[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Rules and Regulations]
[Pages 74308-74490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28777]
[[Page 74307]]
Vol. 79
Monday,
No. 240
December 15, 2014
Part III
National Labor Relations Board
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29 CFR Parts 101, 102, and 103
Representation--Case Procedures; Final Rule
Federal Register / Vol. 79 , No. 240 / Monday, December 15, 2014 /
Rules
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NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101, 102, and 103
RIN 3142-AA08
Representation--Case Procedures
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board (the Board) has decided to
issue this final rule for the purpose of carrying out the provisions of
the National Labor Relations Act which ``protect[ ] the exercise by
workers of full freedom of association, self-organization, and
designation of representatives of their own choosing, for the purpose
of negotiating the terms and conditions of their employment or other
mutual aid or protection.'' While retaining the essentials of existing
representation case procedures, these amendments remove unnecessary
barriers to the fair and expeditious resolution of representation
cases. They simplify representation-case procedures, codify best
practices, and make them more transparent and uniform across regions.
Duplicative and unnecessary litigation is eliminated. Unnecessary delay
is reduced. Procedures for Board review are simplified. Rules about
documents and communications are modernized in light of changing
technology. In various ways, these amendments provide targeted
solutions to discrete, specifically identified problems to enable the
Board to better fulfill its duty to protect employees' rights by
fairly, efficiently, and expeditiously resolving questions of
representation.
DATES: This rule will be effective on April 14, 2015.
FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary,
National Labor Relations Board, 1099 14th Street NW., Washington, DC
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572
(TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Background on the Rulemaking
The National Labor Relations Board administers the National Labor
Relations Act, which, among other things, governs the formation of
collective-bargaining relationships between employers and groups of
employees in the private sector. Section 7 of the Act, 29 U.S.C. 157,
gives employees the right to bargain collectively through
representatives of their own choosing and to refrain from such
activity.
When employees and their employer are unable to agree whether the
employees should be represented for purposes of collective bargaining,
Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to
resolve the question of representation. As explained in the NPRM, the
Supreme Court has repeatedly recognized that ``Congress has entrusted
the Board with a wide degree of discretion in establishing the
procedure and safeguards necessary to insure the fair and free choice
of bargaining representatives by employees.'' NLRB v. A.J. Tower Co.,
329 U.S. 324, 330 (1946). ``The control of the election proceeding, and
the determination of the steps necessary to conduct that election
fairly were matters which Congress entrusted to the Board alone.'' NLRB
v. Waterman Steamship Co., 309 U.S. 206, 226 (1940); see also Southern
Steamship Co. v. NLRB, 316 U.S. 31, 37 (1942).
Representation case procedures are set forth in the statute, in
Board regulations, and in Board caselaw.\1\ In addition, the Board's
General Counsel has prepared a non-binding Casehandling Manual
describing representation case procedures in detail.\2\
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\1\ The Board's binding rules of procedure are found primarily
in 29 CFR part 102, subpart C. Additional rules created by
adjudication are found throughout the corpus of Board decisional
law. See, NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 770, 777, 779
(1969).
\2\ NLRB Casehandling Manual (Part Two) Representation
Proceedings. The relevant sections of the Casehandling Manual are
Sections 11000 through 11886. Unless otherwise noted, all references
to the Casehandling Manual are to the August 2007 edition, which
predated the NPRMs.
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The Act itself sets forth only the basic steps for resolving a
question of representation.\3\ These are as follows. First, a petition
is filed by an employee, a labor organization, or an employer. Second,
if there is reasonable cause, an appropriate hearing is held to
determine whether a question of representation exists, unless the
parties agree that an election should be conducted and agree concerning
election details. Hearing officers are authorized to conduct pre-
election hearings, but may not make recommendations as to the result.
Third, if there is a question of representation, an election by secret
ballot is conducted in an appropriate unit. Fourth, the results of the
election are certified. The statute also permits the Board to delegate
its authority to NLRB regional directors. The statute provides that,
upon request, the Board may review any action of the regional director;
however, such requests do not stay regional proceedings unless
specifically ordered by the Board.
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\3\ A question of representation is often referred to as a
``question concerning representation.'' See, e.g., Casehandling
Manual Section 11084.
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Underlying these basic provisions is the essential principle that
representation cases should be resolved quickly and fairly. ``[T]he
Board must adopt policies and promulgate rules and regulations in order
that employees' votes may be recorded accurately, efficiently and
speedily.'' A.J. Tower Co., 329 U.S. at 331. Within the framework of
the current rules--as discussed at length in the NPRM--the Board, the
General Counsel \4\ and the agency's regional directors have sought to
achieve efficient, fair, uniform, and timely resolution of
representation cases. In part, the final rule codifies best practices
developed over the years. This ensures greater uniformity and
transparency.
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\4\ The General Counsel administratively oversees the regional
directors. 29 U.S.C. 153(d).
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But the Board's experience has also revealed problems--particularly
in fully litigated cases--which cannot be solved without changing
current practices and rules. For example, pre-election litigation has
at times been disordered, hampered by surprise and frivolous disputes,
and side-tracked by testimony about matters that need not be decided at
that time. Additionally, the process for Board review of regional
director actions has resulted in unnecessary delays. Moreover, some
rules have become outdated as a result of changes in communications
technology and practice. The final rule addresses these and other
problems as discussed below.
II. List of Amendments
This list provides a concise statement of the various ways the
final rule changes or codifies current practice, and the general
reasoning in support. It is not ``an elaborate analysis of [the] rules
or of the detailed considerations upon which they are based;'' rather,
it ``is designed to enable the public to obtain a general idea of the
purpose of, and a statement of the basic justification for, the
rules.'' \5\ As this list shows, the amendments provide targeted
solutions to discrete, specifically identified problems.\6\ All of
these matters are
[[Page 74309]]
discussed in greater detail below, along with responses to the
comments.
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\5\ S. Rep. No. 752, at 225 (1945).
\6\ In accordance with the discrete character of the matters
addressed by each of the amendments listed, the Board hereby
concludes that it would adopt each of these amendments individually,
or in any combination, regardless of whether any of the other
amendments were made, except as expressly noted in the more detailed
discussion of the particular sections below. For this reason, the
amendments are severable.
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1. Representation petitions may be filed with the Board
electronically. The prior rules required hard-copy or facsimile filing,
which should not be necessary under contemporary litigation practice
and technological advancements.
2. Representation petitions (and related documents) must be served
by the petitioner, which will afford the other parties the earliest
possible notice of the petition. The Board's prior rules did not
require the petitioner to serve a copy of its petition on the other
parties.
3. At the same time the petition is filed with the Board, the
petitioner must also provide evidence that employees support the
petition (the ``showing of interest''). Petitioner must also provide
the name and contact information of its representative. The prior rules
gave the petitioner 48 hours after the petition to file the showing of
interest. This delay is unnecessary.
4. When a petition is filed, the employer must post and distribute
to employees a Board notice about the petition and the potential for an
election to follow. Under prior practice, such notice was voluntary
(and less detailed). The employees will benefit from a uniform notice
practice, which provides them, equally and at an earlier date, with
meaningful information about the petition, the Board's election
procedures and their rights, and employers will benefit from more
detailed Board guidance about compliance.
5. The pre-election hearing will generally be scheduled to open 8
days from notice of the hearing. This largely codifies best practices
in some regions, where hearings were routinely scheduled to open in 7
days to 10 days. However, practice was not uniform among regions, with
some scheduling hearings for 10 to 12 days, and actually opening
hearings in 13 to 15 days, or even longer. The rule brings all regions
in line with best practices.
6. The pre-election hearing will continue from day to day until
completed, absent extraordinary circumstances. Prior practice did not
address the standard for granting lengthy continuances, and sometimes
continuances unnecessarily delayed the hearing.
7. Non-petitioning parties are required to state a position
responding to the petition in writing 1 day before the pre-election
hearing is set to open. The statement must identify the issues they
wish to litigate before the election; litigation inconsistent with the
statement will not be permitted. Timely amendments to the statement may
be made on a showing of good cause. The employer must also provide a
list of the names, shifts, work locations, and job classifications of
the employees in the petitioned-for unit, and any other employees that
it seeks to add to the unit. The statement must also identify the
party's representative for purposes of the proceeding. Prior practice
requested parties to state positions and provide a list of employees
and job classifications before the hearing, but did not require
production of such information prior to the hearing. Prior best
practices required parties to take positions on the issues orally at
the hearing. But practice was not uniform, and in some cases hearing
officers have permitted parties to remain silent on their position or
to take shifting positions during the hearing, unnecessarily impeding
the litigation. Finally, our experience has demonstrated that clear
communication about the specific employees involved generally
facilitates election agreements or results in more orderly litigation.
8. At the start of the hearing, the petitioner is required to
respond on the record to the issues raised by the other parties in
their statements of position. Litigation inconsistent with the response
will not be permitted. If there is a dispute between the parties, the
hearing officer has discretion to ask each party to describe what
evidence it has in support of its position, i.e., make an offer of
proof. This codifies current best practices, ensuring greater
uniformity and orderly litigation.
9. The purpose of the pre-election hearing, to determine whether
there is a ``question of representation,'' 29 U.S.C. 159, is clearly
identified. Prior rules did not expressly state the purpose of the
hearing and, as discussed in item ten below, sometimes litigation on
collateral issues resulted in substantial waste of resources.
10. Once the issues are presented, the regional director will
decide which, if any, voter eligibility questions should be litigated
before an election is held. These decisions will be made bearing in
mind the purpose of the hearing. Generally, only evidence that is
relevant to a question that will be decided may be introduced at the
pre-election hearing. Prior rules required, e.g., litigation of any
voter eligibility issues that any party wished to litigate, even if the
regional director was not going to be deciding that question, and even
if the particular voter eligibility question was not necessary to
resolving the existence of a question of representation. This practice
has resulted in unnecessary litigation. Once it is clear that an issue
need not be decided, and will not be decided, no evidence need be
introduced on the matter.
11. The hearing will conclude with oral argument, and no written
briefing will be permitted unless the regional director grants
permission to file such a brief. Prior rules permitted parties to file
briefs which were often unnecessary and delayed the regional director's
decision in many cases.
12. The regional director must decide the matter, and may not sua
sponte transfer it to the Board. The prior transfer procedure was
little used, ill advised, and a source of delay; Board decisions are
generally improved by obtaining the initial decision of the regional
director.
13. Absent waiver, a party may request Board review of action of a
regional director delegated under Section 3(b) of the Act. Requests
will only be granted for compelling reasons. Requests may be filed any
time during the proceeding, or within 14 days after a final disposition
of the case by the regional director. The prior rules included a
variety of means for asking for Board review, including a ``request for
review'' which only applied to the direction of election; a complex set
of interlocking mechanisms for post-election review which varied
depending upon the type of procedure chosen by the regional director or
the form of election agreement; and a catchall ``special permission to
appeal.'' Review of the direction of the election had to be sought
before the election, even though the vote itself might moot the appeal.
The final rule improves the process for Board review by giving parties
an option to wait and see whether election results will moot a request
for review that prior rules required to be filed before the election,
and recognizes that Board review is not necessary in most cases. This
will best serve Congress's purpose of ensuring that the regional
director can promptly resolve disputes unless there is reason to
interrupt proceedings in a particular case.
14. A request for review will not operate as a stay unless
specifically ordered by the Board. Stays and/or requests for expedited
consideration will only be granted when necessary. The prior rules
included an automatic stay of the count of ballots (``impounding the
ballots'') in any case where a request was either granted or pending
before the Board at the time of the election. A stay should not be
routine, but should be an extraordinary form of relief.
15. Elections will no longer be automatically stayed in
anticipation of requests for review. The prior rules generally required
the election which
[[Page 74310]]
followed a Decision and Direction of Election to be held between 25 and
30 days after the direction of election. The stated purpose of this
requirement was to permit requests for review to be ruled on by the
Board in the interim. This delay served little purpose, as few requests
were filed, and only a very small fraction of these requests were
granted. Even where a request was granted, the 25-30 day waiting period
in the prior rules did nothing to prevent unnecessary elections as the
vote was generally held as scheduled notwithstanding the grant of the
request.
16. The regional director will ordinarily specify in the direction
of election the election details, such as the date, time, place, and
type of election and the payroll period for eligibility. Parties will
take positions on these matters in writing in the statement of position
and on the record before the close of the hearing. Under prior
practice, election details were typically addressed after the direction
of election was issued, which required further consultation about
matters that could easily have been resolved earlier.
17. The long-standing instruction from the Casehandling Manual that
the regional director will set the election for the earliest date
practicable is codified. The statute was designed by Congress to
encourage expeditious elections, and the rules require the regional
director to schedule the election in a manner consistent with the
statute.
18. The regional director will ordinarily transmit the notice of
election at the same time as the direction of election. Both may be
transmitted electronically. Previously, the notice was transmitted by
mail after the direction of election.
19. If the employer customarily communicates with its employees
electronically, it must distribute all election notices to employees
electronically, in addition to posting paper notices at the workplace.
Prior rules required only paper notices. This change recognizes that
modern technology has transformed many workplaces into virtual
environments where paper notices are less effective.
20. Within 2 business days of the direction of election, employers
must electronically transmit to the other parties and the regional
director a list of employees with contact information, including more
modern forms of contact information such as personal email addresses
and phone numbers if the employer has such contact information in its
possession. The list should also include shifts, job classifications,
and work locations. The list may only be used for certain purposes.
Prior caselaw gave employers 7 days to produce a list of names and home
addresses and send it to the Board, which then served the list on the
parties. In addition to simplifying and expediting service by cutting
out the middle man, the amendments update the rules to leverage the
ways in which modern technology has transformed communications,
recordkeeping and record transmission. For instance, the changes make
information that is routinely maintained in electronic form more
quickly available to the parties. Recognizing the potential sensitivity
of the information, however, the rules also restrict its use in order
to guard against potential abuse.
21. When a charge is filed alleging the commission of unfair labor
practices that could compromise the fairness of the election, the
regional director has discretion to delay (or ``block'') the election
until the issue can be resolved. Any party seeking to block the
election must simultaneously file an offer of proof and promptly make
witnesses available. This rule largely codifies what had been best
practice while adding an offer-of-proof requirement that will expedite
investigation and help weed out meritless or abusive blocking charges.
22. After the election, parties have 7 days to file both objections
and offers of proof in support. Objections, but not offers, must be
served by the objector on other parties. Prior rules gave 7 days for
objections but 14 days for evidence in support of the objections. The
change is made because unsupported objections should not be filed, and
7 days is typically adequate for the parties to marshal their evidence.
23. If necessary, a post-election hearing on challenges and/or
objections will be scheduled to open 21 days after the tally of ballots
or as soon as practicable thereafter. Prior rules set no timeline for
opening the hearing, and this rule will give adequate time for the
region to weed out unsupported and frivolous objections while making
the process more transparent and uniform.
24. In every case, the regional director will be required to issue
a final decision. Where applicable, the regional director's decision
will be subject to requests for review under the procedure described in
item 13 above. The prior rules were unduly complex, and frequently did
not involve a final regional director decision. Regional directors can
and should issue final decisions because they are delegated authority
to do so pursuant to Section 3(b) and the Board's rules, and are in the
best position to initially assess the facts. Where necessary, Board
decisions on review are improved by first obtaining the final decision
of the regional director.
25. Finally, the rule eliminates a number of redundancies and
consolidates and reorganizes the regulations so that they may be more
easily understood.
III. The Rulemaking Process
As the NPRM explains, the Board has amended its representation case
procedures repeatedly over the years as part of a continuing effort to
improve the process and eliminate unnecessary delays. Indeed, the Board
has amended its representation case procedures more than three dozen
times without prior notice or request for public comment.
In fact, the Board has seldom acted through notice-and-comment
rulemaking on any subject. The Board typically makes substantive policy
determinations in the course of adjudication rather than through
rulemaking, although this practice has occasionally drawn the ire of
academic commentators and the courts.\7\
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\7\ See R. Alexander Acosta, Rebuilding the Board: An Argument
for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU
L. Rev. 347, 351-52 (2010); Merton C. Bernstein, The NLRB's
Adjudication-Rule Making Dilemma Under the Administrative Procedure
Act, 79 Yale L.J. 571, 589-90, 593-98 (1970); Samuel Estreicher,
Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37
Admin. L. Rev. 163, 170 (1985); Jeffrey S. Lubbers, The Potential of
Rulemaking by the NLRB, 5 FIU L. Rev. 411, 414-17, 435 (Spring
2010); Kenneth Kahn, The NLRB and Higher Education: The Failure of
Policymaking Through Adjudication, 21 UCLA L. Rev. 63, 84 (1973);
Charles J. Morris, The NLRB in the Dog House--Can an Old Board Learn
New Tricks?, 24 San Diego L. Rev. 9, 27-42 (1987); Cornelius Peck,
The Atrophied Rulemaking Powers of the National Labor Relations
Board, 70 Yale L.J. 729, 730-34 (1961); Cornelius J. Peck, A
Critique of the National Labor Relations Board's Performance in
Policy Formulation: Adjudication and Rule-Making, 117 U. Pa. L. Rev.
254, 260, 269-72 (1968); David L. Shapiro, The Choice of Rulemaking
or Adjudication in the Development of Administrative Policy, 78
Harv. L. Rev. 921, 922 (1965); Carl S. Silverman, The Case for the
National Labor Relations Board's Use of Rulemaking in Asserting
Jurisdiction, 25 Lab. L.J. 607 (1974); and Berton B. Subrin,
Conserving Energy at the Labor Board: The Case for Making Rules on
Collective Bargaining Units, 32 Lab. L.J. 105 (1981); see also NLRB
v. Bell Aerospace Co., 416 U.S. 267, 295 (1974); NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 764, 770, 777, 779, 783 n.2 (1969). The
Portland Cement Association (PCA) contends, as it did in another
recent Board rulemaking, that the Board should place these and other
law review articles discussed in the NPRM online for the public to
read for free on regulations.gov. Just as the Board replied in that
prior rulemaking, 76 FR 54014, the Board has placed these articles
in the hard copy docket, but has not uploaded these articles to the
electronic docket because such an action could violate copyright
laws. It should also be noted that these materials are generally
available in libraries.
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The Board has thus asked for public comments on few proposed rules
of any kind. A review of prior Board
[[Page 74311]]
rulemaking procedures reveals that, until this proceeding commenced,
the Board had not held a public hearing attended by all Board members
for at least half a century.\8\
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\8\ In the rulemaking proceedings that resulted in adoption of
rules defining appropriate units in acute care hospitals, the Board
directed an administrative law judge to hold a series of public
hearings to take evidence concerning the proposed rules, but no
Board members participated in the hearings.
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A. Procedural History of This Rule
On June 22, 2011, the Board issued a Notice of Proposed Rulemaking.
The Notice provided 60 days for comments and 14 additional days for
reply comments. The Board issued press releases about the proposals and
placed summaries, answers to frequently asked questions, and other more
detailed information on its Web site (www.nlrb.gov). The Board held a
public hearing during the comment period, on July 18 and 19, 2011,
where the Board members heard commentary and asked questions of the
speakers.
On November 30, 2011, the Board members engaged in public
deliberations and a vote about whether to draft and issue a final rule,
and, on December 22, 2011, a final rule issued. 76 FR 80138. A Federal
court later held that the Board had lacked a quorum in issuing the
final rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp.
2d 18, 28-30 (D.D.C. May 14, 2012). However, because the court did not
reach the merits, the court also ``emphasize[d] that its ruling need
not necessarily spell the end of the final rule for all time * * *.
[N]othing appears to prevent a properly constituted quorum of the Board
from voting to adopt the rule if it has the desire to do so.''
The Board then issued a proposed rule on February 6, 2014 under the
same docket number as the prior NPRM and containing the same proposals.
79 FR 7318 et seq. The Board again issued press releases and placed
supporting documents on its Web site. This was ``in essence, a
reissuance of the proposed rule of June 22, 2011.'' Id. The purpose of
this NPRM was to give a properly constituted quorum of the Board a
``legally appropriate, administratively efficient, and demonstrably
fair process for considering all the issues and comments raised in the
prior proceeding, while giving an opportunity for any additional
commentary.'' Id. at 7335.
The Board provided 60 additional days for the submission of any new
comments, and 7 days for replies. The Board advised commenters that it
was not necessary to ``resubmit any comment or repeat any argument that
has already been made.'' Id. at 7319. During the reply period, on April
10 and 11, 2014, the Board held another public hearing, at which the
Board members again heard commentary and asked questions of the
speakers.
In sum, the Board has accepted comments on these proposals for a
total of 141 days, and held a total of 4 days of oral hearings with
live questioning by Board members. Tens of thousands of people have
submitted comments on the proposals, and Board members have heard over
one thousand transcript pages of oral commentary.
The sole purpose of these procedures was to give the Board the
benefit of the views of the public. To be clear, none of this process
was required by law: The Board has never engaged in notice and comment
rulemaking on representation case procedures, and all of the proposed
changes could have been made without notice and comment--in part by
adjudication, and in part by simply promulgating a final rule.\9\
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\9\ The rule is primarily procedural as defined in 5 U.S.C.
553(b)(B), and therefore exempt from notice and comment. To the
extent portions of the rule are substantive--for example, relating
to information in the voter lists--these changes could have been
made by adjudication, which is also exempt from notice and comment.
Wyman Gordon, supra.
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Nonetheless, a number of comments have criticized the Board's
process, both in 2011 and again in 2014. At bottom, the claim is that
the process was inadequate to meaningfully engage with the public, and
that the Board already had its mind made up. We disagree.
1. Advanced NPRMs and Consultation Under E.O. 13563
The 2011 comment of the Chamber of Commerce of the United States of
America (the Chamber) provides a representative example of criticism of
the 2011 pre-NPRM process. The Chamber believes that the Board missed
``an opportunity to explore whether a consensus could have been
reached'' on the rule among stakeholder groups through forums such as
the American Bar Association's Labor and Employment Law Section. The
Chamber concedes that stakeholders ``have widely divergent views,'' but
argues that a consensus on at least some changes might have been
reached. The Chamber suggests that the Board should withdraw the NPRM
and publish a more open-ended Advanced Notice of Proposed Rulemaking.
The Chamber cites Executive Order 13563 Section 2(c) (``Improving
Regulation and Regulatory Review''), 76 FR 51735, as support. Section
2(c) of the Executive Order states that ``[b]efore issuing a proposed
regulation, each agency, where feasible and appropriate, shall seek the
views of those who are likely to be affected * * *.'' Id. In the NPRM,
the Board explained the decision to issue a set of specific proposals,
rather than a more open-ended Advanced NPRM, by stating that ``public
participation would be more orderly and meaningful if it was based on *
* * specific proposals.'' 76 FR 36829. The Chamber incorrectly suggests
the Board conceded that it violated the Executive Order, and questions
whether the comment process actually was more orderly or meaningful.
Some other comments suggest that the Board should have engaged in
negotiated rulemaking, or that the pre-NPRM process was insufficiently
transparent.\10\
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\10\ See, e.g., joint comment of HR Policy Association and
Society for Human Resource Management (collectively, SHRM); Greater
Easley Chamber of Commerce; Georgia Association of Manufacturers
(GAM).
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These arguments were repeated by the Chamber and a number of other
commenters in 2014, most notably the American Hospital Association (AHA
II) \11\ and their counsel at the public hearing, (Testimony of Curt
Kirschner II) who contended that the Board should have issued an
Advanced NPRM or consulted with stakeholders before reissuing the NPRM
in February 2014.
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\11\ The preamble to the final rule uses the roman numeral II to
signify that a cited comment was received during the second notice
and comment period in 2014. Comments cited without the roman numeral
II were received during the first notice and comment period in 2011.
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An agency generally has discretion over its pre-NPRM procedures,
including whether to use advanced NPRMs, negotiated rulemaking, or
other pre-NPRM consultation. See Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978).
Moreover, as recognized by the AHA, the Board is not directly subject
to Executive Order 13563, nor is its language pertaining to pre-NPRM
procedures mandatory in any event.
As explained in both NPRMs, in this instance, the Board concluded
that beginning the process of public comment by issuing NPRMs would be
the most effective method of proceeding. The Board continues to believe
that following the notice-and-comment procedures set forth in the
Administrative Procedure Act (APA)--and thereby giving formal notice of
specific proposals to all members of the public at the same time in the
Federal Register and permitting all members of
[[Page 74312]]
the public to comment on those proposals through the same procedures
and during the same time periods--was the fairest and soundest method
of proceeding.
The contents of the comments themselves have also demonstrated the
doubtfulness of the Chamber's suggestion that a broad consensus might
have been reached through a different process. As the Chamber concedes,
the labor-management bar is polarized on many of the relevant issues.
Given the degree of polarization reflected at both the public hearings
and in the comments--notwithstanding the 3 intervening years for
members of the bar to consider and consult on possible improvements--
consensus seems unlikely.
Nor would an Advanced NPRM have been an improvement on the present
process. Indeed, in this proceeding the Board has already benefited
from something similar to the iterative commenting process of an
Advanced NPRM. From the 2011 hearing, to the 2011 comment period, to
the 2011 reply period, to the 2014 comment period, to the 2014 hearing
and reply period, the commenters have had the opportunity to consider
and respond to each other's views on many occasions. And, in contrast
to the typical Advanced NPRM, the specificity of the proposals in the
NPRM encouraged many commenters to focus on important details. With the
benefit of this repeated cross analysis and close attention to detail,
the Board has modified its proposals in a number of significant
respects in this final rule. We see no merit in the speculative
retrospective claim that something better might have been achieved by
another process.
In sum, the Board's pre-NPRM process was lawful and appropriate.
2. The 2014 NPRM
A variety of inconsistent claims were made by commenters about the
significance of the Board's reissuing the NPRM in 2014. Some argued
that the Board should have considered the 2011 comments before
reissuing the NPRM.\12\ By contrast, some said that the Board had
considered and implicitly rejected the 2011 comments, and that this
rejection required re-submitting the same comments again, or that it
suggested that a final rule identical to the NPRM was a fait
accompli.\13\ Some faulted the Board for not addressing the prior final
rule of December of 2011.\14\
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\12\ See, e.g., Chamber II; International Franchising
Association (IFA) II; AHA II. Along the same lines, some argued that
the Board should have clarified the proposals in light of questions
raised in the 2011 comments. See, e.g., Association of the Nonwoven
Fabrics Industry (INDA) II.
\13\ See, e.g., Association of Equipment Manufacturers (AEM) II;
INDA II.
\14\ See, e.g., Senator Lamar Alexander and 17 Republican
Senators (Senator Alexander and Republican Senators) II.
---------------------------------------------------------------------------
These arguments are misplaced, and many are predicated on an
unsupportable and mistaken interpretation of the NPRM. In early 2014,
the recently appointed and confirmed Board members had a choice to
make. Significant public effort had been expended in commenting on a
proposed rule that--according to one court--the Board had not yet
lawfully acted on. Thus, the questions posed by the NPRM remained
unanswered by the Board. As years had passed since the comment period
had closed, the new Board members were interested to know whether the
public had anything further to say about the proposals.
That is why the Board reissued the NPRM and reopened the comment
period. This process allowed the new Board members an opportunity to
consider new comments and old comments together in a single proceeding.
This is reasonable. To consider and analyze all the material
submitted in the 2011 final rule--without considering whether anyone's
views might have changed in the intervening years--and only then
issuing a new proposed rule, would have been substantially less
efficient. Where possible, it is far better, in the Board's judgment,
to respond to the comments once, rather than twice.
The 2014 NPRM reflected absolutely no Board judgment about the 2011
comments. As the Board explained in the NPRM, the purpose was simply to
re-raise, not resolve, the questions posed and to allow the Board to
make its decisions about the final rule in light of all the comments
received.
The AHA claimed that the Board was ``hiding the ball from the
public regarding its current views of what should be changed, in light
of the comments previously received and its analysis of those comments.
The implication of the Board's reissuance of the same NPRM is that the
public comment process is, from the Board's perspective, largely
perfunctory.'' AHA II.
This statement misses the point. There was no ball to hide. The
Board reissued the NPRM because it wanted to hear yet again from the
public before forming its views. This manifests a greater respect for
the public comment process. As Member Hirozawa said in responding to
this point at the public hearing:
Curt, if it makes you feel any better, we don't know where we're
headed, either. There are a lot of difficult decisions that are
going to have to be made, a lot of questions where there are
significant considerations on both sides, and there will be a lot of
discussion among the members during the coming period of time * * *.
But in terms of the views of the public, I think that I speak for
all five of the members here that we all consider them very
important and [an] essential part of this process.
A similar point applies to the Board's consideration of the
December 2011 final rule. Of course, the court held that the rule
itself is a legal nullity; without the requisite vote (in the court's
analysis), the Board never took action. Although the various statements
associated with that publication are important, and represent the
carefully considered views of three individual Board members (two of
whom are no longer on the Board), it would be strange, to say the
least, if the Board were somehow bound to consider and respond to this
non-action before it could issue a proposed rule. Indeed, although the
Board has considered those views in issuing the present final rule,
their function here is persuasive, not authoritative.
In sum, the Board's decision to consider the 2011 comments, 2011
hearing testimony, 2011 final rule, and 2012 Board Member statements,
together and at the same time as the 2014 comments and 2014 hearing
testimony, is not only a reasonable manner of proceeding, but clearly
the fairest and most efficient manner of proceeding given the
procedural posture of this matter as it stood in early 2014.
3. The Length, Timing, and Location of the Hearings
In 2011, the Board members held a 2-day public hearing in
Washington, DC, approximately halfway through the initial comment
period, i.e., about 1 month after publication of the NPRM and 1 month
before the initial comment period closed. All Board members heard 5-
minute statements from speakers representing diverse organizations and
groups, and then actively questioned the speakers for an additional
period of time. This hearing was not legally required.
Then, in 2014, the Board members held another 2-day public hearing
in Washington, DC, in the week after the close of the 2014 initial
comment period, i.e., during the reply period.\15\
[[Page 74313]]
The Board first solicited requests to speak, and instructed requesters
to clearly identify the particular proposed changes and issues they
wished to address, and to summarize the statements they wished to make.
This process enabled the Board to schedule the speakers addressing
similar issues to speak in adjacent time slots. Everyone who requested
to speak was given an opportunity to address the Board, and, as time
allowed, those who wished to speak about multiple issues were given an
opportunity to address the Board more than once.
---------------------------------------------------------------------------
\15\ After each public hearing in 2011 and 2014, the transcripts
containing each speaker's testimony along with any Board questioning
of the speaker were made part of the record of the rulemaking. Any
such testimony discussed in this final rule is cited as follows:
``Testimony of [name of speaker] on behalf of [name or organization,
if any].'' As with the written comments, the roman numeral II
follows testimony citations from the 2014 comment period.
---------------------------------------------------------------------------
The AHA compares this proceeding to the hospital unit rulemaking
and essentially argues that the Board should have held 14 days of
hearings instead of 4. AHA II.
Agencies are not bound to use the same procedures in every
rulemaking proceeding. Otherwise, agencies could neither learn from
experience, e.g., what rulemaking procedures are helpful and what
procedures are simply wasteful, nor adopt procedures suited to the
precise question at stake.\16\ This learning process is shown in the
changing nature of the hearings used by the Board from the hospital
rulemaking, to the 2011 hearing, to the 2014 hearing. At each phase the
hearing process became more meaningful and efficient.
---------------------------------------------------------------------------
\16\ As one scholar noted, the hospital unit rulemaking could be
described as ``procedural overkill,'' see Mark H. Grunewald, The
NLRB's First Rulemaking: An Exercise in Pragmatism, 41 Duke L. J.
274, 319 (1991).
---------------------------------------------------------------------------
This point was recognized by counsel for the AHA itself, who
``commend[ed] the Board on this public hearing process,'' particularly
in comparison to the 2011 hearing, and described the exchange with
Board members as ``gratifying,'' ``valuable,'' and ``productive.''
Kirschner II. The Board agrees. The 5 minutes that speakers were given
on each issue was supplemented by substantial time for questioning and
the opportunity for written comments. Some speakers gave 2,000 words or
more of well-informed testimony during their allotted time. The Board
found that the speakers provided informed, thorough, and thoughtful
analysis, and the back-and-forth dialogue with the Board members
demonstrated the familiarity of the speakers with the proposals. Again,
there was no such dialogue with Board members in the hospital
rulemaking hearings--regardless of their length--simply because the
Board members did not participate in those hearings.\17\
---------------------------------------------------------------------------
\17\ In light of the extensive process provided in 2014,
comments arguing that the 2011 process was ``rushed'' or gave ``an
inadequate opportunity for stakeholders to address the merits of the
rules'' are no longer salient. See National Association of
Manufacturers (NAM). The parties have had a total of 141 days to
comment on both NPRMs, (74 with respect to the 2011 NPRM and 67 for
the 2014 NPRM), and to consider the proposals and data in submitting
their comments. Some have published law review articles in the
interim, and it is quite clear that the topics have remained
relevant questions of public concern during this period. See Joseph
P. Mastrosimone, Limiting Information in the Information Age: The
NLRB's Misguided Attempt to Squelch Employer Speech, 52 Washburn L.
J. 473, 501-06 (2013).
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The Board believes that the hearings exceeded the requirements of
the APA and were fair, appropriate, and useful. Holding the hearings in
Washington, DC, was appropriate because many of the Board's major
stakeholders are either headquartered in Washington or are represented
by counsel in the city or who frequently appear in the city.
Both hearings were properly noticed and appropriately timed. The
two hearings served two different functions. The first hearing was
scheduled half-way through the first comment period. This gave the
public time to develop their positions before the hearing, while also
allowing the public to get a preview of the arguments at issue, so that
written comments could be framed more responsively. The subsequent
written comments were more informed, thoughtful, and technically
sophisticated as a result, and many commenters in 2011, such as the
Chamber, took the opportunity to cite extensively from the hearing
transcripts for support and to respond to arguments made at the
hearing. The Board believes the chosen sequence--the hearing followed
by the close of the initial comment period and then the reply period--
produced more meaningful public comments in 2011.
In 2014, of course, all of the 2011 comments were available for the
public to engage, as was the transcript of the 2011 hearing. Thus the
second hearing served a different purpose, and was therefore scheduled
at a different time. By scheduling the hearing after the close of the
comment period, but during the reply period, the Board members were
able to engage with the speakers deeply and in detail on the substance
of both their 2011 and 2014 comments, while giving time for speakers
who wished to supplement or clarify their remarks after the hearing the
ability to do so with additional written comments to the record.
In sum, the Board believes that the four days of public hearings,
attended by all Board members, was highly valuable, was of an
appropriate length, and was held at appropriate times and in
appropriate locations.
4. The Length and Timing of the Comment Periods
The Board provided an initial comment period of 60 days beginning
June 22, 2011, followed by a reply comment period of 14 days that ended
on September 6, 2011. The Board then provided an additional comment
period of 60 days beginning February 6, 2014, followed by a reply
comment period of 7 days that ended on April 14, 2014.
The APA provides no minimum comment period, and many agencies,
including the Board in some recent rulemaking proceedings, have
afforded comment periods of only 30 days. The agency has discretion to
provide still shorter periods, and is simply ``encouraged to provide an
appropriate explanation for doing so.'' Administrative Conference of
the United States (ACUS), Recommendation 2011-2 at 3 (June 16, 2011).
Yet, in 2011, many commenters criticized the length of the comment
period. The Council on Labor Law Equality (COLLE) described the NLRB's
comment period as ``the bare-minimum 60-day[s],'' and SHRM
characterized the comment period as ``hurried, abridged and
clandestine.''
It would be reasonable to expect that these arguments would not be
repeated in 2014, considering that the public had a cumulative total of
141 days in which to submit comments. Yet they were from time to time,
most notably by the Chamber II, AHA II, and NAM II.\18\
---------------------------------------------------------------------------
\18\ In each of its reply comments, the Chamber also complained
that the reply period was too short to read and respond to all of
the comments. But the purpose of the reply period was not to afford
interested parties an opportunity to read and reply to all of the
comments submitted, but to provide an opportunity to read the most
significant comments and respond to the arguments raised in them.
This the Chamber and others did quite successfully. For example, in
2011 the Service Employees International Union (SEIU) cited and
replied to over twenty unique, detailed, and lengthy comments
submitted by other parties. Others, such as the Association of
Corporate Counsel (ACC), took the opportunity to focus on
elaborating one particular issue of special importance. Both
approaches were quite helpful, and served the purpose for which the
Board afforded the reply period.
A lengthy additional reply period in this context would have
served little purpose, particularly after a post-comment hearing in
which the parties and the Board had the opportunity to engage with
and reply to the comments in great detail. All of which is in
addition to the fact that neither the APA nor any other law requires
any opportunity to reply to public comments.
---------------------------------------------------------------------------
Although the desire for additional time to gather support and
develop arguments is understandable, agencies must set some end to the
comment
[[Page 74314]]
period: ``Agencies should set comment periods that consider the
competing interests of promoting optimal public participation while
ensuring that the rulemaking is conducted efficiently.'' ACUS 2011-2 at
3.
The Montana Chamber of Commerce--though opposing the rule--stated
that the NPRM provided ``a very reasonable time frame to allow ample
comments and statements from all interested parties, whether they are
supportive of these sweeping changes or not.'' And a supportive comment
noted that the Board was providing far more time for comments than
required by law. Chairman Tom Harkin of the Senate Committee on Health,
Education, Labor and Pensions, Senior Democratic Member George Miller
of the House Committee on Education and the Workforce, and Democratic
Senators and Members of the House of Representatives (Chairman Harkin,
Senior Member Miller and Congressional Democrats) at 5.
The tens of thousands of comments submitted and the depth of
analysis they provided are ample testament to the adequacy of the
opportunities for public participation in the rulemaking process.
5. Post-Rulemaking Procedures and Review
One comment urges the Board to ``incorporate[] plans for
retrospective review'' into the rule pursuant to Executive Orders
13,563 and 13,579. Sofie E. Miller. Executive Order 13,563, however, is
directed to executive branch agencies, not independent agencies, which
are only encouraged, by Executive Order 13,579, to comply with
Executive Order 13,563. Moreover, both of the aforementioned Executive
Orders apply only to ``significant'' regulatory actions, as defined by
Section 3(f) of E.O. 12,866. This rulemaking does not fall into any of
the definitions of a ``significant regulatory action'' set forth in
Section 3(f). Nevertheless, the Board developed and disseminated a
preliminary plan for retrospective review of significant regulations in
May 2011 (http://www.whitehouse.gov/files/documents/2011-regulatory-action-plans/NationalLaborRelationsBoardPreliminaryRegulatoryReformPlan.pdf). In
addition, the Board will continue its longstanding practice of
incrementally evaluating and improving its processes going forward.
IV. Comments on General Issues
Before turning to comments on specific provisions of the final
rule, the Board addresses a number of general issues: (a) the Board's
rulemaking authority; (b) the need to amend the regulations generally;
(c) the opportunity for free debate under the regulations; and (d) the
effects on employee representation and the economy.
A. Board Authority To Promulgate Representation-Case Procedure Rules
Congress delegated both general and specific rulemaking authority
to the Board. Generally, Section 6 of the National Labor Relations Act,
29 U.S.C. 156, provides that the Board ``shall have authority from time
to time to make, amend, and rescind, in the manner prescribed by the
Administrative Procedure Act * * * such rules and regulations as may be
necessary to carry out the provisions of this Act.'' In addition,
Section 9(c), 29 U.S.C. 159(c)(1), specifically contemplates rules
concerning representation case procedures, stating that elections will
be held ``in accordance with such regulations as may be prescribed by
the Board.''
The Board's well-established rulemaking authority is recognized by
comments both opposing and supporting the proposed rule. For example,
NAM states that ``it is undisputed that the Board has the authority to
promulgate rules and regulations,'' and the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) states that
``[t]he NLRB has specific and express statutory authority to engage in
rule-making to regulate its election process.''
The Supreme Court unanimously held in American Hospital Association
v. NLRB, 499 U.S. 606, 609-10 (1991), that the Act authorizes the Board
to adopt both substantive and procedural rules governing representation
case proceedings. The Board's rules are entitled to deference. See
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843-44 (1984); NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946).
Representation case procedures are uniquely within the Board's
expertise and discretion, and Congress has made clear that the Board's
control of those procedures is exclusive and complete. See NLRB v. Bell
Aerospace Co., 416 U.S. 267, 290 n.21 (1974); AFL v. NLRB, 308 U.S.
401, 409 (1940). ``The control of the election proceeding, and the
determination of the steps necessary to conduct that election fairly
were matters which Congress entrusted to the Board alone.'' NLRB v.
Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see also Magnesium
Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).
In A.J. Tower, 329 U.S. at 330, the Supreme Court noted that
``Congress has entrusted the Board with a wide degree of discretion in
establishing the procedure and safeguards necessary to insure the fair
and free choice of bargaining representative by employees.'' The Act
enshrines a democratic framework for employee choice and, within that
framework, charges the Board to ``promulgate rules and regulations in
order that employees' votes may be recorded accurately, efficiently and
speedily.'' Id. at 331 (emphasis added). ``[T]he determination of
whether a majority in fact voted for the union must be made in
accordance with such formal rules of procedure as the Board may find
necessary to adopt in the sound exercise of its discretion.'' Id. at
333. As the Eleventh Circuit stated:
We draw two lessons from A.J. Tower: (1) The Board, as an
administrative agency, has general administrative concerns that
transcend those of the litigants in a specific proceeding; and, (2)
the Board can, indeed must, weigh these other interests in
formulating its election standards designed to effectuate majority
rule. In A.J. Tower, the Court recognized ballot secrecy, certainty
and finality of election results, and minimizing dilatory claims as
three such competing interests.
