner a claim to be recognized 
as the exclusive representative of all employees in the unit claimed to 
be appropriate; a description of such unit; and the number of employees 
in the unit.
    (4) The name or names, affiliation, if any, and addresses of the 
individuals or labor organizations making such claim for recognition.
    (5) A statement whether the petitioner has contracts with any labor 
organization or other representatives of employees and, if so, their 
expiration date.
    (6) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (7) Any other relevant facts.
    (8) Evidence supporting the statement that a labor organization has 
made a demand for recognition on the employer or that the employer has 
good faith uncertainty about majority support for an existing 
representative. Such evidence shall be filed together with the 
petition, but if the evidence reveals the names and/or number of 
employees who no longer wish to be represented, the evidence shall not 
be served on any other party. However, no proof of representation on 
the part of the labor organization claiming a majority is required and 
the regional director shall proceed with the case if other factors 
require it unless the labor organization withdraws its claim to 
majority representation.
    (c) RD Petitions. Petitions for decertification shall contain the 
following:
    (1) The name of the employer.
    (2) The address of the establishments and a description of the 
bargaining unit involved.
    (3) The general nature of the employer's business.
    (4) The name and address of the petitioner and affiliation, if any, 
and the name, title, address, telephone number, fax number, and email 
address of the individual who will serve as the representative of the 
petitioner and accept service of all papers for purposes of the 
representation proceeding.
    (5) The name or names and addresses of the individuals or labor 
organizations who have been certified or are being currently recognized 
by the employer and who claim to represent any employees in the unit 
involved, and the expiration date of any contracts covering such 
employees.
    (6) An allegation that the individuals or labor organizations who 
have been certified or are currently recognized by the employer are no 
longer the representative in the appropriate unit as defined in section 
9(a) of the Act.
    (7) The number of employees in the unit.
    (8) A statement that a substantial number of employees in the 
described unit no longer wish to be represented by the incumbent 
representative. Evidence supporting the statement shall be filed with 
the petition in accordance with paragraph (f) of this section, but 
shall not be served on any other party.
    (9) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (10) Any other relevant facts.
    (d) UC Petitions. A petition for clarification shall contain the 
following:
    (1) The name of the employer and the name of the recognized or 
certified bargaining representative.
    (2) The address of the establishment involved.
    (3) The general nature of the employer's business.
    (4) A description of the present bargaining unit, and, if the 
bargaining unit is certified, an identification of the existing 
certification.
    (5) A description of the proposed clarification.
    (6) The names and addresses of any other persons or labor 
organizations who claim to represent any employees affected by the 
proposed clarifications, and brief descriptions of the contracts, if 
any, covering any such employees.
    (7) The number of employees in the present bargaining unit and in 
the unit as proposed under the clarification.
    (8) The job classifications of employees as to whom the issue is 
raised, and the number of employees in each classification.
    (9) A statement by petitioner setting forth reasons why petitioner 
desires clarification of unit.
    (10) The name, the affiliation, if any, and the address of the 
petitioner, and the name, title, address, telephone number, fax number, 
and email address of the individual who will serve as the 
representative of the petitioner and accept service of all papers for 
purposes of the representation proceeding.
    (11) Any other relevant facts.
    (e) AC Petitions. A petition for amendment of certification shall 
contain the following:
    (1) The name of the employer and the name of the certified union 
involved.
    (2) The address of the establishment involved.
    (3) The general nature of the employer's business.
    (4) Identification and description of the existing certification.
    (5) A statement by petitioner setting forth the details of the 
desired amendment and reasons therefor.
    (6) The names and addresses of any other persons or labor 
organizations who claim to represent any employees in the unit covered 
by the certification and brief descriptions of the contracts, if any, 
covering the employees in such unit.
    (7) The name, the affiliation, if any, and the address of the 
petitioner, and the name, title, address, telephone number, fax number, 
and email address of the individual who will serve as the 
representative of the petitioner and accept service of all papers for 
purposes of the representation proceeding.
    (8) Any other relevant facts.
    (f) Provision of original signatures. Evidence filed pursuant to 
Sec.  102.61(a)(7), (b)(8), or (c)(8) of this subpart together with a 
petition that is filed by facsimile or electronically, which includes 
original signatures that cannot be transmitted in their original form 
by the method of filing of the petition, may be filed by facsimile or 
in electronic form provided that the original documents are received by 
the regional director no later than two days after the facsimile or 
electronic filing.
0
8. Revise Sec.  102.62 to read as follows:


Sec.  102.62  Election agreements; voter list.

    (a) Consent election agreements with final regional director 
determinations of post-election disputes. Where a petition has been 
duly filed, the employer and any individual or labor organizations 
representing a substantial number of employees involved may, with the 
approval of the regional director, enter into an agreement providing 
for the waiver of a hearing and for an election and further providing 
that post-election disputes will be resolved by the regional director. 
Such agreement, referred to as a consent election agreement, shall 
include a description of the appropriate unit, the time and place of 
holding the election, and the payroll period to be used in determining 
what employees within the appropriate unit shall be eligible to vote. 
Such election shall be conducted under the direction and supervision of 
the regional director. The method of conducting such election shall be 
consistent with the method followed by the regional director in 
conducting elections pursuant to Sec. Sec.  102.69 and 102.70 of this 
subpart except that the rulings and determinations by the regional 
director of the results thereof shall be final, and the regional 
director shall issue to the parties a certification of the results of 
the election, including certifications of representative where 
appropriate, with

[[Page 7354]]

the same force and effect, in that case, as if issued by the Board, 
provided further that rulings or determinations by the regional 
director in respect to any amendment of such certification shall also 
be final.
    (b) Stipulated election agreements with discretionary board review. 
Where a petition has been duly filed, the employer and any individuals 
or labor organizations representing a substantial number of the 
employees involved may, with the approval of the regional director, 
enter into an agreement providing for the waiver of a hearing and for 
an election as described in paragraph (a) of this section and further 
providing that the parties may request Board review of the regional 
director's resolution of post-election disputes. Such agreement, 
referred to as a stipulated election agreement, shall also include a 
description of the appropriate bargaining unit, the time and place of 
holding the election, and the payroll period to be used in determining 
which employees within the appropriate unit shall be eligible to vote. 
Such election shall be conducted under the direction and supervision of 
the regional director. The method of conducting such election and the 
post-election procedure shall be consistent with that followed by the 
regional director in conducting elections pursuant to Sec. Sec.  102.69 
and 102.70 of this subpart.
    (c) Full consent election agreements with final regional director 
determinations of pre- and post-election disputes. Where a petition has 
been duly filed, the employer and any individual or labor organizations 
representing a substantial number of the employees involved may, with 
the approval of the regional director, enter into an agreement, 
referred to as a full consent election agreement, providing that pre- 
and post-election disputes will be resolved by the regional director. 
Such agreement provides for a hearing pursuant to Sec. Sec.  102.63, 
102.64, 102.65, 102.66 and 102.67 of this subpart to determine if a 
question concerning representation exists. Upon the conclusion of such 
a hearing, the regional director shall issue a decision. The rulings 
and determinations by the regional director thereunder shall be final, 
with the same force and effect, in that case, as if issued by the 
Board. Any election ordered by the regional director shall be conducted 
under the direction and supervision of the regional director. The 
method of conducting such election shall be consistent with the method 
followed by the regional director in conducting elections pursuant to 
Sec. Sec.  102.69 and 102.70 of this subpart, except that the rulings 
and determinations by the regional director of the results thereof 
shall be final, and the regional director shall issue to the parties a 
certification of the results of the election, including certifications 
of representative where appropriate, with the same force and effect, in 
that case, as if issued by the Board, provided further that rulings or 
determinations by the regional director in respect to any amendment of 
such certification shall also be final.
    (d) Voter lists. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction, within two days after approval of an 
election agreement pursuant to paragraphs (a) or (b) of this section, 
or issuance of a direction of election pursuant to paragraph (c) of 
this section, the employer shall provide to the regional director and 
the parties named in the agreement or direction a list of the full 
names, home addresses, available telephone numbers, available email 
addresses, work locations, shifts, and job classifications of all 
eligible voters. In order to be timely filed, the list must be received 
by the regional director and the parties named in the agreement or 
direction within two days after the approval of the agreement or 
issuance of the direction. The list of names shall be alphabetized 
(overall or by department) and be in an electronic format generally 
approved by the Board's Executive Secretary unless the employer 
certifies that it does not possess the capacity to produce the list in 
the required form. When feasible, the list shall be filed 
electronically with the regional director and served electronically on 
the other parties named in the petition. Failure to file or serve the 
list within the specified time and in proper format shall be grounds 
for setting aside the election whenever proper objections are filed. 
The regional director shall make the list available upon request to all 
parties in the case on the same day or as soon as practicable after the 
director receives the list from the employer. The parties shall use the 
list exclusively for purposes related to the representation proceeding 
and related Board proceedings.
    (e) Final notices to employees of election. Upon approval of the 
election agreement pursuant to paragraphs (a) or (b) or with the 
direction of election pursuant to paragraph (c), the regional director 
shall promptly transmit the Board's Final Notice to Employees of 
Election to the parties by email, facsimile, or by overnight mail (if 
neither an email address nor facsimile number was provided). The 
regional director shall also electronically transmit the Final Notice 
to Employees of Election to affected employees to the extent 
practicable. The Final Notice to Employees of Election shall be posted 
in accordance with Sec.  102.67(i) of this subpart.
0
9. Revise Sec.  102.63 to read as follows:


Sec.  102.63  Investigation of petition by regional director; notice of 
hearing; service of notice; Initial Notice to Employees of Election; 
Statement of Position form; withdrawal of notice.

    (a) Investigations and notices. (1) After a petition has been filed 
under Sec.  102.61(a), (b), or (c) of this subpart, if no agreement 
such as that provided in Sec.  102.62 of this subpart is entered into 
and if it appears to the regional director that there is reasonable 
cause to believe that a question of representation affecting commerce 
exists, that the policies of the act will be effectuated, and that an 
election will reflect the free choice of employees in an appropriate 
unit, the regional director shall prepare and cause to be served upon 
the parties and upon any known individuals or labor organizations 
purporting to act as representatives of any employees directly affected 
by such investigation, a notice of hearing before a hearing officer at 
a time and place fixed therein. The regional director shall set the 
hearing for a date 7 days from the date of service of the notice absent 
special circumstances. A copy of the petition, a description of 
procedures in representation cases, an ``Initial Notice to Employees of 
Election'', and a Statement of Position form as described in paragraphs 
(b)(1) through (3) of this section, shall be served with such notice of 
hearing. Any such notice of hearing may be amended or withdrawn before 
the close of the hearing by the regional director on his own motion.
    (2) The employer shall immediately post the Initial Notice to 
Employees of Election, where notices to employees are customarily 
posted, and shall also distribute it electronically if the employer 
customarily communicates with its employees electronically. The 
employer shall maintain the posting until the petition is dismissed or 
the Initial Notice is replaced by the Final Notice to Employees of 
Election. Failure to properly post and distribute the Initial Notice to 
Employees of Election shall be grounds for setting aside the results of 
the election whenever proper objections are filed.
    (b)(1) Statement of Position in RC cases. After a petition has been 
filed under Sec.  102.61(a) of this subpart and the regional director 
has issued a notice of hearing, the employer shall file and serve on 
the parties named in the

[[Page 7355]]

petition its Statement of Position by the date and in the manner 
specified in the notice unless that date is the same as the hearing 
date. If the Statement of Position is due on the date of the hearing, 
its completion shall be the first order of business at the hearing 
before any further evidence is received, and its completion may be 
accomplished with the assistance of the hearing officer.
    (i) The employer's Statement of Position shall state whether the 
employer agrees that the Board has jurisdiction over the petition and 
provide the requested information concerning the employer's relation to 
interstate commerce; state whether the employer agrees that the 
proposed unit is appropriate, and, if the employer does not so agree, 
state the basis of the contention that the proposed unit is 
inappropriate, and describe the most similar unit that the employer 
concedes is appropriate; identify any individuals occupying 
classifications in the petitioned-for unit whose eligibility to vote 
the employer intends to contest at the pre-election hearing and the 
basis of each such contention; raise any election bar; state the 
employer's position concerning the type, dates, times, and location of 
the election and the eligibility period; and describe all other issues 
the employer intends to raise at the hearing.
    (ii) The Statement of Position shall also state the name, title, 
address, telephone number, fax number, and email address of the 
individual who will serve as the representative of the employer and 
accept service of all papers for purposes of the representation 
proceeding and be signed by a representative of the employer.
    (iii) The Statement of Position shall further state the full names, 
work locations, shifts, and job classifications of all individuals in 
the proposed unit as of the payroll period preceding the filing of the 
petition who remain employed at the time of filing, and if the employer 
contends that the proposed unit is inappropriate, the employer shall 
also state the full names, work locations, shifts, and job 
classifications of all employees in the most similar unit that the 
employer concedes is appropriate. The list of names shall be 
alphabetized (overall or by department) and be in an electronic format 
generally approved by the Board's Executive Secretary unless the 
employer certifies that it does not possess the capacity to produce the 
list in the required form.
    (iv) In addition to the information described in paragraph 
(b)(1)(iii) of this section, the lists filed with the regional 
director, but not served on any other party, shall contain available 
telephone numbers, available email addresses, and home addresses of all 
individuals referred to in paragraph (b)(1)(iii) of this section.
    (v) The employer shall be precluded from contesting the 
appropriateness of the petitioned-for unit at any time and from 
contesting the eligibility or inclusion of any individuals at the pre-
election hearing, including by presenting evidence or argument, or by 
cross-examination of witnesses, if the employer fails to timely furnish 
the information described in paragraphs (b)(1)(iii) and (iv) of this 
section.
    (2) Statement of Position in RM cases. If a petition has been filed 
under Sec.  102.61(b) of this subpart, the individual or labor 
organization which is alleged to have presented to the petitioner a 
claim to be recognized shall file and serve on the regional director 
and the parties named in the petition its Statement of Position such 
that it is received by the regional director and the parties named in 
the petition on the date specified in the notice unless that date is 
the same as the hearing date. If the Statement of Position is due on 
the date of the hearing, its completion shall be the first order of 
business at the hearing before any further evidence is received, and 
its completion may be accomplished with the assistance of the hearing 
officer.
    (i) Individual or labor organization's Statement of Position. The 
individual or labor organization's Statement of Position shall describe 
all issues the party intends to raise at the hearing.
    (ii) Identification of representative for service of papers. The 
Statement of Position shall also state the name, title, address, 
telephone number, fax number, and email address of the individual who 
will serve as the representative of the individual or labor 
organization and accept service of all papers for purposes of the 
representation proceeding and be signed by a representative of the 
individual or labor organization.
    (iii) Employer's Statement of Position. Within the time permitted 
for filing the Statement of Position, the employer shall file with the 
regional director, and serve on the individual or labor organization, a 
list of the full names, work locations, shifts, and job classifications 
of all individuals in the proposed unit as of the payroll period 
preceding the filing of the petition who remain employed at the time of 
filing. The list of names shall be alphabetized (overall or by 
department) and be in an electronic format generally approved by the 
Board's Executive Secretary unless the employer certifies that it does 
not possess the capacity to produce the list in the required form.
    (iv) Contact information for individuals in proposed unit. In 
addition to the information described in paragraph (b)(2)(iii) of this 
section, the lists filed with the regional director, but not served on 
any other party, shall contain the full names, available telephone 
numbers, available email addresses, and home addresses of all 
individuals referred to in paragraph (b)(2)(iii) of this section.
    (v) Preclusion. The employer shall be precluded from contesting the 
appropriateness of the unit at any time and from contesting the 
eligibility or inclusion of any individuals at the pre-election 
hearing, including by presenting evidence or argument, or by cross-
examination of witnesses, if the employer fails to timely furnish the 
information described in paragraphs (b)(2)(iii) and (iv) of this 
section.
    (3) Statement of Position in RD cases. If a petition has been filed 
under Sec.  102.61(c) of this subpart, the employer and the certified 
or recognized representative of employees shall file and serve on the 
regional director and the parties named in the petition their 
respective Statements of Position such that they are received by the 
regional director and the parties named in the petition on the date 
specified in the notice unless that date is the same as the hearing 
date. If the Statements of Position are due on the date of the hearing, 
their completion shall be the first order of business at the hearing 
before any further evidence is received, and their completion may be 
accomplished with the assistance of the hearing officer.
    (i) The Statements of Position of the employer and the certified or 
recognized representative shall describe all issues each party intends 
to raise at the hearing.
    (ii) The Statements of Position shall also state the name, title, 
address, telephone number, fax number, and email address of the 
individual who will serve as the representative of the employer or the 
certified or recognized representative of the employees and accept 
service of all papers for purposes of the representation proceeding and 
be signed by a representative of the employer or the certified or 
recognized representative, respectively.
    (iii) The employer's Statement of Position shall also state the 
full names, work locations, shifts, and job classifications of all 
individuals in the proposed unit as of the payroll period preceding the 
filing of the petition who remain employed at the time of filing, and 
if the employer contends that the proposed unit is inappropriate, the 
employer shall also state the full names,