Certainteed Corp. v. NLRB, 714 F.2d 1042, 1053 (11th Cir. 1983). As
explained above, the final rule is based upon just such concerns. Some
comments allege that the Board lacks authority to issue these
rules.\19\ As discussed, the Supreme Court's interpretation of Section
6 clearly forecloses this argument.
---------------------------------------------------------------------------
\19\ See, e.g., Testimony of Harold Weinrich on behalf of
Jackson Lewis LLP; ACC; American Trucking Associations II.
---------------------------------------------------------------------------
The Board also received dueling comments from two different groups
of members of Congress on this topic: One group claimed that the
changes would ``fundamentally alter the balance of employee, employer
and union rights that Congress so carefully crafted and that only
Congress can change;'' the other group claimed that the changes are
``commonsense and balanced'' and ``a positive step toward fixing a
broken system'' and are consistent with ``the NLRB['s] broad authority
under the NLRA to promulgate election regulations.'' Compare Senator
Alexander and Republican Senators; with Chairman Harkin, Senior Member
Miller and Congressional Democrats.
The Act delegated to the Board the authority to craft its
procedures in a manner that, in the Board's expert judgment, will best
serve the purposes of the Act. Various members of Congress
[[Page 74315]]
may have divergent views, but Article I of the Constitution prescribes
the method that Congress must use to enact its policies, and the Act as
written gives the Board broad authority in this area. Here the Board is
acting pursuant to its clear regulatory authority to change its own
representation case procedures in a manner that will better serve the
purposes and text of the Act--a question about which the Board remains
the congressionally delegated expert authority.
In sum, the Board clearly has authority to amend its election
rules.
B. The Need for the Final Rule
The Board's experience demonstrates that although the fundamentals
are sound, many of the technical details of representation case
procedures suffer from a variety of deficiencies. Especially as to
contested cases, current procedures result in duplicative, unnecessary
and costly litigation. Simplifying, streamlining and, in some cases,
bolstering these procedures will reduce unnecessary barriers to the
fair and expeditious resolution of representation disputes and result
in more fair and accurate elections. The rule also codifies best
practices to ensure that our procedures are more transparent and
uniform across regions. Changes to the representation case procedures
are also necessary to update and modernize the Board's processes in
order to gain the advantages of and make effective use of new
technology, especially affecting communications and document retrieval
and transmission. These changes will enhance the ability of the Board
to fulfill its statutory mission.
Some comments received in response to the Board's NPRM argue that
the Board failed to present sufficient justification for the proposed
amendments. For example, SHRM asserts that the Board ``failed to
articulate a legitimate justification for the significant changes set
forth in the NPRM'' and that the proposed amendments are therefore
arbitrary and capricious.\20\ Numerous comments contend generally that
there is no need for revision of the Board's representation procedures
because, as argued by NAM, there is no evidence contradicting the
Board's own data showing that the present time frames for processing
representation cases are among the most expeditious in the Board's
history, and further that the Board currently meets its own internal
time targets for processing representation cases.\21\ As one speaker
stated ``the Board is just looking to solve a problem that doesn't
exist'' and ``the NPRM has failed to identify a single problem to which
the proposed solution is responsive.'' Testimony of Kara Maciel on
behalf of National Grocers Association (NGA) II. See also Testimony of
Ross Freidman on behalf of CDW II (``the proposed rules are in large
part a solution in search of a problem'').
---------------------------------------------------------------------------
\20\ See also SHRM; Klein, Dub & Holleb (Klein) II.
\21\ This point was also advanced by the AHA; American Council
on Education (ACE); COLLE; CDW; Associated Oregon Industries;
National Marine Manufacturers Association (NMMA); The Bluegrass
Institute; and the Chamber.
---------------------------------------------------------------------------
These arguments appear to rest on a number of mistaken assumptions.
(1) The sole purpose of the rule is to have faster representation
proceedings; but (2) those proceedings are (generally) fast enough
already; and, in any event, (3) the changes do not identify or address
the true sources of delay. We will address each of these assumptions in
turn.
1. The Amendments Address Efficiency, Fair and Accurate Voting,
Transparency, Uniformity, and Adapting to New Technology; Speed Is Not
the Sole or Principal Purpose
First, the focus on speed fails to consider all the reasons for
which the various amendments are being made. Many of the changes have
little to do with the timing of procedures. Indeed, there is no single
problem that this rule addresses: Rather, as summarized in the list of
changes above, there are a host of discrete problems addressed by a
host of discrete amendments. We will amplify the particular rationale
for each change in the discussion of specific sections below. However,
in light of the common misconception that the rule is focused on speed,
we will briefly describe other important principles of sound
administration at issue.
Efficiency: The importance of efficiency should be self-evident. If
a particular procedure serves no purpose, or is unduly complex or
wasteful, that is reason enough to change it, regardless of whether it
also causes delay. Thus, for example, rules that permit unnecessary
litigation, circuitous service of documents and mandatory interlocutory
appeals are plainly inefficient and should be changed.
Fair and Accurate Voting: This rationale gets to the heart of
Section 9, and is always under consideration in any revision of
representation case procedures. Here, for example, the Board provides
employees with notice of the petition for election sooner in the
process, and provides more detailed, meaningful notices about the unit
at issue, and the voting itself, throughout the process. The notices
are also transmitted more effectively. As explained further below, the
amendments provide a better process for identifying voters properly
subject to challenge, which should reduce the number of ballots
improperly commingled with unit ballots by oversight, or improperly
challenged out of ignorance. These changes will all provide better
guarantees of a fair voting process.
Transparency and Uniformity: Transparency allows the public to
understand the process and uniformity allows the parties to form
reasonable expectations. These two related principles also ensure that
the protection of statutory rights does not vary arbitrarily from case
to case or region to region. Again, these basic procedural principles
should be beyond cavil. Cf. Dorsey v. United States, 132 S. Ct. 2321,
2326 (2012) (written sentencing guidelines ``increase transparency
[and] uniformity''). These are adequate reasons to ensure that Board
best practices are written into the regulations where appropriate, even
if they do not address delay. Thus, for example, describing the best-
practices hearing date in the rules will promote uniformity and
transparency.
Changed Technology: Society changes rapidly, and new technology can
quickly make old rules obsolete. Of particular relevance here,
communications technologies developed in the last half-century have
changed the way litigation, workplace relationships, and representation
campaigns function. As the Supreme Court has stated in another context,
``the responsibility to adapt the Act to changing patterns of
industrial life is entrusted to the Board,'' and we would be remiss in
leaving unchanged procedures which are predicated on out-of-date facts
or assumptions, even where there is no consequent delay. NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 266 (1975). Thus, for example,
providing for electronic documents, filing, and transmission as well as
updating the forms of employee contact information are important
adaptations to changed technological circumstances. In addition, the
Board is mindful that changes in technology have also raised concerns
about privacy, and the final rule addresses those concerns.
In sum, timeliness is one of many reasons proffered for the
amendments; some changes clearly reduce unnecessary delays; for other
changes, timeliness is only a collateral benefit and by no means a
primary purpose;
[[Page 74316]]
and sometimes it plays no role whatsoever. The need for the rule cannot
be assessed without grappling with these specific, articulated reasons
underlying each of the amendments.
2. The Board Can and Should Address Delays in the Current Rules
The second premise is also flawed: Nothing in the statute, the
General Counsel's current time targets, or any other source establishes
that current procedures are ``fast enough.''
Section 9 is animated by the essential principle that
representation cases should be resolved quickly and fairly. ``[T]he
Board must adopt policies and promulgate rules and regulations in order
that employees' votes may be recorded accurately, efficiently and
speedily.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946). As the
Supreme Court noted, discussing Section 9(d), the policy in favor of
speedy representation procedures ``was reaffirmed in 1947, at the time
that the Taft-Hartley amendments were under consideration.'' Boire v.
Greyhound Corp., 376 U.S. 473, 479 (1964). Senator Taft stated that the
Act should not ``permit dilatory tactics in representation
proceedings.'' Id. In discussing the APA, Congress again exempted
representation cases because of the ``exceptional need for
expedition.'' \22\ Finally, the purpose of Congress in 1959 in
permitting delegation of representation case proceedings to regional
directors under Section 3(b) was to `` `speed the work of the Board.'
'' Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141-142 (quoting
legislative history). Congress did not define any ``time targets'' for
elections; indeed, in fashioning the LMRDA, Congress considered and
expressly rejected a proposed amendment to the statute which would have
imposed a 30-day minimum speed limit on the time from petition to
election.\23\
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\22\ Senate Committee on the Judiciary, comparative print on
revision of S. 7, 79th Cong., 1st Sess. 7 (1945). It is for this
reason that 5 U.S.C. 554(a)(6) specifically exempts representation
cases from even the minimal requirements of the APA.
\23\ Various legislative efforts to impose particular timelines
on Board elections have failed repeatedly over the decades. See,
e.g., 124 Cong. Rec. 7652-54 (1978) (side-by-side comparison of
House and Senate versions of one proposal, accompanied by analysis
and criticism by Senator Jesse Helms); ``National Labor Relations
Fair Elections Act'' H.R. 4800 (1990), 101st Cong, 2d Session; H.R.
503, 102nd Cong., 1st Session (1991); H.R. 689, 103rd Cong., 1st
Session (1993); ``Labor Relations Representative Amendment Act'' S.
1529, 103rd Cong., 1st Session (1993); S. 778, 104th Cong., 1st
Session (1995).
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In short, every time Congress has amended laws governing
representation cases, it has reaffirmed the importance of speed. This
is essential both to the effectuation of Section 7 rights of employees,
and to the preservation of labor peace.\24\
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\24\ The importance of prompt resolutions of questions of
representation is heightened by their perishable nature. ``[U]nlike
court judgments, [they] do not bind the parties for all time.''
Manhattan Center Studios, Inc., 357 NLRB No. 139, slip op. at 5
(2011). ``In the absence of employer unfair labor practices, a Board
certification of a representative will bar a new election for only 1
year if no contract is agreed to, and for no more than an additional
3 years if an agreement is reached.'' Id.
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The timeliness concerns of Congress in 1935, 1947 and 1959 remain
salient today, as the comments show. Unduly lengthy campaigns cause
voter participation to drop. Testimony of Glenn Rothner II; Testimony
of Gabrielle Semel on behalf of CWA II. ``[D]elay can create a sense of
futility among workers.'' Testimony of Brian Petruska on behalf of
Laborer's International Union of North America Mid-Atlantic Regional
Organizing Coalition (LIUNA MAROC) II; see also Testimony of Jody
Mauller on behalf of the International Brotherhood of Boilermakers
(IBB) II. As one employee testified at the hearing, significant delay
in the NLRB's process causes employees to think that there is nothing
the government can do to protect them. Testimony of Donna Miller II.
This is precisely what Congress was worried about: that employees would
think the NLRA's procedures were ineffectual and be tempted to take
disruptive action instead. Boire, supra. The purpose of the Act is to
protect with Federal power the free exercise of Section 7 and Section 9
rights. In one organizer's experience, most workers want elections
faster than current procedures permit regardless of where the workers
stand on the union. Testimony of Martin Hernandez on behalf of UFCW II.
To be clear, the problems caused by delay have nothing to do with
employer speech.\25\ As discussed infra, the statute encourages free
debate, and neither Congress nor the Board in this rulemaking has cited
limiting debate as a reason for speed. It is not the speech, but the
delay itself which causes the ills identified by Congress and the
Board. Nor is the problem with delay related to unfair labor practices.
Though many commenters and academics have argued that lengthy campaigns
encourage unfair labor practices,\26\ this is not a reason that either
Congress or the Board have cited in amending representation procedures
in pursuit of timely elections and it does not underlie the final rule.
---------------------------------------------------------------------------
\25\ Some have claimed that the Board has a secret mission ``to
restrict, as far as possible, the participation of employers in the
union organizing campaign and representation election process.''
E.g., COLLE II at 4-5. No credible evidence has ever been mustered
in support of this claim by any of its proponents, and the Board
expressly affirms that limiting debate is not a reason for any of
the amendments.
\26\ See John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan
Lamare, Ph.D. (summarizing their study, ``New Data: NLRB Process
Fails to Ensure a Fair Vote,''). See also SEIU; National Employment
Law Project (NELP); and Senior Member George Miller and Democratic
Members of the U.S. House of Representatives Committee on Education
and the Workforce (Senior Member Miller and Democratic House
Members) (citing Logan, Johanson, and Lamare study).
---------------------------------------------------------------------------
As shown, delay itself is the problem this rule addresses--not
employer speech or unfair labor practices--and eliminating unnecessary
delay is therefore unquestionably a valid reason to amend these
regulations. In recognition of this fundamental principle, the Board
has noted ``the Act's policy of expeditiously resolving questions
concerning representation.'' \27\ ``In . . . representation proceedings
under Section 9,'' the Board has observed, ``time is of the essence if
Board processes are to be effective.'' \28\ Indeed, the Board's
Casehandling Manual stresses that ``[t]he expeditious processing of
petitions filed pursuant to the Act represents one of the most
significant aspects of the Agency's operations.'' \29\
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\27\ See, e.g., Northeastern University, 261 NLRB 1001, 1002
(1982), enforced, 707 F.2d 15 (1st Cir. 1983).
\28\ Tropicana Products, Inc., 122 NLRB 121, 123 (1958).
\29\ Pt. 2, Representation Proceedings, Section 11000.
---------------------------------------------------------------------------
Many comments argue that current procedures are fast enough because
they meet the Board's time targets. The reliance on current time
targets is mistaken. For decades the Board has continually strived to
process representation cases more expeditiously, and the targets have
accordingly been adjusted downward over time. 79 FR 7319-20.\30\ Under
the commenters' reasoning, in any given year when the agency was
meeting its then-applicable time targets, the agency should have left
well enough alone and should not have engaged in any analysis about how
the process might be improved. This is clearly wrong. Past improvements
do not and should not
[[Page 74317]]
preclude the Board's consideration and adoption of further
improvements.
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\30\ The amendments the Board has chosen to adopt represent a
continuation of this incremental process, rather than a radical
departure from Board practice as asserted by, for example, the
Coalition for a Democratic Workplace (CDW) and Associated Builders
and Contractors (ABC). ABC II asserts that the proposals are far
more radical than the Board admits, but their contention is stated
as ipse dixit and remains unsupported. See also AHA II (proposed
rules are a ``very radical departure'' from December 2011 final
rule).
---------------------------------------------------------------------------
The Chamber responds by claiming ``[t]he Board cannot set goals
regarding acceptable times for elections and then, without
justification, disregard those benchmarks. Presumably some rational
approach has been taken to develop the benchmarks over the years.''
Chamber II.
There is a rational approach: the General Counsel sets benchmarks
by trying to figure out what would be possible--in spite of structural
delays identified under the rules--if the regions did their very best
work. Thus, meeting those benchmarks shows only that the regions are
doing the best they can in spite of the rules, not that the rules are
incapable of improvement. That the Board seeks to, and does, meet those
targets in most instances is irrelevant to whether additional
improvements should be made by amending the rules.
In addition to the time targets, some commenters point to a number
of other extrinsic facts which they claim are ``strong evidence that
the present system works fairly for all parties.'' Testimony of Arnold
Perl on behalf of the Tennessee Chamber of Commerce (TN Chamber) II.
For example, they cite the rate of union success in elections as
evidence that the current procedures are fair and not in need of
revision. Associated General Contractors of America (AGC); Skripko II.
From the Board's perspective, this argument is close to tautological.
The purpose of the election is to find out what the employees want; if
we knew this a priori, the election would be unnecessary. Whether the
union win rate is 75% or 25% tells us nothing about whether the
elections were fair. Either result might accurately reflect the
employees' free choice. The results are therefore unhelpful in
determining whether representation case procedures are fulfilling their
statutory purpose as fully and efficiently as possible. On that
question, we must look to the procedures themselves, and to the
policies and purposes of the statute.
Many comments acknowledge that the expeditious resolution of
questions of representation is a central purpose of the Act, but argue
that the Board did not consider other statutory policies in proposing
the amendments.\31\ In fact, the Board did do so, both in proposing
amendments to its rules in the NPRM and in issuing this final rule. As
discussed, the Board considered the statute as a whole, as well as the
various policies underlying its enactment and amendment. Specifically,
the Board considered the statutory requirement that the pre-election
hearing be an ``appropriate hearing'' and the parties' constitutional,
statutory, and regulatory rights in relation to the hearing. As
explained in detail below, the final rule makes the hearing more, not
less, ``appropriate'' to its statutory purpose. The final rule also
fully respects the procedural rights of the parties. In fact, it
permits the parties to fully exercise their procedural rights more
efficiently and with less burden and expense. The final rule promotes a
more informed electorate by providing an improved process for informing
the unit about election procedures, the appropriate unit for bargaining
and the voting procedure for individuals who may properly vote subject
to challenge. Similarly, the Board considered employees' statutory
right under Section 7 to ``bargain collectively through representatives
of their own choosing'' and ``to refrain from any or all such
activities.'' 29 U.S.C. 157. As explained in detail below, the
amendments adopted in the final rule do not establish inflexible time
deadlines or mandate that elections be conducted in a set number of
days after the filing of a petition. Further, the amendments honor free
speech rights; they do not in any manner alter existing regulation of
parties' campaign conduct or restrict freedom of speech. In this
connection, the Board has carefully considered the possibility that the
amendments might reduce the time between the filing of the petition and
the election so as to threaten the communication, association, and
deliberation needed by employees in order to truly exercise freedom of
choice. It has concluded the amendments pose no such risk, as more
fully explained below.
---------------------------------------------------------------------------
\31\ See, e.g., Assisted Living Foundation of America (ALFA);
COLLE; SHRM; Seyfarth Shaw.
---------------------------------------------------------------------------
In sum, the Board is charged by Congress with eliminating
unnecessary delays, and nothing about the current process suggests that
it is ``fast enough'' such that no further improvements are
justifiable.
3. The Amendments Which Are Intended To Address Delay Will in Fact Do
So
Finally, the commenters are also mistaken in claiming that the
Board has not identified the subset of cases where unnecessary delay is
prevalent, and has not designed rules responsive to the particular
delays identified. Again, many of the changes address other purposes,
but where delay is at issue, the Board clearly identifies problems, and
the amendments supply sensible and reasonable solutions. Most of the
changes apply to only a very small subset of Board cases, and those
cases are the very ones most likely to suffer inordinate delays.
For example, it is quite clear from the Board's statistics that
fully litigated cases--that is, cases in which the parties are unable
to stipulate about pre-election issues--generally take almost twice as
long to get to an election. The median for all cases is 38 days,
whereas the median for this particular subset of cases is closer to 70
in most years. Clearly, these cases suffer a delay in the time it takes
to hold elections.
The Board has identified the primary sources of this delay, and the
amendments address them. Under current rules a delay of 25 to 30 days
is automatically imposed between the direction of election and the
election. There can be absolutely no question that eliminating this
waiting period addresses a very significant source of delay that is
unique to this subset of demonstrably slower cases.
Other changes to pre-election litigation--such as the 8 to 10 day
hearing opening, the standard for continuance, the provision of oral
argument rather than briefing, the date to provide voter lists, etc.--
will also address less substantial sources of delay in this same small
subset of cases. And it is important to bear in mind that many of these
changes are aimed at other goals, such as efficiency, uniformity, and
adapting to modern technology, and that timeliness is often only a
collateral benefit.
Other comments acknowledge that the Board's procedures have been
subject to misuse in some cases, but suggest that such cases were rare
and do not form an adequate basis for the Board's proposals. The
National Retail Federation (NRF) and Printing Industries of America,
Inc. (PIA), for example, suggest that the rules should be amended only
to address the more egregious cases. Relatedly, many comments cite the
high rate of voluntary election agreements (reached in over 90 percent
of cases), which obviate the need for pre-election hearings, as
evidence that the representation case procedures are working well in
the overwhelming majority of cases.
In a way, this argument accords with the Board's own sense of the
final rule: many of the amendments are minor changes to the procedure
used in the small subset of litigated cases where the problem of delay
is demonstrably more severe. The lack of greater ambitions does not
mean that the rule is unjustified; rather it means that the amendments
provide targeted solutions to specifically identified problems.
In addition, as discussed below, it must be noted that changes to
litigation
[[Page 74318]]
procedures can be significant in framing the circumstances for entering
stipulations in all cases.\32\ Under the former rules, the regional
director lacked discretion to limit the presentation of evidence to
that relevant to the existence of a question of representation. Thus,
the possibility of using unnecessary litigation to gain strategic
advantage existed in every case. That specter, sometimes articulated as
an express threat according to some comments,\33\ had the effect of
detrimentally affecting negotiations of pre-election agreements.\34\
---------------------------------------------------------------------------
\32\ As another example, consider the new Statement of Position
requirement, which assists both parties in making more informed
decisions about stipulations. Knowing the issues in dispute will
help the parties reach agreement.
\33\ See American Federation of Teachers (AFT); International
Brotherhood of Electrical Workers (IBEW); LIUNA.
\34\ Comments by the United Food and Commercial Workers
International Union (UFCW), LIUNA, AFT, NELP, and Retired Field
Examiner Michael D. Pearson all point to the impact of that specter
of unnecessary litigation on negotiations of pre-election
agreements.
---------------------------------------------------------------------------
Finally, many comments argue that the proposed amendments did not
address the most serious causes of delay in Board proceedings. Some
comments point to delay in the Board's own adjudication of cases.\35\
Other comments point to the Board's blocking charge policy.\36\
---------------------------------------------------------------------------
\35\ See, e.g., NAM; PIA.
\36\ See, e.g., AHA; PIA; SHRM; Chamber; CDW; Professor Samuel
Estreicher.
---------------------------------------------------------------------------
The Board is aware that, in too many instances, it has taken too
long to decide both representation and unfair labor practice cases.
This was a problem in 1959 when Section 3(b) was enacted, and, though
the situation is much improved, it remains a problem today. Part of
this problem is being addressed by the amendments--namely, by codifying
the text of Section 3(b), and by the requirement that regional
directors issue a final decision on the hearing officer's post-election
recommendations. Giving the Board an authoritative and well-reasoned
regional director's decision to consider whenever an appeal is taken
will enhance the Board's decision-making on appeals and permit it to
deny them where appropriate. To the extent that purely internal Board
inefficiencies create additional unnecessary delays, these are not
enshrined in the current rules and therefore need not be addressed by
rulemaking.
As for the Board's blocking charge policy, the NPRM specifically
asked for comments on various proposed revisions. As discussed below,
the Board received extensive commentary, particularly in 2014,
regarding this matter, and has decided to make changes which will
address delay by expediting decision-making on blocking charges.
Of course, an administrative agency, like a legislative body, is
not required to address all procedural or substantive problems at the
same time. It need not ``choose between attacking every aspect of a
problem or not attacking the problem at all.'' Dandridge v. Williams,
397 U.S. 471, 487 (1970). Rather, the Board ``may select one phase of
one field and apply a remedy there, neglecting the others.'' FCC v.
Beach Communications, 508 U.S. 307, 316 (1993) (quoting Williamson v.
Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)). ``[T]he reform
may take one step at a time.'' Id.\37\
---------------------------------------------------------------------------
\37\ These same principles have been applied to administrative
action. See, e.g., United Hosp. v. Thompson, 383 F.3d 728, 733 (8th
Cir. 2008) (the equal protection clause does not require the
government to attack every aspect of the problem or refrain from
regulating at all); Great American Houseboat Co. v. U.S., 780 F.2d
741, 749 (9th Cir. 1986) (same). The AHA acknowledges this fact, but
states that ``[w]hile this is true, the fact that the Board is
declining to revise one of the biggest hurdles to timely elections
[blocking charge policy], and at the same time proposing extensive
revisions to other aspects of the process that have not proven to
hold up elections . . . leaves the Board open to questions about its
motives in issuing the NPRM.'' AHA II at 27. Of course, the Board is
revising its blocking charge policy, and it is unclear why AHA was
under the impression that this matter would not be addressed when
the Board specifically proposed a number of potential options in the
NPRM and invited comments. And the claim that the other changes do
not address delay is equally faulty because, as previously stated,
many of the changes have nothing to do with delay, while those that
are intended to address delay are in fact related to proven sources
of delay.
---------------------------------------------------------------------------
In short, as to those aspects of the final rule where the Board has
based its amendments on limiting delays, it has in fact identified the
delay at issue specifically, and has crafted amendments rationally
designed to address the delay.
C. The Opportunity for Free Speech and Debate
Many comments filed by employers and employer organizations argue
that the proposed rule changes in the NPRM would drastically shorten
the time between the filing of petitions and elections and thereby
effectively reduce employers' opportunity to communicate with their
employees concerning whether they should choose to be represented for
purposes of collective bargaining. These comments make both legal and
policy arguments based on that claim. The Board also considered the
matter extensively at the public hearing in 2014, asking questions and
taking approximately 175 transcript pages of testimony on this specific
issue from a wide variety of speakers with different views.
The Board has concluded that the final rule will facilitate
employees' free choice of representative while advancing the statutory
objective of promptly resolving questions of representation, and will
not impinge on anyone's free speech rights or any statutory mandate or
policy. The amendments do not establish any rigid timeline for the
conduct of the election itself. Indeed, the Board rejects requests that
we set minimum or maximum time limits in which all elections must
occur.\38\ The election date will continue to vary from case to case.
In selecting the election date under the rules, the regional director
will continue to consider, among other factors,\39\ the desires of the
parties, which may include their opportunity for meaningful speech
about the election.
---------------------------------------------------------------------------
\38\ The Board declines to adopt a suggestion by one commenter,
which urged that the election be held within 15 days of the final
voter list. See Testimony of Hernandez on behalf of UFCW II.
Likewise, the Board declines to set the election date to be the same
day the petition is filed, as another commenter urged. See Testimony
of Thomas Meiklejohn II. The Board also rejects a suggestion by the
dissent to impose 60 days as a maximum period before holding the
election.
\39\ See Casehandling Manual Section 11302.1.
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1. NLRA Section 8(c) and the First Amendment
Many employer comments contend that the rule changes reflected in
the NPRM would be inconsistent with Section 8(c) of the Act \40\ and
the First Amendment.\41\ But neither the proposed rule nor the final
rule imposes any restrictions on the speech of any party.
---------------------------------------------------------------------------
\40\ See, e.g., SHRM; Sheppard, Mullin, Richter & Hampton LLP
(Sheppard Mullin); and the National Retail Federation (NRF).
\41\ See, e.g., National Grocer's Association (NGA); Waste
Connections; ALFA.
---------------------------------------------------------------------------
Section 8(c) of the Act provides:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
29 U.S.C. 158(c). On its face, Section 8(c)'s stated purpose is to
prevent speech from ``constitut[ing] or be[ing] evidence of an unfair
labor practice.'' Accordingly, the Board has repeatedly held that
Section 8(c) applies only in unfair labor practice and not in
representation proceedings. See, e.g., Hahn Property Management Corp.,
263 NLRB 586, 586 (1982); Rosewood Mfg. Co., Inc., 263 NLRB 420, 420
(1982); Dal-Tex Optical Co., Inc., 137 NLRB
[[Page 74319]]
1782, 1787 fn. 11 (1962). Because the final rule, which addresses
representation case procedures, does not in any way permit the Board to
use speech or its dissemination as evidence of an unfair labor
practice, the literal language of Section 8(c) is not implicated.
Compare Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 956 (D.C. Cir.
2013) (invalidating Board rule that required employers to permanently
post a prescribed notice of employee rights ``upon pain of being held
to have committed an unfair labor practice''), with id. at 959 n.19
(concluding that a Board rule requiring employers to post an election
notice immediately before a representation election ``does not
implicate Sec. 8(c)'' because violation of that rule does not carry
the prospect of unfair labor practice liability).
Nor does the final rule run afoul of the First Amendment. Aside
from the accurate statement that speech about unions is protected by
the First Amendment,\42\ the comments do not appear to argue (except in
the most abbreviated fashion) \43\ that the proposed amendments would
violate the First Amendment. In any event, neither the proposed nor the
final rule restricts speech. The rule does not eliminate the
opportunity for the parties to campaign before an election, nor does it
impose any restrictions on campaign speech. As under the current rules,
employers remain free to express their views on unionization, both
before and after the petition is filed, so long as they refrain from
threats, coercion, or objectionable interference.\44\ As the Supreme
Court stated in 1941, ``The employer . . . is as free now as ever to
take any side it may choose on this controversial issue.'' NLRB v.
Virginia Electric & Power Co., 314 U.S. 469, 477 (1941). Likewise, the
rule does not impose any new limitations on union speech. Accordingly,
the Board's effort to simplify and streamline the representation case
process does not infringe the speech rights of any party.
---------------------------------------------------------------------------
\42\ Thomas v. Collins, 323 U.S. 516, 537-38 (1945).
\43\ See, e.g., AEM II; INDA II; Knife River II.
\44\ In this regard, the Board agrees with comments stating that
the rule does not restrict, let alone prohibit, any form of
expression or any particular message. See LIUNA MAROC II; AFL-CIO
Reply II.
---------------------------------------------------------------------------
The comments do not contend that employers will be prevented from
expressing their opinions on unionization, but only that, because there
may be less time between petition and election in some cases, employers
will have fewer opportunities to express their opinions before the
Board concludes its investigation under Section 9. 29 U.S.C. 159. The
Board recognizes that ``[t]he First Amendment protects the right of
every citizen to `reach the minds of willing listeners and to do so
there must be opportunity to win their attention.' '' Heffron v. Int'l
Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (quoting
Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (plurality opinion)). But the
rule does not violate this constitutional principle because employers
will continue to have ample meaningful opportunities to express their
views both before and after a petition is filed, as discussed
below.\45\
---------------------------------------------------------------------------
\45\ Some comments draw comparisons to political elections,
which typically occur at regularly set intervals, but the Board does
not find these comparisons to be apt. See Joseph P. Mastrosimone,
Limiting Information in the Information Age: The NLRB's Misguided
Attempt to Squelch Employer Speech, 52 Washburn L. J. 473, 501-06
(2013); U.S. Poultry & Egg Association, the National Chicken
Council, and the National Turkey Federation (U.S. Poultry) II.
Although they share certain common features, such as the secret
ballot, political elections and representation elections are still
quite different. Most notably, as discussed above, Congress has
consistently expressed a clear purpose of limiting obstructions to
commerce by holding union organizing elections quickly, Boire v.
Greyhound Corp., 376 U.S. 473, 478 (1964) (quoting legislative
history)--a consideration which is unique to elections held in the
labor relations context. Another significant difference is the
existence of an employment relationship between the electorate and
one of the parties to the representation case proceeding; this
changes the election in countless ways, from the various parties'
relative ease of access to the electorate, to the reasonable
implications which can be drawn from employer-specific conduct--none
of which finds any parallel in modern political elections. The Board
therefore declines to borrow campaign timing principles from the
political election context wholesale.
---------------------------------------------------------------------------
2. The Final Rule Accords With the Statutory Policy in Favor of Free
Debate
Although it is clear that the proposed amendments implicate neither
the First Amendment nor the literal language of Section 8(c) of the
Act, many comments nevertheless suggest that the amendments would leave
employers with too little time to effectively inform their employees
about the choice whether to be represented by a union.\46\ They contend
that the consequences of a union vote are long-lasting and could
significantly affect employees' livelihoods and careers, and therefore
ensuring that employees have sufficient time to hear from all sides is
critical to the statutory objective of ensuring employee free
choice.\47\ Comments in favor of the amendments contend, on the other
hand, that employers can and do communicate their views on unions to
employees even before a petition has been filed and will continue to
have sufficient time to do so after filing under the proposed
amendment.
---------------------------------------------------------------------------
\46\ See Chamber; COLLE; SHRM; Seyfarth Shaw; Sheppard Mullin;
Baker & McKenzie; John Deere Water; PIA; Senator Alexander and
Republican Senators II; Diamond Transportation; Testimony of Peter
Kirsanow on behalf of NAM II.
\47\ See NGA; Retail Industry Leaders Association (RILA);
Society of Independent Gasoline Marketers of America (SIGMA);
Ranking Member Michael B. Enzi of the U.S. Senate Committee on
Health, Education, Labor & Pensions, and Republican Senators
(Ranking Member Enzi and Republican Senators); National Meat
Association; NAM II.
---------------------------------------------------------------------------
There is a clear statutory policy in favor of free debate and these
amendments recognize, and are fully consistent with that policy.
a. Chamber of Commerce v. Brown
The Supreme Court recognized in Chamber of Commerce v. Brown, 554
U.S. 60 (2008), that the enactment of Section 8(c) embodies a general
``congressional intent to encourage free debate on issues dividing
labor and management.'' Id. at 67 (quoting Linn v. Plant Guard Workers,
383 U.S. 53, 62 (1966) (a defamation case)). The Court further
recognized that such debate contemplates advocacy by both labor and
management, noting that the inclusion in Section 7 of the right to
refrain from joining a union ``implies an underlying right to receive
information opposing unionization.'' Id. at 68.\48\ The Court relied on
these features of the Act to invalidate, on preemption grounds, a
California law that prohibited the use of state funds to encourage or
discourage employees from seeking union representation. As the Court
found, ``California's policy judgment that partisan employer speech
necessarily `interfere[s] with an employee's choice about whether to
join or to be represented by a labor union' '' was in direct conflict
with national labor policy as reflected by the foregoing provisions of
the Act. Id. at 69.
---------------------------------------------------------------------------
\48\ This is not to suggest, of course, that employers are
required to engage in any campaign speech at all, or to contest
evidence of majority status; employers are free to decide whether to
express their views on unionization--pro or con or neutral--if done
without threat of reprisal or force of promise of benefit. See
Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974);
cf. Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d at 956-59 (discussing the
employer's right to remain silent). See also NLRB v. Creative Food
Design LTD., 852 F.2d 1295, 1297, 1299 (D.C. Cir. 1988) (``an
employer's voluntary recognition of a majority union also remains `a
favored element of national labor policy.' '') (citation omitted).
---------------------------------------------------------------------------
As recognized by the Court in Brown the Act encourages free debate
by employers, labor organizations and employees during representation
proceedings. But ultimately, it is up to employees to evaluate the
campaign information with which they are presented, as Board precedent
recognizes. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962)
(``[T]he employees may select a `good' labor organization, a `bad'
labor organization, or no labor organization, it being
[[Page 74320]]
presupposed that employees will intelligently exercise their right to
select their bargaining representative''); Handy Andy, Inc., 228 NLRB
447, 456 (1977) (declining to withhold certification from unions with
records of discriminatory practices); Midland Nat'l Life Ins. Co., 263
NLRB 127, 131-32 (1982) (relaxing the Board's misrepresentation
standard on the ground that more reliance on the vigorous campaigning
by the parties would reduce dilatory post-election litigation). These
decisions confirm that the Act presupposes that all parties to a
representation proceeding will have a meaningful opportunity to speak.
But a meaningful opportunity to speak does not mean an unlimited
opportunity to speak. As in the First Amendment context, there is no
fundamental right for parties to ``publicize their views `whenever and
however and wherever they please.' '' Wood v. Moss, 134 S. Ct. 2056,
2066 (2014).
The election must be held sometime; therefore, the resource of time
to campaign is an inherently limited one.\49\ This is particularly
significant where, as discussed above, the Act also embodies a very
strong countervailing policy in favor of holding elections
``efficiently and speedily.'' \50\ In short, the Board is not required
to wait for the parties to exhaust all opportunities for speech before
holding an election, so long as the opportunity they have is a
meaningful one.
---------------------------------------------------------------------------
\49\ In this way time is fundamentally different from other
speech resources; by necessity, the government must impose some kind
of cap on time. Money, by contrast, is a speech resource with no
such inherent cap. This distinction must be taken into account in
reading cases such as McCutcheon v. FEC, 134 S.Ct. 1434, 1441
(2014); Citizens United v. Federal Election Commission, 130 S.Ct.
876, 898 (2010); Chamber of Commerce v. Brown, 554 U.S. 60 (2008),
which involve regulation of campaign spending. Compare NGA II
(eliding this distinction in relying on McCutcheon) with Testimony
of Thomas Meiklejohn on behalf of Livingston, Adler, Pulda,
Meiklejohn & Kelly II (discussing this distinction).
\50\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
---------------------------------------------------------------------------
As discussed below, the Board concludes that these amendments will
not deprive employers of a meaningful opportunity to participate in
election campaigns. Many employers are aware of the campaign before the
petition is filed, and begin communicating at that time. Indeed, many
employers speak to employees about unions in the absence of any
particular campaign, and will have laid the foundation for effective
campaign speech well in advance. Finally, and most significantly, even
where no pre-petition speech whatsoever takes place, these amendments
will not eliminate the opportunity for meaningful speech, which will
continue to be ample even after the petition is filed.
b. Employer Pre-Petition Knowledge
Numerous comments contend that any shortening of the time period
between the petition and election will be detrimental to employers
because employers are often unaware that an organizing campaign is
underway until the petition is filed.\51\ These comments contend that
the union will have had a head start in the campaign because it will,
necessarily, have already obtained authorization cards from at least 30
percent of employees in the petitioned-for unit, and will have been
able to delay filing the petition for whatever amount of time it
believed was advantageous in order to communicate with employees.\52\
For example, the Chamber comments that union petitions ``catch[] many
if not most employers off guard and ill-prepared to immediately respond
* * *.'' The Board was presented with no reliable empirical evidence,
however, suggesting that employers are frequently unaware of an
organizing drive before the filing of a petition.\53\ Indeed, the
available evidence suggests the contrary.
---------------------------------------------------------------------------
\51\ See, e.g., Chamber; CDW; National Ready-Mixed Concrete
Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark
Legal Foundation; Vigilant; Food Marketing Institute (FMI) II; Klein
II.
\52\ NGA; National Meat Association. See also Spartan Motors,
Inc.; Cook Illinois Corporation; Arizona Hospital and Healthcare
Association; Constangy, Brooks & Smith, LLP (Constangy); Sheppard
Mullin; Ranking Member Enzi and Republican Senators; Specialty Steel
Industry of North America; International Foodservice Distributors
Association; NAM; Chamber; NRTWLDF; Chairman John Kline of the House
Committee on Education and the Workforce, and Chairman Phil Roe of
the House Subcommittee on Health, Education, Labor and Pensions
(Chairmen Kline and Roe) II.
\53\ COLLE acknowledges this in its comment.
---------------------------------------------------------------------------
The Supreme Court's decision in NLRB v. Gissel Packing Co., 395
U.S. 575, 620 (1969), which upheld the Board's authority to order an
employer to bargain with a union that had not been certified as the
result of an election, is relevant to this issue. In Gissel, the
employers argued that the Board could not order an employer to bargain
with the union, even when the union's majority support was demonstrated
through employees' authorization cards and the employer's unfair labor
practices had made a free and fair election impossible, because a union
could solicit such cards before the employer had an adequate
opportunity to communicate with employees. The Court rejected this
argument:
The employers argue that their employees cannot make an informed
choice because the card drive will be over before the employer has
had a chance to present his side of the unionization issues.
Normally, however, the union will inform the employer of its
organization drive early in order to subject the employer to the
unfair labor practice provisions of the Act; the union must be able
to show the employer's awareness of the drive in order to prove that
his contemporaneous conduct constituted unfair labor practices on
which a bargaining order can be based if the drive is ultimately
successful. See, e.g., Hunt Oil Co., 157 NLRB 282 (1966); Don Swart
Trucking Co., 154 NLRB 1345 (1965). Thus, in all of the cases here
but [one,] the employer, whether informed by the union or not, was
aware of the union's organizing drive almost at the outset and began
its antiunion campaign at that time; and even in the [one] case,
where the recognition demand came about a week after the
solicitation began, the employer was able to deliver a speech before
the union obtained a majority.
Id. at 603. The Supreme Court has thus recognized that the concern
expressed in the comments ``normally'' does not arise even when there
is no election and the organizing effort does not proceed beyond the
signing of authorization cards. What was true at the time of Gissel is
still true today.
There is substantial evidence on this point in the rulemaking
record. See Testimony, Ole Hermanson on behalf of AFT II, Gabrielle
Semel on behalf of CWA II, Thomas Meiklejohn on behalf of Livingston,
Adler, Pulda, Meiklejohn & Kelly II, Maneesh Sharma on behalf of AFL-
CIO II. In some cases, the employer's knowledge of the campaign is
apparent from the fact that the employer committed unfair labor
practices targeting employees' organizing activity before the filing of
the petition.\54\ This is the basis for an empirical study conducted by
Professors Kate Bronfenbrenner and Dorian Warren (and submitted with
their comment).\55\
[[Page 74321]]
The study concluded that in 47 percent of cases involving serious
unfair labor practice allegations against employers that resulted in a
settlement or a Board finding that the law was violated, the alleged
unlawful conduct occurred before the petition was filed; in 60 percent
of cases involving allegations of interrogation and harassment, the
conduct occurred before the petition; and in 54 percent of cases
involving allegations of threats and other coercive statements, the
conduct occurred before the petition. Professor Warren testified at the
2011 public hearing that the researchers' review of the files in these
cases indicated that the conduct resulting in the charge, whether it
was actually unlawful or not, evidenced the employer's knowledge of the
organizing campaign. Critics of the study contend that it
inappropriately focuses on mere allegations of misconduct and that the
category of ``charges won'' inappropriately includes settlements.\56\
The importance of the study's findings for present purposes, however,
does not rest on whether or not the charges had merit, but rather on
the fact that they were filed based on pre-petition conduct and that
available information in the case files suggests the employer had pre-
petition knowledge of the organizing campaign. The study's findings in
that regard are consistent with the Board's experience, and no contrary
study was presented to the Board.