[[Page 7356]]

work locations, shifts, and job classifications of all individuals in 
the certified or recognized unit. The list of names shall be 
alphabetized (overall or by department) and be in an electronic format 
generally approved by the Board's Executive Secretary unless the 
employer certifies that it does not possess the capacity to produce the 
list in the required form.
    (iv) In addition to the information described in paragraph 
(b)(3)(iii) of this section, the lists filed with the regional 
director, but not served on any other party, shall contain the full 
names, available telephone numbers, available email addresses, and home 
addresses of all individuals referred to in paragraph (b)(3)(iii) of 
this section.
    (v) The employer shall be precluded from contesting the 
appropriateness of the petitioned-for unit at any time and from 
contesting the eligibility or inclusion of any individuals at the pre-
election hearing, including by presenting evidence or argument, or by 
cross-examination of witnesses, if the employer fails to timely furnish 
the information described in paragraphs (b)(3)(iii) and (b)(3)(iv) of 
this section.
    (c) UC or AC cases. After a petition has been filed under Sec.  
102.61(d) or (e) of this subpart, the regional director shall conduct 
an investigation and, as appropriate, he may issue a decision without a 
hearing; or prepare and cause to be served upon the parties and upon 
any known individuals or labor organizations purporting to act as 
representatives of any employees directly affected by such 
investigation, a notice of hearing before a hearing officer at a time 
and place fixed therein; or take other appropriate action. If a notice 
of hearing is served, it shall be accompanied by a copy of the 
petition. Any such notice of hearing may be amended or withdrawn before 
the close of the hearing by the regional director on his own motion. 
All hearing and posthearing procedure under paragraph (c) of this 
section shall be in conformance with Sec. Sec.  102.64 through 102.69 
of this subpart whenever applicable, except where the unit or 
certification involved arises out of an agreement as provided in Sec.  
102.62(a) of this subpart, the regional director's action shall be 
final, and the provisions for review of regional director's decisions 
by the Board shall not apply. Dismissals of petitions without a hearing 
shall not be governed by Sec.  102.71 of this subpart. The regional 
director's dismissal shall be by decision, and a request for review 
therefrom may be obtained under Sec.  102.67 of this subpart, except 
where an agreement under Sec.  102.62(a) of this subpart is involved.
0
10. Revise Sec.  102.64 to read as follows:


Sec.  102.64  Conduct of hearing.

    (a) The purpose of a hearing conducted under section 9(c) of the 
Act is to determine if a question of representation exists. A question 
of representation exists if a petition as described in section 9(c) of 
the Act has been filed concerning a unit appropriate for the purpose of 
collective bargaining or, in the case of a petition filed under section 
9(c)(1)(A)(ii), concerning a unit in which an individual or labor 
organization has been certified or is being currently recognized by the 
employer as the bargaining representative. If, upon the record of the 
hearing, the regional director finds that such a question of 
representation exists and there is no bar to an election, he shall 
direct an election to resolve the question and, subsequent to that 
election, unless specifically provided otherwise in these rules, 
resolve any disputes concerning the eligibility or inclusion of voters 
that might affect the results of the election.
    (b) Hearings shall be conducted by a hearing officer and shall be 
open to the public unless otherwise ordered by the hearing officer. At 
any time, a hearing officer may be substituted for the hearing officer 
previously presiding. Subject to the provisions of Sec.  102.66 of this 
subpart, it shall be the duty of the hearing officer to inquire fully 
into all genuine disputes as to material facts in order to obtain a 
full and complete record upon which the Board or the regional director 
may discharge their duties under section 9(c) of the Act.
    (c) The hearing officer shall continue the hearing from day to day 
until completed absent extraordinary circumstances.
0
11. Revise Sec.  102.65 to read as follows:


Sec.  102.65  Motions; interventions.

    (a) All motions, including motions for intervention pursuant to 
paragraphs (b) and (e) of this section, shall be in writing or, if made 
at the hearing, may be stated orally on the record and shall briefly 
state the order or relief sought and the grounds for such motion. An 
original and two copies of written motions shall be filed and a copy 
thereof immediately shall be served on the other parties to the 
proceeding. Motions made prior to the transfer of the record to the 
Board shall be filed with the regional director, except that motions 
made during the hearing shall be filed with the hearing officer. After 
the transfer of the record to the Board, all motions shall be filed 
with the Board. Such motions shall be printed or otherwise legibly 
duplicated. Eight copies of such motions shall be filed with the Board. 
The regional director may rule upon all motions filed with him, causing 
a copy of said ruling to be served on the parties, or he may refer the 
motion to the hearing officer: Provided, That if the regional director 
prior to the close of the hearing grants a motion to dismiss the 
petition, the petitioner may obtain a review of such ruling in the 
manner prescribed in Sec.  102.71 of this subpart. The hearing officer 
shall rule, either orally on the record or in writing, upon all motions 
filed at the hearing or referred to him as hereinabove provided, except 
that all motions to dismiss petitions shall be referred for appropriate 
action at such time as the entire record is considered by the regional 
director or the Board, as the case may be.
    (b) Any person desiring to intervene in any proceeding shall make a 
motion for intervention, stating the grounds upon which such person 
claims to have an interest in the proceeding. The regional director or 
the hearing officer, as the case may be, may by order permit 
intervention in person or by counsel or other representative to such 
extent and upon such terms as he may deem proper, and such intervenor 
shall thereupon become a party to the proceeding. Any person desiring 
to intervene in any such proceeding shall also complete a Statement of 
Position form.
    (c) All motions, rulings, and orders shall become a part of the 
record, except that rulings on motions to revoke subpoenas shall become 
a part of the record only upon the request of the party aggrieved 
thereby as provided in Sec.  102.66(g) of this subpart. Unless 
expressly authorized by the Rules and Regulations, rulings by the 
regional director or by the hearing officer shall not be appealed 
directly to the Board, but shall be considered by the Board on 
appropriate request for review pursuant to Sec.  102.67 (b), (c), and 
(d) or Sec.  102.69 of this subpart. Nor shall rulings by the hearing 
officer be appealed directly to the regional director unless expressly 
authorized by the Rules and Regulations, except by special permission 
of the regional director, but shall be considered by the regional 
director when he reviews the entire record. Requests to the regional 
director, or to the Board in appropriate cases, for special permission 
to appeal from a ruling of the hearing officer or the regional 
director, together with the appeal from such ruling, shall be filed 
promptly, in writing, and shall briefly state the reasons special 
permission