---------------------------------------------------------------------------
\54\ See, e.g., Ryder Truck Rental, 341 NLRB 761, 765 n.9, 767
(2004) (petition filed in December; in November, employer invited
employees to report any harassment by union), enforced, 401 F.3d 815
(7th Cir. 2005); Dlubak Corp., 307 NLRB 1138, 1141, 1147 (1992)
(threats and discriminatory discharges occurred October 5-13;
petition filed October 24), enforced mem., 5 F.3d 1488 (3d Cir.
1993); Spring City Knitting Co., 285 NLRB 426, 431, 444, 448-49, 450
(1987) (unfair labor practices occurred March 1, 14, and 29;
petition filed May 3); Well-Bred Loaf, Inc., 280 NLRB 306, 311-16
(1986) (threats, interrogation, and unlawful discharges occurred
August 22 and 23, at a time when union activity was already common
knowledge; petition filed October 6); Dilling Mechanical
Contractors, 318 NLRB 1140, 1141, 1144, 1155 (1995) (union informed
employer of campaign on January 4, but employer had threatened
employees with discharge in December if they engaged in union
activity), enforced, 107 F.3d 521 (7th Cir. 1997), cert. denied 522
U.S. 862 (1997).
\55\ The study was based on a random sample of 1000 elections
during the period 1999 through 2003 in units with 50 or more
eligible voters and a survey of 562 campaigns from that sample. See
Bronfenbrenner & Warren, supra at 2. An updated version of the study
was discussed by Professor Bronfenbrenner in her 2014 hearing
testimony.
\56\ The Chamber in particular makes this point, and complains
that the 2011 final rule did not respond to the Chamber's criticism.
Chamber II. However, again, the Board is not relying on any evidence
of increased ULPs during a lengthy campaign, or in any way
suggesting that settled charges are meritorious. The essential point
is that the case files themselves show that there was evidence that
the employer knew about the campaign before the petition was filed.
Other comments argue that the study shows that only about 50-60%
of employers have prepetition knowledge. This is a misunderstanding
of the study. The study does not survey a statistical sample of
campaigns generally, and ask whether the employer had prepetition
knowledge; the study surveys campaigns which resulted in ULP
charges, and asks whether the ULP occurred before a petition had
been filed. Assuming that employers do not commit ULPs at the
earliest possible moment, the fact that about half of ULPs surveyed
occurred after petition filing does not prove the negative, i.e.,
that the employers in those cases lacked prepetition knowledge.
Thus the Board recognizes that neither the surveyed universe nor
the 50-60% rates observed reflect the broader realities of union
organizing campaigns. (The rates very likely are substantially
higher.) The study merely provides some measure of empirical
confirmation of the Board's qualitative conclusion, based on its own
experience, that employers are very often aware of the organizing
campaign before the petition is filed. Indeed, the study's focus on
employer's with bargaining units larger than the Board's historical
medians drives home this point. For the Board has long presumed that
in smaller workplaces, employers are even more likely to be aware of
union organizing activity among their employees. See, e.g., Wiese
Plow Welding Co., 123 NLRB 616, 618 (1959).
---------------------------------------------------------------------------
In addition, the AFL-CIO surveyed 57 union-side labor lawyers, and
asked whether ``[i]n the organizing drives you have been involved in
that resulted in a petition for an election, was the employer aware of
the organizing before the petition was filed?'' The vast majority--41
attorneys--gave an unqualified ``yes'' in answer to this question (9
answered ``no'' and 7 gave some answer other than yes or no).\57\ AFL-
CIO II. Though this does not show with quantitative precision how often
employers know about the campaign, it does cast doubt on the Chambers'
unsupported statement that ``many if not most'' employers are surprised
by the petition.
---------------------------------------------------------------------------
\57\ The Chamber criticizes the statistical rigor and ambiguity
of the AFL-CIO's survey. Chamber II reply. It is quite true, as the
Chamber notes, that it is unclear how many campaigns in total are
represented in this answer, and that, for a variety of reasons, it
would not be methodologically sound to draw rigorous statistical
inferences. A speaker representing the AFL-CIO conceded as much at
the hearing. That is not, however, the purpose for which the survey
was taken or submitted, and that is not the purpose for which the
Board is citing it. Rather, the ``survey'' is nothing more than a
summary of ``what practitioners are reporting that they are
experiencing.'' Testimony of Sharma on behalf of AFL-CIO II. In this
way, it is like a compilation of comments from experienced labor
attorneys, sharing the varieties of their experiences with Board
procedures.
---------------------------------------------------------------------------
Board precedent is also replete with cases in which there was clear
evidence that the employer was aware of the organizing campaign well
before the petition was filed. In many cases, unions give the employer
formal notice of the campaign before filing the petition, either by
demanding recognition or by providing the employer with a list of
employees on the organizing committee.\58\ There are many pragmatic
reasons for this common practice, which were explained in some detail
by one speaker at the hearing: ``[First,] the union, in order to build
strength, has to * * * build up the confidence among the employees that
they can join together to speak up for themselves. And then, in order
to get that message to the larger group of employees, there has to be
some committee, some group of people who are willing to go public, have
their faces on campaign literature and have their names disclosed as
the people who are willing to lead the campaign. Once that happens, the
employer knows there is something going on. The second reason for this
is quite simply that if you end up in litigation where somebody was
discriminated against because of their union activity, you want to be
able to show that [the employer knew about their union activity.] If
it's been concealed you have a much, much harder time proving that. And
then the third reason is because it doesn't work to keep it secret * *
*. [W]ord gets to the employer.'' Testimony of Meiklejohn on behalf of
Livingston, Adler, Pulda, Meiklejohn & Kelly II.
---------------------------------------------------------------------------
\58\ See, e.g., Lucky Cab Co., 360 NLRB No. 43, slip op. at 1
(Feb. 20, 2014) (Union filed petition on March 30th, but informed
the employer of its organizing activity on February 25th. Board also
finds that employer already knew of the organizing drive for months
before notice was given.); Flamingo Hilton-Laughlin, 324 NLRB 72, 76
(1997) (union informed employer of campaign and committee members on
January 26 and filed petition on March 26), enf. granted in part,
denied in part 148 F.3d 1166 (D.C. Cir. 1998); Keco Industries, 306
NLRB 15, 16 (1992) (union informed employer of campaign in January
and filed petition on October 31); Mariposa Press, 273 NLRB 528, 533
(1984) (union informed employer of campaign on September 25 and
filed petition on October 6); Comet Corp., 261 NLRB 1414, 1418, 1422
(1982) (union informed employer of campaign and committee members on
July 23 and filed petition on August 23); Quebecor Group, Inc., 258
NLRB 961, 964 (1981) (union informed employer of campaign on
November 17 and filed petition on November 28).
---------------------------------------------------------------------------
Finally, the evidence on the record on this point is also
consistent with the Board's own experience and expertise in processing
representation petitions and unfair labor practice cases.
c. General Employer Communications About Unionization
The foregoing authority casts doubt on the contention that ``many
if not most'' employers are unaware of an organizing drive prior to the
filing of a petition. But even in the absence of an active organizing
campaign, employers in nonunionized workplaces may and often do
communicate their general views about unionization to both new hires
and existing employees.\59\ Some comments suggest that, prior to
receiving a petition, employers pay little attention to the issue of
union representation, and that general efforts to inform and persuade
employees about unionization in the absence of a petition would be
time-consuming and expensive.\60\ Although some employers may choose
not to discuss unionization until a petition is filed, the Board's
experience suggests that other employers do discuss unionization with
their employees beforehand, often as soon as they are hired. For
example,
[[Page 74322]]
some employers distribute employee handbooks or show orientation videos
to all new employees that express the employer's view on unions or its
desire that employees remain unrepresented.\61\
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\59\ See comments of John Logan, Ph.D., Erin Johansson, M.P.P.,
and Ryan Lamare, Ph.D.; Center for American Progress Action Fund;
LIUNA MAROC II; Testimony of Hermanson on behalf of AFT II;
Testimony of Semel on behalf of CWA II.
\60\ Fox Rothschild LLP; National Mining Association; NRF.
\61\ See, e.g., U-Haul Co. of California, 347 NLRB 375, 378
(2006) (employee handbook, distributed to all new employees,
included a section entitled, ``What about Unions?''; the section
stated the employer's preference to be union-free and asserted that
employees do not need a union or outside third party to resolve
workplace issues); SNE Enterprises, 347 NLRB 472, 473 (2006)
(employee handbook stated, ``The Company believes a union is not
necessary and not in the best interest of either the Company or its
Team Members.''), enforced, 257 Fed.Appx. 642 (4th Cir. 2007);
Overnite Transportation Co., 343 NLRB 1431, 1455 (2004) (employee
handbook stated: ``It is important for you to know that the Company
values union-free working conditions. We believe that true job
security can come only from you and the management of this company
working together in harmony to produce a quality product. A union-
free environment allows this kind of teamwork to develop.''); MEMC
Electronic Materials, Inc., 342 NLRB 1172, 1188 (2004) (employee
handbook stated that remaining ``union-free'' is an objective of the
company); Noah's New York Bagels, 324 NLRB 266, 272 (1997) (section
of employee handbook entitled ``Unions'' states: ``At Noah's Bagels
we believe that unions are not necessary. We believe this for many
reasons[.] First, there is no reason why you should have to pay
union initiation fees, union dues, and union assessments for what
you already have. . . . Second, there is no reason why you or your
family should fear loss of income or job because of strikes or other
union-dictated activity. Third, we believe that the best way to
achieve results is to work and communicate directly with each other
without the interference of third parties or unions. . . . The
Federal government gives employees the right to organize and join
unions. It also gives employees the right to say 'no' to union
organizers and not join unions. Remember, a union authorization card
is a power of attorney which gives a union the right to speak and
act for you. If you should be asked to sign a union authorization
card, we are asking you to say `no.'''); American Wire Products, 313
NLRB 989, 994 (1994) (employee handbook states, ``Our Company is a
non-union organization and it is our desire that we always will
be''; the same section also requests employees to direct union-
related questions to a supervisor); Heck's, Inc., 293 NLRB 1111,
1114 (1989) (employee handbook's ``Union Policy'' read: ``As a
Company, we recognize the right of each individual Employee, their
freedom of choice, their individuality and their needs as a worker
and a fellow human being. For these reasons and others, we do not
want any of our Employees to be represented by a Union. . . . When
you thoroughly understand Heck's liberal benefit programs, the
desire to assist you in your job progress and willingness to discuss
your job-related problems, you surely will agree there is no need
for a union or any other paid intermediary to stand between you and
your company.'') Thus, employees may be well aware of their
employer's views regarding unions even before any campaign begins.
---------------------------------------------------------------------------
Several comments contend that an employer's general ability to
communicate with employees regarding unions is not a complete
substitute for the ability to communicate regarding a specific petition
and a known petitioner.\62\ However, a complete substitute is not
necessary in this context; rather, the question is whether the overall
speech opportunity in the campaign is meaningful. The opportunity to
engage in general speech of this sort is undoubtedly relevant on this
question, and must be considered together with the opportunities for
later, more specific campaign speech as part of the overall analysis.
---------------------------------------------------------------------------
\62\ See SHRM; COLLE; NAM; Seyfarth Shaw; ALFA; Testimony of
Arnold Perl on behalf of TN Chamber of Commerce.
---------------------------------------------------------------------------
Finally, even in the absence of any pre-petition campaign,
employees have experience with the existing labor-management regime in
their workplace, which informs their choice of whether to seek to alter
it through collective bargaining. In unionized workplaces in which the
incumbent union faces a decertification petition or a rival union
petition, the incumbent union will be appropriately judged by its
performance to date. Thus, eligible voters have a preexisting base of
knowledge and experience with which to evaluate the incumbent. The same
is true in workplaces where employees are unrepresented. Employees
there have experience with labor-management relations in the absence of
union representation. In both cases, employees base their choice, at
least in part, on the relationship they are being asked to change.\63\
---------------------------------------------------------------------------
\63\ See Testimony of Darrin Murray on behalf of SEIU II. In
contrast to this point, which is unassailable, the AFL-CIO contends
that, based upon a study by Getman and Goldberg, the employees'
votes are determined almost entirely by preexisting attitudes toward
working conditions, rather than by campaign speech. AFL-CIO Reply
II. Regardless of the empirical reality of this claim, which we
strongly doubt, the Act itself is premised on a contrary assumption,
as discussed above. The supposed ineffectiveness of employer speech
in persuading voters cannot be cited as reason to restrict that
speech, and we expressly decline to rely on this rationale.
---------------------------------------------------------------------------
d. Employers' Post-Petition Opportunities for Speech
Although the Board has concluded that the record does not establish
that pre-petition employer ignorance of an organizing campaign is the
norm, the Board accepts that, in at least some cases, employers may, in
fact, be unaware of an organizing campaign until a petition is filed.
For example, COLLE cites union campaign strategy documents that
allegedly call for ``stealth'' campaigns. In such cases, the union may
indeed have a ``head start'' in the campaign in the sense that it
begins communicating its specific message to the unit employees before
the employer does so.\64\
---------------------------------------------------------------------------
\64\ See also comment of RILA, contending that ``stealth
campaigns'' are common in the retail industry.
---------------------------------------------------------------------------
And so the question is presented whether, as a general matter, the
rules will provide a meaningful opportunity to campaign under these
circumstances. The argument has been presented that a great deal of
time is required, weeks and even months, in order to decide on a
message and effectively communicate it. Testimony of Kirsanow on behalf
of NAM II; Testimony of Edgardo Villanueva on behalf of EMSI Consulting
II. This is not consistent with our experience in overseeing Board
elections.
Most elections involve a small number of employees. A quarter of
elections are held in units with 10 or fewer employees; half of
elections are held in units smaller than 25; and three-quarters of all
Board elections have 60 or fewer employees in the unit.\65\ Given this
small size--much, much smaller than even the smallest political
elections--effective communication with all voters can be accomplished
in a short period of time. Even in much larger units, employers have a
meaningful opportunity for speech.
---------------------------------------------------------------------------
\65\ In FY2013; 99% of elections involved fewer than 500
employees.
---------------------------------------------------------------------------
The employer has opportunities to communicate with employees while
they are in the workplace, during the workday. It can compel employees
to attend meetings on working time at the employer's convenience.\66\
Most employers spend more than 35 hours per week in close, in-person
contact with the voters. As pointed out at the Board's public hearings
in both 2014 and 2011, employers can use as much of that time as they
wish communicating with employees about these matters. Testimony of
Hermanson on behalf of AFT II; Testimony of Professor Joseph McCartin
on behalf of the Kalmanovitz Initiative for Labor and the Working Poor.
Both professional ``persuaders'' and employer representatives who
testified against the rule were in agreement on this point. See, e.g.,
Testimony of Villanueva on behalf of EMSI Consulting II. Yet,
generally, only three or four such meetings were considered necessary
to communicate with employees effectively. Id.
---------------------------------------------------------------------------
\66\ A 1990 study of over 200 representation elections found
that employers conducted mandatory meetings prior to 67 percent of
the elections. John J. Lawler, Unionization and Deunionization:
Strategy, Tactics, and Outcomes 145 (1990). A more recent study
found that in 89 percent of campaigns surveyed, employers required
employees to attend so-called ``captive audience'' meetings during
work time and that the majority of employees attended at least five
such meetings during the course of the campaign. Bronfenbrenner &
Warren, supra at 6.
---------------------------------------------------------------------------
Another speaker testified about a recent campaign which aptly
illustrates this principle. Testimony of Elizabeth Bunn on behalf of
AFL-CIO II. In the
[[Page 74323]]
stipulation, the election was set 25 days from the petition; the unit
comprised eight employees. The employer held a total of 30 individual,
mandatory meetings to communicate with employees about the vote. This
demonstrates that, where employers wish to engage in an unusually high
amount of communication, they can accomplish that in a short period of
time because they control the quantum of work time which is used in
conveying their message.
Under current law, employers can compel attendance at meetings at
which employees are often expressly urged to vote against
representation.\67\ There is no limit on either the frequency or
duration of such mandatory meetings and the rule imposes none.
Employees may be relieved of regular duties and, instead, be required
to attend such meetings.
---------------------------------------------------------------------------
\67\ See, e.g., Fontaine Converting Works Inc., 77 NLRB 1386,
1387 (1948) (employer did not violate the Act by ``compelling its
employees to attend and listen to speeches on company time and
property'').
---------------------------------------------------------------------------
These are examples of how employer speech can be expeditiously
accomplished. The rule does not limit any communication methods
available to employers. Indeed, that is precisely the point of this
discussion: That employers have meaningful opportunities to speak with
employees both under the old rules and the new.\68\
---------------------------------------------------------------------------
\68\ In light of this fact, the dissent's reading of this
discussion is particularly perverse. Relying on Citizen's United,
130 S.Ct. 876 (2010) and progeny, the dissent claims the Board is
using an ``anti-distortion'' theory to limit ``an employer's undue
influence,'' and rectify employers' ``upper hand in campaign
communications'' by limiting the time employers have to speak. We--
yet again--emphatically disclaim any such motivation. As previously
discussed, the problems caused by delay have nothing to do with
employer speech.
---------------------------------------------------------------------------
The Board considered such factors in its Excelsior rule, which
requires that the names and addresses of voters be provided to the
petitioning union prior to the election. Excelsior Underwear, Inc., 156
NLRB 1236, 1240-41 (1966). The rule was designed, in part, to ensure
fairness by maximizing the likelihood that all voters would be exposed
to the nonemployer party arguments concerning representation. The rule
requires that the petitioner have the opportunity to make use of a list
of names and addresses of voters for a minimum of 10 days before the
election, effectively allowing the petitioner a minimum of 10 days for
such speech. See Mod Interiors, 324 NLRB 164, 164 (1997); Casehandling
Manual Section 11302.1. ``The Excelsior rule is not intended to test
employer good faith or `level the playing field' between petitioners
and employers, but to achieve important statutory goals by ensuring
that all employees are fully informed about the arguments concerning
representation and can freely and fully exercise their Section 7
rights.'' Mod Interiors, Inc., 324 NLRB 164 (1997). We think a similar
analysis is relevant to employers' meaningful opportunity to speak
here.
Finally, modern communications technology available in many
workplaces permits employers to communicate instantly and on an on-
going, even continuous basis with all employees in the voting unit.
See, e.g., Virginia Concrete Corp., 338 NLRB 1182, 1182 (2003)
(employer sent ``Vote No'' message to ``mobile data units'' in
employees' trucks in the final 24 hours before an election); Testimony
of Bunn & Sharma on behalf of AFL-CIO II (less time is needed to
communicate in the era of communications technology, from text
messaging to video presentations on flash drives).\69\ Access to
information about particular unions, such as news reports, regulatory
disclosures, or judicial opinions are readily available on the
Internet, both for employees to peruse and for employers who desire to
use such information as part of their messaging. See, e.g., Office of
Labor-Management Standards (OLMS), http://www.dol.gov/olms/regs/compliance/rrlo/lmrda.htm. More general information praising or
decrying the effects of union representation is also plentiful. Indeed,
now more than ever, parties who wish to immediately participate in an
election campaign have the tools to do so at their disposal.
---------------------------------------------------------------------------
\69\ As described in the NPRM, and below, the Board's experience
suggests employers are also increasingly using company and personal
email to send campaign communications to their employees. 76 FR
36812, 36820 (June 22, 2011).
---------------------------------------------------------------------------
e. No Regulatory Minimum or Maximum Time Should Be Set
Many comments propose that the Board set specific standards for the
number of days between the petition and the election. In general,
however, none of these proposals agree as to what the standards should
be.
Some have contended that the minimum should be 0 days. Testimony of
Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly
II. Or the minimum could be 10 days, paralleling the Union's time with
the list of voter contact information, also discussed above. Cook-
Illinois Corporation suggests a minimum of 21 days, subject to
expansion or contraction by agreement of the parties. The dissent
suggests a minimum of 30-35 days and a maximum of 60 days. National
Right to Work Legal Defense Foundation (NRTWLDF) II proposes a minimum
of 35 days. The Heritage Foundation proposes a minimum of 40 days.
Others suggest times longer still.\70\ On the other hand, others have
suggested imposing a different kind of regulatory maximum on the
election date, i.e., that the election should be held within 15 days of
the final voter list unless the parties agree to a later date.
Testimony of Hernandez on behalf of UFCW II.
---------------------------------------------------------------------------
\70\ CDW draws an analogy to the Older Workers Benefit
Protection Act, 29 U.S.C. 626, which provides 45 days for employees
to sign releases regarding age discrimination claims. CDW argues
that this provision demonstrates the impropriety of forcing
employees to make a decision on representation in less time than the
current 38-day median. The Board does not find it instructive to
compare an individual employee's permanent waiver of rights under a
completely different statutory scheme with the election procedures
at issue here involving groups of employees and, typically, an
active campaign by several parties. We also reject NAM's (II)
analogy to the 45-day plant-closing or mass layoff notice period
under the Worker Adjustment and Retraining Notification Act.
---------------------------------------------------------------------------
As both supporters and opponents of the rule have noted, however,
every case will be different, and it would disserve the purposes of the
Act to create a procrustean timeline for election speech. Testimony of
Professor Samuel Estreicher; Testimony of Petruska on behalf of LIUNA
MAROC II; Testimony of Ronald Meisburg on behalf of the Chamber II; cf.
Testimony of Kirsanow on behalf of NAM II (there is no ``irreducible
point'' where ``logistical First Amendment violation'' takes place).
The election will ``vary in size, geography and complexity in just
about every way imaginable,'' and various unique situations will
present themselves in particular workplaces. Testimony of Petruska on
behalf of LIUNA MAROC II.\71\ Bearing in mind
[[Page 74324]]
the general principles articulated above, the regional director will
retain a measure of discretion to consider these matters along with
other relevant factors in selecting an election date.
---------------------------------------------------------------------------
\71\ Many commenters argued that their industry or employment
situation presented unique speech needs that should be considered.
RILA and NRF argue that sufficient time to campaign is
particularly critical in the retail industry, where employees work
on different shifts, often are seasonal or part-time, are less
accessible during the workday because they are on the sales floor,
and often are unavailable outside normal working hours due to other
commitments. See also Food Marketing Institute (FMI) II (similar
arguments in food retail). NRF contends, however, that more than 98
percent of all retailers employ fewer than 100 workers, and RILA
contends that most petitions seek elections in single-store units
and that front-line managers typically constitute 10 to 20 percent
of the workforce in each store.
NRMCA and construction industry employers (ABC II) make similar
arguments, that their various industries have unique features such
as isolated plant locations, unpredictable delivery hours, and
dispersed employees. But again, the commenters state that the vast
majority of employers in the industry are small businesses.
Therefore, most bargaining units are likely to be quite small, which
should enable employer communication to take place in a relatively
short period of time. In addition, as explained in the text, under
extant precedent, these employers (and others) can require all
employees to attend a meeting or multiple meetings outside their
normal work hours, in a central location, in order to ensure they
receive the employer's message prior to the election.
AHA II takes a different tack, arguing that large units are
common in the healthcare field, where large hospitals average 471
RNs, and that this requires more time for speech. There is no
question that a small fraction of the Board's elections take place
in larger units: in 2013, for example, approximately 2.5% of
elections were held in units of 300 or more. But this does not
necessarily mean more time for speech is required; in large units it
is generally most likely that the employer will have prepetition
notice of the organizing simply because a campaign of that magnitude
cannot be kept secret. Moreover, considering all the opportunities
for speech available in the particular workplace, the mere size of
the unit may not be sufficient to justify lengthening the campaign
period in the particular case.
Nor are we persuaded by the suggestion that prompt elections are
not possible in work forces with a large number of non-English
speakers. See testimony of Villanueva on behalf of EMSI Consulting
II. Of necessity employers with linguistically diverse work forces
have to find ways to communicate with their employees in order to
respond to the day-to-day demands of the business. The press of
daily business requires prompt response in other matters, and it is
reasonable to believe that employers can respond with equal
promptness when questions of representation arise in their
workplace. In addition, standardized campaign material has been
developed by persuaders in a wide variety of languages.
---------------------------------------------------------------------------
As an alternative, some have discussed reserving ``expedited''
procedures for cases where the employer has received advanced notice of
the campaign from the union. U.S. Poultry II; Testimony of Perl on
behalf of the TN Chamber II. This suggestion would at least partially
account for case-by-case variation in employer knowledge of the
campaign. However, it would account for none of the other ways that
campaigns vary, and would continue to apply inappropriate standards to
cases that do not justify them. More fundamentally, as discussed, the
petition itself is adequate notice because the procedures under the new
rules still provide a meaningful opportunity to campaign.
As another alternative, some have argued that the Board should
publish, together with the final rule, revised ``time targets'' for
representation case procedures. CDW; Testimony of Joseph Torres on
behalf of Winston & Strawn II; Testimony of Ross Friedman on behalf of
CDW II. The existing time targets set expectations that facilitate the
negotiation of stipulations because ``there is discretion to negotiate
an election date anytime within'' the time target. CDW. Time targets
have never been published by the Board; rather, the extant time targets
were published by the General Counsel, and represent his experience
administratively overseeing the regions. The Board declines to publish
any such time targets at present, and will continue to leave the matter
within General Counsel discretion. We note that experience with the
rules will continue to provide the frame of reference for the General
Counsel's time targets, and that some time may be necessary before
sufficient experience is available to intelligently revise the current
targets; however, we think it reasonable to anticipate that time
targets will ultimately be revised and published, and that timely
completion of this process will serve the Board's objective of
encouraging election agreements as parties adjust to the new rule. Any
short term difficulties in reaching election agreements, should
dissipate quickly, as they have in the past when prior time targets
have been adjusted.
The Board believes that its duty is to perform its statutory
functions as promptly as practicable consistent with the policies of
the Act. The Board has amended its rules in order to facilitate that
objective, but even under the amended rules, which leave the ultimate
decision about the setting of the election date within the sound
discretion of the regional director after consultation with the
parties, the Board does not believe it is likely or even feasible that
it could perform its statutory functions in such a short period, and a
regional director would set an election so promptly, that employee free
choice would be undermined. The Board has thus decided to maintain the
current practice of not setting either a maximum or a minimum number of
days between petition and election via its rules.
f. Timing Under the Rules in Practice
Finally, it must be noted that many of the concerns expressed about
the time from petition to election are predicated on erroneous
speculation. Citing Member Hayes's dissent from the NPRM, some comments
suggest that the amendments will provide for elections in as few as 10
days after the filing of the petition.\72\ The practicalities of a
regional director's conducting a directed election suggest otherwise.
First, it takes at least 8 days to begin the hearing. At least 1 day is
required for the hearing and then a decision and direction of election
must be drafted and issued; thereafter, the voter list must be produced
and the Notice of Election posted for 3 days--all before an election is
conducted.
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\72\ See Chamber; COLLE.
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We are also not persuaded by the complaint that the amendments will
work a deprivation of employer speech rights in cases where the
employer feels pressured to enter an agreement regarding the election
date that provides for a very fast election. Testimony of Elizabeth
Milito on behalf of National Federation of Independent Business (NFIB)
II. If the employer does not want a particular election date, it is
free to not sign, state its position in its statement of position, and
the regional director can fix the date of the election in the direction
of election. If the employer does sign, there cannot have been a
deprivation of rights absent evidence of actual duress.
In addition to arguing that the rule fails to give employers
sufficient time to deliver their campaign message, some comments
contend that the new rules do not give employees sufficient time to
receive and evaluate that message and, if they so choose, to organize
themselves to oppose union representation.\73\ This argument is pressed
with particular force in cases where the employer has exercised its
statutory right to decline to express any opposition to the union. As a
related matter, it is argued that an employer's choice to enter into an
election agreement will deny employees an adequate opportunity for free
debate among themselves.
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\73\ See NRTWLDF; Seyfarth Shaw; ALFA; ACE; CDW; NRMCA; Indiana
Chamber; Con-way; Specialty Steel; Americans for Limited Government;
International Foodservice; testimony of C. Stephen Jones, Jr. on
behalf of Chandler Concrete Co., Inc.; testimony of Charles I. Cohen
on behalf of CDW; testimony of David Kadela on behalf of Littler
Mendelson; testimony of Harold Weinrich on behalf of Jackson Lewis
LLP; testimony of Brett McMahon on behalf of Miller & Long
Construction; NRTWLDF II; testimony of William Messenger on behalf
of NRTWLDF II.
Some comments include a related argument that employees who are
considered likely to oppose the union, and therefore were not
involved in the pre-petition organizing campaign, may not know about
the organizing drive until the petition is filed. See Seyfarth Shaw;
ALFA.
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This final rule does not change anything about an employer's
ability to remain silent and agree to an election on a particular date.
The very same scenario occurs under current rules. If the situation
were ever such as to truly work a deprivation of employee rights, the
Board would of course remain free to address it. But to date no such
case has arisen. Indeed, an important change in this final rule--to
require an initial notice upon filing of the petition--is likely to
obviate any such risk. A representative of NRTWLDF acknowledged as much
at the public
[[Page 74325]]
hearing in 2014. Testimony of Messenger on behalf of NRTWLDF II.
g. Miscellaneous Matters Relating to the Opportunity To Campaign
The Board discounts the argument made in some comments that the
proposed rule improperly fails to give the employer sufficient time to
refute unrealistic promises or correct any mischaracterizations or
errors by union organizers.\74\ For 3 decades, Board law has been
settled that campaign misstatements--regardless of their timing--are
generally insufficient to interfere with an election, unless they
involve forged documents that make employees unable to evaluate the
statements as propaganda. See Midland National Life Insurance Co., 263
NLRB 127, 132 (1982) (noting that employees are capable of
``recognizing campaign propaganda for what it is and discounting it'').
The Midland rule applies even if the misrepresentation takes place only
a few days before the election. See, e.g., U-Haul Co. of Nevada, Inc.,
341 NLRB 195, 195 (2004) (document circulated by union two days before
election did not amount to objectionable misrepresentation under
Midland).
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\74\ Vigilant; Indiana Chamber of Commerce; John Deere Water;
PIA; Greater Raleigh Chamber of Commerce; NMMA; Associated Oregon
Industries; NAM; testimony of Michael Prendergast on behalf of
Holland & Knight; Ohio Grocers Association II; Klein Dub & Holleb
II. T&W Block Company makes a related argument, contending that the
failure to allow sufficient time would destabilize labor relations
because employees would enter bargaining with unrealistic
expectations.
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The Board rejects the argument of Vigilant that a shorter period
between petition and election will result in a greater number of mail-
ballot elections and an accompanying increase in the potential for
fraud and coercion. Nothing in the proposed or adopted rules alters the
standard for determining when an election should be conducted by mail
ballot. A regional director's determination of whether an election
should be held manually or by mail is not informed by the number of
days between the petition and the election. Rather, it is based on
factors such as the desires of the parties and whether employees are
``scattered'' due to their geographic locations or work hours and
whether there is a strike, lockout, or picketing in progress. See San
Diego Gas & Electric, 325 NLRB 1143, 1145 (1998); Casehandling Manual
Section 11301.2.
Baker & McKenzie contends that, to the extent the amendments will
result in elections being held within 10 to 25 days after the petition,
they are inconsistent with the Board's other notice provisions, which
provide longer periods. For example, Baker & McKenzie notes that a
respondent must post a remedial notice in an unfair labor practice case
for 60 days or longer, and that the Board previously promulgated a rule
requiring employers to continuously post in the workplace a notice of
employee rights under the Act.\75\ The Board does not agree that its
other posting requirements are or were in any way inconsistent with the
final rule, because each serves different purposes in different
contexts than the notice rules issued today. First, remedial notices
alleviate the impact of unlawful acts by an employer or union, rather
than communicate about a specific petition in a specific unit. Thus,
the time reasonably necessary for employees to obtain the message from
a posted remedial notice, and for that message to dissipate the effects
of unfair labor practices, is longer than that necessary for employees
to receive information from employers and unions actively campaigning
for their support. Second, the Board explained why it required
continuous posting of the NLRA rights notice, as opposed to its
remedial and election notices, ``[I]t is reasonable to expect that even
though some employees may not see the notices immediately, more and
more will see them and learn about their NLRA rights as time goes by.''
76 FR 54005, 54030 (Aug. 30, 2011). Thus, the Board recognized the goal
of ``reach[ing] new employees'' (id.) could be met by requiring the
rights notice to be readily available to employees whenever they chose
to examine it. In contrast, employee turnover is unlikely to be of
concern during the time between a direction of election and the
election itself. Finally, the Board's existing notice-posting provision
for elections, unaltered by the final rule, requires that the notice be
posted for only 3 working days before the election. Compare 29 CFR
103.20 (2010) \76\ with amended 102.67(k). The Board thus rejects the
``one size fits all'' suggestion for maximum and/or minimum time
periods for conducting elections under the Act.
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\75\ Following litigation, that rule was withdrawn by the Board.
See 77 FR 25868 (May 2, 2012) (announcing indefinite delay in
effective date pending litigation outcome); NLRB January 6, 2014
press release announcing decision not to seek Supreme Court review
of the two adverse appeals court decisions, http://www.nlrb.gov/news-outreach/news-story/nlrbs-notice-posting-rule (last visited
September 26, 2014).
\76\ This and subsequent citations to the regulations in 2010 is
not meant to suggest that there is a substantive difference between
the current regulations and the regulations as they existed in 2010,
but rather to emphasize that the relevant language existed in our
regulations before the issuance of the first June 22, 2011 NPRM in
this rulemaking.
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Other comments suggest that the amendments will generate litigation
because, if a party has less time to campaign between the petition and
election, the party will ``assert as many defenses as possible'' or try
to obtain a hearing simply to ``buy . . . more time'' before the
election. AHA. SEIU's reply comment notes that there was no significant
drop in the consent or stipulation rate following former General
Counsel Fred Feinstein's initiative aimed at commencing all pre-
election hearings between 10 and 14 days after the filing of the
petition. Rather than undermining the rationale for the proposals, the
suggestion that parties might use the pre-election hearing to delay the
conduct of an election reinforces the need for the final rule. Both the
ability and incentive for parties to attempt to raise issues and engage
in litigation in order to delay the conduct of an election are reduced
by the final rule.
Some comments, including that of Professor Samuel Estreicher,
suggest that the employer needs sufficient time not only to campaign,
but to retain counsel so that the employer understands the legal
constraints on its campaign activity and does not violate the law or
engage in objectionable conduct.\77\ A number of comments specifically
argue that any compression of the time period between the petition and
election will be particularly difficult for small businesses, which do
not have in-house legal departments and may not have ready access to
either in-house or outside labor attorneys or consultants to counsel
them on how to handle the campaign.\78\ Similarly, some comments
suggest that, to the extent the amendments result in a shorter period
of time between the petition and the election, they will increase
objections and unfair labor practice litigation, because employers will
not have an opportunity to train managers on how to avoid objectionable
and unlawful
[[Page 74326]]
conduct. See Con-way Inc.; Bluegrass Institute; ATA.\79\
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\77\ See also testimony of former Board Member Marshall Babson
on behalf of Seyfarth Shaw LLP (emphasizing that the rules must
balance the various competing interests).
\78\ NRMCA; Indiana Chamber; National Automobile Dealers
Association (NADA); T&W Block Company; York Society for Human
Resource Management; NMMA; Council of Smaller Enterprises (COSE);
Bluegrass Institute; Landmark Legal Foundation; American Trucking
Associations (ATA); testimony of C. Stephen Jones, Jr. on behalf of
Chandler Concrete Co., Inc.; American Fire Sprinkler Association;
Leading Age; testimony of Milito on behalf of NFIB II.
\79\ Other comments, however, cite evidence indicating a
positive correlation between the length of a campaign and unfair
labor practice allegations. See SEIU; NELP; Senior Member Miller and
Democratic House Members; John Logan, Ph.D., Erin Johansson, M.P.P.,
and Ryan Lamare, Ph.D.; Senators Tom Harkin, Robert Casey, and Patty
Murray, and U.S. Representatives George Miller and John Tierney. See
also testimony of Professor Ethan Daniel Kaplan (citing similar
results from a study in Canada).
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However, under the final rule, when the petition is served on the
employer by the regional office, it will be accompanied by the Notice
of Petition for Election, (a revised version of Form NLRB 5492), which
will continue to set forth in understandable terms the central rules
governing campaign conduct. This provides an immediate explanation of
rights and obligations, while an employer who wishes to locate counsel
may do so. In any event, the Board does not believe that any shortening
of the time between petition and election that results from the final
rule will impair employers' ability to retain counsel in a timely
manner.\80\ In this regard, Russ Brown, an experienced labor-relations
consultant, testified at the public hearing that his firm routinely
monitors petitions filed in the regional offices and promptly offers
its services to employers named in those petitions. In general, the
well-documented growth of the labor-relations consulting industry
undermines the contention that small businesses are unable to obtain
advice quickly. Comments, such as the one cited above, indicate that it
is a routine practice for labor-relations consultants to monitor
petitions filed with the regional offices, so that the consultants may
then approach the employers to offer their services.\81\
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\80\ Ranking Member Enzi and Republican Senators assert that
employers will significantly limit their use of legal counsel during
organizing campaigns due to the Department of Labor's recent NPRM
interpreting the advice exemption to the ``persuader'' disclosure
requirement under the Labor-Management Reporting and Disclosure Act.
See 76 FR 36178 (proposed June 21, 2011). However, the DOL's stated
goal is publicizing the interactions between employers and covered
entities, not stopping those interactions from taking place. See id.
at 36182, 36190. In any event, the Board views such concerns as more
properly directed to the DOL. The Department of Labor has not yet
taken action on the proposed rule. See 79 FR 896, 1025 (Jan. 7,
2014). The Board also wishes to make clear that--contrary to COLLE's
suggestion--its actions have been in no way influenced by any
actions of the DOL.
\81\ See testimony of Russ Brown on behalf of the Labor
Relations Institute (LRI), noting that the Labor Relations
Institute's Web site ``is probably one of the leading sources of
keeping up with just about every scrap of paper you guys push.'' The
Web site, www.lrionline.com, includes a section entitled ``union
avoidance'' and advertises online libraries that include a ``daily
petition library'' with ``supplemental petition information
available daily'' and an ``organizing library'' tracking ``union
organizing activity.'' See also testimony of Michael D. Pearson,
former field examiner (noting that consultants check the public
filings of RC petitions on a daily basis to solicit business from
employers); testimony of Professor Joseph McCartin on behalf of the
Kalmanovitz Initiative for Labor and the Working Poor (noting that a
``thriving industry of consultants has emerged'').
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3. Congressional Inaction in 1959
ACC points out that Congress, in enacting the Labor-Management
Reporting and Disclosure Act (LMRDA) in 1959, rejected a proposal that
would have permitted an election to take place before a hearing when
there were no issues warranting adjudication, so long as the election
was not held sooner than 30 days after the petition was filed (ACC
Reply). The proposal, contained in the Senate version of the bill,
would have permitted a so-called ``pre-hearing election,'' barred by
the 1947 Taft-Hartley amendments to the Act. S. 1555, 86th Cong., 1st
Sess. 705 (as passed by Senate, Apr. 25, 1959). At one point Senator
Kennedy suggested that this 30-day period would provide a ``safeguard
against rushing employees into an election where they are unfamiliar
with the issues.'' 105 Cong. Rec. 5984 (April 15, 1959) (statement of
Sen. Kennedy). The House bill, however, never contained a parallel
provision, and it was not enacted into law.
Nevertheless, ACC (Reply) argues that the proposed amendments
described in the NPRM are inconsistent with congressional intent
because they do not guarantee a minimum of 30 days between petition and
election. To the extent that ACC's argument bears on the final rule,
the Board rejects it. Report language and statements of individual
legislators on a provision that was not enacted in 1959 are entitled to
little if any weight in assessing the meaning of legislation adopted in
1935 and amended in 1947. In fact, the Supreme Court has clearly stated
that ``failed legislative proposals are a particularly dangerous ground
on which to rest an interpretation of a prior statute'' because a bill
can be proposed or rejected for any number of reasons.\82\ Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531
U.S. 159, 169-70 (2001) (internal quotation marks omitted); see also
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 187 (1994). Indeed, the rejection of the proposed
amendment would more reasonably be understood as an indication that
Congress did not believe a minimum time between petition and election
is necessary. However, the legislative history of the LMRDA offers no
guidance on why the provision was rejected, and Congress imposed no
requirements in the LMRDA or at any other time concerning the length of
time that must elapse between petition and election. Accordingly, the
Board finds no indication in this legislative history that the final
rule is in any way contrary to Congress's intent.
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\82\ For this reason, the Board declines COLLE's similar
suggestion to find relevant Congress' failure to pass the 1978 Labor
Law Reform Act, versions of which provided for varying time frames
for representation elections.