[[Page 7357]]

should be granted, including why the issue will otherwise evade review, 
and the grounds relied on for the appeal. The moving party shall 
immediately serve a copy of the request for special permission and of 
the appeal on the other parties and on the regional director. Any 
statement in opposition or other response to the request and/or to the 
appeal shall be filed promptly, in writing, and shall be served 
immediately on the other parties and on the regional director. Neither 
the Board nor the regional director will grant a request for special 
permission to appeal except in extraordinary circumstances where it 
appears that the issue will otherwise evade review. No party shall be 
precluded from raising an issue at a later time based on its failure to 
seek special permission to appeal. If the Board or the regional 
director, as the case may be, grants the request for special permission 
to appeal, the Board or the regional director may proceed forthwith to 
rule on the appeal. Neither the filing nor the grant of such a request 
shall, unless otherwise ordered by the Board, operate as a stay of an 
election or any action taken or directed by the regional director. 
Notwithstanding a pending request for special permission to appeal, the 
regional director shall not impound ballots cast in an election unless 
otherwise ordered by the Board.
    (d) The right to make motions or to make objections to rulings on 
motions shall not be deemed waived by participation in the proceeding.
    (e)(1) A party to a proceeding may, because of extraordinary 
circumstances, move after the close of the hearing for reopening of the 
record, or move after the decision or report for reconsideration, for 
rehearing, or to reopen the record, but no such motion shall stay the 
time for filing a request for review of a decision or exceptions to a 
report. No motion for reconsideration, for rehearing, or to reopen the 
record will be entertained by the Board or by any regional director or 
hearing officer with respect to any matter which could have been but 
was not raised pursuant to any other section of these rules: Provided, 
however, That the regional director may treat a request for review of a 
decision or exceptions to a report as a motion for reconsideration. A 
motion for reconsideration shall state with particularity the material 
error claimed and with respect to any finding of material fact shall 
specify the page of the record relied on for the motion. A motion for 
rehearing or to reopen the record shall specify briefly the error 
alleged to require a rehearing or hearing de novo, the prejudice to the 
movant alleged to result from such error, the additional evidence 
sought to be adduced, why it was not presented previously, and what 
result it would require if adduced and credited. Only newly discovered 
evidence--evidence which has become available only since the close of 
the hearing--or evidence which the regional director or the Board 
believes should have been taken at the hearing will be taken at any 
further hearing.
    (2) Any motion for reconsideration or for rehearing pursuant to 
this paragraph (e) shall be filed within 14 days, or such further 
period as may be allowed, after the service of the decision or report. 
Any request for an extension of time to file such a motion shall be 
served promptly on the other parties. A motion to reopen the record 
shall be filed promptly on discovery of the evidence sought to be 
adduced.
    (3) The filing and pendency of a motion under this provision shall 
not unless so ordered operate to stay the effectiveness of any action 
taken or directed to be taken nor will a regional director or the Board 
delay any decision or action during the period specified in paragraph 
(e)(2) of this section, except that, if a motion for reconsideration 
based on changed circumstances or to reopen the record based on newly 
discovered evidence states with particularity that the granting thereof 
will affect the eligibility to vote of specific employees, the Board 
agent shall have discretion to allow such employees to vote subject to 
challenge even if they are specifically excluded in the direction of 
election and to permit the moving party to challenge the ballots of 
such employees even if they are specifically included in the direction 
of election in any election conducted while such motion is pending. A 
motion for reconsideration, for rehearing, or to reopen the record need 
not be filed to exhaust administrative remedies.
0
12. Revise Sec.  102.66 to read as follows:


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

    (a) Rights of parties at hearing. Any party shall have the right to 
appear at any hearing in person, by counsel, or by other 
representative, and any party and the hearing officer shall have power 
to call, examine, and cross-examine witnesses and to introduce into the 
record documentary and other evidence relevant to any genuine dispute 
as to a material fact. The hearing officer shall identify such disputes 
as follows:
    (1) Joinder in RC cases. In a case arising under Sec.  102.61(a) of 
this subpart, after the employer completes its Statement of Position 
and prior to the introduction of further evidence, the petitioner shall 
respond to each issue raised in the Statement. The hearing officer 
shall not receive evidence relevant to any issue concerning which 
parties have not taken adverse positions: Provided, however, That if 
the employer fails to take a position regarding the appropriateness of 
the petitioned-for unit, the petitioner shall explain why the proposed 
unit is appropriate and may support its explanation with evidence in 
the form of sworn statements or declarations consistent with the 
requirements stated in Sec.  102.60(a) of this subpart or through 
examination of witnesses and introduction of documentary or other 
evidence.
    (2) Joinder in RM cases. In a case arising under Sec.  102.61(b) of 
this subpart, after the individual or labor organization completes its 
Statement of Position and prior to the introduction of further 
evidence, the petitioner shall respond to each issue raised in the 
Statement. The hearing officer shall not receive evidence relevant to 
any issue concerning which parties have not taken adverse positions: 
Provided, however, That if the individual or labor organization fails 
to take a position regarding the appropriateness of the petitioned-for 
unit, the petitioner shall explain why the proposed unit is appropriate 
and may support its explanation with evidence in the form of sworn 
statements or declarations consistent with the requirements stated in 
Sec.  102.60(a) of this subpart or through examination of witnesses and 
introduction of documentary or other evidence.
    (3) Joinder in RD cases. In a case arising under Sec.  102.61(c) of 
this subpart, after the employer and the certified or recognized 
representative of employees complete their respective Statements of 
Position and prior to the introduction of further evidence, the 
petitioner shall respond to each issue raised in the Statements. The 
hearing officer shall not receive evidence relevant to any issue 
concerning which parties have not taken adverse positions: Provided, 
however, That if the employer and/or the certified or recognized 
representative fails to take a position regarding whether the 
petitioned-for unit is coextensive with the unit for which a 
representative is certified or recognized, the petitioner shall explain 
why the proposed unit is appropriate and may support its explanation 
with evidence in the form of sworn statements or declarations 
consistent with the requirements stated in Sec.  102.60(a) of this 
subpart or through examination of witnesses and

[[Page 7358]]

introduction of documentary or other evidence.
    (b) Offers of proof; discussion of election procedure. After 
identifying the issues in dispute pursuant to paragraph (a) of this 
section, the hearing officer shall solicit offers of proof from the 
parties or their counsel as to all such issues. The offers of proof 
shall take the form of a written statement or an oral statement on the 
record identifying each witness the party would call to testify 
concerning the issue and summarizing the witness' testimony. The 
hearing officer shall examine the offers of proof related to each issue 
in dispute and shall proceed to hear testimony and accept other 
evidence relevant to the issue only if the offers of proof raise a 
genuine dispute as to any material fact. Prior to the close of the 
hearing, the hearing officer will:
    (1) Solicit the parties' positions on the type, dates, times, and 
locations of the election and the eligibility period, but shall not 
permit litigation of those issues;
    (2) Inform the parties that the regional director will issue a 
decision, direction of election or both as soon as practicable and that 
the director will immediately transmit the document(s) to the parties' 
designated representatives by email, facsimile, or by overnight mail 
(if neither an email address nor facsimile number was provided); and
    (3) Inform the parties what their obligations will be under these 
rules if the director directs an election and of the time for complying 
with such obligations.
    (c) Preclusion. A party shall be precluded from raising any issue, 
presenting any evidence relating to any issue, cross-examining any 
witness concerning any issue, and presenting argument concerning any 
issue that the party failed to raise in its timely Statement of 
Position or to place in dispute in response to another party's 
Statement: Provided, however, that no party shall be precluded from 
contesting or presenting evidence relevant to the Board's statutory 
jurisdiction to process the petition; Provided, further, that no party 
shall be precluded, on the grounds that a voter's eligibility or 
inclusion was not contested at the pre-election hearing, from 
challenging the eligibility of any voter during the election. If a 
party contends that the petitioned-for unit is not appropriate in its 
Statement of Position but fails to state the most similar unit that it 
concedes is appropriate, the party shall also be precluded from raising 
any issue as to the appropriateness of the unit, presenting any 
evidence relating to the appropriateness of the unit, cross-examining 
any witness concerning the appropriateness of the unit, and presenting 
argument concerning the appropriateness of the unit.
    (d) Disputes concerning less than 20 percent of the unit. If at any 
time during the hearing, the hearing officer determines that the only 
issues remaining in dispute concern the eligibility or inclusion of 
individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the hearing officer shall close 
the hearing.
    (e) Witness examination and evidence. Witnesses shall be examined 
orally under oath. The rules of evidence prevailing in courts of law or 
equity shall not be controlling. Stipulations of fact may be introduced 
in evidence with respect to any issue.
    (f) Objections. Any objection with respect to the conduct of the 
hearing, including any objection to the introduction of evidence, may 
be stated orally or in writing, accompanied by a short statement of the 
grounds of such objection, and included in the record. No such 
objection shall be deemed waived by further participation in the 
hearing.
    (g) Subpoenas. The Board, or any Member thereof, shall, on the 
written application of any party, forthwith issue subpoenas requiring 
the attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of 
the Board or any Member thereof. Any party may file applications for 
subpoenas in writing with the regional director if made prior to 
hearing, or with the hearing officer if made at the hearing. 
Applications for subpoenas may be made ex parte. The regional director 
or the hearing officer, as the case may be, shall forthwith grant the 
subpoenas requested. Any person served with a subpoena, whether ad 
testificandum or duces tecum, if he or she does not intend to comply 
with the subpoena, shall, within 5 days after the date of service of 
the subpoena or by such earlier time as the hearing officer or regional 
director shall determine, petition in writing to revoke the subpoena. 
The date of service for purposes of computing the time for filing a 
petition to revoke shall be the date the subpoena is received. Such 
petition shall be filed with the regional director who may either rule 
upon it or refer it for ruling to the hearing officer: Provided, 
however, That if the evidence called for is to be produced at a hearing 
and the hearing has opened, the petition to revoke shall be filed with 
the hearing officer or, with the permission of the hearing officer, 
presented orally. Notice of the filing of petitions to revoke shall be 
promptly given by the regional director or hearing officer, as the case 
may be, to the party at whose request the subpoena was issued. The 
regional director or the hearing officer, as the case may be, shall 
revoke the subpoena if, in his opinion, the evidence whose production 
is required does not relate to any matter under investigation or in 
question in the proceedings or the subpoena does not describe with 
sufficient particularity the evidence whose production is required, or 
if for any other reason sufficient in law the subpoena is otherwise 
invalid. The regional director or the hearing officer, as the case may 
be, shall make a simple statement of procedural or other grounds for 
his ruling. The petition to revoke, any answer filed thereto, and any 
ruling thereon shall not become part of the record except upon the 
request of the party aggrieved by the ruling. Persons compelled to 
submit data or evidence are entitled to retain or, on payment of 
lawfully prescribed costs, to procure copies or transcripts of the data 
or evidence submitted by them.
    (h) Oral argument and briefs. Any party shall be entitled, upon 
request, to a reasonable period at the close of the hearing for oral 
argument, which shall be included in the stenographic report of the 
hearing. Briefs shall be filed only upon special permission of the 
hearing officer and within the time the hearing officer permits.
    (i) Hearing officer analysis. The hearing officer may submit an 
analysis of the record to the regional director but he shall make no 
recommendations.
    (j) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.
0
13. Revise Sec.  102.67 to read as follows:


Sec.  102.67  Proceedings before the regional director; further 
hearing; action by the regional director; review of action by the 
regional director; statement in opposition; final notice of election; 
voter list.

    (a) Proceedings before regional director. The regional director may 
proceed, either forthwith upon the record or after oral argument, the 
submission of briefs, or further hearing, as he may deem proper, to 
determine whether a question concerning representation exists in a unit 
appropriate for purposes of collective bargaining, and to direct an 
election, dismiss the petition, or make other disposition of the 
matter. If the hearing officer has determined during the

[[Page 7359]]

hearing or the regional director determines after the hearing that the 
only issues remaining in dispute concern the eligibility or inclusion 
of individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the regional director shall 
direct that those individuals be permitted to vote subject to 
challenge. In the event that the regional director permits individuals 
whose eligibility or inclusion remains in dispute to vote subject to 
challenge, the Final Notice to Employees of Election shall advise 
employees that said individuals are neither included in, nor excluded 
from, the bargaining unit, inasmuch as the regional director has 
permitted them to vote subject to challenge. The election notice shall 
further advise employees that the eligibility or inclusion of said 
individuals will be resolved, if necessary, following the election.
    (b) Directions of elections; dismissals; requests for review. A 
decision by the regional director upon the record shall set forth his 
findings, conclusions, and order or direction: Provided, however, that 
the regional director may direct an election with findings and a 
statement of reasons to follow prior to the tally of ballots. In the 
event that the regional director directs an election, said direction 
shall specify the type, date, time, and place of the election and the 
eligibility period. The regional director shall schedule the election 
for the earliest date practicable consistent with these rules. The 
regional director shall transmit the direction of election to the 
parties' designated representatives by email, facsimile, or by 
overnight mail (if neither an email address nor facsimile number was 
provided). Along with the direction of election, the regional director 
shall also transmit the Board's Final Notice to Employees of Election 
by email, facsimile, or by overnight mail (if neither an email address 
nor facsimile number was provided). The regional director shall also 
electronically transmit the Final Notice to Employees of Election to 
affected employees to the extent practicable. The decision of the 
regional director shall be final: Provided, however, That within 14 
days after service of a decision dismissing a petition any party may 
file a request for review of such a dismissal with the Board in 
Washington, DC: Provided, further, That any party may, after the 
election, file a request for review of a regional director's decision 
to direct an election within the time periods specified and as 
described in Sec.  102.69 of this subpart.
    (c) Grounds for review. The Board will grant a request for review 
only where compelling reasons exist therefor. Accordingly, a request 
for review may be granted only upon one or more of the following 
grounds:
    (1) That a substantial question of law or policy is raised because 
of:
    (i) The absence of, or
    (ii) A departure from, officially reported Board precedent.
    (2) That the regional director's decision on a substantial factual 
issue is clearly erroneous on the record and such error prejudicially 
affects the rights of a party.
    (3) That the conduct of the hearing or any ruling made in 
connection with the proceeding has resulted in prejudicial error.
    (4) That there are compelling reasons for reconsideration of an 
important Board rule or policy.
    (d) Contents of request. Any request for review must be a self-
contained document enabling the Board to rule on the basis of its 
contents without the necessity or recourse to the record; however, the 
Board may, in its discretion, examine the record in evaluating the 
request. With respect to the ground listed in paragraph (c)(2) of this 
section, and other grounds where appropriate, said request must contain 
a summary of all evidence or rulings bearing on the issues together 
with page citations from the transcript and a summary of argument. But 
such request may not raise any issue or allege any facts not timely 
presented to the regional director.
    (e) Opposition to request. Any party may, within 7 days after the 
last day on which the request for review must be filed, file with the 
Board a statement in opposition thereto, which shall be served in 
accordance with the requirements of paragraph (h) of this section. A 
statement of such service of opposition shall be filed simultaneously 
with the Board. The Board may deny the request for review without 
awaiting a statement in opposition thereto.
    (f) Waiver; denial of request. The parties may, at any time, waive 
their right to request review. Failure to request review shall preclude 
such parties from relitigating, in any related subsequent unfair labor 
practice proceeding, any issue which was, or could have been, raised in 
the representation proceeding. Denial of a request for review shall 
constitute an affirmance of the regional director's action which shall 
also preclude relitigating any such issues in any related subsequent 
unfair labor practice proceeding.
    (g) Grant of review; briefs. The granting of a request for review 
shall not stay the regional director's decision unless otherwise 
ordered by the Board. Except where the Board rules upon the issues on 
review in the order granting review, the appellants and other parties 
may, within 14 days after issuance of an order granting review, file 
briefs with the Board. Such briefs may be reproductions of those 
previously filed with the regional director and/or other briefs which 
shall be limited to the issues raised in the request for review. Where 
review has been granted, the Board will consider the entire record in 
the light of the grounds relied on for review. Any request for review 
may be withdrawn with the permission of the Board at any time prior to 
the issuance of the decision of the Board thereon.
    (h)(1) Format of request. All documents filed with the Board under 
the provisions of this section shall be filed in seven copies, double 
spaced, on 8\1/2\- by 11-inch paper, and shall be printed or otherwise 
legibly duplicated. Requests for review, including briefs in support 
thereof; statements in opposition thereto; and briefs on review shall 
not exceed 50 pages in length, exclusive of subject index and table of 
cases and other authorities cited, unless permission to exceed that 
limit is obtained from the Board by motion, setting forth the reasons 
therefor, filed not less than 5 days, including Saturdays, Sundays, and 
holidays, prior to the date the document is due. Where any brief filed 
pursuant to this section exceeds 20 pages, it shall contain a subject 
index with page authorities cited.
    (2) Service of copies of request. The party filing with the Board a 
request for review, a statement in opposition to a request for review, 
or a brief on review shall serve a copy thereof on the other parties 
and shall file a copy with the regional director. A statement of such 
service shall be filed with the Board together with the document.
    (3) Extensions. Requests for extensions of time to file requests 
for review, statements in opposition to a request for review, or 
briefs, as permitted by this section, shall be filed with the Board or 
the regional director, as the case may be. The party filing the request 
for an extension of time shall serve a copy thereof on the other 
parties and, if filed with the Board, on the regional director. A 
statement of such service shall be filed with the document.
    (i) Final notice to employees of election. The employer shall post 
copies of the Board's Final Notice to Employees of Election in 
conspicuous places at least 2 full working days prior to 12:01 a.m. of 
the day of the election and shall also distribute the Final