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D. Effects on Employee Representation and the Economy
Many comments do not address the substance of the proposed
amendments, but instead speak generally in favor of, or in opposition
to, labor unions and the process of collective bargaining. In response,
the Board continues to observe that, by passing and amending the NLRA,
Congress has already made the policy judgment concerning the value of
the collective-bargaining process; the Board is not free to ignore or
revisit that judgment. As explained in the NPRM, the amendments are
intended to carry out the Board's statutory mandate to establish fair
and efficient procedures for determining if a question of
representation exists, for conducting secret-ballot elections, and for
certifying the results of secret-ballot elections. Accordingly, the
Board will not engage in an analysis, invited by these comments,
concerning the general utility of labor unions and the collective-
bargaining process.\83\
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\83\ Many comments additionally charge that the Board's motives
for issuing the rule are improper in that the Board seeks to act as
an advocate for unions (rather than as a neutral overseer of the
process), to drive up the rates of union representation, and to
``stack the deck'' against employers in union organizing campaigns.
No credible evidence has ever been provided in support of this
claim. The reasons for issuing the rule are fully set forth in the
NPRM and in this preamble; favoritism is not among them.
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Other comments assert that the proposed amendments would lead to
increased union representation and question the wisdom of adopting
rules that would have such an effect on a fragile economy. Again, the
Board views these comments as questioning policy decisions already made
by Congress.\84\ The amendments do not reflect a judgment concerning
whether increased employee representation would benefit or harm the
national economy.
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\84\ To the extent that comments suggest that the Board failed
to consider the proposed rule's potential to increase the costs on
small employers associated with increased unionization as part of
its obligations under the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., those comments are addressed in the Regulatory Flexibility
Act section below.
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[[Page 74327]]
V. Comments on Particular Sections
Part 102, Subpart C--Procedure Under Sec. 9(c) of the Act for the
Determination of Questions Concerning Representation of Employees and
for Clarification of Bargaining Units and for Amendment of
Certifications Under Sec. 9(b) of the Act
Sec. 102.60 Petitions
The final rule adopts the Board's proposals to permit parties to
file petitions electronically and to require that the petitioner serve
a copy of the petition on all other interested parties. The final rule
also clarifies that parties filing petitions electronically need not
also file an original for the Agency's records. The final rule further
adopts the Board's proposal to require service of two additional agency
documents that will be available to petitioners in the regional offices
and on the Board's public Web site. The first document, which will
substitute for and be an expanded version of the Board's Form 4812,
will describe the Board's representation case procedures. The second
document the petitioner will serve along with the petition will be a
Statement of Position form, which will include a request for commerce
information (such as that solicited by current NLRB Form 5081, the
Questionnaire on Commerce Information).\85\
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\85\ The contents and purpose of the Statement of Position form
are described further below in relation to Sec. 102.63.
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The Board received generally positive comments regarding its
proposal to allow parties to file petitions electronically.\86\ For
instance, the AFL-CIO II noted that the electronic filing of petitions
is consistent with general Federal, state and local government
practices and is part of the Board's `gradual and entirely sensible
transition' to electronic filing, service and storage of documents. The
Center on National Labor Policy (CNLP) commends the proposal as
``excellent'', but apparently misunderstands the proposal as
establishing mandatory electronic filing, when it does not. The Board's
view, echoed by several comments, is that allowing--but not requiring--
the electronic filing of petitions is part of its nearly decade-long
effort to adapt its procedures to modern methods of communication.\87\
This rule recognizes the widely accepted use of email for legal and
official communications and more closely aligns Board service
procedures with those of the Federal courts.
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\86\ See PIA; American Federation of State, County and Municipal
Employees (AFSCME); Chamber; Chairman Harkin, Senior Member Miller,
and Congressional Democrats II; United Association of Journeymen and
Apprentices of the Plumbing & Pipefitting Industry of US and Canada
(Plumbers) II; Bart Bolger II; Testimony of Professor Anne Marie
Lofaso.
\87\ Also, the Board has decided to clarify, consistent with its
current e-filing practice concerning other types of case documents,
that petitioners who file their petitions electronically are not
required to file an extra copy of the petition in paper form. Upon
careful consideration of the NPRM proposal, which would have
required extra paper copies to be filed for both faxed petitions and
electronically-filed petitions, the Board is of the view that an
extra paper copy of an electronically-filed petition would be
unnecessary. The Board's experience has been that the legibility of
electronically-filed documents does not differ significantly from
paper originals, unlike faxes, which are sometimes significantly
less legible than their original paper versions. Moreover, original
paper-copies could cause administrative difficulties if regional
staff were to inadvertently treat the later-arriving paper copy as a
new case rather than a courtesy copy of the electronically-filed
petition that would have been docketed earlier. However, the Board
has concluded that such risks are worth incurring to overcome
potential legibility issues regarding faxed petitions.
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The final rule's requirement that the petitioner serve a copy of
the petition on all other interested parties when it files its petition
with the Board further conforms to ordinary judicial and administrative
practice. For example, a labor organization filing a petition seeking
to become the representative of a unit of employees is required to also
serve the petition on the employer of the employees. This will ensure
that the earliest possible notice of the pendency of a petition is
given to all parties. The few comments to focus on this proposal either
affirmatively support it as an improvement over current procedures or
find it unobjectionable.\88\
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\88\ See Plumbers; Georgia Association of Manufacturers (GAM);
PIA.
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Likewise, the Board received no significant negative comments
concerning its proposal to require service of the Statement of Position
form and an expanded version of the Board's Form 4812 to inform
interested parties about the Board's representation case procedures.
The Board agrees with GAM that requiring service of this latter
document will aid employers' understanding of representation case
procedures and render Board procedures more transparent.
A few comments state that parties may not receive petitions or
other relevant documents due to the use of electronic filing. For
example, AGC (AGC II) argues that parties' use of spam filters and
other computer data protection tools could prevent the delivery of
electronically-filed petitions and thereby lead to increased litigation
due to their non-receipt of petitions or related documents. And the
Cook-Illinois Corporation (Cook-Illinois) contends that the recipient
of an emailed petition might unwittingly delete the email as spam. The
Board responds that it already permits parties to electronically file
most documents in unfair labor practice and representation proceedings
and has yet to experience any increase in litigation resulting from the
use of such software. Moreover, it is also possible for representation
petitions sent via United States mail or facsimile to be misdelivered
or to be incorrectly identified by the recipient as junk mail. Also, it
is the practice of the regional offices to have a Board agent contact
parties as soon as possible after the filing of a petition in order to
facilitate regional decision making regarding the petition. See
Casehandling Manual Section 11010. In addition, pursuant to Sec.
102.63(a), the regional offices will re-serve a copy of the petition
after the petition is docketed, making it even less likely a party will
remain ignorant of an electronically-filed petition for any significant
period of time. Therefore, the Board does not anticipate that the
electronic filing of petitions will lead to litigation due to delivery
failure and lack of notice of service.
A number of comments suggest the final rule should provide guidance
with respect to what constitutes proper service by identifying the
title of the individual who should be electronically served with the
petition because this arguably triggers significant deadlines and
obligations.\89\ The Board's current rules and regulations do not
provide guidance with respect to the proper agent for service of a
petition (or an unfair labor practice charge). Any issue raised with
respect to whether the petition was properly served will continue to be
handled consistent with the Board's existing practices in this area.
Moreover, the petitioner's simultaneous service of the petition is
simply intended to provide all interested parties with the earliest
possible notice of the filing of the petition, and does not, by itself,
establish any deadlines or obligations related to the processing of the
case for the party being served with the petition. The actual date of
the hearing and other requirements are set by the regional director
(after the filing of the petition) when the director issues the notice
of hearing.
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\89\ See, e.g., INDA II and AEM II.
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Several comments express concern that the electronic filing of
petitions could increase opportunities for fraud. For example, NADA and
the Chamber argue that the regulations should require a party
electronically filing a petition to
[[Page 74328]]
mail the original documents to the Board at a later date.\90\ CNLP
comments that the Board should establish e-security practices that
protect the identity of a party filing a petition and mitigate the
possibility that fraudulent documents will be filed. CNLP also suggests
that the Board should substantially adopt Federal Rule of Civil
Procedure 11(b) and require a party filing a petition to certify that
the document is supported by facts and law.
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\90\ Fraud concerns specific to electronic signatures are
addressed below in relation to Sec. 102.61.
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The Board believes that the final rule and current electronic
filing procedures adequately address these concerns. As an initial
matter, Sec. 102.60 of the final rule continues the Board's practice
of requiring that petitions ``shall be sworn to before a notary public,
Board agent, or other person duly authorized by law to administer oaths
and take acknowledgments or shall contain a declaration by the person
signing it, under the penalty of perjury, that its contents are true
and correct.'' The Board already allows parties to maintain password-
protected profiles and to redact or protect their sensitive personally
identifiable information. To date, there has been no significant
interference with election processes resulting from fraudulent
petitions. The Board does not expect any change resulting from its
decision to permit electronic filing of such petitions. Nonetheless, as
mentioned above, a Board agent will contact parties after the filing of
a petition and will be able to determine if there has been a fraudulent
filing. Further, Sec. 102.177(d) of the existing regulations already
allows the Board to sanction an attorney or party representative for
misconduct such as the filing of a document that is unsupported by
facts and law. See, e.g., In re David M. Kelsey, 349 NLRB 327 (2007).
The National Right to Work Legal Defense Foundation (NRTWLDF)
proposes that the Board further amend its existing procedures to
prevent petitioners from withdrawing otherwise valid petitions before
an election occurs. It asserts that allowing such withdrawal unfairly
allows petitioners to manipulate the scheduling of elections. The Board
declines to adopt this proposal. Continuing to permit the withdrawal of
petitions serves the efficiency goals of these amendments by avoiding
unnecessary case-processing efforts. Moreover, the Board's existing
procedures adequately prevent such manipulation. The regional director
or the Board will continue to have discretion to accept or reject a
petitioner's request for withdrawal of the petition if the request
would run counter to the purposes of the Act. See Casehandling Manual
Section 11110.
One commenter noted that the proposal to allow the electronic
filing of petitions may have merit, but that the Board should seek
further comment and input from stakeholders before implementing this
change. Leading Age II. However, the comment did not provide an
explanation as to why the periods established to allow comments to the
Board's NPRMs in 2011 and 2014 were not sufficient to effectively
obtain input from stakeholders on this issue. The Board believes that
stakeholders have had an ample opportunity to comment on this proposal
and has carefully considered the input offered on this issue in
deciding to implement this proposal.
Sec. 102.61 Contents of Petition for Certification; Contents of
Petition for Decertification; Contents of Petition for Clarification of
Bargaining Unit; Contents of Petition for Amendment of Certification;
Use of Electronic Signatures To Support a Showing of Interest
Section 102.61 of the final rule continues to describe the contents
of the various forms of petitions that may be filed to initiate a
representation proceeding under Section 9 of the Act.\91\ The Board
will continue to make the petition form available at the Board's
regional offices and on its Web site. As proposed in the NPRM, the
final rule adds to the contents of the petitions in a few respects.
First, the revised petition contains the allegation required in Section
9. In the case of a petition seeking representation, for example, the
petition contains a statement that ``a substantial number of employees
wish to be represented for collective bargaining . . . .'' 29 U.S.C.
159(c)(1)(a)(i). Second, the petitioner is now required to designate,
in the revised petition, the individual who will serve as the
petitioner's representative in the proceeding, including for purposes
of service of papers. GAM acknowledges that this is a practical
requirement that may allow parties to quickly resolve election issues
while helping to conserve agency resources. Third, the petitioner is
now required to state the type, date(s), time(s) and location(s) of
election it seeks.\92\ This information will facilitate entry into
election agreements by providing the nonpetitioning parties with the
earliest possible notice of the petitioner's position on these
important matters.
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\91\ The following abbreviations are used to refer to the
different types of representation petitions filed under Section 9(c)
of the Act:
RC (Representation petition)--A petition filed by a labor
organization or employee(s) alleging that that there is a question
concerning representation and seeking an election to determine
whether employees wish to be represented by the petitioner.
RD (Decertification petition)--A petition filed by an employee,
employees or a labor organization alleging that there is a question
concerning representation and seeking an election to determine
whether employees in the appropriate unit wish to continue to be
represented by a labor organization that was previously certified
and/or is currently recognized by the employer as their collective
bargaining representative.
RM (Employer petition)--A petition filed by an employer alleging
that there is a question concerning representation and seeking an
election to determine if employees in the appropriate unit wish to
be represented by a labor organization that has demanded recognition
as their collective bargaining representative or that is currently
recognized as their collective bargaining representative.
UC (Unit clarification petition)--A petition filed by a labor
organization or an employer seeking a determination as to whether
certain classifications should or should not be included within an
existing unit.
AC (Amendment of certification)--A petition filed by a labor
organization or an employer for amendment of an existing
certification because of changed circumstances.
\92\ The final rule will require the petitioner to identify the
type of election it seeks (e.g. a manual, mail or a mixed manual-
mail election).
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The final rule also requires that the petitioner file with the
petition whatever form of evidence is an administrative predicate of
the Board's processing of the petition rather than permitting an
additional 48 hours after filing to supply the evidence. When filing a
petition seeking certification as the representative of a unit of
employees, for example, petitioners must simultaneously file the
showing of interest supporting the petition. As explained in the NPRM,
the Board believes that parties should not file petitions without
whatever form of evidence is ordinarily necessary for the Board to
process the petition. However, the final rule is not intended to
prevent a petitioner from supplementing its showing of interest,
consistent with existing practice, so long as the supplemental filing
is timely. Also consistent with existing practice, the final rule does
not require that the showing of interest be served on other parties.
The Board rejects the Chamber's request that the regional director
refrain from serving notice of the filing of a petition on other
parties until the region receives the original signatures establishing
the showing of interest. Such a requirement would not serve the Board's
purpose of encouraging the expeditious resolution of questions
concerning representation. The final
[[Page 74329]]
rule does not change the Board's longstanding policy of not permitting
the adequacy of the showing of interest to be litigated. See, e.g.,
Plains Cooperative Oil Mill, 123 NLRB 1709, 1711 (1959) (``[T]he Board
has long held that the sufficiency of a petitioner's showing of
interest is an administrative matter not subject to litigation.'');
O.D. Jennings & Co., 68 NLRB 516, 517-18 (1946). Nor does the final
rule alter the Board's current internal standards for determining what
constitutes an adequate showing of interest.
The Board further disagrees with the Chamber's II assertion that
Sec. 102.61(f)'s mandate that when showings of interest are filed
electronically or by facsimile, the original authorization cards with
handwritten signatures must be delivered to the regional director
within 2 days, conflicts with the proposed language in Sec. 102.60(a),
which explained that the failure to follow an electronic or facsimile-
filing of the petition with an original paper copy ``shall not affect
the validity of the filing by facsimile or electronically, if otherwise
proper.'' First, as discussed in connection with Sec. 102.60 above,
the Board has decided not to require an extra paper copy of the
petition when it is filed electronically, and as explained in the
footnote below, the language in Sec. 102.61 likewise does not require
paper copies of electronically-signed cards (if accepting electronic
signatures is deemed practicable by the General Counsel). So there is
no potential inconsistency in the final rule as to electronically-filed
petitions and electronically-signed authorization cards. There is also
no inconsistency in the final rule even when focusing solely on
facsimile-filed petitions or electronically-filed petitions that do not
include electronically-filed authorization cards. Thus, the Board
intentionally distinguishes the handwritten signatures that form the
showing of interest supporting the petition as items that must be
transmitted to the Board in their original form in order for the filing
to be proper. In other words, while a regional director will not
dismiss a petition filed by facsimile simply because the petitioner
failed to follow its facsimile filing by supplying the original paper
copy to the regional office, a regional director will dismiss a
petition if the facsimile-filed or electronically-filed showing of
interest is not followed by original documents containing handwritten
signatures within 2 days.\93\ The Board therefore declines the
Chamber's suggestion to strike or alter the language in Sec. 102.60(a)
to conform to the language in Sec. 102.61(f).
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\93\ To be clear, the language in amended Sec. 102.61(f) is
premised upon petitioners who file their petitions electronically
providing electronically-scanned copies of authorization cards with
handwritten signatures. This would be permitted completely apart
from, as discussed below, electronically-signed authorization cards.
The language in Sec. 102.61(f) is not applicable to electronic
signatures because electronic signatures are not ``original
signatures that cannot be transmitted in their original form by the
method of filing the petition.'' To the contrary, electronic
signatures should be transmittable with electronically-filed
petitions in their original form, not triggering a need to later
submit ``original documents.''
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GAM argues that requiring petitioners to file a supporting showing
of interest simultaneously with the petition will lead to confusion and
delays and create an unnecessary burden that may discourage the filing
of petitions. GAM maintains that under existing rules, a petitioner
could file a petition and then receive useful guidance from the
regional office about how to file its showing of interest, thereby
suggesting that a petitioner will no longer have the option of seeking
such assistance under the amended rules. GAM alleges that the Board's
motivation in adopting the amendment is a self-interested desire to
improve its case-processing statistics, not to facilitate the holding
of elections. The Board believes that parties should not file petitions
without whatever form of evidence is ordinarily necessary for the Board
to process the petition. If parties are confused about what evidence is
necessary to file in support of a petition--or if they are confused
about any other aspect of the representation case process--they may
continue to contact regional offices for guidance both before and after
the filing of a petition, and the continued useful guidance flowing
from such contact should mitigate any potential for discouragement felt
by individuals who are contemplating filing an election petition.
Further, the amendment does not establish inflexible time deadlines for
when a petition must be filed.
The Board received a number of comments in response to the question
of whether the proposed regulations should expressly permit or
proscribe the use of electronic signatures to support a showing of
interest under Sec. 102.61(a)(7) and (c)(8) as well as under Sec.
102.84. Based on these comments, we believe that the Board's
regulations as currently written are sufficiently broad to permit the
use of electronic signatures in this context.\94\ We also note that
evaluating the showing of interest is an administrative matter within
the discretion of the agency. For the reasons discussed below, we find,
that the Board should, when practicable, accept electronic signatures
to support a showing of interest, and therefore direct the General
Counsel to undertake an analysis of whether there exists a practicable
way for the Board to accept electronic signatures to support a showing
of interest while adequately safeguarding the important public
interests involved.
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\94\ To be sure, our current regulations are completely silent
on the subject of electronic signatures, and, as explained above, we
likewise believe that the language in amended Sec. 102.61(f) of the
final rule would be consistent with the Board's acceptance of
electronic signatures. While the Board's practice has been to accept
only handwritten signatures, it may, consistent with its current
Rules and Regulations as well as these amended rules, accept
electronic signatures.
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Several comments address the legal and procedural aspects of this
potential amendment. Joseph Torres argues that neither the Government
Paperwork Elimination Act (GPEA), 44 U.S.C. 3504, nor the Electronic
Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. 7001
et seq., both of which were cited in the Notice of Proposed Rulemaking,
supports changing Board practice. Testimony of Joseph Torres on behalf
of Winston & Strawn II. He argues that electronic signatures accepted
under either of those acts are distinguishable from the electronic
signatures that would be accepted to support a showing of interest.
Regarding GPEA, he observes that there are safeguards attendant to
submitting information to the government that are not available to the
private gathering of electronic signatures. And he observes that E-SIGN
allows private parties to litigate the validity of electronic
signatures, whereas they cannot under the Board's current procedures.
The Chamber (Chamber II) argues that the Board has yet to provide
sufficient details about its potential use of electronic signatures and
that an advanced notice of proposed rulemaking should therefore precede
any action in this area. PIA and AHA II, among others, maintain that
the Board has yet to provide any justification for this rule change.
The SEIU II, AFL-CIO II, and Alvin Velazquez (testifying on behalf
of SEIU II) argue that GPEA and/or E-SIGN require the Board to accept
electronic signatures. Even setting this requirement aside, SEIU
observes that the Board's acceptance of electronic signatures would be
beneficial and reflect modern changes in technology and methods of
communication. SEIU (SEIU II) and the AFL-CIO, among others, also argue
that the Board does not have to use the notice-and-comment rulemaking
process to accept electronic
[[Page 74330]]
signatures on showings of interest. For instance, SEIU contends, among
other things, that such an amendment would relate to Board practice and
procedure and therefore not require public comment. See 5 U.S.C.
553(b)(3)(A) (excepting ``interpretative rules, general statements of
policy, or rules of agency organization, [and] procedure, or practice''
from notice-and-comment rulemaking). SEIU and AFL-CIO observe that the
Board's Rules and Regulations currently do not limit the form that the
showing of interest can take. Further numerous comments, as summarized
below, clearly articulate many of the potential benefits of accepting
electronic signatures. Velazquez II, for instance, observes that
electronic signatures, which typically require an employee also to
fill-out an electronic form, are better indicators of an employee's
interest in joining a union than paper authorization cards, due to the
increased effort required to input additional verification information.
We believe that GPEA and E-SIGN embody a strong policy preference
on the part of Congress for the use and acceptance of electronic
signatures, when practicable, as a means, along with handwritten
signatures, to support a showing of interest. GPEA directs the Office
of Management and Budget (OMB) to ensure that ``Executive agencies
provide--(1) for the option of the electronic maintenance, submission,
or disclosure of information, when practicable as a substitute for
paper, and (2) for the use and acceptance of electronic signatures,
when practicable.'' GPEA additionally stipulates that ``Electronic
records submitted or maintained in accordance with procedures developed
under this title, or electronic signatures or other forms of electronic
authentication used in accordance with such procedures, shall not be
denied legal effect, validity, or enforceability because such records
are in electronic form.'' In its guidance on the implementation of
GPEA, the OMB observes, ``a decision to reject the option of electronic
filing or record keeping should demonstrate, in the context of the
particular application and upon considering relative costs, risks, and
benefits given the level of sensitivity of the process, that there is
no reasonably cost-effective combination of technologies and management
controls that can be used to operate the transaction and sufficiently
minimize the risk of significant harm.'' OMB, Procedure and Guidance;
Implementation of the Government Paperwork Elimination Act, 65 FR
25508, 25512 (2000) (OMB Guidance). We feel that the policy underlying
this admonition applies equally to the use and acceptance of electronic
signatures. Likewise, E-SIGN mandates that, ``with respect to any
transaction in or affecting interstate commerce or foreign commerce--
(1) a signature, contract, or other record relating to such transaction
may not be denied legal effect, validity, or enforceability solely
because it is in electronic form; and (2) a contract relating to such
transaction may not be denied legal effect, validity, or enforceability
solely because an electronic signature or electronic record was used in
its formation.'' We believe that both of these statutes clearly
evidence Congress's intent that Federal agencies, including the Board,
accept and use electronic forms and signatures, when practicable--i.e.,
when there is a cost-effective way of ensuring the authenticity of the
electronic form and electronic signature given the sensitivity of the
activity at issue, here the showing of interest.
That Congress should adopt this policy preference is not
surprising. After all, the benefits of e-government are widely known.
Among other things, electronic forms can ``greatly improve efficiency
and speed of government services.'' S. Rep. No. 105-335 (1998).
Electronic forms reduce the ``costs associated with such things as
copying, mailing, filing and storing forms.'' Id.; see also OMB
Guidance, 65 FR at 25515-16. These reductions in transaction costs also
benefit the Board's transaction partner. OMB Guidance, 65 FR at 25516-
17.
Many comments also address the ability to authenticate the
electronic signature. Several of these comments argue that the Board
should not allow the use of electronic signatures because they are more
difficult to authenticate than handwritten signatures.\95\ The
Bluegrass Institute argues that, while the Board could allow employees
to authenticate their electronic signatures with sensitive personal
information such as social security numbers, this apparent solution
would create a potential threat of identity theft. Given this problem
with authentication, CDW suggests that electronic signatures would
effectively nullify the showing of interest requirement. And SHRM
accordingly urges the Board to follow the National Mediation Board in
refusing to allow electronic signatures to support a showing of
interest. In opposition to these comments, the AFL-CIO (AFL-CIO II),
SEIU II, and Velazquez II counter that electronic signatures are easily
verifiable and commonly used in governmental and commercial dealings.
In fact, more tools are available to confirm the authenticity of
electronic signatures than are available to confirm physical
signatures.
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\95\ SHRM; Gary Wittkopp; Seyfarth Shaw; AHA (AHA II); National
Council of Investigation & Security Services (NCISS) II; AEM II.
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At this point, the weight of evidence appears to agree with the
AFL-CIO, SEIU, and Velazquez. ``State governments, industry, and
private citizens have already embraced the electronic medium to conduct
public and private business.'' S. Rep. No. 105-335. And since the
adoption of GPEA and E-SIGN, Federal agencies, including the Board,
have also accepted electronic signatures and electronic forms.\96\
Electronic signatures can ``offer greater assurances that documents are
authentic and unaltered. They minimize the chances of forgeries or
people claiming to have had their signatures forged.'' S. Rep. No. 105-
335; see also OMB Guidance, 65 FR at 25516. There are numerous forms
that electronic signatures can take, each providing additional methods
to ensure the authenticity of the signature. See, e.g., S. Rep. No.
105-335; OMB Guidance, 65 FR at 25518-25520. And the technology that
makes electronic signatures possible continues to evolve and become
ever-more sophisticated, providing even more safeguards.
---------------------------------------------------------------------------
\96\ See 79 FR 7323 (discussing the evolution of the Board's
electronic filing practice).
---------------------------------------------------------------------------
Some comments claim that the use of electronic signatures to
support a showing of interest could encourage petitioner misconduct.
Seyfarth Shaw contends that electronic signatures present a greater
risk of fraud than handwritten signatures because they do not create
any physical evidence of signing. Several comments allege that the use
of electronic signatures could lead to deceptive practices by
petitioners, such as hiding authorization agreements within seemingly
innocuous Web site content.\97\ PIA likewise argues that employees
might have to rely on the petitioner to instruct them in the use of
electronic signatures, creating the possibility of undue influence and
coercion. But other comments counter that electronic signatures would
actually reduce incidents of intimidation due to lack of personal
solicitation.\98\
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\97\ Bluegrass Institute; Mary Rita Weissman; Con-way.
\98\ David Nay II; Lisa Thomas II; Jack Steele II.
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As stated above, we believe that cost-effective methods may exist
to ensure that electronic signatures are authentic,
[[Page 74331]]
and electronic signature technology may provide more methods to
authenticate and ensure the validity of the signature as compared to
handwritten signatures. Further, the Board already has internal
administrative processes to deal with allegations of fraud and
misrepresentation regarding manually signed authorization cards and
petitions. See Casehandling Manual Sections 11028-11029. We expect that
the General Counsel will evaluate whether the Board could employ these
or similar processes in connection with electronic signatures.
A few comments argue that the lack of reliability of electronic
signatures and the accompanying prospect of petitioner misconduct will
lead to more pre-election challenges to the validity of petitions,
creating a greater burden on agency resources, and running counter to
the goal of eliminating delay.\99\ Constangy, Brooks & Smith, LLP
(Constangy) contends that the use of electronic signatures would no
longer allow the Board to verify authorizations by simply comparing
employee signatures to those on handwritten cards. Rather, Constangy
argues that the Board would have to allow parties to present testimony
to challenge or support contested signatures. Torres argues that, if
the Board starts to look underneath the process of obtaining electronic
signatures, employers should also be able to examine and, if necessary,
challenge the showing of interest. Testimony of Torres on behalf of
Winston & Strawn II. UFCW (UFCW II) disagrees, proposing that the Board
could verify the authenticity of a showing of interest merely by
checking a random sample of individual signatures, as is a current
practice. As noted, the Board already has processes in place for
resolving allegations of fraud or misrepresentation in connection with
showing of interest evidence which the rule does not change and which
might be effectively utilized to verify electronic signatures.
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\99\ AHA (AHA II); Georgia Mining Association; Con-way;
Testimony of Torres II.
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For the reasons discussed above, we are not persuaded that the
Board's current or similar administrative procedures would necessarily
be inadequate to the task of ensuring that there is a sufficient
showing of interest to warrant conducting an election. The General
Counsel should consider the matter and determine whether electronic
signatures can practicably be accepted without such a fundamental
change to the Board's procedures as those suggested in the comments.
A few comments address the practical problems with permitting
electronically signed authorization cards. Some of these comments are
concerned that a petitioner could gather electronic signatures through
the employer's own computer system, thereby disrupting work and opening
the employer to allegations of unlawful surveillance.\100\ Some of
these comments further maintain that the use of handwritten
authorization cards already leads to confusion among employees, and
that allowing electronic signatures would exacerbate these
problems.\101\ One comment observes that it would be difficult for the
Board to impose a unified system of gathering electronic signatures,
and thereby ensure the reliability of those signatures, given the
number and diversity of petitioning parties. Testimony of Torres on
behalf of Winston & Strawn II.
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\100\ NCISS II; AEM II.
\101\ Americans for Limited Government (ALG); Labor Relations
Institute, Inc. (LRI); PIA; Georgia Mining Association; CAST-FAB
Technologies, Inc. II; U.S. Poultry II; NAM II.
---------------------------------------------------------------------------
We are doubtful that the use of electronic signatures will present
the practical problems raised in these comments. We see no reason why
electronic authorization cards would create a greater disruption to an
employer's operations or subject an employer to charges of surveillance
to a greater extent than would the transmission of other information
relating to union or protected concerted activity. Regarding Torres's
argument that electronic signatures would be impracticable to
administer, we ask the General Counsel to examine the issue and, if
administration is practicable, issue guidance.
Based on our review of our current Rules and Regulations,
Congressional policy, and the comments, we conclude, as a matter of
policy, that the Board should, when practicable, accept electronic
signatures to support a showing of interest. Our current rules do not
prohibit the acceptance of electronic signatures, and so no change in
our rules is necessary to effectuate this policy conclusion. The
General Counsel shall promptly determine whether, when, and how
electronic signatures can practicably be accepted and shall issue
guidance on the matter. In making these decisions, we encourage the
General Counsel to follow the framework outlined in the OMB Guidance.
Sec. 102.62 Election Agreements; Voter List; Notice of Election
A. Election Agreements and Board Resolution of Post-Election Disputes
In the NPRM, the Board proposed a number of amendments to Sec.
102.62. The amendments were intended to clarify the terms used to
describe the three types of pre-election agreements, to eliminate
mandatory Board resolution of post-election disputes under a stipulated
election agreement, to codify the requirement of the Excelsior list and
to alter the content and timing of its provision to the nonemployer
parties to the case,\102\ and to alter the means of transmittal of the
notice of election. The Board has decided at this time to adopt the
proposed amendments to Sec. 102.62 clarifying the terms used to
describe pre-election agreements and eliminating mandatory Board
resolution of post-election disputes under a stipulated election
agreement. The Board has also decided to adopt the proposed amendments
concerning the Excelsior list and the notice of election \103\ with the
modifications described in the discussion of the voter list below.
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\102\ See Excelsior Underwear, Inc., 156 NLRB 1236, 1236 (1966)
(establishing requirement that employers must file a list of the
names and addresses of all eligible voters with the regional
director within 7 days after a Board election has been approved by
the regional director or directed; the regional director then makes
the information available to all parties in the case).
\103\ As noted below in connection with Sec. Sec. 102.63 and
102.67, the final rule retitles the proposed ``Final Notice to
Employees of Election'' as the ``Notice of Election.''
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The final rule's amendments to Sec. 102.62(b) revise the contents
of the stipulated election agreement. The revision eliminates parties'
ability to agree to have post-election disputes resolved by the Board.
The amendments provide instead that, if the parties enter into what is
commonly referred to as a ``stipulated election agreement,'' \104\ the
regional director will resolve any post-election disputes subject to
discretionary Board review. This procedure is consistent with the
changes to Sec. 102.69 described below making all Board review of
regional directors' dispositions of post-election disputes
discretionary in cases where parties have not addressed the matter in a
pre-election agreement.\105\
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\104\ Casehandling Manual Section 11084.
\105\ The current rules governing Board review of regional
directors' dispositions of post-election disputes appear on their
face to provide for both mandatory and discretionary review
depending on how the regional office processes the case. See 29 CFR
102.69(c)(3) and (4).
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As explained in the NPRM, the amendment makes the process for
obtaining Board review of regional
[[Page 74332]]
directors' dispositions of post-election disputes parallel to that for
obtaining Board review of regional directors' dispositions of pre-
election disputes. The Board perceived no reason why pre- and post-
election dispositions should be treated differently in this regard, and
the comments on this proposal offered no convincing reason.
The Board affirms the vast majority of post-election decisions made
at the regional level, and many present no issue meriting full
consideration by the Board.\106\ In some cases, for example, parties
seek review of post-election decisions based on mere formulaic
assertions of error below and without pointing to any facts or law in
dispute.\107\ Review as of right should not be granted in those
situations. Others cases present only circumscribed, purely factual
issues.\108\ Given the highly deferential standard that the Board
employs in reviewing a hearing officer's post-election credibility
findings,\109\ it is reasonable for the Board to require the party
seeking review of such a finding to justify that review by showing that
the standard for obtaining discretionary review is satisfied. There are
other cases in which the regional director assumes the facts asserted
by the objecting party but finds that no objectionable conduct
occurred,\110\ or where there is no dispute about the facts at
all.\111\ A discretionary system of review will provide parties with a
full opportunity to contest those determinations. Another group of
cases represent parties' efforts to seek reconsideration, extension, or
novel application of existing Board law,\112\ and there is equally no
reason why a discretionary system of review will not fully provide that
opportunity. Still other cases simply involve the application of well-
settled law to very specific facts.\113\ In short, for a variety of
reasons, a substantial percentage of Board decisions in post-election
proceedings are unlikely to be of precedential value because no
significant question of policy is at issue. The final rule requires the
party seeking review to identify a significant, prejudicial error by
the regional director or some other compelling reason for Board review,
just as the current rules require a party to do when seeking Board
review of a regional director's pre-election decision.\114\
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\106\ For example, in FY 2013, parties appealed to the Board in
only one third of the 98 total cases involving regional post-
election decisions concerning objections or determinative
challenges, and the Board reversed the regional decision to set
aside or uphold election results in only 3 cases.
\107\ See, e.g., C& G Heating, 356 NLRB No. 133, slip op. at 1
(2011).
\108\ See, e.g., Ruan Transport Corp., 13-RC-21909 (Nov. 30,
2010) (resolving intent of voter who marked an X in two boxes on
ballot but ``nearly obliterated'' one of them with pen markings in
lieu of erasure); Multiband, Inc., 2011 WL 5101459, slip op. at n.2
(Oct. 26, 2011) (credibility).
\109\ See Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
\110\ See, e.g., Care Enterprises, 306 NLRB 491 n.2 (1992).
\111\ See, e.g., CEVA Logistics U.S., Inc., 357 NLRB No. 60,
slip op. at 1-2 (2011) (consequences of regional delay in forwarding
Excelsior list).
\112\ See, e.g., 1621 Route 22 West Operating Co., LLC d/b/a
Somerset Valley Rehabilitation & Nursing Ctr., 357 NLRB No. 71, slip
op. at 1-2 (2011); Ace Car & Limousine Service, Inc., 357 NLRB No.
43, slip op. at 1-2 (2011).
\113\ Mental Health Ass'n, Inc., 356 NLRB No. 151, slip op. at
n.4 (2011) (whether employer's particular statements about bonuses
constituted objectionable promise of benefit); G&K Services, Inc.,
357 NLRB No. 109, slip op. at 2-4 (2011) (whether employer's letter
about health coverage constituted objectionable promise of benefit).
\114\ See current Sec. 102.67(c) (discussing compelling reasons
necessary for a grant of review, including the presentation of a
substantial question of law or policy, a clearly erroneous regional
director decision on a substantial factual issue prejudicing a
party, conduct of the hearing prejudicing a party, or compelling
reasons to reconsider an important Board rule or policy).
---------------------------------------------------------------------------
In addition, the final rule will enable the Board to devote its
limited time to cases of particular significance. This should
constitute a significant time savings considering the inefficiency
involved in having the multi-member Board engage in a de novo review of
the entire record before disposing of a post-election case on
exceptions from a hearing officer's report. Indeed, when post-election
cases have come before the Board over the past 3 years, the median time
for the Board to resolve them has ranged from 94.5 days to 127 days. In
comparison, the median time it has taken regional directors to issue
pre-election decisions has been 20 days, and the median time for the
Board's action to grant or deny review regarding these decisions under
the same request for review standard maintained in the final rule has
been only 12 to 14 days over the same 3-year period. Under the new
rules, it will be possible to have similar efficiency in regional and
Board processing of post-election decisions. This will save time and
resources, both public and private, and bring finality to
representation proceedings in a more timely manner.
Based on all of the considerations listed above, the Board
concludes that making review of regional directors' post-election
decisions available on a discretionary basis, as is currently the case
with pre-election review and some post-election review, will assist the
Board in fulfilling its statutory mandate to promptly resolve questions
concerning representation.
Several comments argue that if the Board were to adopt these
amendments, it would be abdicating its statutory responsibility and
function.\115\ For example, SHRM and NAM argue that only Board members,
because they are appointed by the President and confirmed by the
Senate, can make final decisions about these matters and that the
regional directors, who are career civil servants, lack comparable
authority and political legitimacy. The Chamber II also argues that
this proposal will make it possible for elections to be conducted
without Board review of any regional action or decision, contrary to
Section 3(b) of the Act. Others state that denying aggrieved parties
the right to appeal adverse determinations to the Board undermines due
process protections.\116\ NAM contends that the Board is required to
review conduct affecting election outcomes in order to safeguard
employees' Section 7 rights. Similarly, other comments argue that
conduct that could be the basis for setting aside an election goes to
the essence of employee free choice and deserves de novo Board
review.\117\ Still other comments contend that, although Section 3(b)
of the Act permits Board delegation to the regional directors of
decisions pertaining to representation issues, those decisions must be
reviewed by the Board upon request.\118\
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\115\ See Chamber; SHRM; CDW; COLLE; NAM II; AHA II; Testimony
of Curt Kirshner on behalf of AHA II.
\116\ See, e.g, SHRM and Chamber.
\117\ See, e.g., Dassault Falcon Jet.
\118\ See, e.g., SHRM and NAM, NAM II.
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Section 3(b) of the NLRA does not support the conclusion expressed
in those comments. Section 3(b) provides in part:
The Board is . . . authorized to delegate to its regional
directors its powers . . . to determine [issues arising in
representation proceedings], except that upon the filing of a
request therefore with the Board by any interested person, the Board
may review any action of a regional director delegated to him . . .,
but such review shall not, unless specifically ordered by the Board,
operate as a stay of any action taken by the regional director.
29 U.S.C. 153(b).
Since Congress adopted this provision in 1959 and the Board
exercised its authority to delegate these functions to its regional
directors in 1961, the Board's rules have provided that regional
directors' dispositions of pre-election disputes are subject only to
discretionary Board review even though a failure to request review pre-
election or a denial of review precludes a party from raising the
matter with the Board post-election. 29 CFR 102.67(b) and (f).
[[Page 74333]]
Notably, none of the comments suggests that the current rules as to
pre-election disputes violate Section 3(b) or are otherwise
improper.\119\
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\119\ Moreover, even under the current rules, specifically Sec.
102.69(c)(4), if the regional director issues a decision concerning
challenges or objections instead of a report in cases involving
directed elections, an aggrieved party's only recourse is a request
for review. Thus, the comments' objections apply to the current
regulations as well as to the final rule.
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In fact, the Supreme Court has upheld the Board's decision not to
provide parties with a right to Board review of regional director's
pre-election determinations, in a holding that clearly permits the
Board to adopt the final rule's amendments concerning post-election
review. In Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971), the
employer filed a request for review of the regional director's decision
and direction of election holding that certain individuals were
properly included in the unit. The Board denied the petition on the
ground that it did not raise substantial issues. In the subsequent
``technical 8(a)(5)'' unfair labor practice proceeding, the employer
asserted that ``plenary review by the Board of the regional director's
unit determination is necessary at some point,'' i.e., before the Board
finds that the employer committed an unfair labor practice based on the
employer's refusal to bargain with the union certified as the
employees' representative in the representation proceeding. 401 U.S. at
140-41. However, the Court rejected the contention that Section 3(b)
requires the Board to review regional directors' determinations before
they become final and binding. Citing Congress's authorization of the
Board to delegate decision-making in this area to its regional
directors and the use of the clearly permissive word ``may'' in the
clause describing the possibility of Board review, the Court held,
``Congress has made a clear choice; and the fact that the Board has
only discretionary review of the determination of the regional director
creates no possible infirmity within the range of our imagination.''
Id. at 142. Consistent with the purpose of the final rule here, the
Supreme Court quoted Senator Goldwater, a Conference Committee member,
explaining that Section 3(b)'s authorization of the Board's delegation
of its decision-making authority to the regional directors was to
``expedite final disposition of cases by the Board, by turning over
part of its caseload to its regional directors for final
determination.'' Id. at 141 (citing 105 Cong. Rec. 19770). And
undermining the comments' suggestion that regional directors lack
authority, status, or expertise to render final decisions in this area,
the Court further explained that the enactment of section 3(b)
``reflect[s] the considered judgment of Congress that the regional
directors have an expertise concerning unit determinations.'' Id.\120\
---------------------------------------------------------------------------
\120\ See also St. Margaret Memorial Hosp. v. NLRB, 991 F.2d
1146, 1154 (3d Cir. 1993); Beth Israel Hosp. and Geriatric Ctr. v.
NLRB, 688 F.2d 697, 700-01 (10th Cir. 1982) (en banc);
Transportation Enterprises, Inc. v. NLRB, 630 F.2d 421, 426 (5th
Cir. 1980) (finding that ``decisions rendered by the regional
offices of the NLRB which are not reviewed by the Board, for
whatever reasons, are entitled to the same weight and deference as
Board decisions, and will be given such unless and until the Board
acts in a dispositive manner.'').
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The Board concludes that the language of Section 3(b), its
legislative history, and the Supreme Court's decision in Magnesium
Casting are dispositive of the statutory objections to the proposed
amendment.
Some comments suggest that providing only discretionary review of
regional directors' decisions will undermine the uniformity of election
jurisprudence, with different regional directors issuing divergent
opinions in similar cases and under similar circumstances. The comments
contend that if those decisions are not reviewed by the Board as a
matter of right, there is a risk that the regional office in which the
employer's operations reside, rather than the merits of the parties'
positions, will govern how the dispute is resolved. For example,
Bluegrass Institute contends that discretionary Board review will
result in less uniformity, the denial of due process, and diminished
legitimacy in election processes. Other comments argue that
discretionary post election review will result in unchecked regional
errors \121\ and slow the development of binding and authoritative
precedent.\122\ The Board disagrees.
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\121\ See, AHA II.
\122\ See, RILA II.
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Since 1961, regional directors have made pre-election
determinations, and their decisions have been subject to only
discretionary review through the request for review procedure. The same
has been true of post-election determinations processed under Sec.
102.69(c)(3)(ii). There is no indication that the quality of decision-
making has been compromised by this procedure or that regional
directors have reached inconsistent conclusions. Under the final rule,
the same review process will apply to all cases involving post-election
objections and challenges except where they are consolidated with
unfair labor practice allegations before an administrative law judge.
As it has done for over 50 years in respect to pre-election disputes,
the Board will scrutinize regional directors' post-election decisions
where proper requests for review are filed.
One purpose of that review will be to determine if there is an
``absence of'' or ``a departure from, officially reported Board
precedent,'' i.e., to ensure uniformity via adherence to Board
precedent. See 29 CFR 102.67(c)(1). Accordingly, the final rule
provides parties with an opportunity to appeal regional decisions that
are inconsistent with precedent or which contain facts that are clearly
erroneous and prejudicial under a discretionary standard. The parties
may also utilize this discretionary review process if there are
substantial questions of law or policy or compelling reasons for
reconsidering a Board rule or policy.
For these reasons, the Board does not believe that the final rule
will lead to lack of uniformity or quality in decisions or adversely
affect the development of the law. In fact, the discretionary standard
enables the Board to better focus its resources and attention on those
cases that are legally or factually significant and have greater impact
on parties and/or the development of law and policy. And, since most of
the Board's post election decisions under the existing standard of
mandatory review are not published and have no precedential value,\123\
this proposed change is not likely to have a significant adverse impact
on the precedential value of post election decisions.\124\
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\123\ For instance, in FY 13, the Board published only five of
the decisions it issued on post election exceptions.
\124\ Nor would the Board agree that a discretionary review
process infringes on parties' due process rights. Constitutional due
process requires only one fair hearing and does not require an
opportunity to appeal. The Supreme Court has so held even with
respect to criminal cases. See Evitts v. Lucey, 469 U.S. 387, 393
(1985) (``Almost a century ago, the Court held that the Constitution
does not require States to grant appeals as of right to criminal
defendants seeking to review alleged trial court errors. McKane v.
Durston, 153 U.S. 684 . . . (1894).'').
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A few comments question the competence of regional personnel. For
example, COLLE argues that ``Regional Directors can be dictatorial and
imprudent to the rights of private parties in disputes before them''
and ``can exhibit irrational and unfair behavior and deprive parties of
their rights to go to hearing and litigate legitimate issues under the
Act.'' Other comments contend that because hearing officers report
directly to regional directors, appeal to the regional directors does
not constitute meaningful review.
[[Page 74334]]
The Board's experience in reviewing the work of and supervising its
regional directors gives no credence to these comments. Moreover,
Congress expressed confidence in the regional directors' abilities when
it enacted Section 3(b). As one comment in favor of the rule (Professor
Joel Cutcher-Gershenfeld) noted, empowering regional directors to make
final post-election rulings, as they now do in respect to pre-election
matters, locates decisions with the individuals who have the greatest
knowledge about and experience with representation case
procedures.\125\ Similarly, the Chamber (Chamber II), although it
generally opposes the proposals, notes the ``professionalism,
experience and integrity'' of the regional directors and their staffs.
Rather than detracting from their authority and legitimacy, the Board
concludes that the regional directors' career status ensures their
neutrality and, in almost all cases, their extended service at the
Board and thus extensive experience with and knowledge about
representation case procedures and rules.
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\125\ The Board also notes that regional directors make
decisions concerning whether to prosecute charges of unfair labor
practices under the Act, and those prosecutorial decisions often
involve questions of employee status and questions of whether
certain conduct is unlawful, both of which often parallel questions
that arise in post-election representation proceedings. The courts
have recognized that regional directors have expertise in
determining what constitutes objectionable conduct. See, e.g., NLRB
v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991), cert.
denied, 504 U.S. 955 (1992).
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ALFA argues that regional directors tend to uphold election
results, and therefore a right to Board review should be retained if
the Board wishes to discourage litigation via refusals to bargain. As
noted above, the Board rejects the suggestions that regional directors
are systematically biased in this or any other way, and repeats that it
will scrutinize regional directors' decisions when proper requests for
review are filed.
Some comments contend that, if the proposals are adopted, employers
will increasingly refuse to bargain with newly certified
representatives in order to obtain judicial review of regional
directors' determinations.\126\ This argument is, at best, highly
speculative. There is no evidence that this happened after the Board
delegated adjudication of pre-election disputes to its regional
directors in 1961 subject to only discretionary review by the Board,
and the Board can see no reason why an increase in refusals to bargain
would be more likely if Board review of post-election decisions is
similarly made discretionary. The Board does not believe that judicial
review through technical refusal to bargain litigation will be more
frequent when the Board denies review of a regional director's post-
election decision than it is when the Board summarily affirms the same
regional decision, as it often does now. See, e.g., The Pepsi Cola
Bottling Company, 9-RC-110313 (Sept. 18, 2013); King Soopers, 27-RC-
104452 (Sept. 13, 2013); Geralex Inc., 13-RC-106888 (Sept. 12, 2013).
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\126\ See Chamber; Chamber II; AHA; CDW; Baker & McKenzie;
Testimony of Curt Kirshner on behalf of AHA II.
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Several comments argue that the rule is contrary to the preferences
of both employers and unions, as shown by the high rate of stipulated
election agreements--providing for adjudication of post-election
disputes by the Board--and the comparative rarity of consent election
agreements--providing for a final decision by the regional director.
AHA (AHA II), SHRM, and ACE contend that parties prefer this form of
pre-election agreement because it provides for Board disposition of
post-election issues. As a corollary to this argument, some comments
argue that eliminating automatic Board review will result in fewer pre-
election agreements and thus more litigation.\127\
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\127\ See, e.g., Chamber II. Constangy contends that an employer
entering into a stipulation will lose any rights to appeal pre-
election unit issues and that this will have a negative effect on
the Board's stipulation rate. The Board notes, however, that under
current procedures, parties who enter into stipulated election
agreements, by definition, agree about pre-election issues, and
therefore waive any right to bring pre-election issues to the Board.
Thus, the final rule does not change that aspect of stipulated
election agreements.
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The Board believes for several reasons that the final rule will not
create a disincentive for parties to enter into consent or stipulated
election agreements. The final rule makes post-election Board review
discretionary whether the parties enter into a stipulated election
agreement or proceed to a hearing resulting in a decision and direction
of election. Thus, parties who prefer Board review of post-election
disputes will have no incentive to litigate pre-election issues in
order to gain such review. The Board believes that if parties genuinely
prefer agreements that permit Board review, they will continue to enter
into stipulated rather than consent election agreements in order to
preserve their right to seek such review. Whether parties enter into
any pre-election agreement or litigate disputes at a pre-election
hearing under the final rule will depend on the same calculus that it
does at present: the likelihood of success, the importance of the
issue, and the cost of litigation. In addition to avoiding the time,
expense and risk associated with a pre-election hearing, parties also
gain certainty with respect to the unit description and the election
date by entering into a stipulated election agreement. In short,
parties will continue to have ample reason to enter into stipulated
election agreements under the final rule, even though the final rule
makes Board review of regional directors' dispositions of post-election
disputes discretionary.
Some comments, such as that of Sheppard Mullin II, express
confusion about the rule and the request-for-review procedure. The
grounds for granting a request for review under Sec. 102.69(c)(2)
(referencing Sec. 102.67(d)) of the final rule are nearly identical to
the grounds set forth in Sec. 102.67(c) of the existing rules. The
Board will continue to review cases involving issues of ``first
impression'' or where there is ``conflicting or unsettled'' law in the
same manner that it currently does under the pre-election request-for-
review procedure. The Board is not aware of any concerns about the way
it has evaluated requests for review in representation proceedings, and
does not anticipate any in the future.
One comment questions whether ``the denial of review'' is subject
to appeal to the Federal courts. Orders in representation cases are not
final orders for purposes of judicial review. Rather, an employer must
refuse to bargain and commit a ``technical 8(a)(5)'' violation to
secure court review of the Board's representation decisions. See 29
U.S.C. 159(d); Boire v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).
Under the current rules, if an employer refuses to bargain, it may
obtain review of a regional director's pre-election rulings even if the
Board denied review thereof, and the same will be true of post-election
rulings under the final rule. Thus, there are no open questions about
the Board's discretionary review process that will undermine confidence
in its decisional processes.
Similarly, comments misinterpret the rule with respect to how
regional decisions will be reviewed and how that review will affect the
law. The final rule simply makes post-election dispositions reviewable
under a discretionary standard, rather than as of right. The Board's
rulings on post-election requests for review will be public and will be
published on the Board's Web site, as will the underlying regional
directors' decisions, just as rulings on pre-election requests for
review are now. Thus, the public and labor law community will have full
access to the Board's rulings.
[[Page 74335]]
In sum, the amendments to Sec. 102.62(b) conform the review
provisions of the stipulated election agreement to the amended review
provisions for directed elections. Parties should not be entitled to
greater post-election Board review simply by virtue of the fact that
there are no pre-election disputes. Under the final rule, all Board
review of regional directors' dispositions of challenges and objections
will be discretionary under the existing request-for-review procedure.
B. Voter List
In Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), the
Board established the requirement that, 7 days after approval of an
election agreement or issuance of a decision and direction of election,
the employer must file an election eligibility list--containing the
names and home addresses of all eligible voters--with the regional
director, who in turn makes the list available to all parties. Failure
to comply with the requirement constitutes grounds for setting aside
the election whenever proper objections are filed. Id. at 1240.
Numerous comments address the Board's multi-part proposal in the
NPRM (in Sec. 102.62 as well as in Sec. 102.67(l)) to codify and
revise the Excelsior requirement, which was approved by the Supreme
Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).\128\
The proposed revisions to the Excelsior requirement were intended to
better advance the two objectives articulated by the Board in
Excelsior: (1) Ensuring the fair and free choice of bargaining
representatives by maximizing the likelihood that all the voters will
be exposed to the nonemployer party arguments concerning
representation; and (2) facilitating the public interest in the
expeditious resolution of questions of representation by enabling the
parties on the ballot to avoid having to challenge voters based solely
on lack of knowledge as to the voter's identity. Excelsior, 156 NLRB at
1240-41, 1242-43, 1246.\129\
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\128\ Some of the comments concerning the voter list also
generally implicate the Statement of Position Form proposal.
\129\ In addition, this information will facilitate both the
fair and free choice of bargaining representatives and the
expeditious resolution of questions of representation by permitting
the parties to more efficiently investigate post-election objections
and other Board proceedings, such as unfair labor practice charges,
arising out of the election.
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Specifically, the Board proposed that the employer be required to
furnish to the other parties and the regional director not just the
eligible voters' names and home addresses, but also their available
email addresses and telephone numbers as well as their work locations,
shifts, and job classifications. In addition, the Board proposed to
shorten the time for production of the voter list from the current 7
days to 2 work days, absent agreement of the parties to the contrary or
extraordinary circumstances specified in the direction of election. The
Board also proposed that the voter list be provided in an electronic
format generally approved by the Board's Executive Secretary unless the
employer certifies that it does not possess the capacity to produce the
list in the required form, and that the employer serve the voter list
on the other parties electronically at the same time the employer files
the list with the regional director. In order to be timely filed, the
list would have to be received by the other parties and the regional
director within 2 work days after approval of the election agreement or
issuance of the direction of election. The NPRM also proposed that
failure to file or serve the list and related information within the
specified time and in the proper format would be grounds for setting
aside the election whenever proper objections are filed. Finally, the
Board proposed a restriction on the use of the voter list, barring
parties from using it for any purposes other than the representation
proceeding and related proceedings, and sought comments regarding what,
if any, the appropriate remedy should be for a party's noncompliance
with the restriction.
Comments attacking the proposal criticize the information required
to be disclosed, the format of the information to be disclosed, the
time period for its production, and the proposed restriction language.
Comments praising the proposal claim the proposal would better serve
the twin purposes of the original Excelsior list requirement and help
the Board to expeditiously resolve questions of representation.
Positive comments further claim that the proposal would merely update
the old disclosure requirement to reflect present day realities
regarding how people and institutions communicate with one another and
exchange information. Other comments suggest that the Board should
require the employer to furnish a broader array of contact information
than proposed in the NPRM, and that the contact information should be
provided earlier in the process--before the parties enter into an
election agreement (or the regional director directs an election).
After careful consideration of the comments, the Board has decided
to largely adopt the proposals with certain changes, as outlined below:
(1) The final rule clarifies that in the event that the parties
agree that individuals in certain classifications or other groupings
should be permitted to vote subject to challenge, or the regional
director directs that individuals in certain classifications or other
groupings be permitted to vote subject to challenge, the employer shall
provide the information about such individuals in a separate section of
the voter list.
(2) The final rule does not require employers to furnish the other
parties or the regional director with the work email addresses and work
phone numbers of the eligible voters and the work email addresses and
work phone numbers of those individuals whom the parties have agreed
may vote subject to challenge (or whom the regional director has
directed be permitted to vote subject to challenge). However, the final
rule clarifies that the Board retains discretion to require through
future adjudication or rulemaking that additional forms of contact
information be included on the list.
(3) The final rule clarifies that the Board's General Counsel,
rather than the Board's Executive Secretary, will be the official with
whom the authority will reside to specify the acceptable electronic
format of the voter list.
(4) The final rule clarifies that the employer has 2 business days,
rather than 2 calendar days, after the regional director approves the
parties' election agreement or issues a direction of election to
furnish the list to the nonemployer parties to the case and the
regional director. Although the NPRM had proposed that the regional
director would make the voter list available to the nonemployer parties
upon request, that language has not been incorporated into the final
rule due to the Board's judgment that it is unnecessary since the rule
requires direct service of the voter list from the employer to the
nonemployer parties.\130\
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\130\ Given that employers will have responsibility for service
of the voter list on nonemployer parties, the final rule includes a
requirement that the employer file with the regional director a
certificate of service on all parties when the voter list is filed.
The final rule also uses the same ``whenever proper and timely
objections are filed under the provisions of Sec. 102.69(a)''
language in describing the consequences for failure to comply with
the voter list amendments that Sec. 103.20 of the prior rules used
in describing the consequences for failure to comply with the
obligation to post what was previously called the Board's ``official
Notice of Election.'' Further, the rule adds language to 102.62(d)
and 102.67(l) (similar to that which had been proposed in 102.76(i)
regarding the posting of the proposed final notice of election) to
clarify that employers will be ``estopped from objecting to the
failure to file or serve the list within the specified time or in
the proper format'' if the employers are responsible for the
failure.
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[[Page 74336]]
(5) The final rule modifies the restriction language to prohibit
nonemployer parties from using the voter list information for purposes
other than the representation proceeding, Board proceedings arising
from it, and related matters.\131\
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\131\ The final rule also conforms the election notice
provisions in Sec. 102.62(e) to the election notice provisions that
are discussed in relation to Sec. Sec. 102.67(b),(k). Thus, for
example, the text of amended Sec. 102.62(e) explicitly provides,
just as the text of amended Sec. 102.67(k) explicitly provides,
that ``The employer's failure properly to post or distribute the
election notices as required herein shall be grounds for setting
aside the election whenever proper and timely objections are filed
under the provisions of Sec. 102.69(a).''
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1. Contact and Job Information
a. Work Email Addresses/Work Phone Numbers
A large number of employer comments oppose the voter list
proposals, particularly to the extent that they could be construed as
requiring the employer to furnish the other parties with the work email
addresses and work phone numbers of its employees.\132\ For example,
CDW suggests that the Board's proposal is vague and does not clarify
whether the rules require production of employees' work phone numbers
and email addresses for use by the nonemployer parties. If the rules
would so require, then CDW argues that they ``would be irreconcilable
with longstanding Board case law'' on solicitation, distribution, and
lawful access restrictions,\133\ in addition to prompting a huge number
of surveillance complaints stemming from employers' routine monitoring
of internal phone and email systems. The SEIU disagrees, claiming in
reply that under the Board's proposal, employers would still be able to
maintain non-discriminatory, restrictive email policies, but that given
most employers' permissive attitudes toward employees' use of email, it
would be highly unlikely that many such rules would prevent election-
related uses of employees' work email by the nonemployer parties.
Meanwhile, the AFL-CIO (AFL-CIO II) contends that the Board should
address issues surrounding work email through the adjudicatory process,
and the Chamber II in reply--while generally opposed to requiring any
phone and email information on the voter list--agrees that it would be
more appropriate to disclose employees' personal email and phone
information than their work email and phone information.
---------------------------------------------------------------------------
\132\ See, e.g., SHRM; ALFA; COLLE.
\133\ For other comments to this effect, see, e.g., NAM II;
Sheppard-Mullin II; RILA.
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Other comments emphasize the threat of harm to employer email and
phone systems and associated productivity concerns that would allegedly
flow from the disclosure of employees' work contact information to the
nonemployer parties.\134\ For example, the Employment and Labor Law
Committee of the Association of Corporate Council (ACC), cites the
Sixth Circuit's decision in Pulte Homes v. Laborer's Int'l Union, 648
F.3d 295 (6th Cir. 2011) \135\ as evidence of union propensity to
misuse this information in order to inflict economic damage on an
employer. However, the American Health Care Association and the
National Center for Assisting Living II (AHCA)--which also cites
Pulte--admits that ``a petitioning union might be expected to be more
solicitous of employees whose votes it was seeking in an NLRB
election.'' CDW also mentions the threat of malicious software and
viruses being introduced to employer computer systems, but SEIU (reply)
answers that such threats are far-fetched considering that ``riddling
an employee's computer [albeit one owned by the employer] with a virus
is not likely . . . to encourage her to support the union.''
Furthermore, comments point out that email providers, such as Google
and Microsoft, are vigilant about identifying malicious attachments,
and that many employer email systems are protected by commercially
available software, thus minimizing any potential risks to employer
email systems.\136\
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\134\ See, e.g., ACC; AGC; Indiana Chamber; ABC; Sheppard Mullin
II; Mrs. Octavia Chaves II.
\135\ In this case, which does not involve a union's use of an
Excelsior list, the Sixth Circuit denied Pulte's motion for a
preliminary injunction, but reversed the district court's dismissal
of Pulte's claims against the Laborers union under the Computer
Fraud and Abuse Act based upon allegations that the Laborers
intentionally transmitted a high volume of email messages and phone
calls to several Pulte executives and managers in retaliation for
Pulte's firing of several employees concerning which the Laborers
filed unfair labor practice charges with the NLRB.
\136\ See SEIU II; Testimony of Jess Kutch on behalf of
Coworker.org II.
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Still other comments argue that because the concerns associated
with inclusion of work email and work phone numbers on the voter list
are so significant, the Board would be breaching its obligation of
neutrality in the election process if it were to order the employer to
disclose them to a petitioning union.\137\
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\137\ See, e.g., National Association of Wholesaler-Distributors
(NAW) II; AEM II.
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After careful consideration of all the comments concerning the
voter list proposals as they relate to work email addresses and work
phone numbers, the Board believes that the issues raised require
further study, and so the final rule does not require the employer to
furnish the other parties (such as the union in an initial organizing
context) with either the work email addresses or work phone numbers of
eligible voters. If, in the future, the Board decides through
adjudication or rule-making that the inclusion of additional contact
information on the voter list is warranted, then it will be incumbent
on the Board to address concerns appropriately raised at that time.
However, at this time, we express no opinion as to the merits of the
various concerns raised that are specific to including work email
addresses or work phone numbers on the voter list.
b. Personal Email Addresses/Personal Phone Numbers
Although the final rule does not require the employer to furnish
the other parties or the regional director with the work email
addresses and work phone numbers of the eligible voters, the final rule
does require the employer to furnish the other parties and the regional
director with the available personal email addresses and available home
and personal cellular (``cell'') telephone numbers of the eligible
voters to help advance the principal objectives behind the original
Excelsior requirement. As set forth in the NPRM, in elections conducted
under Section 9 of the Act, there is no list of employees or
potentially eligible voters generally available to interested parties
other than the employer and, typically, an incumbent representative. 79
FR 7322. The Board addressed this issue in Excelsior Underwear, Inc.,
156 NLRB 1236, 1239-40 (1966), where it held:
[W]ithin 7 days after the Regional Director has approved a
consent-election agreement . . . or after the Regional Director or
the Board has directed an election . . ., the employer must file
with the Regional Director an election eligibility list, containing
the names and addresses of all the eligible voters. The Regional
Director, in turn, shall make this information available to all
parties in the case. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections
are filed.
Although several Justices of the Supreme Court expressed the view that
the requirement to produce what has become known as an ``Excelsior
list'' should have been imposed through rulemaking rather than
adjudication, the Court upheld the substantive requirement in NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).
[[Page 74337]]
In Excelsior, the Board explained the primary rationale for
requiring production of an eligibility list:
[W]e regard it as the Board's function to conduct elections in
which employees have the opportunity to cast their ballots for or
against representation under circumstances that are free not only
from interference, restraint, or coercion violative of the Act, but
also free from other elements that prevent or impede a free and
reasoned choice. Among the factors that undoubtedly tend to impede
such a choice is a lack of information with respect to one of the
choices available. In other words, an employee who has had an
effective opportunity to hear the arguments concerning
representation is in a better position to make a more fully informed
and reasonable choice . . ..
As a practical matter, an employer, through his possession of
employee names and home addresses as well as his ability to
communicate with employees on plant premises, is assured of the
continuing opportunity to inform the entire electorate of his views
with respect to union representation. On the other hand, without a
list of employee names and addresses, a labor organization, whose
organizers normally have no right of access to plant premises, has
no method by which it can be certain of reaching all the employees
with its arguments in favor of representation, and, as a result,
employees are often completely unaware of that point of view. This
is not, of course, to deny the existence of various means by which a
party might be able to communicate with a substantial portion of the
electorate even without possessing their names and addresses. It is
rather to say what seems to us obvious--that the access of all
employees to such communications can be insured only if all parties
have the names and addresses of all the voters. In other words, by
providing all parties with employees' names and addresses, we
maximize the likelihood that all the voters will be exposed to the
arguments for, as well as against, union representation
156 NLRB at 1240-41 (footnotes omitted). The Supreme Court endorsed
this rationale in Wyman-Gordon, 394 U.S. at 767, stating that:
The disclosure requirement furthers this objective [to ensure
the fair and free choice of bargaining representatives] by
encouraging an informed employee electorate and by allowing unions
the right of access to employees that management already possesses.
It is for the Board and not for this Court to weigh against this
interest the asserted interest of employees in avoiding the problems
that union solicitation may present.
Since Excelsior was decided almost 50 years ago, the Board has not
significantly altered its requirements despite transformative changes
in communications technology, including that used in representation
election campaigns. Fifty years ago, email did not exist; and
communication by United States mail was the norm. For example, the
union in Excelsior requested a list of names and home addresses to
answer campaign propaganda that the employer had mailed to its
employees. See Excelsior, 156 NLRB at 1246-47. Indeed, if a union
wanted to reach employees with its arguments in favor of
representation, it frequently resorted to the United States mail or
visited employees at their homes because, as the Board recognized in
Excelsior, the union, unlike the employer, ``normally ha[s] no right of
access to plant premises'' to communicate with the employees. Id. at
1240. However, as SEIU points out, in 2010, nearly all working adults
used email, and indeed, 39.6 billion emails were being sent every day--
more than 80 times the number of letters being sent through the U.S.
Postal Service.\138\ The AFL-CIO II cites to a study released during
the 2014 comment period suggesting that up to 87% of U.S. adults have
an email address and use the internet.\139\ Other comments likewise
assert that the voter list requirements should be updated to include
email addresses in recognition of how individuals, employees,
employers, and institutions now communicate with one another.\140\
---------------------------------------------------------------------------
\138\ See ``Email vs. snail mail (infographic)'' (Sept. 29.
2010), http://royal.pingdom.com/2010/09/29/email-vs-snail-mail-infographic.
\139\ Susannah Fox & Lee Rainie, ``The Web at 25 in the U.S.'',
Pew Research Center (Feb. 27, 2014), http://www.pewinternet.org/2014/02/27/the-web-at-25-in-the-U-S/.
\140\ See, e.g., National Nurses Union (NNU); Professor Joel
Cutcher-Gershenfeld; SEIU-United Healthcare Workers--West; Southwest
Regional Joint Board, Workers United; Testimony of Brenda Crawford
II; Testimony of Darrin Murray on behalf of SEIU II.
---------------------------------------------------------------------------
The Board believes that the provision of only a physical home
address no longer serves the primary purpose of the Excelsior list.
Communications technology and campaign communications have evolved far
beyond the face-to-face conversation on the doorstep imagined by the
Board in Excelsior. As Justice Kennedy observed in Denver Area
Educational Telecommunications Consortium, Inc. v. FTC, 518 U.S. 727,
802-803 (1996) (Kennedy, J., dissenting) (internal citation omitted):
Minds are not changed in streets and parks as they once were. To
an increasing degree, the most significant interchanges of ideas and
shaping of public consciousness occur in mass and electronic media.
The extent of public entitlement to participate in those means of
communication may be changed as technologies change.
Similarly, in J. Picini Flooring, 356 NLRB No. 9, slip op. at 2-3
(2010) (footnotes omitted), the Board recently observed,
While * * * traditional means of communication remain in use,
email, postings on internal and external websites, and other
electronic communication tools are overtaking, if they have not
already overtaken, bulletin boards as the primary means of
communicating a uniform message to employees and union members.
Electronic communications are now the norm in many workplaces, and
it is reasonable to expect that the number of employers
communicating with their employees through electronic methods will
continue to increase. Indeed, the Board and most other government
agencies routinely and sometimes exclusively rely on electronic
posting or email to communicate information to their employees. In
short, ``[t]oday's workplace is becoming increasingly electronic.''
\141\
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\141\ To be clear, the Board cites J. Picini Flooring and
related examples simply to demonstrate its view of the changing
realities of workplace communication, and not--as suggested in the
comments of AHCA--to argue that simply because an employer might use
a particular mode of communication that a union should therefore be
entitled to use of that same mode as a quid pro quo.
Moreover, our experience with campaigns preceding elections
conducted under Section 9 of the Act indicates that employers are, with
increasing frequency, using email to communicate with employees about
the vote. See, e.g., Arkema, Inc., 357 NLRB No. 103, slip op. at 14
(2011) (employer sent an email to employees broadly prohibiting
``harassment'' with respect to the upcoming election), enf. denied 710
F.3d 308 (5th Cir. 2013); Humane Society for Seattle, 356 NLRB No. 13,
slip op. at 3 (2010) (``On September 27, the Employer's CEO, Brenda
Barnette, sent an email to employees asking that they consider whether
ACOG was the way to make changes at SHS. On September 29, HR Director
Leader emailed employees a link to a third-party article regarding
`KCACC Guild's' petition and reasons the Guild would be bad for
SHS.''); Research Foundation of the State University of New York at
Buffalo, 355 NLRB 950, 958 (2010) (``On January 12, Scuto sent the
first in a series of email's [sic] to all Employer postdoctoral
associates concerning the Petitioner's efforts to form a Union at the
Employer[,]. . . . explaining the Employer's position on unionization .
. . .''); Black Entertainment Television, 2009 WL 1574462, at *1 (NLRB
Div. of Judges June 5, 2009) (employer notified several employees by
email to attend a meeting in which senior vice-president spoke one-on-
one with the employees regarding the election scheduled for the
following day).\142\
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\142\ In addition, the rulemaking record reflects that employers
sometimes use their employees' personal contact information to
communicate about campaign issues. See United Nurses Associations of
California/Union of Health Care Professionals (UNAC/UHCP) II and
testimony of Brenda Crawford II (describing an employer sending text
message blasts to employees' personal cell phones as part of its
election campaign).
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[[Page 74338]]
Disclosure of the employees' personal email addresses, like the
disclosure of personal phone numbers discussed below, will allow the
nonemployer parties (including unions and decertification petitioners)
to promptly convey their information concerning the question of
representation to all the eligible voters. Disclosure of this contact
information also makes it more likely that nonemployer parties can
respond to employee questions, both individually and collectively,
including questions that employees have, but may be uncomfortable
raising on their own.\143\ It also permits the nonemployer parties to
engage with employees on campaign issues in a timely manner and
specifically, prior to the election, as well as share those responses
with other employees, thus making it more likely that employees can
make an informed choice in the election. After all, it obviously takes
less time for an employee to receive the nonemployer party's campaign
communication when that message is sent via email than when it is sent
via United States mail.\144\ Nurse Brenda Crawford explained the
difficulty in organizing off-campus informational meetings when her
colleagues work 12-hour shifts and have outside family
responsibilities. In her view, modern communication tools, including
email, would enhance the ability to provide information in a manner
that is convenient to workers and their families. Testimony of Crawford
II. The Board agrees, and has concluded that the required disclosure of
available personal email addresses of eligible voters will permit the
timely give-and-take of campaign information that will increase the
likelihood that employees will be placed ``in a better position to make
a fully informed and reasonable choice.'' Excelsior, 156 NLRB at
1240.\145\ And of course, the Board included employees' home and
personal cell telephone numbers in the voter list proposals because the
use of telephones to convey information orally and via texting is an
integral part of the communications evolution that has taken place in
our country since Excelsior was decided.\146\
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\143\ For example, Board caselaw provides examples of campaigns
in which employees are presented with hypothetical ``questions'' to
``ask'' the organizing union. See, e.g. Kellwood Co., 178 NLRB 20,
23 (1969) (employer encouraged employees to ask organizing union
what would happen when no contract was reached); Smithtown Nursing
Home, 228 NLRB 23, 26 (1977) (employer encouraged employees to ask
the organizing union for a ``guarantee'' of no strikes, and other
strike related demands); World Wide Press, Inc., 242 NLRB 346, 357
(1979) (employer distributed leaflets encouraging employees to ask
about discontinued pension negotiations at another plant); Flamingo
Hilton-Laughlin, 324 NLRB 72, 80-83 (1997) (employer distributed
leaflets encouraging employees to ask 18 questions of the organizing
union including certain ``guarantees''); Eldorado Tool, 325 NLRB
222, 224 (1997) (employer distributed leaflet encouraging employees
to ask 15 rhetorical questions of the organizing union including
whether the union could ``guarantee'' no job loss or facility
closure).
\144\ We recognize that nonemployer parties can reply by email
to any voter who chooses to pose questions by email since the return
email address is included in the email itself, but we would find
unpersuasive any claim that voluntary disclosures of this sort
establish that it is unnecessary to provide nonemployer parties with
email addresses of all eligible voters. Looking at the matter so
narrowly overlooks that an organizing campaign is not merely a
series of discrete individual communications addressed to interested
employees with particular questions. Union representatives may seek
to answer questions that not all employees may have thought to ask
and to provide information about representation issues that not all
employees possess. The ability to communicate effectively with all
employees is necessary for this purpose. Accordingly, the Board
believes that requiring an employer to furnish the available
personal email addresses of eligible voters to the nonemployer
parties makes it more likely that employees can make an informed
choice in the election.
\145\ To be sure, the Board believes that requiring the
provision of employees' available personal email and phone numbers
is a necessary improvement to the existing Excelsior policy even in
workplaces where employers do not choose to avail themselves of
email and phones as a tool of their representation campaign, i.e.,
its importance and usefulness is not linked to, or dependent on, the
employer's use of email or phone communication.
\146\ SIGMA and others suggests that many employers do not keep
records of employees' personal email addresses and so ``the Board
may overestimate the availability or utility'' of personal email
addresses as a means for petitioners to reach all employees with
their message. Yet, the amendments merely require an employer to
furnish its employees' ``available personal email addresses'' (and
``available home and personal cellular (``cell'') telephone
numbers''). Accordingly, if the employer does not maintain those
addresses and numbers, it does not need to ask its employees for
them. As discussed below, the Board recognizes that delays in
conducting elections would result if employers (or the Board) were
required to collect personal information directly from employees
after the parties entered into an election agreement or the regional
director directed an election. However, the fact that some employers
may not maintain records of their employees' personal email
addresses and personal phone numbers does not demonstrate that it is
not worthwhile to require those employers who do maintain such
information to disclose it in the interests of fair elections and
more efficient administrative proceedings. Similarly, the fact that
an employer may not possess the personal email addresses and
personal phone numbers for each and every one of its employees does
not demonstrate that it is not worthwhile to require the employers
to disclose those employees' personal email addresses and personal
phone numbers that it does possess.
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However, some comments question the inclusion of phone numbers in
the final rule, implying that because the Board chose not to mandate
disclosure of phone numbers in 1966, at a time when at least basic
telephone technology existed, then it should not do so today.\147\ CDW
attempts to lend force to this argument by asserting that in the late
1960s ``the United States led the world in telephone usage . . . and .
. . the average person had 701 telephone conversations'', while
simultaneously arguing that the home addresses disclosed under the
current Excelsior policy continue to be the ``most reliable and near
universal points of contact'' for employees.
---------------------------------------------------------------------------
\147\ See, e.g., SIGMA; Schnuck Markets, Inc.; INDA II.
---------------------------------------------------------------------------
The Board believes that comments such as CDW's do not adequately
appreciate the way phone communication has changed in the last 45
years. While it may be true that when the Board issued its Excelsior
decision, many households had at least one telephone, the telephone was
not nearly as ubiquitous as it is presently, and those that existed
bore little resemblance to the technology we have become accustomed to
today. In particular, voicemail service had yet to be invented, and no
commercially viable home answering machine had yet entered the
marketplace. See ``The History of . . . Answering Machines,'' http://transition.fcc.gov/cgb/kidszone/history_ans_machine.html (last updated
June 4, 2004). Because answering machine and voicemail technology was
uncommon or nonexistent in 1966, a nonemployer party could not leave a
message if the employee with whom it intended to speak about the
upcoming election was not at home when the union called. By contrast,
the employee would receive the nonemployer party's letter even if the
employee was not at home when the post office delivered it. Today,
however, even if the employee is not home when the call is placed, the
caller is virtually always able to leave a voice message--to say
nothing of the ability to send written messages via phone texting
technology. And, of course, if an employee has a cell phone, the caller
can reach the employee even if the employee is not at home when the
call is received.
Contrary to CDW, the Board believes that the changes in phone
ownership and use make personal phones a universal point of contact
today in a way that was unimaginable in 1966. The share of U.S.
households possessing a telephone has steadily increased since the
1960s, from 78% in 1960 to 95% in 1990. See Bureau of the Census,
Census Questionnaire Content, 1990 CQC-26, ``We asked . . . You told
us: Telephone and Vehicle Availability'' 1 (Jan. 1994), http://
www.census.gov/prod/cen1990/
[[Page 74339]]
cqc/cqc26.pdf. The Census Bureau reports that the numbers of households
with no available phone had shrunk to only 2.4% by 2000. See U.S.
Census Bureau, 2000 Census of Population and Housing, Summary Social,
Economic, and Housing Characteristics, PHC-2-1, United States Summary
10 (2003) (Table 10), http://www.census.gov/prod/cen2000/phc-2-1-pt1.pdf. And that tiny percentage of households with no phone service
appears to have remained nearly unchanged through 2013. See Stephen J.
Blumberg and Julian V. Luke, ``Wireless Substitution: Early Release of
Estimates From the National Health Interview Survey, January-June
2013,'' National Center for Health Statistics 2 (December 2013), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201312.pdf (reporting
only 2.3% of U.S. households lacking phone service).
In addition, as of January 2014, 90% of American adults had a
handheld mobile phone or a cell phone--a non-existent technology at the
time of Excelsior--and 29% of cell phone owners described their cell
phone as ``something they can't imagine living without.'' Pew Research
Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. In fact,
the use of cell phones has increased to the point that it is overtaking
the use of landline phones. For example, SEIU's comment cites a 2007
study finding that 85% of adults own cell phones, while only 71% of
adults own home phones. And the Bureau of Labor Statistics identifies
2007 as the first year in which spending on cellular phone services
exceeded spending on residential phone services. See ``Consumer
Expenditure Survey: Spending on Cell Phone Services Has Exceeded
Spending on Residential Phone Services,'' http://www.bls.gov/cex/cellphones2007.htm (last modified Jan. 14, 2009). In 2010, more than a
quarter of adults lived in households with only wireless telephone
service, up from less than 5% a mere 7 years earlier. See Stephen J.
Blumberg and Julian V. Luke, ``Wireless Substitution: Early Release of
Estimates From the National Health Interview Survey, July-December
2010,'' National Center for Health Statistics 1 (June 2011), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201106.pdf. By 2013,
38% of all adults lived in households with only wireless service, and
more than half of adults younger than 35, as well as adults living in
poverty, had only wireless phone service in their households. See
Blumberg and Luke, ``Wireless Substitution: Early Release of Estimates
From the National Health Interview Survey, January-June 2013,''
National Center for Health Statistics 2-3 (December 2013), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201312.pdf. These
statistics validate the hearing comments of Ronald Mikell, speaking on
behalf of the Federal Contract Guards of America, that many of his
members possess only cell phones, and that Mikell's cell phone was his
primary point of contact for both business and personal matters.
The advent of cell phones has expanded communications not only by
phone but by other electronic media. Some 55% of cell phone owners use
their phones to go online-- to browse the internet, exchange emails, or
download apps. Pew Research Internet Project, Mobile Technology Fact
Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. In addition, the prevalence of cell phones,
which are typically carried with adults on their person whether at
home, at work or around town, now allows callers' messages to reliably
reach their recipients with speeds that would have been shocking in
1966. This speed and reliability has been enhanced through text
messaging, which has seen a dramatic rise in usage in only the past few
years, becoming the preferred mode of communication for many young
people. In marked contrast to CDW's citation of an average person's 701
annual phone conversations in 1968, more recent statistics show young
adults sending an average of 1,630 texts per month. See ``U.S. Teen
Mobile Report Calling Yesterday, Texting Today, Using Apps Tomorrow''
(October 14, 2010), http://www.nielsen.com/us/en/insights/news/2010/u-s-teen-mobile-report-calling-yesterday-texting-today-using-apps-tomorrow.html.
Additionally, there is a separate rationale for requiring mobile
and home phone numbers in addition to email addresses, namely, to reach
persons who rely on phone calls and not emails. According to the Pew
Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014),
http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/,
over forty percent of phone users do not possess smartphones and
therefore would not receive last minute emails responding to campaign
issues. Disclosure of personal phone numbers is thus a practical
necessity if this significant portion of eligible voters is going to
have access to late breaking developments.
In addition to the increased use of personal telephones, text
messaging, and email, smartphones have recently emerged as single
devices capable of managing all three modes of communication. Even as
of 2011, more than two-thirds of Americans 34 years old or younger, and
48% of individuals 15 years old and above, had a smartphone. U.S.
Census Bureau, Computer and Internet Use in the U.S. (May 2013). As of
January 2014, 58% of American adults had a smartphone. Pew Research
Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. A
smartphone's ability to combine telephone, text message, and email
access in one hand-held, portable device is perhaps the most tangible
example of how the evolution of communications since 1966 has made the
personal phone a universal point of contact and, as indicated above,
smartphone users comprise more than half of cell phone owners.\148\
---------------------------------------------------------------------------
\148\ See also Riley v. California, 134 S.Ct. 2473, 2484 (June
25, 2014) (describing cell phones as ``such a pervasive and
insistent part of daily life that the proverbial visitor from Mars
might conclude they were an important feature of human anatomy'' and
acknowledging that smart phones, and even less sophisticated cell
phones ``are based on technology nearly inconceivable just a few
decades ago'').
---------------------------------------------------------------------------
In the face of this revolution in communications technology, it is
not surprising that, as SEIU notes, door to door solicitation is nearly
extinct, and first class mail is at its lowest volume in 25 years with
further profound declines predicted over the next decade. In the
experience of union attorney Thomas Meiklejohn, some employers may no
longer keep updated home address information on their employees because
they do not regularly communicate with them via mail, in contrast to
employee telephone lists, which are updated of necessity.\149\ Indeed,
many comments support adding phone numbers to the voter list
disclosures, as a ``common sense'' change, precisely because the
disclosures of only home addresses may
[[Page 74340]]
be ineffective in allowing a petitioner's message to reach eligible
voters.\150\ Union attorney Caren Sencer testified that in her
experience with seasonal workers covered by the NLRA, employers use
cell phones to communicate with their employees and have only a P.O.
Box for a physical address--which would be of limited utility to a
petitioning union. Similarly, NELP stresses that the expanded voter
list disclosures are ``especially crucial to low-wage workers, who may
not remain at one address for long or may not even have a fixed home.''
The Board shares this perspective, and for that reason believes that
the addition of phone numbers is necessary to ensure that messages
concerning representation are able to reach the lowest paid sectors of
our national workforce.\151\
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\149\ Although, the Board is mindful, as asserted by U.S.