[[Page 7360]]

Notice to Employees of Election electronically if the employer 
customarily communicates with employees in the unit electronically. In 
elections involving mail ballots, the election shall be deemed to have 
commenced the day the ballots are deposited by the regional office in 
the mail. In all cases, the notices shall remain posted until the end 
of the election. The term working day shall mean an entire 24-hour 
period excluding Saturdays, Sundays, and holidays. A party shall be 
estopped from objecting to nonposting of notices if it is responsible 
for the nonposting. Failure properly to post and distribute the 
election notices as required herein shall be grounds for setting aside 
the election whenever proper and timely objections are filed under the 
provisions of Sec.  102.69(a) of this subpart.
    (j) Voter lists. Absent extraordinary circumstances specified in 
the direction of election, the employer shall, within 2 days after such 
direction, provide to the regional director and the parties named in 
such direction a list of the full names, home addresses, available 
telephone numbers, available email addresses, work locations, shifts, 
and job classifications of all eligible voters. In order to be timely 
filed, the list must be received by the regional director and the 
parties named in the direction within 2 days of the direction of 
election unless a longer time is specified therein. The list of names 
shall be alphabetized (overall or by department) and be in an 
electronic format generally approved by the Board's Executive Secretary 
unless the employer certifies that it does not possess the capacity to 
produce the list in the required form. When feasible, the list shall be 
filed electronically with the regional director and served 
electronically on the other parties named in the petition. Failure to 
file or serve the list within the specified time and in proper format 
shall be grounds for setting aside the election whenever proper 
objections are filed. The regional director shall make the list 
available upon request to all parties in the case on the same day or as 
soon as practicable after the director receives the list from the 
employer. The parties shall use the list exclusively for purposes of 
the representation proceeding and related Board proceedings.
0
14. Revise Sec.  102.68 to read as follows:


Sec.  102.68  Record; what constitutes; transmission to Board.

    The record in a proceeding conducted pursuant to the foregoing 
section, or conducted pursuant to Sec.  102.69 of this subpart, shall 
consist of: The petition, notice of hearing with affidavit of service 
thereof, Statements of Position, motions, rulings, orders, the 
stenographic report of the hearing and of any oral argument before the 
regional director, stipulations, exhibits, affidavits of service, and 
any briefs or other legal memoranda submitted by the parties to the 
regional director or to the Board, and the decision of the regional 
director, if any. Immediately upon issuance of an order granting a 
request for review by the Board, the regional director shall transmit 
the record to the Board.
0
15. Revise Sec.  102.69 to read as follows:


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

    (a) Election procedure; tally; objections. Unless otherwise 
directed by the Board, all elections shall be conducted under the 
supervision of the regional director in whose Region the proceeding is 
pending. All elections shall be by secret ballot. Whenever two or more 
labor organizations are included as choices in an election, either 
participant may, upon its prompt request to and approval thereof by the 
regional director, whose decision shall be final, have its name removed 
from the ballot: Provided, however, That in a proceeding involving an 
employer-filed petition or a petition for decertification the labor 
organization certified, currently recognized, or found to be seeking 
recognition may not have its name removed from the ballot without 
giving timely notice in writing to all parties and the regional 
director, disclaiming any representation interest among the employees 
in the unit. A pre-election conference may be held at which the parties 
may check the list of voters and attempt to resolve any questions of 
eligibility or inclusions in the unit. When the election is conducted 
manually, any party may be represented by observers of its own 
selection, subject to such limitations as the regional director may 
prescribe. Any party and Board agents may challenge, for good cause, 
the eligibility of any person to participate in the election. The 
ballots of such challenged persons shall be impounded. Upon the 
conclusion of the election the ballots will be counted and a tally of 
ballots prepared and immediately made available to the parties. Within 
7 days after the tally of ballots has been prepared, any party may file 
with the regional director an original and five copies of objections to 
the conduct of the election or to conduct affecting the results of the 
election with a certificate of service on all parties, which shall 
contain a short statement of the reasons therefore and a written offer 
of proof in the form described in Sec.  102.66(b) of this subpart 
insofar as applicable, but the written offer of proof shall not be 
served on any other party. Such filing must be timely whether or not 
the challenged ballots are sufficient in number to affect the results 
of the election. A person filing objections by facsimile or 
electronically pursuant to Sec.  102.114(f) or (i) of this part shall 
also file an original for the Agency's records, but failure to do so 
shall not affect the validity of the filing if otherwise proper. In 
addition, extra copies need not be filed if the filing is by facsimile 
or electronically pursuant to Sec.  102.114(f) or (i) of this part.
    (b) Requests for review of directions of elections. If the election 
has been conducted pursuant to Sec.  102.67 of this subpart, any party 
may file a request for review of the decision and direction of election 
with the Board in Washington, DC In the absence of election objections 
or potentially determinative challenges, the request for review of the 
decision and direction of election shall be filed within 14 days after 
the tally of ballots has been prepared. In a case involving election 
objections or potentially determinative challenges, the request for 
review shall be filed within 14 days after the regional director's 
report or supplemental decision on challenged ballots, on objections, 
or on both, and may be combined with a request for review of that 
decision as provided in paragraph (d)(3) of this section. The 
procedures for such request for review shall be the same as set forth 
in Sec.  102.67(c) through (h) of this subpart insofar as applicable. 
If no request for review is filed, the decision and direction of 
election is final and shall have the same effect as if issued by the 
Board. The parties may, at any time, waive their right to request 
review. Failure to request review shall preclude such parties from 
relitigating, in any related subsequent unfair labor practice 
proceeding, any issue which was, or could have been, raised in the 
representation proceeding. Denial of a request for review shall 
constitute an affirmance of the regional director's action which shall 
also preclude relitigating any such issues in any related subsequent 
unfair labor practice proceeding.
    (c) Certification in the absence of objections, determinative 
challenges and requests for review. If no objections are filed within 
the time set forth in paragraph (a) of this section, if the

[[Page 7361]]