Poultry II, that employees may change personal email addresses and
phone numbers, it nevertheless disagrees with U.S. Poultry's
conclusion that requiring this additional information won't solve
the problem of outdated contact information. By requiring these two
additional forms of available contact information, the Board
believes that the voter list amendments will increase the likelihood
that nonemployer petitioners will receive at least one piece of up-
to-date contact information (if not more) for eligible voters.
Moreover, instantaneous responsive messages commonly utilized by
both telephone and email providers--indicating that an email message
cannot be delivered to the address entered or that a phone call
cannot be completed as dialed--are much more likely to bring
inadvertent transcription mistakes to the parties' attention (and
allow for potential correction) during the pre-election period than
would corresponding returned pieces of U.S. mail indicating that the
mailing could not be delivered as addressed.
\150\ See, e.g., AFL-CIO; SEIU; Senior Member Miller and
Democratic House Members; testimony of Ronald Mikell on behalf of
the United Federation of Special Police and Security Officers and
Federal Contract Guards of America.
\151\ In view of the foregoing discussion, the Board disagrees
with PCA's comment that home addresses are sufficient, as well as
PCA's claim--shared by CNLP--that the Board should not require
disclosure of the additional contact information because there is no
evidence that the current requirements hinder union access. Nor is
the Board persuaded by RILA's II assertion that new electronic means
of communication outreach available to unions via various social
media outlets undercuts the need to disclose employee personal email
and cell phones. Moreover, the Excelsior Board rejected the argument
that the Board may not require employer disclosure of employee names
and addresses unless the union would otherwise be unable to reach
the employees with its message in the particular case at issue.
Excelsior, 156 NLRB at 1244. As the Board explained, cases
addressing the existence of alternative channels of communication
are not relevant in this non-unfair-labor-practice context, where
the opportunity to communicate made available by the Board does not
interfere with a significant employer interest, and the interest in
a fair and free choice of bargaining representatives is so
substantial. Id. at 1245. Thus, even assuming the availability of
other avenues by which a union might be able to communicate with
employees, the Board ``may properly require employer disclosure of
[the additional contact information] so as to insure the opportunity
of all employees to be reached by all parties in the period
immediately preceding a representation election.'' Id. We repeat
that the Excelsior rule is designed, first of all, to maximize the
likelihood that all of the voters will be exposed to the nonemployer
party arguments concerning representation, and the requirement that
the additional contact information be disclosed better advances that
goal given the changes in how individuals, employees, employers,
associations and institutions communicate, and exchange information
with, one another.
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Like the disclosure of email addresses, disclosure of the
employees' home and personal cell phone numbers will allow the
nonemployer parties to promptly convey their information concerning the
question of representation to the eligible voters. Disclosure of this
contact information also makes it more likely that the nonemployer
parties can both respond to employee questions prior to the election
and share those responses with other employees, thus making it more
likely that employees can make an informed choice in the election.
After all, it obviously takes less time for an employee to receive the
nonemployer party's campaign communication when that message is sent
via a telephone call or a text or voice mail message than when it is
sent via United States mail. In sum, the Board has also concluded that
requiring the employer to furnish the other parties with the available
home and personal cell phone numbers of eligible voters will facilitate
an informed electorate, thus serving the first purpose of the Excelsior
rule.
The Board has further concluded that requiring the employer to
furnish the available personal email addresses and home and personal
cell phone numbers of the eligible voters will also better advance the
second rationale articulated by the Board in Excelsior: Facilitating
the expeditious resolution of questions of representation. As the Board
explained in Excelsior, in many cases at least some of the names on the
employer's list of eligible voters are unknown to the other parties.
The parties may not know where the listed individuals work or what they
do. Thus, for example, the union may be unable ``to satisfy itself as
to the eligibility of the `unknowns','' forcing it ``either to
challenge all those who appear at the polls whom it does not know or
risk having ineligible employees vote.'' Excelsior, 156 NLRB at 1243.
As the Board further explained, ``The effect of putting the union to
this choice . . . is to increase the number of challenges, as well as
the likelihood that the challenges will be determinative of the
election, thus requiring investigation and resolution by the Regional
Director or the Board.'' Id. at 1243. Only through further factual
investigation--for example, consulting other employees who may work
with the listed, unknown employees or contacting the unknown employees
themselves--can the union potentially discover the facts needed to
assess eligibility and avoid the need for election-day challenges based
solely on ignorance. And to avoid unnecessary delay, the union must
receive the recipient's response in time to be able to determine
whether the employer correctly included those names on the list of
eligible voters or whether it should challenge those individuals if
they come to vote.
The provision of the additional contact information will help the
union (or decertification petitioner) investigate the identity of any
unknown employees on the employer's voter list in a more timely manner,
thereby helping to decrease the chances that the union (or
decertification petitioner) will have to challenge voters based solely
on ignorance of their identities.\152\ Accordingly, the Board concludes
that the provision of the additional contact information will advance
the second rationale of Excelsior as well as the first rationale, and
the final rule requires the employer to disclose this additional
contact information in amended Sec. Sec. 102.62(d) and 102.67(l). The
Board also reiterates that both rationales will be advanced by
permitting nonemployer parties to more promptly and effectively contact
employees in relation to post-election objections and other
proceedings, such as unfair labor practice charges, that may arise from
the representation proceedings. For example, as discussed below in
connection with Sec. 102.69, in order to help the Board to more
expeditiously resolve election objections and thereby help the Board to
more expeditiously resolve questions concerning representation, the
Board has decided to require parties filing election objections to
simultaneously file with their objections a written offer of proof
supporting those objections, unless parties can show good cause to file
their offers of proof at a later date. The Board has thereby eliminated
the default extra 7-day period parties had to file evidence in support
of their objections under the Board's prior rules.\153\ Because the
voter list amendments require the employer to include the available
home and personal cell phone numbers along with the available personal
email addresses of the unit employees on the voter list that it
provides to the nonemployer parties before the election, the Board
believes that unions, as well as employers, ordinarily will have
sufficient time to contact potential witnesses and prepare their offers
within the allotted time.\154\
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\152\ For comments in agreement, see, e.g., National Union of
Healthcare Workers--California Nurses Association (NUHW) II; Nicole
Teixeira II.
\153\ The regional director may extend the time for filing the
written offer of proof in support of the election objections upon
request of a party showing good cause.
\154\ On a related note, we observe that using modern technology
to lessen delays in representation cases is also fully consistent
with one of the key goals of the E-Government Act of 2002 (Pub. L.
107-347), ``improv[ing] the ability of the Government to achieve
agency missions and program performance goals,'' id., section 2,
Dec. 17, 2002, 116 Stat. 2900.
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Nevertheless, the Board is mindful of comments predicting that
communications technology is changing so rapidly that even the proposed
expansion of the voter list to include personal email addresses and
personal
[[Page 74341]]
phone numbers may be insufficient to advance Excelsior's interest in
the near future. For example, Joseph Torres predicted that email--both
work and personal--is headed toward obsolescence and that young people
are already turning to social media platforms such as Tumblr,
Instagram, and Facebook to communicate electronically. Testimony of
Joseph Torres on behalf of Winston & Strawn II. In this vein, SEIU II
suggests that the Board rules should require employers to provide to
petitioners ``all other contact information, such as social media
identifiers, used by the employer to communicate with employees[.]''
The Board, however, shares the Chamber's skepticism (Chamber II Reply)
that few, if any, employers maintain social media contact information
about their employees, and declines to explicitly include it as part of
the voter list at this time.\155\
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\155\ The Board does not, however, share the Chamber's concern
(Chamber II Reply) that a regulation requiring employers to include
on voter lists any additional contact information, such as social
media identifiers, that they maintain in their records would start
down the ``slippery slope'' of requiring employers to solicit and
maintain such information from their employees.
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Should the Board's experience administering the expanded voter list
requirements suggest that additional forms of contact information
should be included in future voter lists, then the Board is open to
revisiting its conclusion concerning the contours of the list. For that
reason, the Board is adopting a modified version of the language
suggested by the AFL-CIO II to phrase the required contents of the
voter list as a minimum, to allow for future Boards to require more or
different forms of contact information in a particular case (should the
peculiar circumstances so warrant), or in all future cases. Thus, the
new regulatory language will read, in pertinent part, `` * * * a list
of the full names, work locations, shifts, job classifications, and
contact information (including home addresses, available personal email
addresses, and available home and personal cellular (``cell'')
telephone numbers) of all eligible voters.'' Thus, the Board retains
discretion to require through adjudication or rulemaking that the list
include additional contact information.
c. Work Location, Shift, and Job Classification Information
The final rule also adopts the proposal that the employer furnish
the work locations, shifts, and job classifications of all eligible
voters in amended Sec. Sec. 102.62(d), (providing for the final voter
list in election agreement cases), and 102.67(l) (providing for the
same list in directed election cases). Provision of the information
will assist the nonemployer parties in investigating whether the
unknown employees on the employer's list are in fact eligible. The
Board agrees with the comments advocating that provision of this
information will reduce the need for challenges based solely on
ignorance of the identity of voters, and thereby help the Board
expeditiously resolve questions of representation.\156\ In addition,
the Board is sympathetic to the view that in some cases, providing
employee scheduling and shift information to a petitioning union would
allow for more targeted communications either in person or by phone
that would be less disruptive to the employee and his or her family.
See Testimony of Caren Sencer on behalf of Weinberg, Roger & Rosenfeld
II.
---------------------------------------------------------------------------
\156\ See, e.g., NUHW II; Testimony of Maneesh Sharma on behalf
of AFL-CIO II.
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d. Employee Privacy Concerns
Many comments argue, however, that the Board should refrain from
requiring that the employer furnish the other parties with the
employees' personal email addresses, home and personal cell phone
numbers, work locations, shifts and job classifications, because, among
other things, disclosure of such information could cause harm to the
employees, invade their privacy, or conflict with precedent or other
laws. Other comments appear to attack even the nearly 50-year old
Supreme Court-sanctioned requirement that the employer disclose the
home addresses of eligible voters.
Without minimizing the legitimacy of the concerns underlying these
comments, we conclude for the reasons that follow that the public
interests in the fair and free choice of bargaining representatives and
in the expeditious resolution of questions of representation outweigh
the interests employees and employers have in keeping the information
private. As the Supreme Court has long recognized, it is
quintessentially the Board's function to balance the competing
interests of employees, employers, and labor organizations in
effectuating the policies of the Act. See, e.g., NLRB v. Truck Drivers,
353 U.S. 87, 96 (1957); NLRB v. Fleetwood Trailer Co., Inc., 389 U.S.
375, 378 (1967); NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975).
Indeed, in upholding the Board's Excelsior rule the Supreme Court
noted: ``It is for the Board and not for this Court to weigh against
this interest [in the fair and free choice of bargaining
representatives] the asserted interest of employees in avoiding the
problems that union solicitation may present.'' NLRB v. Wyman-Gordon
Co., 394 U.S. at 767.\157\
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\157\ The issue of employee privacy rights was also raised in
the litigation preceding Wyman-Gordon, and the courts called on to
consider the issue consistently held that it was within the Board's
discretion to conclude that the interests advanced by the Excelsior
requirement outweighed employee privacy interests. See British Auto
Parts, Inc. v. NLRB, 405 F.2d 1182, 1183 (9th Cir. 1968) (rejecting
privacy arguments), cert. denied sub nom., Teledyne, Inc. v. NLRB,
394 U.S. 1012 (1969); NLRB v. Q-T Shoe Mfg. Co., Inc., 409 F.2d
1247, 1250 (3d Cir. 1969) (holding employee privacy rights not
infringed by Excelsior requirement); NLRB v. J.P. Stevens & Co., 409
F.2d 1207, 1209 (4th Cir. 1969); NLRB v. Beech-Nut Life Savers,
Inc., 274 F. Supp. 432, 437-438 (S.D.N.Y. 1967), aff'd, 406 F.2d 253
(2d Cir. 1968), cert. denied 394 U.S. 1012 (1969). Although the
Motor & Equipment Manufacturers Association (MEMA) II (2-3)
criticizes the Excelsior Board for its analysis that allegedly did
not take account of the then-recent decision by the Supreme Court in
Griswold v. Connecticut, 381 U.S. 479 (1965), recognizing a
constitutional right to privacy, neither the Supreme Court in its
1969 Wyman-Gordon decision affirming the Excelsior policy, nor any
of the post-Griswold circuit court decisions listed above, faulted
the Excelsior Board for this alleged deficiency.
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As explained above, the Board has concluded that access to
employees' more modern contact information, including available,
personal email addresses, and home and personal cell phone numbers is
as fundamental to a fair and free election and the expeditious
resolution of questions concerning representation in 2014, as was
access to employee names and home addresses in 1966 when that
requirement was created in Excelsior, 156 NLRB at 1243, 1246, and later
approved by the Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S. at
768. As further noted above, 50 years ago answering machines,
voicemail, email, cell phones, texting, and smart phones did not exist
or were not widespread. In this day and age, providing such tools of
communication to the nonemployer parties once a regional director has
directed an election or all parties have agreed to an election will
significantly advance the objectives of the original Excelsior policy:
Ensuring the fair and free choice of bargaining representatives by
maximizing the likelihood that all the voters will be exposed to the
nonemployer party arguments concerning representation, and helping to
expedite resolution of questions of representation by preventing
challenges based solely on ignorance of the identities of the voters.
The objections that disclosure of the additional information could
lead to harassment and coercion of
[[Page 74342]]
employees \158\ are similar to arguments presented to the Excelsior
Board. Commenters have failed to persuade us that the Board's response
then is any less valid today:
---------------------------------------------------------------------------
\158\ See, e.g., SHRM; CDW; NRF; PIA; ALG.
[W]e reject the argument that to provide the union with employee
names and addresses subjects employees to the dangers of harassment
and coercion in their homes. We cannot assume that a union, seeking
to obtain employees' votes in a secret ballot election, will engage
in conduct of this nature; if it does, we shall provide an
appropriate remedy. We do not, in any event, regard the mere
possibility that a union will abuse the opportunity to communicate
with employees in their homes as sufficient basis for denying this
---------------------------------------------------------------------------
opportunity altogether.
156 NLRB at 1244 (footnote omitted). With the benefit of almost fifty
years of post-Excelsior experience, it is clear that the harm to
employees forecast by the decision's opponents did not come to pass.
The Board will not make policy based on mere speculation of misconduct
and abuse, particularly where, as a matter of the Board's decades of
experience, such abuse is unlikely.\159\
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\159\ See also NLRB v. Delaware Valley Armaments, Inc., 431 F.2d
494, 499-500 (3d Cir. 1970) (noting that mere possibility of
harassment is not enough to invalidate directive to furnish
Excelsior list), cert. denied, 400 U.S. 957 (1970); NLRB v. Q-T Shoe
Mfg. Co., 409 F.2d 1247, 1250 & n. 9, (3d Cir. 1969) (``it hardly
appears likely that union agents will unduly harass any employee,
since their objective is to obtain support rather than arouse
hostility * * *. The mere possibility of such harassment is surely
not a sufficient ground for invalidating a rule designed to achieve
greater enlightenment''); NLRB v. Hanes Hosiery Division--Hanes
Corp., 384 F.2d 188, 191 (4th Cir. 1967) (``every annoyance of the
voters is shunned by the seasoned campaigner, and unions are not
novices in this area''), cert. denied, 390 U.S. 950 (1968).
---------------------------------------------------------------------------
Nevertheless, the Board is cognizant that advances in technology
since Excelsior have created a heightened risk of unauthorized
dissemination of personal information, and comments have stressed the
public's increased concern with privacy issues due to incidents of
identity theft, government surveillance and hacking of retailers'
electronic databases.\160\ However, here, as in Excelsior, and other
areas of the law, the risk of harm must be balanced against other
legitimate considerations that also warrant protection. Cf. Canadian
American Oil Co. v. NLRB, 82 F.3d 469, 473-75 (D.C. Cir. 1996)
(confidentiality interest of employees claiming union threats yielded
to union's interest to confront the evidence offered in support of the
objection at the hearing); NLRB v. Herbert Halperin Distributing Corp.,
826 F.2d 287, 293 (4th Cir. 1987) (confidentiality interest of
employees claiming union threats did not justify objecting party's
transmitting the employees' affidavits to the Board without also
serving them on the union); Seth Thomas Div., 262 NLRB 715, 715 n.2
(1982) (same).
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\160\ See, e.g., Chamber II; SHRM II; Brent Jones II; Marna
Skripko II.
---------------------------------------------------------------------------
Therefore, even assuming that the privacy, identity theft, and
other risks may be greater than the Board has estimated--and, in
particular, that adding personal email addresses and home and personal
cell phone numbers to home addresses may, in combination, result in
increased risks, especially as technology changes--nevertheless the
Board's conclusion remains the same. These risks are worth taking and
as a practical matter, must be taken, if communication about
organizational issues is going to take place using tools of
communication that are prevalent today. Email and cell phones are ever
increasing the modes by which people communicate; this continuing
expansion in the use of new electronic media demonstrates that the
risks associated with these speedy and convenient tools are part of our
daily life.
The Board therefore disagrees with the assertion of Constangy, that
the mere potential for misuse of the voter list information outweighs
any benefit gained by the disclosures. Nonetheless, we emphasize that
if the disclosure of the additional contact information does subject
employees to harm, the Board ``shall provide an appropriate remedy''
Excelsior, 156 NLRB at 1244, as discussed further below.
Likewise, the Board is not persuaded that SHRM's raw citation of
unfair labor practice charges alleging union coercion evidences a
problem with communication resulting from current Excelsior
disclosures. The charges cited are not linked to misuse of Excelsior
list information but, rather, include the entire range of coercive
union conduct, including when that union is already acting as an
employees' bargaining representative. The Board is skeptical that a
union seeking to persuade employees to select it as a bargaining
representative would tend to act coercively toward those employees, and
the statistics cited by SHRM--which do not purport to focus on whether
the charges were filed in a representational context or had any
relationship to the Excelsior list information, much less whether they
had merit \161\--do not undermine the Board's view on the issue.
---------------------------------------------------------------------------
\161\ Over the past 3 years, just over one third of all charges
were found to have merit. See NLRB Performance Accountability
Reports 2011-2013, http://www.nlrb.gov/reports-guidance/reports
(reporting merit rates of 35.2% in FY 13, 36.4% in FY 12, and 37% in
FY 11).
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Moreover, the dearth of specific and documented incidents of
alleged misuse of employee contact information cited in the comments
lends additional support to our conclusion that such misuse has not
been a significant problem in the past, and is unlikely to be a problem
in the future. Thus, in the two rounds of critical commentary on the
voter list proposals, several years apart, the Board was presented with
no documentation demonstrating misuse of contact information provided
in voter lists by petitioning unions during the nearly 50 years in
which the Board's Excelsior policy has been in place.\162\ However,
despite the absence of any examples of that kind of abuse, the Board
recognizes that the potential for such abuse exists. For example, RILA
II mentioned--without citation--one case in which a decertification
petitioner allegedly received pornography mailed to his home. Yet, even
in that case, Doreen Davis (testifying on behalf of RILA) reported that
the NLRB appropriately set aside the subsequent election and ordered it
to be rerun.\163\ See RILA II. And when William Messenger (testifying
on behalf of NRTWLDF) discussed another incident where union members
allegedly harassed a dissident coworker by mailing magazine
subscriptions to the coworker's home address, he admitted that the
employee contact information at issue was not made available pursuant
to the Board's Excelsior policy. In sum, the Board agrees with comments
by the AFL-CIO II,\164\ Melinda Hensel
[[Page 74343]]
(Testimony on behalf of the International Union of Operating Engineers
(IUOE), Local 150 II) and Thomas Meiklejohn (Testimony on behalf of
Livingston, Adler, Pulda, Meiklejohn & Kelly II) who noted the lack of
evidence demonstrating voter list misuse.
---------------------------------------------------------------------------
\162\ Indeed, our examination of the data contained in the last
decade of the Board's use of its Case Activity Tracking System
(CATS) further confirms the lack of evidence that unions are
generally coercing and intimidating employees during organizing
campaigns, or specifically misusing information from Excelsior
lists. The data reveals that out of 24,681 representation elections
conducted between fiscal years 2000 and 2010, employers filed
objections involving allegations of union threats and/or violence in
469 cases, and the election result was set aside by the Board on
only 16 occasions. Nothing in the Board's database indicates that
any of these 16 cases involved the misuse of Excelsior information,
but even if the Board were to assume that it did, a record of union
coercion sufficient to set aside an election in 0.065% of elections
over a recent 10-year span simply does not demonstrate that ``union
coercion and intimidation in the context of an organizing campaign
is rampant'' as argued by SHRM. (This data has not been updated
through 2013 because it is not readily available for 2011-2013 in
the Board's new NxGen case tracking software which replaced CATS in
2011.)
\163\ We also note that a decertification petitioner's address
appears on the face of the petition itself, which is a public
document. Thus, there was no allegation that Excelsior list
information played any role in the case cited by Davis.
\164\ The AFL-CIO's 2014 comment asserted that ``despite this
extensive experience [with the existing Excelsior policy], neither
the Board nor any party that commented on the prior NPRM or
testified at the prior hearing could point to a single, specific
instance where an eligibility list was misused or even used for a
purpose unrelated to the representation proceeding.''
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In a similar vein, the Board, contrary to Con-way's comment, does
not believe that disclosure of employee phone numbers will jeopardize
truck drivers' safety by potentially interrupting their mandated work
breaks. The final rule does not require the employer to disclose the
employees' work phone numbers to the nonemployer parties. Nothing in
the final rule requires individuals to keep the their home or personal
cell phone ringers on ``loud,'' let alone requires them to take calls.
Moreover, cell phones are especially effective in showing the identity
of the caller, or at least whether the caller is known or unknown, so
that the recipient may exercise an informed choice in answering or not.
The Board trusts that after the final rule becomes effective, truckers
will be able to exercise discretion in fielding incoming union calls
during their breaks should any occur, just as they exercise discretion
in fielding other kinds of calls now.\165\
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\165\ The Board likewise disagrees with Fern Netzky's
unsupported assertion that the voter list will violate attorney-
client privilege. The Board fails to see how the new requirements,
any more than the existing Excelsior requirements, would force
employers to reveal confidential communications made to counsel in
order to secure legal advice.
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The Board acknowledges, however, the concern raised by many
comments that the disclosure of the additional contact information
could harm employees by impinging on their privacy.\166\ To one way of
thinking, such privacy concerns should be more pronounced surrounding
an employee's home address--long disclosable under Excelsior--than for
the additional contact information (phone numbers and email addresses)
disclosable by virtue of the voter list amendments. After all,
disclosure of home addresses may lead to face-to-face contact between
union and employee organizers and an employee at the employee's home,
whereas disclosure of employee phone numbers or email addresses may
simply lead to phone calls or email messages, which are more easily
ignored.\167\ Indeed, to the extent that disclosure of employee email
and phone contact information lessens the likelihood that union
organizers will seek to engage them in face-to-face dialogues
concerning representation,\168\ then those disclosures would arguably
mitigate the most serious incursions on employee privacy.
---------------------------------------------------------------------------
\166\ See, e.g., Chairmen Kline and Roe II; Klein II; COLLE;
SIGMA; RILA; ACE; COSE; Ann Pomola.
\167\ See, e.g., UFCW II; Chairman Harkin, Senior Member Miller
and Congressional Democrats; AFL-CIO II; SEIU II; United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry (UAJAPPFI) II; Nicole Teixeira II.
\168\ As IUOE attorney Melinda Hensel explained: ``The days of
union visits to people's homes I think are--I wouldn't say it's
over, but I think it's a much less popular manner of organizing
these days.'' Testimony II.
---------------------------------------------------------------------------
On the other hand, the Board recognizes that some labor
organizations may elect to contact employees via telephone and email in
addition to, rather than instead of, contacting them at home. Further,
the Board acknowledges that some employees will consider disclosure of
the additional contact information--particularly email addresses and
cell phone numbers which may not be readily accessible through public
directories--to invade their privacy, even if they are never
contacted.\169\ Moreover, at least two commenters make the
counterintuitive claim that including personal email addresses and
phone numbers on voter lists constitutes a bigger invasion of privacy
than including home addresses because employees have less control over
unwanted email and phone calls than they do over unwanted visitors at
their front door.\170\ Although the courts ``have differed in their
characterization of the magnitude of the interest[s] implicated,'' U.S.
Dept. of Defense v. FLRA (``DOD v. FLRA''), 510 U.S. 487, 501 n.8
(1994), the Supreme Court has held, for example, ``that [employees]
have [a] nontrivial privacy interest in nondisclosure'' of home address
information. Id. at 501.\171\
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\169\ Of course, the rule only impacts contact information that
the employee has already disclosed to the employer. Any information
which the employee kept private from the employer will also be kept
private from other parties to the proceeding. As discussed above, if
an employee has chosen not to share a personal email address or cell
phone number with her employer, the employer will not be able to
disclose it to the other parties--and the amendments do not require
the employer to ask the employee for it. In this way, employees have
some control over whether their contact information is utilized by
employers or nonemployer parties concerning the campaign.
\170\ See Testimony of Doreen Davis on behalf of RILA II;
Testimony of William Messenger on behalf of NRTWLDF II.
\171\ Compare DOD v. FLRA, 510 U.S. at 501 n.8 (noting that
courts of appeals have variously characterized employees' privacy
interests in their home addresses as ``important,'' ``minimal,''
``general,'' and ``significant'') and id. at 506-07 & n.4 (Ginsburg,
J., concurring) (noting that ``most courts'' have found that
employees have only a ``relatively modest'' privacy interest in
their home addresses) with Electronic Frontier Foundation v. Office
of the Director of National Intelligence, 639 F.3d 876, 888 (9th
Cir. 2010) (characterizing agent's privacy interest in his email
address as ``minor''). See also In re Deloitte & Touche, LLP,
Overtime Litigation, 2012 WL 340114 (S.D.N.Y. Jan. 17, 2012) (not
reported) (characterizing the disclosure of class member phone
numbers as ``routine'', including personal email as not unduly
intrusive on employee privacy concerns, and collecting similar cases
ordering such disclosures).
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In our view, however, many features of the voter list amendments
help to minimize any invasion of employee privacy caused by disclosure
of the information. The disclosure of information is limited in a
number of key respects. The information itself is limited in scope. It
is available only to a limited group of recipients, to use for limited
purposes. These limitations persuade us that the substantial public
interests--in fair and free elections and in the speedy resolution of
questions of representation--served by the voter list amendments
outweigh the employees' acknowledged privacy interest in the
information that will be disclosed.
First, the information is limited in scope. Plainly, not every
piece of personally identifiable information is equally sensitive or
entitled to the same weight when balanced against the interests served
by disclosure.\172\ We do not equate disclosure of employee email
addresses and phone numbers, for example, with disclosure of employee
medical records. Indeed, in Detroit Edison Co. v. NLRB, 440 U.S. 301,
318-19 & n.15 (1979), the Supreme Court explicitly noted that the
``interests at stake'' in Wyman-Gordon--where the Court upheld the
Board's Excelsior requirement that an employer disclose the names and
addresses of employees to a union in the process of an organizing
campaign--were ``far different'' from those at stake when for purposes
of arbitrating a grievance an incumbent union seeks highly sensitive
information going to an employee's basic competence such as aptitude
test scores linked to named employees. While email addresses, phone
numbers, work locations, shifts, and job classifications constitute
additional pieces of information, they are not fundamentally different
in kind from
[[Page 74344]]
the disclosures discussed in Wyman-Gordon, and standing alone, may
reasonably be viewed as less private.\173\
---------------------------------------------------------------------------
\172\ Cf. U.S. Department of Commerce, ``Guide to Protecting the
Confidentiality of Personally Identifiable Information (PII):
Recommendations of the National Institute of Standards and
Technology, Special Publication 800-122'' (2010) http://csrc.nist.gov/publications/nistpubs/800-122/sp800-122.pdf at E-2
through E-3 (``Organizations should evaluate the sensitivity of each
individual PII data field. For example, an individual's SSN or
financial account number is generally more sensitive than an
individual's phone number or ZIP code.'').
\173\ See, e.g., SEIU II (pointing out that per the published
standards of the NLRB (http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1673/electronic_filings.pdf) and the
D.C. Federal courts (http://www.dcd.uscourts.gov/dcd/civil_privacy_notice; https://ecf.cadc.uscourts.gov/) individual
email addresses are not treated as sensitive personal information
that must be deleted from documents before they are filed
electronically).
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Furthermore, disclosure of the employees' email addresses, phone
numbers, work locations, shifts, and job classifications reveals
nothing about the employees' politics, their religion, their
associations, or even their position regarding the labor organization
in question.\174\ Employees will not have their contact information
disclosed because they engaged in any particular expressive activity.
Rather, their information will be disclosed solely by virtue of their
being employed in a unit in which a question of representation has
arisen that will be resolved by a secret ballot election conducted by
the Board. The voter list disclosures will not reveal employees'
personal beliefs that they might prefer to keep to themselves. Instead,
the amendments merely require disclosure of information which will
enable the nonemployer parties to contact the employees outside of the
workplace to provide information about the voting issues, determine
whether the employer properly included such employees on the voter
list, and investigate post-election objections and prepare for Board
proceedings arising out of the election and related matters.
---------------------------------------------------------------------------
\174\ For example, the Supreme Court recently justified
requiring police officers to seek warrants before searching
arrestees' cell phones by explaining the vast quantity of private
information that may now be found on modern cell phones. Riley v.
California, No.13-132, 134 S.Ct. 2473 (June 25, 2014). Yet none of
that information would be accessible to petitioners merely through
receipt of individual phone numbers.
---------------------------------------------------------------------------
Second, the voter list information will be provided to a limited
set of recipients. It will not be made available to the public at
large. Nor will it even be made available to the nonemployer parties in
every representation case. Thus, the Board has not, does not, and will
not allow ``indiscriminate'' disclosure of employee information to
petitioning unions, as charged by NRF. The Board's showing of interest
requirement specifically safeguards against such ``indiscriminate''
disclosures. See Local 3, IBEW v. NLRB, 845 F.2d 1177, 1181 (2d Cir.
1988) (noting that showing of interest requirement was part of
Excelsior's balancing of public and private interests); see also Big Y
Foods, Inc., 238 NLRB 855, 855 n.4 (1978) (showing of interest
requirement safeguards against the indiscriminate institution of
representation proceedings). Moreover, the employer is not required to
furnish the list to a petitioning union or a decertification petitioner
until after the employer admits that a question of representation
exists by entering into an election agreement or the regional director
finds that a question of representation exists after a pre-election
hearing. Indeed, as discussed below in connection with Sec. 102.63,
the Board has rejected SEIU's suggestion that employee contact
information be provided to the nonemployer parties before an election
is directed, as part of the employer's pre-hearing statement of
position. In addition, the Agency will continue its current practice of
determining voter lists to be categorically exempt from disclosure to
non-party FOIA requesters. See Reed v. NLRB, 927 F.2d 1249, 1252 (D.C.
Cir. 1991).\175\
---------------------------------------------------------------------------
\175\ Thus, we reject the ATA's claim that the voter list
amendments create ``difficulties * * * under * * * FOIA.''
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Third, even when the voter list information is disclosed to the
nonemployer parties in a particular case, such parties will not be able
to use it for whatever purpose they desire. Rather, they will only be
allowed to use employee contact information for limited purposes. As
discussed below, the final rule provides that ``parties shall not use
the list for purposes other than the representation proceeding, Board
proceedings arising from it, and related matters.'' Thus, employees
need not fear that their contact information, once disclosed, will be
shared with or sold to entities having nothing to do with the
representation proceeding. And should such misuse of the list occur,
the Board will provide an appropriate remedy, as discussed further
below.
Finally, any infringement into employees' personal sphere enabled
by the disclosure requirement in the final rule will likely be of
relatively limited duration. As discussed below in connection with
Sec. 102.67, the final rule also eliminates the mandatory 25-day
waiting period between issuance of a decision and direction of election
and the holding of the election. Accordingly, the time period between
the employer's production of the voter list and the election may be
shorter than that which existed prior to the amendments in at least
some directed election cases. And parties are likely to agree to a
shorter time period between the employer's production of the voter list
and the election in at least some stipulated election cases, because
bargaining about election details in the election agreement context is
influenced by the parties' estimation of how soon the regional director
could conduct an election if the parties were to go to a hearing. Thus,
while some employees may certainly prefer not to receive calls or
emails from the nonemployer parties, we note that such communications
may not continue beyond the period of the representation proceeding at
issue and Board proceedings arising from that election and related
matters.\176\
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\176\ Moreover, in only very few cases do employers refuse to
bargain in order to test the validity of the certification. From FY
2008 to FY 2013 between 8 and 18 test of certification cases were
filed each year in the U.S. Circuit Courts of Appeals. Thus, in the
great majority of representation cases which are definitively
resolved without resort to the courts of appeals, the nonemployer
party is unlikely to use the voter list data after the election in
the absence of unfair labor practice or other related proceedings.
---------------------------------------------------------------------------
Accordingly, as previously discussed, just as the Board's
longstanding Excelsior rule reflects a reasonable balance of the
conflicting legitimate interests in the context of that era, so the
Board's update of its policies similarly reflects a reasonable balance
of risk and benefit that is well adapted to contemporary modes of
communication. Moreover, the rule reasonably advances the public
interest in the timely resolution of questions of representation by
enabling the parties on the ballot to avoid having to challenge voters
at the polls based solely on lack of knowledge as to the voter's
identity. These important interests are sufficient to counterbalance
the interests of those who would prefer to be left entirely alone and
not be exposed to the issues raised by an organizing campaign.
Some comments, such as those filed by SHRM, ACE and the NRF, argue
that FOIA case law demonstrates that employees have such a substantial
privacy interest in their home addresses and email addresses that the
Board should abandon the voter list proposals. For example, NRF argues
that the Supreme Court recognized in DOD v. FLRA, 510 U.S. at 501, that
``even though the disclosure of personal email addresses may facilitate
union communications, employees nevertheless enjoy a right not to be
bothered in their personal environment with work-related matters.''
After careful consideration of the comments, we conclude that DOD
v. FLRA does not undermine the Board's position that it is appropriate
to require employers to furnish the voter list information directly to
the nonemployer parties. Put simply, the propriety of the
[[Page 74345]]
Board's requiring employers under its jurisdiction to disclose employee
contact information directly to a union after an election has been
agreed to or directed under the NLRA--in order to advance the public
interests in free and fair elections and the expeditious resolution of
questions of representation--was not before the Court in that case.
Rather, the issue before the Court there was whether Federal agency
employers subject to the Federal Service Labor-Management Relations
Statute could lawfully refuse to furnish the home addresses of their
employees to the unions which already represented them, because the
Privacy Act would otherwise bar the employers, as governmental
entities, from disclosing their employees' home addresses. See id. at
490-94.
DOD v. FLRA involved a ``convoluted path of statutory cross-
references.'' Id. at 495. As the Court noted, the Privacy Act provides
that ``No agency shall disclose any record which is contained in a
system of records * * * to any person * * * unless disclosure of the
record would be * * * required under section 552 of [FOIA].'' Id. at
493-94. The employee addresses that the incumbent unions sought the
Federal agencies to disclose were ``records'' covered by the Privacy
Act, and therefore the agencies were forbidden from disclosing them by
the Privacy Act unless FOIA required release of the addresses. Id.
As the Court observed, ``while `disclosure [of government
documents], not secrecy, is the dominant objective of [FOIA],' there
are a number of exemptions from the statute's broad reach.'' Id. at 494
(citation omitted). The Court then considered Exemption 6, which
provides that FOIA's disclosure requirements do not apply to personnel
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy. Id. at 494-95 (citing 5 U.S.C.
552(b)(6)).
In determining whether disclosure of the home addresses to the
incumbent unions would constitute a clearly unwarranted invasion of the
personal privacy of the unit employees within the meaning of FOIA, the
Court explained that a court must balance the public interest in
disclosure against the interest Congress intended the exemption to
protect. Id. at 495. However, as the Court explained, there is only one
``relevant `public interest in disclosure' to be weighed in this
balance'': Namely whether the information to be disclosed would
contribute significantly to letting the public know what the government
is up to. Id. at 495, 497 (citation omitted). By definition, that
purpose is not served by disclosure of information about private
citizens that is in governmental files but that reveals little or
nothing about an agency's own conduct. Id. at 496-97.
The Court found that disclosure of employee home addresses ``would
reveal little or nothing about the employing agencies or their
activities,'' even though it would be useful for the union to have the
information for bargaining purposes. Id. at 497. In short, because
disclosure of the employees' home addresses would not serve ``the only
relevant [FOIA-related] public interest in disclosure'' in that case,
the ``nontrivial'' privacy interest employees have in their home
addresses sufficed to outweigh the ``negligible FOIA-related public
interest in disclosure.'' Id. at 495, 501-02. Accordingly, the Court
concluded FOIA did not require the agencies to divulge the addresses,
and the Privacy Act therefore prohibited their release to the unions.
Id. at 502.
However, the final rule's requirement that a private sector
employer disclose voter list information directly to the nonemployer
parties to a representation case does not run afoul of the Privacy Act,
and the relevant public interests favoring disclosure of the voter list
information are entirely different from the only ``relevant'' public
interest favoring disclosure in DOD v. FLRA. As the Court explicitly
recognized in DOD v. FLRA, ``unlike private sector employees, Federal
employees enjoy the protection of the Privacy Act'' with respect to
their employer's disclosure of information about them.\177\ Id. at 503.
Put simply, private sector employers' disclosure of the voter list
information to the nonemployer parties does not implicate the Privacy
Act because the Privacy Act does not apply to such employers. See also
DOJ Overview of the Privacy Act of 1974 at 5 (2012) (DOJ Overview),
http://www.justice.gov/sites/default/files/opcl/docs/1974privacyact-2012.pdf (``The Privacy Act * * * applies only to a Federal
`agency'.'') Accordingly, unlike in DOD v. FLRA, the Privacy Act would
not otherwise bar private sector employers from disclosing the voter
list information to the nonemployer parties to representation cases
unless disclosure were required by FOIA.
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\177\ The Board notes that the United States Postal Service, as
an employer, is uniquely subject to both the Privacy Act and the
NLRA. But it has not been exempt from disclosing employee
eligibility lists to petitioning unions under Excelsior, see NLRB v.
U.S. Postal Serv., 790 F. Supp. 31, 33 (D.D.C. 1992), and did not
provide any comment in this proceeding, much less a suggestion that
it would be exempt from the present amendments. We therefore trust
that the Postal Service will, in the first instance, seek to
harmonize its duties under the two Federal statutes.
---------------------------------------------------------------------------
As also shown, the voter list amendments are designed to advance
the public interests in free and fair elections as well as the prompt
resolution of questions of representation--interests entirely different
from the single relevant public interest FOIA is designed to advance.
And the public interests in free and fair elections and in the prompt
resolution of questions of representation are indeed advanced by
requiring employers to disclose the voter list information to the
nonemployer parties to representation cases once elections have been
agreed to or have been directed. Thus, the public interests in favor of
disclosure of the voter list information are not ``negligible, at
best'' as was the case in DOD v. FLRA, 510 U.S. at 497.
In short, we conclude that nothing in DOD v. FLRA calls into
question the propriety of the voter list amendments requiring employers
to furnish information about its employees to the nonemployer parties
after an election has been agreed to by the parties or directed by the
regional director. To the contrary, the Court recognized there that
private sector unions covered by the NLRA occupy a different position
from their Federal sector counterparts. Id at 503. See also id. at 506
(Ginsburg J. concurring) (noting that private sector unions covered by
the NLRA ``routinely receive'' employees' home addresses and citing
NLRB v. Wyman-Gordon for the proposition that the Board may require an
employer ``to disclose [employees'] names and addresses before
election[s].'')
Similarly, Electronic Frontier Foundation v. Office of the Director
of National Intelligence, 639 F.3d 876 (9th Cir. 2010), cited by SHRM
among others, is, in relevant part, simply a routine FOIA Exemption 6
case, in which disclosure is not required if the information sought
does not advance FOIA's interest in government transparency--the sole
interest relevant to the court's analysis. That case involved FOIA
requests for information relating to governmental discussions with
telecommunication carriers about proposals to immunize the carriers for
their role in government surveillance activities. Id. at 880-81, 885-
89. To be sure, the court held that the email addresses of the
carriers' lobbyists were exempt from disclosure under Exemption 6, but
this was because disclosure of the lobbyists' email addresses--as
opposed to the lobbyists' names--would reveal little or nothing about
the government's conduct. Id. at
[[Page 74346]]
888-89. As the court explained, disclosure of the email addresses--as
opposed to the names--would not shed light on who the government was
meeting with in deciding whether to immunize telecommunication carriers
for their role in the government surveillance activities. Id. at 888.
Accordingly, it was only because the sole relevant public interest in
favor of disclosure under FOIA would not be advanced by disclosure that
the lobbyists' privacy interest in their email addresses prevailed. Id.
at 888-89.\178\ As noted above, the balancing of privacy and public
interests in this context is quite different from that under FOIA.
---------------------------------------------------------------------------
\178\ It bears mentioning that, contrary to SHRM's suggestion
that the court found that lobbyists have a ``substantial privacy
interest'' in their email addresses, the court actually concluded
that the lobbyists have only a ``minor privacy interest'' in the
email addresses. See id. at 888 (``If, however, a particular email
address is the only way to identify the carriers' agent at issue
from the disputed records, such information is not properly withheld
under Exemption 6 because this minor privacy interest does not
counterbalance the robust interest of citizens' right to know `what
their government is up to.' '' (citation omitted)).