challenged ballots are insufficient in number to affect the results of 
the election, if no runoff election is to be held pursuant to Sec.  
102.70 of this subpart, and if no request for review is filed pursuant 
to paragraph (b) of this section, the regional director shall forthwith 
issue to the parties a certification of the results of the election, 
including certification of representative where appropriate, with the 
same force and effect as if issued by the Board, and the proceeding 
will thereupon be closed.
    (d)(1)(i) Reports. If timely objections are filed to the conduct of 
an election or to conduct affecting the results of the election, and 
the regional director determines that the evidence described in the 
accompanying offer of proof would not constitute grounds for 
overturning the election if introduced at a hearing, the regional 
director shall issue a report or supplemental decision disposing of 
objections and a certification of the results of the election, 
including certification of representative where appropriate, unless 
there are potentially determinative challenges.
    (ii) Notices of hearing. If timely objections are filed to the 
conduct of the election or to conduct affecting the results of the 
election, and the regional director determines that the evidence 
described in the accompanying offer of proof could be grounds for 
overturning the election if introduced at a hearing, or if the 
challenged ballots are sufficient in number to affect the results of 
the election, the regional director shall transmit to the parties' 
designated representatives by email, facsimile, or by overnight mail 
(if neither an email address nor facsimile number was provided) a 
notice of hearing before a hearing officer at a place and time fixed 
therein no later than 14 days after the preparation of the tally of 
ballots or as soon as practicable thereafter: Provided, however, that 
the regional director may consolidate the hearing concerning objections 
and determinative challenges with an unfair labor practice proceeding 
before an administrative law judge.
    (iii) Hearings; hearing officer reports; exceptions to regional 
director. Any hearing pursuant to this section shall be conducted in 
accordance with the provisions of Sec. Sec.  102.64, 102.65, and 102.66 
of this subpart, insofar as applicable, except that, upon the close of 
such hearing, the hearing officer shall prepare and cause to be served 
on the parties a report resolving questions of credibility and 
containing findings of fact and recommendations as to the disposition 
of the issues. Any party may, within 14 days from the date of issuance 
of such report, file with the regional director an original and one 
copy of exceptions to such report, with supporting brief if desired. A 
copy of such exceptions, together with a copy of any brief filed, shall 
immediately be served on the other parties and a statement of service 
filed with the regional director. Within 7 days from the last date on 
which exceptions and any supporting brief may be filed, or such further 
time as the regional director may allow, a party opposing the 
exceptions may file an answering brief with the regional director. An 
original and one copy shall be submitted. A copy of such answering 
brief shall immediately be served on the other parties and a statement 
of service filed with the regional director. If no exceptions are filed 
to such report, the regional director, upon the expiration of the 
period for filing such exceptions, may decide the matter forthwith upon 
the record or may make other disposition of the case.
    (2) Regional director reports or decisions in consent or full 
consent elections. If the election has been held pursuant to Sec.  
102.62(a) or (c) of this subpart, the report or decision of the 
regional director shall be final and shall include a certification of 
the results of the election, including certification of representative 
where appropriate.
    (3) Requests for review of regional director reports or decisions 
in stipulated or directed elections. If the election has been held 
pursuant to Sec. Sec.  102.62(b) or 102.67 of this subpart, within 14 
days from the date of issuance of the regional director's report or 
decision on challenged ballots or on objections, or on both, any party 
may file with the Board in Washington, DC, a request for review of such 
report or decision which may be combined with a request for review of 
the regional director's decision to direct an election as provided in 
Sec.  102.67(b) of this subpart. The procedures for post-election 
requests for review shall be the same as set forth in Sec.  102.67(c) 
through (h) of this subpart insofar as applicable. If no request for 
review is filed, the report or decision is final and shall have the 
same effect as if issued by the Board. The parties may, at any time, 
waive their right to request review. Failure to request review shall 
preclude such parties from relitigating, in any related subsequent 
unfair labor practice proceeding, any issue which was, or could have 
been, raised in the representation proceeding. Denial of a request for 
review shall constitute an affirmance of the regional director's action 
which shall also preclude relitigating any such issues in any related 
subsequent unfair labor practice proceeding. Provided, however, that in 
any proceeding wherein a representation case has been consolidated with 
an unfair labor practice proceeding for purposes of hearing the 
provisions of Sec.  102.46 of this part shall govern with respect to 
the filing of exceptions or an answering brief to the exceptions to the 
administrative law judge's decision.
    (e)(1)(i) Record in case with hearing. In a proceeding pursuant to 
this section in which a hearing is held, the record in the case shall 
consist of the notice of hearing, motions, rulings, orders, 
stenographic report of the hearing, stipulations, exhibits, together 
with the objections to the conduct of the election or to conduct 
affecting the results of the election, offers of proof, any briefs or 
other legal memoranda submitted by the parties, any report on such 
objections and/or on challenged ballots, exceptions, the decision of 
the regional director, any requests for review, and the record 
previously made as defined in Sec.  102.68 of this subpart. Materials 
other than those set out above shall not be a part of the record.
    (ii) Record in case with no hearing. In a proceeding pursuant to 
this section in which no hearing is held, the record shall consist of 
the objections to the conduct of the election or to conduct affecting 
the results of the election, any report or decision on objections or on 
challenged ballots and any request for review of such a report or 
decision, any documentary evidence, excluding statements of witnesses, 
relied upon by the regional director in his decision or report, any 
briefs or other legal memoranda submitted by the parties, and any other 
motions, rulings or orders of the regional director. Materials other 
than those set out above shall not be a part of the record, except as 
provided in paragraph (e)(3) of this section.
    (2) Immediately upon issuance of an order granting a request for 
review by the Board, the regional director shall transmit to the Board 
the record of the proceeding as defined in paragraph (e)(1) of this 
section.
    (3) In a proceeding pursuant to this section in which no hearing is 
held, a party filing a request for review of a regional director's 
report or decision on objections, or any opposition thereto, may 
support its submission to the Board by appending thereto copies of any 
offer of proof, including copies of any affidavits or other documentary 
evidence, it has timely submitted to the regional director and which 
were not included in the report or decision. Documentary evidence so 
appended shall thereupon become part of the

[[Page 7362]]

record in the proceeding. Failure to append that evidence to its 
submission to the Board in the representation proceeding as provided 
above, shall preclude a party from relying on such evidence in any 
subsequent unfair labor proceeding.
    (f) Revised tally of ballots. In any case under this section in 
which the regional director, upon a ruling on challenged ballots, has 
directed that such ballots be opened and counted and a revised tally of 
ballots issued, and no objection to such revised tally is filed by any 
party within 7 days after the revised tally of ballots has been made 
available, the regional director shall forthwith issue to the parties 
certification of the results of the election, including certifications 
of representative where appropriate, with the same force and effect as 
if issued by the Board. The proceeding shall thereupon be closed.
    (g) Format of filings with regional director. All documents filed 
with the regional director under the provisions of this section shall 
be filed double spaced, on 8\1/2\- by 11-inch paper, and shall be 
printed or otherwise legibly duplicated. Briefs in support of 
exceptions or answering briefs shall not exceed 50 pages in length, 
exclusive of subject index and table of cases and other authorities 
cited, unless permission to exceed that limit is obtained from the 
regional director by motion, setting forth the reasons therefor, filed 
not less than 5 days, including Saturdays, Sundays, and holidays, prior 
to the date the brief is due. Where any brief filed pursuant to this 
section exceeds 20 pages, it shall contain a subject index with page 
references and an alphabetical table of cases and other authorities 
cited.
    (h) Extensions of time. Requests for extensions of time to file 
exceptions, requests for review, supporting briefs, or answering 
briefs, as permitted by this section, shall be filed with the Board or 
the regional director, as the case may be. The party filing the request 
for an extension of time shall serve a copy thereof on the other 
parties and, if filed with the Board, on the regional director. A 
statement of such service shall be filed with the document.
0
16. Revise Sec.  102.71(c) to read as follows:


Sec.  102.71  Dismissal of petition; refusal to proceed with petition; 
requests for review by the Board of action of the regional director.

* * * * *
    (c) A request for review must be filed with the Board in 
Washington, DC, and a copy filed with the regional director and copies 
served on all the other parties within 14 days of service of the notice 
of dismissal or notification that the petition is to be held in 
abeyance. The request shall be submitted in eight copies and shall 
contain a complete statement setting forth facts and reasons upon which 
the request is based. Such request shall be printed or otherwise 
legibly duplicated. Requests for an extension of time within which to 
file the request for review shall be filed with the Board in 
Washington, DC, and a statement of service shall accompany such 
request.

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

0
17. Revise Sec.  102.76 to read as follows:


Sec.  102.76  Petition; who may file; where to file; contents.

    When picketing of an employer has been conducted for an object 
proscribed by Section 8(b)(7) of the Act, a petition for the 
determination of a question concerning representation of the employees 
of such employer may be filed in accordance with the provisions of 
Sec. Sec.  102.60 and 102.61 of this part, insofar as applicable: 
Provided, however, That if a charge under Sec.  102.73 of this subpart 
has been filed against the labor organization on whose behalf picketing 
has been conducted, the petition shall not be required to contain a 
statement that the employer declines to recognize the petitioner as the 
representative within the meaning of Section 9(a) of the Act; or that 
the union represents a substantial number of employees; or that the 
labor organization is currently recognized but desires certification 
under the act; or that the individuals or labor organizations who have 
been certified or are currently recognized by the employer are no 
longer the representative; or, if the petitioner is an employer, that 
one or more individuals or labor organizations have presented to the 
petitioner a claim to be recognized as the exclusive representative of 
the employees in the unit claimed to be appropriate.
0
18. Revise Sec.  102.77(b) to read as follows:


Sec.  102.77  Investigation of petition by regional director; directed 
election.

* * * * *
    (b) If after the investigation of such petition or any petition 
filed under subpart C of this part, and after the investigation of the 
charge filed pursuant to Sec.  102.73 of this subpart, it appears to 
the regional director that an expedited election under section 
8(b)(7)(C) of the Act is warranted, and that the policies of the Act 
would be effectuated thereby, he shall forthwith proceed to conduct an 
election by secret ballot of the employees in an appropriate unit, or 
make other disposition of the matter: Provided, however, That in any 
case in which it appears to the regional director that the proceeding 
raises questions which cannot be decided without a hearing, he may 
issue and cause to be served on the parties, individuals, and labor 
organizations involved a notice of hearing before a hearing officer at 
a time and place fixed therein. In this event, the method of conducting 
the hearing and the procedure following, shall be governed insofar as 
applicable by Sec. Sec.  102.63 to 102.69 inclusive of this part. 
Provided further, however, That if a petition has been filed which does 
not meet the requirements for processing under the expedited 
procedures, the regional director may process it under the procedures 
set forth in subpart C of this part.