---------------------------------------------------------------------------
Nonetheless, given the comments claiming that the Board's proposals
violate the Privacy Act,\179\ the Board has carefully considered
whether and how the Privacy Act could be implicated by the voter list
amendments. The Board notes that the voter list amendments require the
employer to furnish a copy of the voter list to the regional director.
See amended Sec. Sec. 102.62(d) and 102.67(l). But, as discussed in
connection with Sec. 102.67 below, the final rule does not
anticipate--contrary to the original NPRM proposal--that the regional
director will attempt to serve employees directly with the notice of
election. Thus, the agency's use of the list will simply be the
traditional one of allowing the Board agent conducting the election to
verify individuals' identification as they arrive to vote at the polls.
Morever, if the list is retrieved electronically, it will be by the
employer's name or case number, and not individual voters' names.
---------------------------------------------------------------------------
\179\ See Allen LeClaire; Robert Mills II.
---------------------------------------------------------------------------
The Privacy Act generally only applies to ``records'' that are
maintained by an agency within a ``system of records.'' See, e.g.,
Baker v. Dep't of Navy, 814 F.2d 1381, 1383 (9th Cir. 1987). A piece of
information is only a ``record'' if it contains information about an
individual. And it is generally only considered to be maintained in a
``system of records'' if two conditions are met: (1) the record is
maintained in a format that makes it possible for agency employees to
locate it by searching according to a name or other personal
identifier, and (2) agency employees actually do retrieve records in
this manner. DOJ Overview of the Privacy Act of 1974 at 28 (2012) (DOJ
Overview), http://www.justice.gov/sites/default/files/opcl/docs/1974privacyact-2012.pdf. ``The highly technical `system of records'
definition is perhaps the single most important Privacy Act concept,
because * * * it makes coverage under the [Privacy] Act dependent upon
the method of retrieval of a record rather than its substantive
content.'' DOJ Overview at 30. The OMB has provided the following
illustration of this concept:
For example, an agency record-keeping system on firms it
regulates may contain ``records'' (i.e., personal information) about
officers of the firm incident to evaluating the firm's performance.
Even though these are clearly ``records'' [``]under the control of''
an agency, they would not be considered part of a system as defined
by the Act unless the agency accessed them by reference to a
personal identifier (name, etc.). That is, if these hypothetical
``records'' are never retrieved except by reference to company
identifier or some other nonpersonal indexing scheme (e.g., type of
firm) they are not a part of a system of records.
OMB Privacy Act Guidelines, 40 FR 28948, 28952 (July 9, 1975).\180\
---------------------------------------------------------------------------
\180\ Subsection (v) of the Privacy Act requires the Office of
Management and Budget (OMB) to: (1) ``Develop and, after notice and
opportunity for public comment, prescribe guidelines and regulations
for the use of agencies in implementing'' the Act; and (2) ``provide
continuing assistance to and oversight of the implementation'' of
the Act by agencies. 5 U.S.C. 552a(v). Because ``Congress explicitly
tasked the OMB with promulgating guidelines for implementing the
Privacy Act, [the courts] give the OMB Guidelines the deference
usually accorded interpretation of a statute by the agency charged
with its administration.'' Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1120 (D.C. Cir. 2007) (internal quotation marks omitted).
---------------------------------------------------------------------------
In short, records are only within a Privacy Act ``system of
records'' if ``an agency has an actual practice of retrieving
information by an individual's name'' or other personal identifier.
Henke v. Dep't of Commerce, 83 F.3d 1453, 1459 (D.C. Cir. 1996).
``[R]etrieval capability is not sufficient to create a system of
records.'' Id. at 1460. And a ``practice of retrieval by name or other
personal identifier must be an agency practice to create a system of
records and not a practice by those outside the agency,'' McCready v.
Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006) (internal quotation marks
omitted), such as the nonemployer parties to an election.
Applying these principles to the voter list amendments, the Board
concludes that it will not retrieve information from voter lists by use
of individuals' names or other personal identifiers (rather, it will
only be retrieved electronically via the name of the employer or case
number), and therefore, although the voter lists will generally be
produced in an electronic format that will theoretically be searchable
by employees' names, the voters lists are not part of a ``system of
records'' within the meaning of the Privacy Act. Accordingly, nothing
about the voter list amendments can reasonably be viewed as violating
the Privacy Act.
Multiple comments urge a variety of means by which the Board should
protect employees' privacy interests: (1) Require that employees must
affirmatively indicate that they are willing to have their personal
contact information shared with the parties on the ballot before it
requires the employer to disclose that information; \181\ (2) allow
employees the opportunity to opt out of such disclosures; \182\ (3)
mandate that contact information be obtained directly from employees
themselves instead of from the employer; \183\ or (4) require that the
Board host opportunities for electronic contact between petitioners and
employees through some type of protected communications portal.\184\ We
have consistently rejected similar proposals in the past. In Excelsior,
the Board was not swayed by the ``argu[ment] that if employees wished
an organizing union to have their names and addresses they would
present the union with that information.'' 156 NLRB at 1244. And in
British Auto Parts, Inc., we rejected an employer's attempt to comply
with Excelsior by informing its employees that the Board had requested
their names and addresses and providing them with ``an envelope
addressed to the Regional Director for * * * employee[s'] use in
submitting the information should [they] desire to do so.'' 160 NLRB
239, 239 (1966). The Board has recognized that even unsolicited contact
by the union remains an important part of the basic Section 9 process.
See Excelsior, 156 NLRB at 1244. Indeed, a wide open debate cannot take
place unless employees are able to hear all parties' views concerning
an organizing campaign--even views to which they may not be predisposed
at the campaign's inception. And as explained above, we have concluded
that
[[Page 74347]]
disclosure of available personal email addresses and telephone numbers
is just as critical to the holding of fair and free elections and to
the expeditious resolution of questions of representation in 2014 as
was disclosure of home addresses in the 1960s. Thus, it would hardly be
consistent with the policy underlying Excelsior--ensuring that
employees receive sufficient information from the nonemployer party to
make an educated decision--to begin allowing employees to opt in or opt
out of such disclosures.
---------------------------------------------------------------------------
\181\ See, e.g., ACE; CNLP; Senator Alexander and Republican
Senators II; National Grocer's Association (NGA) II.
\182\ See, e.g., Baker & McKenzie LLP; COSE; Anchor Planning
Group; SHRM II.
\183\ See, e.g., Gregg Stackler; Harold Kapaun; Kimberley
McKaig; Greg Smith II.
\184\ See, e.g., MEMA II; Vigilant II; IFA II.
---------------------------------------------------------------------------
Nevertheless, the Board is mindful that the disclosures in the
final rule go further than those at issue in the original Excelsior
decision, and so we have considered whether a different balance should
be struck. After thoroughly considering the issue, however, we have
concluded that notwithstanding the additional information to be
disclosed under the amendments, the public interests in fair and free
elections and in the prompt resolution of questions of representation
outweigh employee privacy interests and that creation of an opt-in or
opt-out procedure, or an agency-hosted protected communications portal,
would harm those public interests and, in some cases, impose
significant administrative burdens on the government and the parties.
Just as was the case under the prior rules, the voter list
information is not due until soon after the parties have entered into
an election agreement in a unit appropriate for collective bargaining,
or the regional director has directed that an election be held in an
appropriate unit. In either event, congressional policy is clear that
representation elections should be conducted with the utmost
expedition.\185\ Yet, typical opt-in or opt-out requirements would
further delay the election's conduct. Such delay would arise, for
example, if extra time were allotted between an election's direction
and its conduct for communication with the subject employees concerning
their ability to opt in or out of disclosing their email addresses or
phone numbers because until the parties agree to any election, or the
director directs an election, the unit in which the election is to be
conducted is not known. Accordingly, not every relevant employee could
be contacted regarding opting in or out until after the election
agreement was reached or the director directed an election. Employees
would then need some additional reasonable period of time to make their
choices.\186\ Still more time would be required for compiling those
preferences and producing a voter list (which respects those
preferences) for use by the nonemployer parties to the case. And of
course, the nonemployer parties would have to be afforded time to make
use of the information with respect to the employees who have opted in.
Such a system could well prove to be administratively difficult,\187\
and even if operating smoothly could delay the election by many days or
weeks.
---------------------------------------------------------------------------
\185\ As the Supreme Court held in NLRB v. A.J. Tower, the Board
must ``promulgate rules and regulations in order that employees'
votes may be recorded accurately, efficiently and speedily.'' 329
U.S. 324, 331 (1946). Again, Congress knew that the Board would need
flexibility in crafting procedures, and noted ``the exceptional need
for expedition'' in representation cases when exempting them from
the APA's adjudication provisions. Senate Committee on the
Judiciary, comparative print on revision of S. 7, 79th Cong., 1st
Sess. 7 (1945) (discussing 5 U.S.C. 554(a)(6)); see also NLRB v. Sun
Drug Co., 359 F.2d 408, 414 (3d. Cir. 1966) (Congress insulated
representation cases from direct review because ``[t]ime is a
critical element in election cases''). Long before the NPRM, Section
11302.1 of the Agency's Casehandling Manual reflected this
congressional directive of timely elections, stating that ``[a]n
election should be held as early as is practical.'' Similarly, Sec.
102.67(b) of the final rule provides that ``[t]he regional director
shall schedule the election for the earliest day practicable
consistent with these rules.''
\186\ Marvin Kumley suggests that employees be given at least 30
days to opt in, and further suggests that opt-in notices be posted
in the Federal Register and local newspapers as a matter of course.
\187\ The Excelsior Board rejected a similar suggestion that
employee names and addresses be provided to a third party mailing
service for distribution of union campaign literature due, in part,
to the ``difficult practical problems'' that would be created by
such an arrangement. 156 NLRB at 1246.
---------------------------------------------------------------------------
Moreover, if the regional director were assigned the responsibility
to contact the employees to ascertain whether they wished their contact
information to be shared with the union, the regional director could
not do so unless and until the employer revealed the employees' contact
information to the regional director. Yet, presumably at least some of
the employees who object to having their contact information disclosed
to the nonemployer parties to the case would similarly object to having
their contact information disclosed to the government. And requiring
the regional director to contact each and every unit employee to
ascertain his or her position regarding disclosure of the voter list
information would place a significant administrative burden on the
government.
We are also concerned that any opt-in or opt-out process would
invite new areas of litigation resulting in additional costs to the
parties and the Board. Considering that neither the region, nor the
petitioner would be in a position to administer the opt-in or opt-out
process until after the employer had disclosed employee contact
information, it could be argued that it would be more efficient for the
employer to administer the opt-in or opt-out process. It would be
curious indeed for the Board to create a process which obligated
employers to ask their employees--including those employees who have
deliberately chosen to keep their pro or anti-union sentiments
private--whether they wish to share their contact information with the
union, given that employers could be found to have committed unfair
labor practices by interrogating such employees about their union
sentiments or contacts with the union.\188\
---------------------------------------------------------------------------
\188\ Indeed, multiple parties at the public hearing on April
11, 2014, acknowledged this very problem when discussing employer's
potentially administering an opt-in or opt-out process. See, e.g.,
Testimony of Caren Sencer on behalf of Weinberg, Roger & Rosenfeld
II.
---------------------------------------------------------------------------
In the likely circumstance in which nonemployer parties, when
receiving a voter list indicating that substantial numbers of employees
had chosen not to have their email addresses or phone numbers
disclosed, raise accusations of improper employer coercion of their
employees regarding their choice, investigations would be triggered.
Such proceedings would impose costs on the parties and the government,
and could cause significant delay in conducting the election. Even in a
process in which the employee choices were shielded from employer
knowledge,\189\ however, we would still foresee frequent accusations of
and opportunities for subtle employer pressure to keep contact
information from the petitioning
[[Page 74348]]
union as a fertile area for representation case disputes, requiring the
expenditure of additional regional resources to investigate and for the
parties to litigate, all with the result of pushing resolution of
representation cases further and further into the future.\190\
---------------------------------------------------------------------------
\189\ For example, once all parties have agreed to an election
or the regional director has directed an election, the employer
could be required to post information including the union's (or
decertification petitioner's) email address and phone number to
allow employees to directly contact the union (or decertification
petitioner) if they desired to share their personal email addresses
or phone numbers in order to receive communications from the
nonemployer party concerning the upcoming election, without
informing the employer of their choice. But, as shown, such a
process would require delaying the election to provide sufficient
time for employees to opt in and to allow the nonemployer parties to
make use of the information with respect to those employees who have
opted in.
The Chamber's II similar suggestion of allowing petitioning
unions to create a Web site for employees to visit and then sharing
site information with employees via U.S. mail after employers shared
a traditional voter list of names and home addresses with the
petitioner would involve still more delay, and would, of course,
reduce the likelihood of employees receiving campaign communication
from the petitioning union. Furthermore, the Chamber's proposal
presumes not only internet access for all employees, but also a
level of technological sophistication (i.e. the ability to create
and monitor interactive Web sites) that we think is unrealistic for
many petitioners--particularly low wage workers and small union
locals or individual employees seeking to oust an incumbent union.
\190\ We see similar problems with designing a system in which
the nonemployer parties would, by default, receive only employees'
names and addresses as under the current Excelsior policy, subject
to a showing that email addresses and/or phone numbers are necessary
in a particular case for effective and timely communication with the
employees. If such a showing were required after the nonemployer
parties had already attempted communication via home addresses, then
it would necessarily add a substantial amount of time to the
election process. In the alternative, if the showing were required
preemptively as part of the petition itself, we would be introducing
yet another area for litigation that would have to be decided before
an election could be directed; likely adding time to the pre-
election process, and increasing the chance of post-election appeals
by the losing party, which would serve to lengthen the post-election
process.
---------------------------------------------------------------------------
Moreover, even if employees were questioned whether they wished to
share their contact information with the petitioning union in a
noncoercive manner and even if such an opt-in or opt-out procedure did
not result in additional litigation, we believe that one could conclude
that such a process would require the invasion of employee privacy in
the name of protecting employee privacy. Thus, the opt-in or opt-out
procedure could not be administered in a blind fashion like a secret
ballot election in which no one is forced to vote. Rather, each
employee would have to be asked whether he or she wished to share his
or her contact information with the nonemployer parties, and the
questioning would necessarily result in a list indicating which
employees had authorized their additional contact information to be
shared with the nonemployer parties. In our view, at least some
employees would believe that their answering the question would reveal
their sentiments about whether they wished to be represented for
purposes of collective bargaining by the union. Accordingly, employees
could conclude that the process would expose their private beliefs to
both the party asking the question and to the nonemployer parties who
ultimately receive the voter list.\191\
---------------------------------------------------------------------------
\191\ We do note that it would be possible to require all
employees to designate a single means by which to be contacted--
telephone number, email address, or home address. This approach
would be less likely to reveal employees' views on the question of
union representation. Delays would result, however, as employers
collected employees' designations after the regional director
directed an election or the parties entered into an election
agreement. Such delays could only be avoided by imposing a duty upon
all employers under the Board's jurisdiction to record such employee
choices at the time of hire. But nothing in the final rule creates
such a widespread burden on small employers nationwide to collect
and retain information no matter how remote the possibility may be
that such employers will someday be involved in an NLRB
representation case, and we are reticent to impose such a burden in
this context.
In any event, such an approach would defeat the very purposes
identified in Excelsior, by reducing the chance that voters would be
presented with a nonemployer party's information concerning
representation and the likelihood that the nonemployer parties could
investigate the eligibility of the unknown employees on the
employer's list prior to the election.
---------------------------------------------------------------------------
The Board has also considered whether the rules might mandate that
unions provide an opt-out feature, such as an ``unsubscribe'' option in
bulk emails. But this union-administered approach would do nothing to
allay privacy concerns having to do with the disclosure of contact
information in the first place. It would also be of limited utility,
given the short period during which contacts are most likely to occur
and given that it would be necessary to allow a certain amount of time
for the nonemployer party to update its records. Furthermore, as
discussed below, if they are applicable, the CAN-SPAM Act and Do-Not-
Call Rule may already impose similar requirements in any event. Indeed,
some union comments stressed that it was already their organizers'
practice to cease contacting employees when so requested,\192\ and that
unsubscribe features are included in bulk email messages and texts as a
matter of course.\193\ For all these reasons, the Board's attempting to
craft a universally applicable opt-out requirement unique to Board
elections would have highly uncertain benefits at a cost of generating
new election disputes and possible conflicts with other Federal
regulation of the same subject matter. On balance, the existing self
help remedy available to anyone who objects to unwanted
communications--ignoring calls or letters and deleting emails--seems
for the time being to be a more cost-effective option. Of course,
should unwanted contacts rise to the level of harassment or coercion,
the Board has the remedial authority to craft appropriate remedies, as
discussed below in connection with the proposed restriction on use of
the voter list.
---------------------------------------------------------------------------
\192\ See UFCW II.
\193\ See Testimony of Katy Dunn on behalf of SEIU II. Also,
according to the testimony of Jess Kutch, any union (or third party
provider) in the business of sending bulk emails already includes
such unsubscribe options in its bulk emails in order to avoid being
labeled as spammers with attendant downgrading to their IP server
reputation scores. This testimony also demonstrates that effectively
administering a mandatory ``opt-out'' requirement would, as a
practical matter, likely be beyond the NLRB's capacity, as it might
unintentionally come into conflict with the requirements of bulk-
emailers already imposed by the market's continuously adapting
responses to ``spam.'' Meanwhile, an opt-out mandate would also
likely prove inadministrable as applied to individual employees and
small independent organizations.
---------------------------------------------------------------------------
Agency-hosted communications portals--raised in the NPRM (see 79 FR
7328)--were endorsed by a few comments as an alternative that could
possibly avoid some of the problems inherent in the opt-in or opt-out
processes discussed above.\194\ Yet, we harbor serious doubts about
whether such a portal would be feasible for the agency to construct or
administer, and the comments did nothing to ease our concerns. To the
contrary, the comments analyzing the concept in more depth raised
several issues that lead us to believe that the concept is seriously
flawed. For example, comments observed that communication between a
petitioner and employees becomes less likely, the more steps (or
``clicks'' in internet parlance) that an individual must take to enable
the communication.\195\ The Board found the testimony of Jess Kutch
particularly persuasive on this point, especially as she explained how
the potential problems associated with individuals needing to take
multiple steps to access or log-in to the agency portal would be
exacerbated if those individuals--as can reasonably be expected--would
be attempting to access the portal through the comparatively small
screens on their cell phones. See Testimony of Jess Kutch on behalf of
Coworker.org II. Moreover, Ms. Kutch (relying on her background in
online organizing and bulk email delivery) persuaded the Board that
designing a system whose success depended on the agency's navigation of
spam filters to ensure high rates of email deliverability to the
individuals at issue would likely be beyond the agency's technological
capacity (or our forseeable budgetary restrictions). Id. In addition,
the Board finds troubling the suggestions that an agency-sponsored
communications portal could destroy legal privileges that might
otherwise attach to communications between union attorneys and
organizing employees (AFL-CIO II), and that the alternative of
providing petitioners with masked emails to use in communicating
directly with employees could have the unintended consequence of
preventing unions from allowing employees to unsubscribe from bulk
messages (SEIU II). In sum, we doubt that we have the resources to
effectively implement a protected communications portal, and even if we
did, the potential for unintended consequences associated
[[Page 74349]]
with that proposal counsel against its pursuit.
---------------------------------------------------------------------------
\194\ See, e.g., IFA II; Louis Toth II.
\195\ See SEIU II; AFL-CIO II.
---------------------------------------------------------------------------
Perhaps the most fundamental flaws with the agency-sponsored
communications portal, however, are ones that are shared by any
paradigm in which the agency would allow employees to opt-in, opt-out,
or to pick one mode of communication to be utilized by employees with a
nonemployer party. Namely, each of these options would carry the
potential to leave nonemployer parties in a worse position to
effectively communicate with employees than they are under the current
Excelsior regime. Instituting an opt-in, opt-out, or a portal system
that would apply only to communications between employees and
nonemployer parties, would deny employees information from the
nonemployer party, a problem the Excelsior doctrine seeks to mitigate.
Moreover, we are concerned that agency communication with employees
concerning each of these alternatives carries an inappropriate
implication that those employees have something to fear from
nonemployer parties possessing their contact information--contact
information that is, at least in some instances, already in the
possession of their employers or an incumbent union
representative.\196\ Each of these alternatives also inappropriately
implies that the nonemployer party's message is not important--i.e.
that paying attention to it is optional to becoming fully informed
about the election. This would amount to the Board putting a virtual
thumb on the scales in influencing employees' exercise of their rights
to decide for themselves whether to seek (or maintain) union
representation, and would run directly counter to a core animating
purpose of the Excelsior doctrine. The Board notes that some comments
take the opposite view: that by sponsoring avenues of communication
between employees and a petitioning union--via protected portals or
opt-out processes--the Board would improperly suggest that it was not
neutral, but pro-unionization. This possible interpretation is yet
another reason not to pursue these alternative proposals.\197\
---------------------------------------------------------------------------
\196\ See, e.g., NUHW II.
\197\ See Testimony of Kara Maciel on behalf of the NGA II; see
also Testimony of Melinda Hensel on behalf of IUOE, Local 150 II
(agreeing with the NGA's concerns as to the agency-sponsored
communications portal).
---------------------------------------------------------------------------
In sum, even if we were to judge that a fair election required only
that employees be given the option of enabling or disabling email or
phone communication channels with the nonemployer parties, we are
skeptical that such a system could be put in place without significant
negative ramifications for the representation case process. In a
rulemaking designed to eliminate unnecessary barriers to the fair and
expeditious resolution of questions concerning representation, we are
loath to create new barriers in place of the old.\198\ Instead, we have
concluded that employees' legitimate interest in the confidentiality of
their personal email addresses and phone numbers is outweighed by the
substantial public interest in disclosure where, as here, disclosure is
a key factor in insuring a fair and free election and an expeditious
resolution of the question of representation.
---------------------------------------------------------------------------
\198\ We also reject--as inconsistent with the concerns
animating Excelsior--suggestions that: All individualized contact
between unions and employees be eliminated (Dante Fauci II); unions
should only be allowed to pass out flyers from parking lots on
agreed-upon dates (Charles Lingo II); and unions should only have a
right to view, but not copy, a list of employee names and addresses
once within 30 days of an election (Testimony of J. Aloysius Hogan
on behalf of the Competitive Enterprise Institute II). Similarly,
the Board declines Brian Richardson's suggestion that an employer
should mail union information to employees if the union bears the
costs. At the very least, such a two-step procedure would invite
delay, and clearly would not serve the key purpose of the Excelsior
list: Ensuring that the nonemployer parties have access to the
electorate. As the Excelsior Board noted in rejecting a similar
argument, the union should not be limited to the use of the mails in
its efforts to communicate with the entire electorate. 156 NLRB at
1246. It would also invite litigation if employees did not timely
receive the union's correspondence. The Board also notes that
employers have never had a right to see other parties' campaign
propaganda, let alone to see it before the unit employees view it.
Nor are we persuaded by comments that the concerns underlying
Excelsior, or any other relevant concern, would be advanced by
providing union officials' or union activists' personal contact
information to employers. (See Richard Oakes II and Anonymous
Anonymous II). Non-employee union organizers or officials do not
cast ballots in representation case proceedings, and so there is no
parallel reason that employers should be empowered to communicate
with them outside of the official channels listed in the petition.
To the extent that union activists are employees, employers already
enjoy all of the mandatory means to communicate with them discussed
above, and need not be specifically provided with any personal
contact information that the employer does not otherwise possess.
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In reaching this conclusion, we wish to emphasize that we are
mindful of the privacy interests employees have in the information in
question. But we reiterate that the Board must balance that privacy
interest against the interests served by disclosure. As explained
above, the comments do not persuade us that the balance struck in
Excelsior and approved by the Supreme Court in Wyman-Gordon should be
struck differently because of the additional information to be
disclosed under the voter list amendments.
AHA II, ACE and others complain that the rule may conflict with
employer confidentiality policies and that the Board should therefore
reject the voter list proposals. But the potential for such conflicts
already exists under the current Excelsior requirement, and the
comments do not cite a single case in which an employer's
confidentiality policy has been permitted to stand in the way of
Excelsior disclosures. Indeed, one of the courts called on to review
the original Excelsior requirement flatly rejected an employer's claim
that it did not have to make the disclosures because it had promised
its employees that any contact information would be kept confidential.
See NLRB v. British Auto Parts, Inc., 266 F. Supp. 368, 373-74 (C.D.
Cal. 1967), aff'd, 405 F.2d 1182 (9th Cir. 1967). In a similar context,
where employers have refused to disclose requested information to an
incumbent collective-bargaining representative, the Board and the
courts have repeatedly held that simply invoking a confidentiality
policy will not allow an employer to avoid disclosure.\199\
---------------------------------------------------------------------------
\199\ See, e.g., NLRB v. Pratt & Whitney Air Craft Div., 789
F.2d 121, 131 (2d Cir. 1986) (``Simply asserting that the results
should remain confidential because the employees were promised
confidentiality does not discharge the employer's burden''); Holiday
Inn on the Bay, 317 NLRB 479, 482 (1995) (standing by itself, an
employer's desire to shield employee information from disclosure on
the basis of a confidentiality policy ``cannot suffice to preclude
disclosure which promotes statutory policies''); New Jersey Bell
Telephone Co., 289 NLRB 318, 319-320 (1988) (noting that Detroit-
Edison provides no support for employer claim that it should be able
to deny requests for relevant information simply because its privacy
plan requires employee consent for such disclosures), enforced mem.,
872 F.2d 413 (3d Cir. 1989).
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We recognize that some employers strive to preserve the
confidentiality of private employee information.\200\ But we also note
that pledges of confidentiality may provide for exceptions such as
when, as here, disclosure would be legally required. See, e.g., Howard
University, 290 NLRB 1006, 1007 (1988). Employers will be able to point
to the Board's published rules should such disclosure be questioned by
an employee. Ultimately, we conclude that the substantial public
interests in fair and free elections and in the expeditious resolution
of questions of representation outweigh whatever legitimate interest an
employer may have in keeping confidential his employees' personal email
addresses, home and personal cell phone numbers, work locations, shifts
and job classifications. See Excelsior, 156 NLRB at 1243 (similarly
concluding that an employer's interest in keeping
[[Page 74350]]
employees' names and addresses confidential was outweighed by the
public interest in disclosure).
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\200\ We note that the comments do not persuade us that
employers routinely pledge to their employees that they will keep
confidential such information.
---------------------------------------------------------------------------
Some comments attacking the proposals also indicate persistent
privacy concerns about the original Excelsior policy. For example, GAM
asserts that employers already experience significantly distressed
employees because their home addresses are currently being disclosed to
petitioners without their consent under Excelsior. Although some
comments predict that disclosure of phone numbers and email addresses
will exacerbate this perceived problem,\201\ as noted above, the Board
takes the opposite view. Indeed, the Board agrees with the views
expressed in many comments that contact via phone and email is less
invasive than face to face visits with employees at their homes. The
Board anticipates that unions, as predicted by Melinda Hensel,\202\ in
an effort to conserve finite organizing resources, will in some cases
make use of phone and email contact information in lieu of visiting
employees at home.\203\ It follows that to the extent that invasion of
privacy concerns persist about the original Excelsior policy of home
address disclosure, those concerns could be ameliorated by the final
rule's provision for the disclosure of personal email addresses and
home and personal cell phone numbers.
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\201\ See, e.g., Sheppard Mullin II; Bruce E. Buchanan; ALG;
U.S. Poultry II.
\202\ See Testimony of Melinda Hensel on behalf of IUOE Local
150 II.
\203\ The Board therefore is skeptical of RILA's fear that the
expanded disclosure requirements will trample the privacy of
nonemployees. Indeed, the ability of organizers to reach employees
by personal cell phone or email suggests that organizers will be
less likely to interact with non-employees (such as family members
of employees) for any length of time. The Board also sees no reason
to fear that any serious problems will be created by the potential
that employees' children could view union messages when sent to an
email address shared by the family. See Testimony of Maciel II.
---------------------------------------------------------------------------
To the extent that comments focus on the annoyance of unwanted
calls or emails,\204\ the Board sympathizes with employees who simply
wish to reduce the volume of such communications they receive. Even so,
however, the Board is not persuaded that the potential for such
irritations--which may be dealt with by simply refusing the call,
hanging up, scrolling over, or hitting the delete key--should trump the
public interest in the fair and free choice of bargaining
representatives and in the expeditious resolution of questions of
representation. Indeed, the Board agrees with the Fourth Circuit's
statement regarding the original Excelsior requirement, that ``the mere
possibility that employees will be inconvenienced by telephone calls or
visits to their homes is far outweighed by the public interest in an
informed electorate.'' NLRB v. J. P. Stevens & Co., 409 F.2d at 1209
(emphasis added). We believe that the advent of caller identification
services on many home phones and virtually all cell phones will allow
employees to avoid unwanted calls with relative ease, and the typical
display of an email's sender and subject should similarly allow
employees to disregard organizing messages should they so choose. As
explained by Jess Kutch at the Board's April 11, 2014, public hearing,
the policies and professional interests of mass emailers utilized by
most organizing unions will ensure that employees have an option to
unsubscribe from most mass campaign email lists should they so choose,
and employees will also enjoy the option of blocking emails from
individual senders with whom they no longer desire to communicate. See
Testimony of Kutch II. Moreover, we note that as AFL-CIO Organizing
Director Elizabeth Bunn explained in her public hearing testimony,
organizing unions typically ``find that workers actually prefer to talk
to union supporters and their union representatives off work because
it's in an environment where the fear at least is taken out of the
communication. So we've not experienced that anger and irateness that
was discussed yesterday [by employer representatives].'' In short, the
Board does not view the potential for annoyance as a sufficient
counterweight against an informed electorate and the expeditious
resolution of questions of representation to justify keeping the voter
list information disclosures as minimal and outdated as they are today.
---------------------------------------------------------------------------
\204\ See, e.g., CBFC; ALG; SSINA.
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Additionally, as SEIU (reply) points out, labor law already
tolerates encroachment on an employee's time during representation
campaigns as employers face no legal impediment to using contact
information in their possession (which is to be disclosed on the voter
list). Employers may place calls and text messages to the employees'
home and personal cell phones and send email messages to their
employees' personal email addresses. In short, whether or not
employees' phone numbers and email addresses are disclosed to
petitioners, there is no guarantee that employees will not receive
campaign-related messages on their personal phones and personal email
accounts, because their employer may have this information and use it
to send campaign information.
Implicitly, however, privacy claims in the comments assume that
employees should be able to prevent campaign messages from reaching
their personal email and phone. If this perspective were accepted in
toto, it would suggest that the Board should also be restricting
employer use of personal contact information, in addition to excluding
it from the voter list given to nonemployers. Yet, we are not persuaded
that the current rulemaking should be used to restrict such currently-
lawful campaign speech by employers under the cause of employee
privacy. \205\ In this regard, the Board also rejects the suggestion by
the Chamber II that home visits should be either eliminated or
restricted to one visit. As discussed above, no patterns of abuse have
emerged since Excelsior to support such a restriction on nonemployers'
ability to use home visits to communicate about representation issues
if they so choose. Moreover, employees can reject attempts at home
visits by, for example, not answering the door, closing the door,
asking visitors to leave, and through enforcement of state and local
trespass laws.
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\205\ To be sure, there was some agreement amongst speakers at
the Board's April 11, 2014 public hearing that it would be
inappropriate to apply the same restrictions to employer
communications with their employees on the subject of unionization,
as those same speakers advocated should be applied to communications
to employees coming from petitioning unions. See, e.g, Testimony of
Kara Maciel on behalf of NGA II; Testimony of Joseph Torres on
behalf of Winston & Strawn II; Testimony of Fred Wszolek on behalf
of Workforce Fairness Institute II.
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The Board also disagrees with the view expressed by Pinnacle Health
System of Harrisburg, Pennsylvania (Pinnacle) that the voter list
disclosures are ``particularly problematic considering that the list
may contain the information of individuals who are managers and
supervisors and whose status will not be determined until after the
election by way of post-election challenge.'' \206\ As more thoroughly
explained in connection with Sec. 102.66 below, this alleged problem
existed prior to the NPRM. Thus, prior to the NPRM, supervisory and
managerial status determinations could be deferred until after the
election. In those cases, regional directors instructed employers to
include the disputed individuals on the Excelsior list with the
understanding that they would vote subject to challenge. And, in any
event, the Board does not presume that an alleged supervisor's or
manager's contact information being inadvertently
[[Page 74351]]
disclosed will lead to any greater dangers than the disclosure of
contact information for other coworkers.
---------------------------------------------------------------------------
\206\ AHCA shares this concern.
---------------------------------------------------------------------------
The Board also does not share the fears expressed by some
commenters that disclosure of cell phone numbers will lead employees to
suffer significant unwelcome costs from phone calls and texts that
exceed their data plans.\207\ As an initial matter, the Board does not
believe that a union is likely to act counter to its own organizing
self-interests by placing so many calls or sending so many texts as to
financially harm those potential voters who lack unlimited calling and
text plans. Given that their use will be restricted to the
representation proceeding at issue, Board proceedings arising from it,
and related matters, the risk that unions' receipt of cell phone
numbers will cause financial harm to employees is further lessened. In
addition, the Federal Communications Commission has addressed the cell
phone ``bill shock'' issue alluded to by CDW, and in 2011 touted its
far-reaching agreement with the wireless industry to address the
problem. See ``CTIA, Consumers Union and the FCC to Announce New
Industry Guidelines'' (Oct. 17, 2011), http://www.fcc.gov/events/ctia-consumers-union-and-fcc-announce-new-industry-guidelines. By 2013, the
FCC announced that approximately 97 percent of wireless customers
across the nation were protected from bill shock as participating U.S.
wireless companies met a deadline to provide free, automatic alerts to
customers who approach or exceed their wireless plan limits. See ``FCC
Marks Milestone in Effort to Eliminate `Bill Shock'.'' (April 18,
2013), http://www.fcc.gov/tools/headlines-archive/2013. The Board
trusts that any lingering bill shock concerns--relevant to a great
percentage of Americans beyond those who may participate in an NLRB
election--will continue to be addressed by the FCC, and need not cause
the Board to abandon disclosure of cell phone numbers. Of course,
should bill shock nonetheless prove to be a serious problem in the
representation case context, the Board has clear authority to create
appropriate remedies through adjudication.
---------------------------------------------------------------------------
\207\ See, e.g., CDW; Buchanan; NRF; Indiana Chamber; Doug
Muyres II.
---------------------------------------------------------------------------
e. Purported Conflict With Precedent and Other Laws
The National Ready Mix Concrete Association (NRMCA) and others
assert that disclosure of personal email would be inconsistent with the
Board's stated concerns about email in Trustees of Columbia University,
350 NLRB 574, 576 (2007).\208\ We disagree. The Board in that case
posed a number of questions ``regarding the potential ramifications * *
* of requiring employers to furnish * * * employees' workplace email
addresses.'' Id. at 576 (emphasis added). We noted, for instance, that
union mailings to work email addresses could impose costs on employers
and raise unlawful surveillance concerns. Id. As explained above,
however, the final rule does not require the employer to disclose the
work email addresses to the nonemployer parties, and therefore it is
unnecessary for us to answer questions concerning work email in this
rule. And, as we expressed in the NPRM, the Board's limited holding in
Trustees of Columbia University was only that, ``given the Employer's
undisputed compliance with its Excelsior obligations as they stood as
of the date of the Union's request, we are unwilling, on the facts of
this case, to characterize that compliance as objectionable conduct.''
Id. In short, we see nothing in that case that precludes us from
requiring the provision of personal email addresses as part of the
voter list, to the extent that an employer keeps records of employees'
personal email addresses.
---------------------------------------------------------------------------
\208\ See, e.g., National Mining Association; ACE; Sheppard
Mullin.
---------------------------------------------------------------------------
Several comments also raise the specter of conflicts with circuit
court precedent and state privacy law if the Board were to require
disclosure of employee contact information. The Board is not persuaded
by these comments. Regarding circuit court precedent, ACE for example
cites JHP & Associates, LLC v. NLRB, 360 F.3d 904, 911-912 (8th Cir.
2004), and NRMCA II cites Chicago Tribune Co. v. NLRB, 79 F.3d 604, 608
(7th Cir. 1996) as possibly at odds with the rule. But those cases are
inapposite. The courts found that harassment was a concern in each of
those cases because the respective unions sought the home addresses of
the individuals hired to replace the employees who had struck in
support of the very union seeking the information. See JHP& Associates,
360 F.3d at 908, 911-12, and Chicago Tribune, 79 F.3d at 606-08.\209\
The disclosures mandated by the final rule therefore do not implicate
the concerns articulated by the circuit courts in these cases.\210\
---------------------------------------------------------------------------
\209\ NRMCA II also cites East Tennessee Baptist Hospital v.
NLRB, 6 F.3d 1139, 1144 (6th Cir. 1993) as possibly at odds with the
NPRM, but the court's opinion did not address the question whether
an employer should be obligated to disclose employee contact
information in any setting, let alone whether an employer should be
obligated to provide employee contact information to the union which
had petitioned for an election so that it could be certified as
their collective-bargaining representative.
\210\ See also Tenneco, Inc., 357 NLRB No. 84 (Aug. 26, 2011),
enforced in relevant part, denied in part, 716 F.3d 640 (D.C. Cir.
2013), where the Board found that the employer's withholding of the
replacements' home addresses breached its bargaining duty, because
the union represented the replacements after strike's end and there
was no ``clear and present danger'' of the union misusing the
information; the Board also addressed the ``totality of the
circumstances'' standard used by some circuits.
---------------------------------------------------------------------------
Regarding state privacy law, NRMCA for example, cites a case
discussing the New Jersey state constitution while Sheppard Mullin II
points to several cases explaining the California state constitution.
The case NRMCA cites, however, is concerned with privacy expectations
under the unreasonable search and seizure provision of the New Jersey
state constitution, State v. Reid, 945 A.2d 26, 31-32 (N.J. 2008), an
entirely different privacy interest than any implicated by the final
rule. Similarly, the cases involving the California constitution are
not in obvious conflict with the final rule, as they involve different
types of disclosures and acknowledge that the right to privacy in
personal information under the California constitution is not
absolute.\211\ Indeed, a prior Board, with judicial approval, rejected
as ``frivolous'' an employer's contention that it would violate an
employee's California constitutional right to privacy by furnishing an
employee's address to a labor organization which represents the
employee. See A-Plus Roofing, Inc., 295 NLRB 967, 974 (1989), enf'd.
mem., 39 F.3d 1410 (9th Cir. July 12, 1990). Moreover, Sheppard Mullin
fails to cite the most recent and on point case of County of Los
Angeles v. Los Angeles County Employee Relations
[[Page 74352]]
Commission, in which the California Supreme Court clarified that an
incumbent public sector union's significant interest in communicating
with non-members outweighed employees' privacy interests in their home
contact information under California's state constitution. 56 Cal.4th
905, 911-12 (2013). More generally, the Board observes that state
privacy and confidentiality laws may have exceptions allowing for
disclosures where authorized by statute or regulation, in which case
there would be no conflict between such laws and the voter list
disclosures.\212\ See, e.g., Valley Programs, Inc., 300 NLRB 423, 423
fn. 2 (1990); Kaleida Health, Inc., 356 NLRB No. 171, slip op. at 6-7
(2011). Finally, to the extent that the disclosures conflict with any
state privacy laws, the state laws may be preempted. See San Diego
Building Trades Council v. Garmon, 359 U.S. 236 (1959); Mann Theatres
Corp. of California, 234 NLRB 842, 842-843 (1978) (noting, in context
of employer refusal to provide union with employee wage information,
that if state public policy in fact required nondisclosure of employee
wage information, it would be preempted under Garmon).
---------------------------------------------------------------------------
\211\ See White v. Davis, 13 Cal. 3d 757, 760, 775-776 (1975)
(holding police posing as students to record classroom activities at
university solely for information-gathering purposes violated
California constitution); Belaire-West Landscape, Inc. v. Superior
Court, 149 Cal. App. 4th 554, 556-559, 561-562 (Cal. Ct. App. 2007)
(holding that plaintiff's request for names, addresses, and phone
numbers of defendant's employees did not violate California
constitution where plaintiff was trying to identify potential class
members in class action and employees were able to opt out of
disclosure); Planned Parenthood Golden Gate v. Superior Court, 83
Cal. App. 4th 347, 352-353, 357, 369 (Cal. Ct. App. 2000) (holding
state interest in broad discovery outweighed by nonparties' interest
in privacy where plaintiff sought names, addresses, and phone
numbers of nonparty supporters of Planned Parenthood without
demonstrating need for such information). Sheppard Mullin also cites
Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524, 527 (2011),
a case dealing with a statute prohibiting businesses from requesting
that cardholders provide personal identification information during
credit card transactions and then recording that information. The
final rule clearly does not implicate the statute or interests at
issue in that case.
\212\ IFA II and Senator Alexander and Republican Senators II
highlight such language in a recently passed privacy statute in
Virginia, noting that Virginia employers are prohibited from
disclosing employees' personal identifying information to third
parties ``unless required by Federal or state law.'' While both
comments suggest that the voter list proposal puts the Board's
regulations at odds with the general trend of protecting employee
privacy rights, neither argues that the Virginia statute's language
would trump the Board's regulations.