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

0
19. Revise Sec.  102.83 to read as follows:


Sec.  102.83  Petition for referendum under section 9(e)(1) of the Act; 
who may file; where to file; withdrawal.

    A petition to rescind the authority of a labor organization to make 
an agreement requiring as a condition of employment membership in such 
labor organization may be filed by an employee or group of employees on 
behalf of 30 percent or more of the employees in a bargaining unit 
covered by such an agreement. The petition shall be in writing and 
signed, and either shall be sworn to before a notary public, Board 
agent, or other person duly authorized by law to administer oaths and 
take acknowledgments or shall contain a declaration by the person 
signing it, under the penalties of the Criminal Code, that its contents 
are true and correct to the best of his knowledge and belief. One 
original of the petition shall be filed with the regional director 
wherein the bargaining unit exists or, if the unit exists in two or 
more Regions, with the regional director for any of such Regions. A 
person filing a petition by facsimile or electronically pursuant to 
Sec.  102.114(f) or (i) of this part shall also file an original for 
the Agency's records, but failure to do so shall not affect the 
validity of the filing by facsimile, if otherwise proper. The petition 
may be withdrawn only with the approval of the regional director with 
whom such petition was filed. Upon approval of the withdrawal of any 
petition the case shall be closed.

[[Page 7363]]

0
20. Amend Sec.  102.84 by revising paragraph (i), redesignating 
paragraph (j) as paragraph (k), and adding new paragraphs (j), (l) and 
(m) to read as follows:


Sec.  102.84  Contents of petition to rescind authority.

* * * * *
    (i) The name and address of the petitioner, and the name, title, 
address, telephone number, fax number, and email address of the 
individual who will serve as the representative of the petitioner and 
accept service of all papers for purposes of the proceeding.
    (j) A statement that 30 percent or more of the bargaining unit 
employees covered by an agreement between their employer and a labor 
organization made pursuant to section 8(a)(3) of the Act, desire that 
the authority to make such an agreement be rescinded.
* * * * *
    (l) Evidence supporting the statement that 30 percent or more of 
the bargaining unit employees desire to rescind the authority of their 
employer and labor organization to enter into an agreement made 
pursuant to section 8(a)(3) of the Act. Such evidence shall be filed 
together with the petition, but shall not be served on any other party.
    (m) Evidence filed pursuant to paragraph (l) of this section 
together with a petition that is filed by facsimile or electronically, 
which includes original signatures that cannot be transmitted in their 
original form by the method of filing of the petition, may be filed by 
facsimile or in electronic form provided that the original documents 
are received by the regional director no later than two days after the 
facsimile or electronic filing.
0
21. Revise Sec.  102.85 to read as follows:


Sec.  102.85  Investigation of petition by regional director; consent 
referendum; directed referendum.

    Where a petition has been filed pursuant to Sec.  102.83 of this 
subpart and it appears to the regional director that the petitioner has 
made an appropriate showing, in such form as the regional director may 
determine, that 30 percent or more of the employees within a unit 
covered by an agreement between their employer and a labor organization 
requiring membership in such labor organization desire to rescind the 
authority of such labor organization to make such an agreement, he 
shall proceed to conduct a secret ballot of the employees involved on 
the question whether they desire to rescind the authority of the labor 
organization to make such an agreement with their employer: Provided, 
however, That in any case in which it appears to the regional director 
that the proceeding raises questions which cannot be decided without a 
hearing, he may issue and cause to be served on the parties a notice of 
hearing before a hearing officer at a time and place fixed therein. The 
regional director shall fix the time and place of the election, 
eligibility requirements for voting, and other arrangements of the 
balloting, but the parties may enter into an agreement, subject to the 
approval of the regional director, fixing such arrangements. In any 
such consent agreements, provision may be made for final determination 
of all questions arising with respect to the balloting by the regional 
director or, upon grant of a request for review, by the Board.
0
22. Revise Sec.  102.86 to read as follows:


Sec.  102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following 
the hearing shall be governed, insofar as applicable, by Sec. Sec.  
102.63 to 102.69 inclusive of this part.

Subpart I--Service and Filing of Papers

0
23. Revise Sec.  102.112 to read as follows:


Sec.  102.112  Date of service; date of filing.

    The date of service shall be the day when the matter served is 
deposited in the United States mail, or is deposited with a private 
delivery service that will provide a record showing the date the 
document was tendered to the delivery service, or is delivered in 
person, as the case may be. Where service is made by electronic mail, 
the date of service shall be the date on which the message is sent. 
Where service is made by facsimile transmission, the date of service 
shall be the date on which transmission is received. The date of filing 
shall be the day when the matter is required to be received by the 
Board as provided by Sec.  102.111 of this subpart.
0
24. Revise Sec.  102.113(d) to read as follows:


Sec.  102.113  Methods of service of process and papers by the Agency; 
proof of service.

* * * * *
    (d) Service of other documents. Other documents may be served by 
the Agency by any of the foregoing methods as well as regular mail, 
electronic mail or private delivery service. Such other documents may 
be served by facsimile transmission with the permission of the person 
receiving the document.
* * * * *
0
25. Revise Sec.  102.114(a), (d), and (g) to read as follows:


Sec.  102.114  Filing and service of papers by parties; form of papers; 
manner and proof of filing or service; electronic filings.

    (a) Service of documents by a party on other parties may be made 
personally, or by registered mail, certified mail, regular mail, 
electronic mail (if the document was filed electronically or if 
specifically provided for in these rules), or private delivery service. 
Service of documents by a party on other parties by any other means, 
including facsimile transmission, is permitted only with the consent of 
the party being served. Unless otherwise specified elsewhere in these 
rules, service on all parties shall be made in the same manner as that 
utilized in filing the document with the Board, or in a more 
expeditious manner; however, when filing with the Board is done by 
hand, the other parties shall be promptly notified of such action by 
telephone, followed by service of a copy in a manner designed to insure 
receipt by them by the close of the next business day. The provisions 
of this section apply to the General Counsel after a complaint has 
issued, just as they do to any other party, except to the extent that 
the provisions of Sec.  102.113(a) or (c) of this subpart provide 
otherwise.
* * * * *
    (d) Papers filed with the Board, General Counsel, Regional 
Director, Administrative Law Judge, or Hearing Officer shall be 
typewritten or otherwise legibly duplicated on 8\1/2\ by 11-inch plain 
white paper, shall have margins no less than one inch on each side, 
shall be in a typeface no smaller than 12 characters-per-inch (elite or 
the equivalent), and shall be double spaced (except that quotations and 
footnotes may be single spaced). Nonconforming papers may, at the 
Agency's discretion, be rejected.
* * * * *
    (g) Facsimile transmissions of the following documents will not be 
accepted for filing: Answers to Complaints; Exceptions or Cross-
Exceptions; Briefs; Requests for Review of Regional Director Decisions; 
Administrative Appeals from Dismissal of Petitions or Unfair Labor 
Practice Charges; Objections to Settlements; EAJA Applications; Motions 
for Default Judgment; Motions for Summary Judgment; Motions to Dismiss; 
Motions for Reconsideration; Motions to Clarify; Motions to Reopen the 
Record; Motions to Intervene; Motions to Transfer, Consolidate or 
Sever; or Petitions for Advisory Opinions. Facsimile transmissions in 
contravention of this rule will not be filed.
* * * * *

[[Page 7364]]

PART 103--OTHER RULES

0
26. The authority citation for part 103 continues to read as follows:

    Authority:  29 U.S.C. 156, in accordance with the procedure set 
forth in 5 U.S.C. 553.

Subpart B--[Removed and Reserved]

0
27. Remove and reserve subpart B, consisting of Sec.  103.20.

    Dated: Washington, DC, January 28, 2014.

    By direction of the Board.
William B. Cowen,
Solicitor.
[FR Doc. 2014-02128 Filed 2-5-14; 8:45 am]
BILLING CODE 7545-01-P