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Some comments also claim that the Controlling The Assault of Non-
Solicited Pornography and Marketing Act of 2003 (``the CAN-SPAM Act'')
evidences a Federal privacy concern regarding email addresses and that
the Board's voter list proposals run afoul of that Federal
statute.\213\ Among other things, the CAN-SPAM Act makes it unlawful
for any person to transmit a commercial electronic mail message that
``contains, or is accompanied by, header information that is materially
false or materially misleading'' (15 U.S.C. 7704(a)(1)) and for a
person to transmit a commercial electronic mail message that does not
contain an opt-out procedure. 15 U.S.C. 7704(a)(3)(A).\214\ The statute
further provides that if a recipient requests that the sender not send
it any more commercial electronic mail messages, then it is unlawful
for the sender to send it another commercial electronic mail message
more than 10 business days after receipt of such a request. 15 U.S.C.
7704(a)(4)(A)(i). Con-way, Inc. argues that email messages transmitted
by a union would be subject to, and potentially in violation of, the
CAN-SPAM Act because the ``primary purpose'' of union messages would be
``the commercial advertisement or promotion of a commercial product or
service.'' 15 U.S.C. 7702(2)(A). Katy Dunn (Testimony on behalf of SEIU
II) disputes that unions are bound by the commercial provisions in CAN-
SPAM but nevertheless explains, along with SEIU II, that many unions
voluntarily comply.
---------------------------------------------------------------------------
\213\ See, e.g., Con-way; NRTW; Sheppard Mullin; RILA.
\214\ As the statute indicates, ``The term `commercial
electronic mail message' means any electronic mail message the
primary purpose of which is the commercial advertisement or
promotion of a commercial product or service[.]'' 15 U.S.C.
7702(2)(A).
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We need not offer an opinion as to whether the CAN-SPAM Act would
apply to a nonemployer party's use of email to investigate voter
eligibility issues or to solicit a vote in an upcoming Board election.
Simply put, if the CAN-SPAM Act does apply to a nonemployer party's use
of email in an organizing campaign, nonemployer parties will have to
conform their conduct to the statutory requirements, such as providing
header information that is neither ``materially false [n]or materially
misleading,'' providing opt out procedures, and honoring opt out
requests no more than 10 days after the request is made.
Similarly, PCA and others argue that because union solicitations
are subject to the Federal Trade Commission's Do-Not-Call Rule, 16 CFR
part 310, a union could not contact individual employees by phone
before those employees authorized the union to do so.\215\ The
regulations were adopted pursuant to the Telemarketing and Consumer
Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108. (See 16 CFR 310.1)
in which Congress charged the FTC with prescribing rules prohibiting
deceptive and other abusive telemarketing acts or practices. 15 U.S.C.
6102. It further charged the FTC with including in its rules
requirements that telemarketers not undertake a pattern of unsolicited
telephone calls which a reasonable consumer would consider coercive or
abusive of such consumer's privacy and restrictions on the hours when
unsolicited telephone calls can be made to consumers. 15 U.S.C.
6102(a)(3)(A), (B).
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\215\ In contrast, NGA II notes that it is unclear whether union
calls to employees would fall under the FTC's definition of
solicitation for purposes of the Do Not Call Registry. Meanwhile,
SEIU II cites the Telephone Consumer Protection Act, 47 U.S.C. 227,
as another comprehensive scheme governing calls and texts by
autodialers, which among other things, requires an opt-out. In
SEIU's view, this statute provides an existing regulatory gloss to
any voter list proposals adopted by the Board, making unnecessary
any additional restrictions by the Board. We do not agree that the
statute renders the proposed restriction unnecessary as detailed in
our discussion of the restriction below.
---------------------------------------------------------------------------
Again, however, we decline to address the extent to which the FTC's
Do-Not-Call regulations may or may not cover nonemployer party
solicitations or use of the phones to investigate eligibility issues.
Even if these regulations are applicable, the result will be that a
nonemployer party will be obligated to comply with Do-Not-Call as it
might relate to potential members of the petitioned-for (or existing)
bargaining unit. Thus, for example, a nonemployer party would have to
refrain from making calls outside certain hours, and making calls to a
person when the person previously has stated that he or she does not
wish to receive a call from the party or when the person's telephone
number is on the do-not-call registry.
In sum, in response to all the comments challenging the propriety
of the proposals relating to the disclosure of eligible voters' contact
information, the Board emphasizes that nonemployer parties will not
have free rein to utilize email addresses and phone numbers in a manner
that violates other Federal laws that are found to cover such
nonemployer party conduct. Rather, to the extent that any such laws are
found applicable to the nonemployer parties' use of the contact
information, those parties would be required to conform their conduct
to the governing legal standards.\216\ In much the same way, a
nonemployer party to a representation case who receives home addresses
under current Excelsior requirements is not excused from complying with
other applicable laws, such as trespass.\217\
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\216\ Similarly, to the extent state laws, such as the
Washington Commercial Electronic Mail Act, Wash. Rev. Code. 19.190
et seq. (cited by RILA), are found to cover nonemployer party use of
email or telephone technology and such laws are not preempted,
nonemployer parties would be required to conform their conduct to
those laws as well.
\217\ ACE expresses concern that the proposed voter list
requirements may conflict with the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. 1232g(a)(5)(A), (B) (Supp. IV 2006).
ACE observes that although FERPA allows colleges and universities to
release students' ``directory information,'' schools are
nevertheless required to provide notice that such information will
be released and to give students the opportunity to opt out of the
release. However, as ACE also appears to acknowledge, the proposed
rule and FERPA could only come into conflict if graduate student
employees are permitted to organize under the Act, which is not
currently the case. See Brown University, 342 NLRB 483 (2004). (This
issue is implicated in a case now pending before the Board. See
Northwestern University, Case 13-RC-121359). In any event, if the
issue arises, the conclusions expressed above with regard to the
CAN-SPAM Act and the Do-Not-Call Rule would apply equally here.
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[[Page 74353]]
2. Timing
In the NPRM, the Board proposed to shorten the time for production
of the voter list from the current 7 calendar days to 2 work days,
absent agreement of the parties and the regional director to the
contrary in the election agreement, or extraordinary circumstances
specified in the direction of election.\218\ Many comments argue that
the 2-day time period following a regional director's direction of
election, or approval of an election agreement, is too brief for an
employer to produce the voter list, particularly if the Board requires
the additional information--the personal email addresses, home and
personal cell phone numbers, work locations, shifts, and job
classifications of the eligible voters--to be disclosed on the
list.\219\
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\218\ Although the NPRM preamble indicated that employers would
have 2 work days to produce the list, the proposed regulatory voter
list sections did not explicitly so provide. Compare 79 FR 7333 with
79 FR 7354, 7360.
\219\ See, e.g., GAM; AAE; Vigilant; Buchanan; U.S. Poultry II;
Testimony of Peter Kirsanow on behalf of NAM II.
---------------------------------------------------------------------------
However, the Board concludes that advances in recordkeeping and
retrieval technology as well as advances in record transmission
technology in the years since Excelsior was decided warrant reducing
the time period for production, filing, and service of the list from 7
calendar days to 2 business days.\220\ Shortening the time period from
7 calendar days to 2 business days will help the Board to expeditiously
resolve questions of representation, because the election--which is
designed to answer the question--cannot be held until the voter list is
provided. In many cases the list will be produced electronically from
information that is stored electronically and then will be served
electronically in an instant--a far cry from workplace realities when
the Board first established a 7-day time frame for producing the list,
when employers maintained their employees' records in paper form, and
virtually no employer had access to personal computers, spreadsheets or
email. Indeed, the AFL-CIO points out that even in 1966, under the 7
calendar day requirement, many employers were actually producing the
list in only 2 work days. The AFL-CIO's comment posits that of the
original 7 days, 2 days were lost to the weekend and 3 more days were
dedicated to service of the list by regular mail because there was no
existing option for priority, express or overnight mail, let alone for
instantaneous electronic service via email. The Board views it as
significant that while the Chamber specifically replies to the AFL-
CIO's Excelsior analysis, it does so only to contend that many
employers did, and do, work on the list over the weekend. The Chamber's
reply does not dispute that even under the technological constraints of
the 1960s, employers could and did produce voter lists, at least for
deposit into the mails, in 4 calendar days or fewer. Thus, the advent
of electronic filing and service via email alone warrants a substantial
reduction in the time provided, and in the Board's view, technological
advances fully justify the move to 2 business days for production of
the final voter list.
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\220\ As suggested by Nicholas E. Karatinos, the Board will
interpret the rule to mean that employers have 2 business days
(i.e., excluding Saturdays, Sundays, and legal (i.e., Federal)
holidays--rather than 2 calendar days--to produce the eligibility
list. This interpretation is consistent with Sec. 102.111(a) of the
Board's prior rules, which this final rule leaves undisturbed. Thus,
Sec. 102.111(a) provides that when computing time periods of less
than 7 days in the Board's regulations, intermediate Saturdays,
Sundays, and holidays are excluded.
Moreover, in accordance with Karatinos' suggestion, the Board
has decided to explicitly provide in Sec. Sec. 102.62(d) and
102.67(l) of the final rule that the employer has two business days
after the regional director directs an election or approves the
parties' election agreement to furnish the list to the nonemployer
parties and the regional director. The Board concludes that adoption
of this additional language will provide useful guidance to the
parties and render this particular requirement of the rule more
transparent.
As noted above, the Board's prior rules indicated that legal
holidays were not included in the time calculation for due dates
shorter than 7 days. The Board has interpreted legal holidays to
mean ``Federal holidays.'' The Board declines Karatinos' additional
suggestion to list the particular holidays in the final rule,
because the number of Federal holidays may change over time and the
Board does not wish to have to amend its rules each time the number
of Federal holidays changes.
---------------------------------------------------------------------------
Indeed, even some of the comments opposed to the new time frame
tacitly admit that, while challenging, it is nonetheless possible. For
example, the Indiana Chamber of Commerce (Indiana Chamber) concedes
that ``It is not that the manual collection of this information itself
would take extreme amounts of time, but it becomes a hardship when
imposed concurrently with all of the other, new obligations under the
compressed schedule.'' Similarly, the Bluegrass Institute does not
argue that employers cannot compile the list under the new time frame,
but contends that ``the cumulative effect'' of the new obligations ``on
small businesses could very well be devastating.'' \221\ Yet, the
hearing testimony of retired field examiner Michael Pearson implicitly
contradicts such concerns by recalling approximately one dozen cases in
which employers were able to file Excelsior lists on the same day as
they signed election agreements--thus demonstrating an ability to
simultaneously prepare an Excelsior list while resolving all of the
issues to be potentially covered in a pre-election hearing. Indeed, as
more fully discussed below in reference to Sec. 102.63, the Board does
not agree that the obligations imposed on employers in connection with
the Statement of Position form vary dramatically from what a reasonably
prudent employer would have done in any event to adequately prepare for
a pre-election hearing under the prior rules. Likewise, the 8-day time
frame for the hearing's opening, which may be extended for up to 2
business days upon request of a party showing special circumstances and
even longer upon a showing of extraordinary circumstances, is in line
with the best practices of some regions under the prior rules, and in
any event, does not differ dramatically from the overall 10-day median
for scheduling pre-election hearings, and the 13-day median for opening
pre-election hearings under the prior rules.\222\
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\221\ For similar comments, see GAM; Sheppard Mullin; AHA.
\222\ This information concerning FY 2011 through FY 2013 was
produced from searches in the Board's NxGen case processing
software.
---------------------------------------------------------------------------
Additional factors likewise persuade us that the 2-business day
time frame is appropriate for production, filing, and service of the
list. First, in many cases the employer will have provided a
preliminary list of employees in the proposed or alternative units as
part of its Statement of Position before the clock ever begins running
on the new 2-day deadline for production of the voter list. As
discussed below in connection with Sec. 102.63, that initial list will
be due no sooner than 7 days after service of the notice of hearing,
and so the employer will have the same amount of time to produce the
preliminary list as it had under Excelsior. Accordingly, to produce the
voter list required by Sec. 102.62 (or Sec. 102.67 in directed
election cases), the employer need not start from scratch, but need
only update that initial list of employee names, work locations,
shifts, and job classifications, by adding employees' contact
information and making any necessary alterations to reflect employee
turnover or changes to the unit.\223\ Second, the description of
[[Page 74354]]
representation case procedures which is served with the petition will
explicitly advise employers of the voter list requirement--just as the
opening letter does currently--so that employers concerned about their
ability to produce the list can begin working immediately; before an
election agreement is approved or an election is directed and thus
before the clock begins running on the 2-business day time period.\224\
Third, in the Board's experience, the units for which lists must be
produced are typically small-- with half of all units containing 28 or
fewer employees over the past decade--meaning that even for those small
employers which lack computerized records of any kind, assembling the
information should not be a particularly time-consuming task, contrary
to the comments that suggest otherwise.\225\ Finally, the final rule
will enable parties to enter into agreements providing more time for
employers to produce the list subject to the director's approval, and
the final rule will further enable the regional director to direct a
due date for the voter list beyond two days in extraordinary
circumstances.\226\ In sum, the Board is not persuaded that the bulk of
employers will be unduly burdened by the final rule's voter list time
frames.\227\
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\223\ Some employers may have an additional reason to begin
compiling at least part of the voter list as soon as they receive a
petition. An employer which doubts that the petitioner has enough
employee support to warrant an election may provide a payroll list
to facilitate the regional director's administrative investigation
of the issue. See Case Representation Manual Section 11020. Because
the payroll list must be submitted promptly, see id., such an
employer will likely begin preparing it immediately upon receiving a
petition. Furthermore, as noted above, an employer which anticipates
filing a statement of position and the accompanying initial employee
list will also need to compile much of the information on the voter
list for that purpose, prior to the start of the 2-day time frame.
\224\ Thus, Casehandling Manual Section 11009.2(c) provides that
the initial letter to the employer following the filing of the
petition should advise the employer: ``In the event an election is
agreed to or directed, the Agency requires that a list of the full
names and addresses of all eligible voters be filed by the employer
with the Regional Director, who will in turn make it available to
all parties in the case. The list must be furnished to the Regional
Director within 7 days of the direction of, or approval of an
agreement to, an election, and the employer is being advised early
of this requirement so that there will be ample time to prepare for
the eventuality that such a list may become necessary.''
\225\ See, e.g., Ranking Member Enzi and Republican Senators;
COSE; CNLP; Testimony of Elizabeth Milito on behalf of NFIB II.
\226\ National Mining Association and David A. Kadela complain
that ``extraordinary circumstances'' is a vague standard that may be
administered differently by different regional directors. However,
this standard has been in place since the original Excelsior
requirements were articulated, and the Board has not experienced the
problems forecasted by the comments. See Excelsior, 156 NLRB at 1240
fn. 5 (``In order to be timely, the eligibility list must be
received by the [r]egional [d]irector within the period required. No
extension of time shall be granted by the [r]egional [d]irector
except in extraordinary circumstances * * *.'') Accordingly, the
Board is not persuaded that it should use different language.
\227\ In addition, as noted below, the Board has decided to make
it presumptively appropriate to produce multiple versions of the
list when the data required is kept in separate databases, thereby
reducing the amount of time that employers might need to comply with
the voter list requirement.
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Many comments suggest categorical exemptions for various
industries. For example, AGC argues that the Board should exempt
construction industry employers from the requirement that they produce
the voter list 2-days after a direction of election or approval of an
election agreement. According to AGC, construction industry employers,
who may handle personnel matters on a decentralized basis at the
individual jobsite level, cannot timely produce the list, because 2
days is simply not enough time to review 2 years' worth of payroll
records as required by the Daniel/Steiny construction industry
eligibility formula.\228\
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\228\ The Daniel/Steiny formula, provides that, in addition to
those eligible to vote in Board conducted elections under the
standard criteria (i.e., the bargaining unit employees currently
employed), unit employees in the construction industry are eligible
to vote if they have been employed for at least 30 days within the
12 months preceding the eligibility date for the election and have
not voluntarily quit or been discharged, or have had some employment
in those 12 months, have not quit or been discharged, and have been
employed for at least 45 days within the 24-month period immediately
preceding the eligibility date. See Steiny & Co. Inc. (``Steiny''),
308 NLRB 1323, 1326-27 (1992), and Daniel Construction Co., Inc.
(``Daniel''), 133 NLRB 264, 267 (1961), modified, 167 NLRB 1078,
1081 (1967).
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The Board does not agree that the Daniel/Steiny formula warrants
carving out a categorical exemption for construction industry employers
in every case. In the first place, construction industry employers will
not be required to review 2-years' worth of payroll records to produce
the list in all cases. In some cases, the parties may stipulate that
formula not be used. See Steiny, 308 NLRB 1323, 1328 n.16 (1992);
Signet Testing Laboratories, Inc., 330 NLRB 1, 1 (1999). Moreover, as
AGC acknowledges elsewhere in its comment, some petitions filed in
construction industry cases involve situations where the petitioned-for
units are already covered by 8(f) collective-bargaining agreements.
Such 8(f) collective-bargaining agreements frequently require the
signatory employer to make fringe benefit contributions to benefit
funds on behalf of the unit employees and to file reports of its
employees' hours with those benefit trust funds. Accordingly, at least
in those cases, the employer may have ready access to the information
necessary to produce lists complying with the formula. In addition, not
every construction industry employer will have intermittently employed
large numbers of employees over a two-year period. Those employers who
have employed stable workforces will not face the same burden. And
while employers may maintain records on different jobsites due to the
decentralized hiring claimed by AGC II and other construction industry
commenters, we anticipate that they will be able to transmit the
records to a central location via modern technology or verbally report
the information contained in the records.\229\
---------------------------------------------------------------------------
\229\ For example, if the person responsible for completing the
form needs records stored at a separate location, those records can
be faxed (or scanned and then emailed) quickly, and failing access
to that technology, a phone call would surely suffice for all but
the largest bargaining units.
---------------------------------------------------------------------------
The Board also finds it highly significant that, as AGC
acknowledges, under the Board's current rules, construction industry
employers, whether decentralized or not and whether large or small,
already only have 7 days to produce the Excelsior list. The Board
believes that the same changes that justify the reduction in time to
produce the final list in cases outside the construction industry,
likewise justify reducing the time in cases involving the construction
industry. Thus, given the advances in record-keeping/retrieval
technology and in the technology for transmitting documents that have
taken place since Daniel was decided in 1961 and since Excelsior issued
in 1966, the Board simply does not believe that as a rule it is
``impossible'' for construction industry employers to comply with the
requirement, as suggested by NFIB.
As noted above, employers generally will have more than a week to
prepare the voter list, assuming they begin work when they receive the
petition and are explicitly advised of the voter list requirement in
the description of representation case procedures served with the
petition. And, employers will have still more time in those cases where
weighty issues are litigated at the pre-election hearing that require
resolution by the regional director, because they can continue
preparing the list after the hearing closes while they await the
decision by the regional director. Finally, it bears repeating that
under the final rule, the regional director has discretion to grant an
employer more time to produce the list, upon a showing of extraordinary
circumstance which may be met by an employer's particularized
demonstration that it is unable to produce the list within the required
time limit due to specifically articulated
[[Page 74355]]
obstacles to its identification of its own employees.
A number of other comments claim that the 2-day requirement is
particularly burdensome for other types of employers either because of
the nature of their operation, the types of employees they employ, or
the size of their workforces. However, these comments fail to offer any
persuasive explanations for why their particular circumstances make
compliance with the 2-business day deadline unworkable.
For example, the National Mining Association argues it will be
difficult for employers in the mining industry to comply with the time
frame for producing the final list because they operate on a 24-hour
basis. But the fact that shifts of miners rotate through a mine on a
24-hour basis does not render the employer unable to furnish a list in
2 business days. Similarly, ACE argues that colleges and universities
will be particularly burdened because they are decentralized, may
include multi-site units, and may have difficulty identifying adjunct
faculty or graduate students that a petitioner seeks to organize. The
mere fact that an employer is decentralized, or that a party may
propose a multi-site unit, does not demonstrate that complying with the
new rule is unduly burdensome for colleges and universities. Moreover,
as noted above, ACE's concerns about graduate student organization are
at best premature. \230\ And although ACE contends that gathering
detailed information on adjunct faculty would be difficult under the
new time frames, it does not deny that gathering such information is
feasible under the Board's current requirements and offers no
explanation for why the new time frames would prove ``nearly
impossible'' to comply with.
---------------------------------------------------------------------------
\230\ As noted above, this issue is currently pending before the
Board.
---------------------------------------------------------------------------
Con-way argues that the 2-day period is unworkable in those cases
where an employer uses employees provided by a temporary agency,
because the employer will be dependent on the temporary agency to
supply it with the information. However, it is by no means clear that
``temporary employees'' provided by a third party will as a matter of
course even be included in a bargaining unit. See Oakwood Care Center,
343 NLRB 659 (2004) (employees of staffing agency may not be included
in a unit of another employer's employees unless both employers
consent).\231\ If the temporary employees are not included in the unit,
then the fact that an employer uses employees provided by a temporary
agency plainly provides no reason to depart from the timeframes in the
rule, for the temporary employees will not need to be included on the
list. When a third party's employees are included in the unit, the unit
may be a multiemployer bargaining unit or the third party may be found
to be a joint employer, and the entities may be jointly charged with
filing the list or lists. See, for example, K-Mart, A Div. of S.S.
Kresge Co., 159 NLRB 256, 262 n.10 (1966). Accordingly, the Board does
not believe this circumstance warrants a blanket exemption.\232\
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\231\ However, we note that there is a case currently pending
before us, Bergman Brothers Staffing, Inc., Case No. 05-RC-105509,
in which a party is seeking to have us overrule Oakwood.
\232\ Nor does the Board believe that the fact that an employer
relies on a third party to perform its payroll functions warrants a
blanket exemption from the 2-business day timeframe. The Board notes
in this regard that employers frequently hire third parties to
handle such administrative tasks precisely because the third parties
are able to perform the administrative tasks more efficiently.
---------------------------------------------------------------------------
As for employers with large workforces,\233\ the fact that a
petitioned-for unit is large does not, in and of itself, make
compliance with the rule burdensome for the employer.\234\
Significantly, the Board's current rules do not grant employers
employing large units more time to produce the Excelsior list than
employers employing small units. The same advances in technology that
reduce the time it takes to transmit the lists from days to seconds
apply no less to large employers than to small employers.\235\ The same
holds true with respect to advances in record keeping technology.
Indeed, the comments filed by, and on behalf of, small employers
suggest or imply that large employers are more likely than small
employers to possess the technology to produce the lists quickly.\236\
To the extent that the compilation process takes longer in a larger
petitioned-for unit, large employers are more likely to have dedicated
human resources professionals on the payroll who can more easily devote
the longer period of time to completing the task within the amended
time frame.\237\ Moreover, large employers, like small employers, can
begin preparing the list before the director directs an election.
Finally, the Board notes that Sec. 102.67(l) permits a regional
director in his direction of election to grant more time to produce the
final list in extraordinary circumstances, and employers are free to
describe those circumstances to the hearing officer before the close of
the hearing when they set forth their positions regarding the election
details.
---------------------------------------------------------------------------
\233\ See, e.g., AHCA; Sheppard Mullin; AHA.
\234\ This is also true of decentralized businesses, which Con-
way argues will also be unduly burdened by the new time frame.
\235\ As explained above, the Board does not believe that small
employers without the best available technology will be particularly
burdened by compiling the list.
\236\ See, e.g., Chamber; Chamber reply; SIGMA.
\237\ See Testimony of Elizabeth Milito on behalf of NFIB II
(clarifying that in her experience as the spokesperson for NFIB,
employers of more than 50 employees tend to have dedicated human
resources staff).
---------------------------------------------------------------------------
Spartan Motors, Inc. complains that the rule requires employers to
produce the information on the voter list within 2 days of receiving a
petition. Spartan Motors is mistaken. Thus, an employer need only
produce the voter list 2 business days after the director approves an
election agreement or directs an election. An employer cannot be
compelled to enter into an election agreement 2 days after the petition
is filed--or ever. And an election cannot be directed until after a
hearing closes, which, of course, will be more than 2 (business) days
after the filing of the petition. Indeed, absent agreement otherwise,
the hearing will open no sooner than 8 days after service of the notice
under the amendments.
Several other comments attack the time frame for producing the
voter list on the grounds that it will result in more inaccurate lists
and thus more post-election litigation.\238\ As already discussed, the
Board does not view a 2-business day deadline for production of the
list in the modern era as a particularly greater burden than was
production of the list in 7 calendar days during the 1960s.
Accordingly, the Board is unconvinced that the lists produced under the
final rule will tend to be any less accurate than lists produced under
Excelsior's original formulation.\239\ And given the expanded
[[Page 74356]]
ability of petitioners to contact voters by phone and email with the
new voter lists, the Board rejects the related comments predicting that
list inaccuracies will result in petitioners having less access to
voters under the final rule than under the current Excelsior
rules.\240\
---------------------------------------------------------------------------
\238\ See, e.g., Pinnacle; ALG; Constangy; LRI.
\239\ Neither is the Board convinced that expanding the list
beyond names and addresses will create any significant problems for
employers in complying with the 2-day time frame. To the extent that
aspects of particular industries may present challenges in
identifying certain types of the newly required information, the
Board believes that these issues can be dealt with in the
implementation of the voter list (and related initial employee list)
amendments. For example, Maurice Baskin explained that construction
industry employees frequently change jobs and job sites, and Doreen
Davis explained that retail industry employees frequently change
departments or shifts. See Testimony of Maurice Baskin on behalf of
ABC II and Doreen Davis on behalf of RILA II. It is the Board's
preliminary view that there would be no impediment to employers in
such circumstances noting that certain employees' classifications,
shifts or locations are variable rather than fixed, providing their
current classifications, shifts, and locations, and indicating, if
known, where they will be going next. The need to make such a
notation should not be particularly challenging to determine within
the time frames set forth in the final rule. Contrary to the
suggestion of Ms. Davis (Id.) and the related question raised by
Baker & McKenzie, an employer need not continually revise the
initial employee list provided with the Statement of Position or the
voter list to reflect changes associated with employee information.
However, if there is a change (due to employee turnover or transfer)
between the time that the initial employee list and the voter list
is provided, then it will be incumbent on employers to update the
information at that time of the voter list's filing (and at that
time only).
\240\ See, e.g., Chamber; Sheppard Mullin.
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3. Format and Service of List
In the NPRM, the Board proposed that the voter list be provided in
an electronic format generally approved by the Board's Executive
Secretary unless the employer certifies that it does not possess the
capacity to produce the list in the required form, and that the
employer serve the voter list on the other parties electronically at
the same time it is filed electronically with the regional office. The
Board received multiple comments supporting the electronic format and
service proposals.\241\ These proposals are included in the final rule
with the slight modification that the General Counsel is substituted
for the Board's Executive Secretary.\242\ See amended Sec. Sec.
102.62(d), 102.67(l).
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\241\ See, e.g., GAM; UNAC/UHCP II; U.S. Poultry II.
\242\ Upon further reflection, the Board has concluded that
periodic approval of acceptable electronic formats for the voter
list would be a more appropriate role for the agency's General
Counsel, given the General Counsel's traditional duty of overseeing
the agency's regional staff as they carry out the bulk of the
Board's representation case procedures, including the handling of
the voter list.
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The Board has concluded that requiring production of the list in
electronic form (unless the employer certifies that it does not have
the capacity to produce the list in the required form) would further
both purposes of the Excelsior requirement. The Board has further
concluded that requiring the employer to electronically serve the voter
list directly on the other parties at the same time the employer
electronically files the list with the regional office will likewise
further both purposes of the Excelsior requirement and eliminate an
administrative burden. As set forth in the NPRM, the Board's Excelsior
rule requires only that the employer file the list with the regional
director. 156 NLRB at 1239. Excelsior further provides that the
regional director in turn shall make the list available to all parties.
Id. at 1240. This two-step process thus requires the regional office to
forward to the other parties the list filed in the regional office by
the employer. This two-step process has also caused delay in receipt of
the list and unnecessary litigation when the regional office, for a
variety of reasons, has not promptly made the list available to all
parties. See, e.g., Ridgewood Country Club, 357 NLRB No. 181 (2012);
Special Citizens Futures Unlimited, 331 NLRB 160, 160-62 (2000);
Alcohol & Drug Dependency Services, 326 NLRB 519, 520 (1998); Red
Carpet Bldg. Maintenance Corp., 263 NLRB 1285, 1286 (1982); Sprayking,
Inc., 226 NLRB 1044, 1044 (1976). Moreover, some comments also
complained about their experiences with delay when employers file the
list with the regional office after business hours on a Friday, and the
regional office subsequently does not forward the list to the
petitioner until the following Monday.\243\ The final rule eliminates
this unnecessary administrative burden--as well as potential source of
delay and resulting litigation--by providing for direct service of the
list by the employer on all other parties. See amended Sec. Sec.
102.62(d), 102.67(l).
---------------------------------------------------------------------------
\243\ See Testimony of Darrin Murray on behalf of SEIU II; SEIU
II.
---------------------------------------------------------------------------
Spartan Motors complains that small employers might not maintain
their data in electronic form, and therefore they will be burdened by
having to produce it in electronic form. The rule, however, exempts
employers from having to produce the list in the required electronic
format if the employer certifies that it does not have the capacity to
produce the list in the required form. Baker & McKenzie questions what
evidence an employer must provide to show its inability to produce an
electronic list and what criteria the Board will apply in evaluating
whether it is feasible for an employer to file and serve the list
electronically. The Board does not expect this to be a major topic of
litigation, and for that reason, the final rule provides for an
employer to certify to the regional director its inability to produce
the list in the required form, instead of making a special request that
it be allowed to produce an alternative form of the list. The Board
trusts that the good faith of employers combined with the
reasonableness of the format approved by the General Counsel, will lead
to the smooth application of this process.
SEIU II suggests that the Board should require employers to provide
their lists in a searchable format to ease the burden on petitioning
unions in manipulating the list, and NUHW makes the related suggestion
that the Board should require employers to provide the list in the same
format to all parties--noting the alleged injustice suffered when NUHW
received a voter list in a less useful format than that provided to the
Board and to a rival incumbent union. The Chamber II specifically
replies to SEIU's suggestion by asserting that providing the list in a
searchable format may not be feasible for all employers and so the
Board should continue to allow flexibility in the format of the voter
list. We think that each of these concerns has merit. Thus, the Board
agrees that it would be optimal for parties to provide lists in
searchable formats, but acknowledges that may be beyond the technical
expertise of certain employers. The Board expects that the General
Counsel will establish guidelines that require voter lists in
searchable formats where feasible to address the concerns expressed by
SEIU and to maintain the necessary flexibility as advocated by the
Chamber. The Board further expects that the General Counsel's guidance
will require, at minimum, that the voter list be provided in the same
format to all parties--including the situation where there are rival
incumbent and petitioning unions.
Some comments, including those of SIGMA, suggest that it may take
some effort to compile an electronic list using information from
multiple databases.\244\ SIGMA's point is well taken. The Board does
not wish to burden employers with the need to merge electronic files
that may be kept in distinct forms or potentially on distinct computer
programs. Therefore, it will be presumptively appropriate under the
final rule to produce multiple lists when the data are kept in separate
files, so long as all of the lists link the information to the same
employees using the same names, in the same order and are provided
within the allotted time.\245\ For example, if an employer keeps
information about its employees' work locations, shifts, job
classifications, phone numbers and email addresses in a different
database
[[Page 74357]]
from the database containing its employees' home addresses, then the
employer can produce an alphabetized list of employees and their home
addresses and a second alphabetized list of employees and their work
locations, shifts, job classifications, phone numbers and email
addresses so long as both lists are provided within the allotted time.
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\244\ See, e.g., Indiana Chamber; Vigilant; AHA; COSE.
\245\ The Board believes that this aspect of the final rule
effectively answers AHA's argument that employers in the healthcare
industry, who are obligated to upgrade information technology
systems and bring down patient costs under other regulations, will
be unduly burdened by the voter list timing requirements.
---------------------------------------------------------------------------
The Washington Farm Bureau requests that employers be allowed to
choose whether to submit the information in electronic or hardcopy
form. The Board thinks that the two purposes of Excelsior are better
served by requiring the electronic form, rather than leaving the choice
of format to an employer's discretion, provided of course that the
employer has the capacity to produce the list in the required
electronic form.
The Board also rejects the Chamber's II prediction that electronic
service of the list will ``invite abuse of the system and unauthorized
use of the information contained'' on the list.\246\ As discussed
above, we see no reason for assuming that ``a union, seeking to obtain
employees' votes in a secret ballot election, will engage'' in abusive
behavior. Excelsior, 156 NLRB at 1244. Although the Board recognizes
that whenever information is conveyed in an electronic format, there is
a heightened risk of inadvertent dissemination or unauthorized access
by third parties, in today's modern workplaces, however, it is simple
enough to turn any paper document into an email attachment. So, the
Board fails to see how any dangers of misuse--real or imagined--will be
avoided simply by requiring parties to continue to use slower and more
expensive forms of communication when filing the list with the regional
director and transmitting it to the petitioner.
---------------------------------------------------------------------------
\246\ Although the Chamber II's comment suggests that service of
the eligibility list via email invites abuse, other comments from a
cross-section of interested groups applaud the provision for
electronic service of the list when feasible. See e.g., GAM,
Buchanan.
---------------------------------------------------------------------------
The Board likewise rejects Vigilant's suggestion that, rather than
have the employer serve the list on the other parties, the Board serve
the list on the parties after the employer has filed the list with the
Board. Vigilant asserts that such an intermediate step would allow for
correction of errors or omissions, but as discussed above, such an
intermediate step is currently in place and has caused avoidable delay,
administrative burden, and unnecessary litigation. Moreover, the Board
is not persuaded that employers generally need the Board's help to
``proof'' the lists they produce from their own records or that the
Board could provide meaningful assistance in this regard as it is not
the employer of the employees at issue.
The Board also disagrees with INDA II's reasoning for maintaining
the current two-step procedure. INDA, and others, alleges that it is
appropriate to keep the burden of serving the voter list on petitioners
with the regional staff, whose profession is administering the Act, and
that more errors and litigation are likely to ensue by shifting the
burden to employers, many of whom will have had no prior experience
with the Board's representation case processes. While the Board
certainly credits the statement that many employers are not repeat
players in representation case proceedings and thus may be initially
unfamiliar with the requirements, the final rule takes steps to remedy
any ignorance on the part of employers by sending out a detailed
explanation of those procedures as part of the first official
communication that an employer will receive from one of the agency's
regional offices. That explanation will cover the employer's eventual
responsibility to serve a voter list on the nonemployer parties to the
case (using the contact information listed on the face of the petition
or provided in a Statement of Position or at the hearing) at the same
time the employer files the list with the regional office. Furthermore,
the Board believes that employers will typically have a wealth of
experience sending important documents to entities outside of their
organization, and should not be particularly challenged by emailing the
voter list to the nonemployer parties' email addresses at the same time
they email the list to the regional offices. Indeed, this task could be
completed by transcribing the email address for the nonemployer party
onto the recipient line of the same email bound for the regional
office.\247\
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\247\ To the extent that INDA II also argues that the age of the
cases cited in the NPRM demonstrate that there are no contemporary
problems occasioned by regional service of the voter list following
its filing by an employer, the Board notes the recent case of
Ridgewood Country Club, 357 NLRB No. 181 (2012), where we were again
called upon to set aside an election due to regional office failures
in transmitting the list to a petitioner.
---------------------------------------------------------------------------
At least one comment (Sheppard Mullin II) raises the concern that
rule language stating that an employer's failure to file a timely list
in a proper format ``shall be grounds for setting aside the election
whenever proper objections are filed'' signals an inappropriate
departure from prior Board law governing whether an employer has
sufficiently complied with its Excelsior obligations. To the contrary,
while the final rule changes an employer's obligations concerning the
content, timing, and format of the voter list, the Board does not
hereby overrule extant law interpreting whether an employer's efforts
at compliance fall sufficiently short to justify setting aside an
election's result. The quoted language above is taken directly from the
original Excelsior decision itself, 156 NLRB at 1240, and has not
impeded the Board from adding fact-specific glosses to whether the
requirement was sufficiently met. See, e.g., North Macon Health Care
Facility, 315 NLRB 359 (1994).\248\
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\248\ However, the Board has decided to slightly modify the NPRM
language regarding the consequences for noncompliance with the voter
list amendments to track the language from pre-existing Sec. 103.20
with respect to the consequences for noncompliance with the
obligation to post what was called prior to the NPRM,'' the Board's
``official Notice of Election.'' Thus, amended Sec. 102.62(d) and
Sec. 102.67(l) shall provide in pertinent part that ``The
employer's failure to file or serve the list within the specified
time or in proper format shall be grounds for setting aside the
election whenever proper and timely objections are filed.''
(emphasis added)
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Other comments suggest additional alterations to the voter list
rules to protect employers who accidentally produce inaccurate lists.
For example, ACE submits that the Board should automatically excuse
inaccurate lists in large units when petitioners are unable to show an
employer's intent to manipulate the process. The Board declines to
adopt these suggestions. As discussed above, the Board continues to
agree with existing precedent on Excelsior compliance, and does not
intend to limit the discretion of future Boards to apply adjudicative
glosses to the rule based upon a variety of fact patterns yet to
arise.\249\
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\249\ The Board likewise disagrees with Karatinos' complaint
that ``there is no downside [under the proposals] to an employer
producing an Excelsior list riddled with inaccuracies.'' As noted,
just as was the case under the prior rules, the Board may set aside
an election in which the union failed to obtain a majority of the
valid votes cast if the employer's voter list was ``riddled with
inaccuracies.'' See, e.g., Woodman's Food Markets, 332 NLRB 503
(2000) (noting that the Board considers the percentage of names
omitted, whether the number of omissions is determinative in the
election, and the employer's reasons for the omissions); Automatic
Fire Sys., 357 NLRB No. 190 (2012) (applying this test and ordering
a rerun election).
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Holland & Knight questions if it will be objectionable for an
employer to omit from the voter list the contact and other information
of employees whose eligibility is disputed. As discussed more fully
below in connection with Sec. 102.67, the answer is ``yes.'' Prior to
the NPRM, parties could agree that
[[Page 74358]]
certain classifications or employees be permitted to vote subject to
challenge just as a regional director could direct that certain
classifications or employees be permitted to vote subject to challenge.
See, e.g., Casehandling Manual Sections 11084.3 and 11338.2(b). In such
cases, the employer was advised to provide the names and home addresses
for such individuals on the Excelsior list. Similarly, the final rule
requires the employer to provide the information for such individuals
on the voter list. However, as discussed more fully below in connection
with Sec. 102.67, in order to ensure that the Board agent and the
parties' observers will properly process employees who were directed to
vote subject to challenge (or were permitted to vote subject to
challenge by agreement of the parties), the final rule requires the
employer to provide the names and related information about such
employees in a separate section of the list.
4. Restriction and Remedies for Misuse of the Voter List
In the NPRM, the Board proposed a restriction on the use of the
voter list--barring parties from using it for any purposes other than
the representation proceeding and related proceedings--and sought
comments regarding what, if any, the appropriate remedy should be for a
party's noncompliance with the restriction.\250\
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\250\ Although the NPRM used the term ``sanction,'' this usage
was inapt because of its punitive connotation. See Republic Steel
Corp. v. NLRB, 311 U.S. 7, 10-13 (1940) (explaining that the NLRA is
essentially remedial).
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Many comments address the proposed restriction and potential
consequences of noncompliance. At the outset, labor organizations'
comments point out that Excelsior did not contain any express
restriction language and generally agree that the lack of historical
evidence of Excelsior list abuses undercuts the need for any
restriction.\251\ In contrast, other comments envision, as discussed
above, a wide variety of potential misuses should the Board implement
its voter list proposal.\252\
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\251\ See, e.g., AFL-CIO II; UFCW; NNU.
\252\ See, e.g., PCA (union selling employee information);
NRTWLDF (harassment, identity theft, property crime); David Holladay
II (threats to spouse or children).
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Other concerns are shared by both labor organizations and employer
associations. For example, some comments, such as those from the
Chamber and SEIU, focus on the lack of clarity as to what activity
would be encompassed by the restriction (i.e., what activity falls
outside of ``using the list''), while others, such as PCA's and UFCW's,
assert that the Board could not effectively police any restriction it
imposed, or that any remedy would be de minimis with regard to the
damage done (CNLP; NRTW). The National Education Association Staff
Organization concludes that the restriction and remedy proposals would
simply create more litigation concerning matters which the Board, in
contrast to law enforcement and the civil courts, is ill-equipped to
handle. Additionally, other comments complain that the proposed
restriction is unclear as to what counts as ``the representation
proceeding and related proceedings.'' \253\ In this regard, the Indiana
Chamber worries that this phrase is overbroad, whereas by contrast,
SEIU expresses concern that it will prove too narrow and restrictive of
lawful union activity.
---------------------------------------------------------------------------
\253\ See, e.g., Chamber; UFCW; Testimony of Thomas Meiklejohn
on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly.
---------------------------------------------------------------------------
Nevertheless, many employer associations' comments propose a range
of remedies including: Setting aside elections, temporary bans on
organizing, letters of apology, monetary penalties, referral to law
enforcement where criminal conduct has occurred, and pursuing
injunctive relief against the restriction's violators.\254\ Meanwhile,
labor organizations' comments stress that any sufficiently weighty
remedy threatens to unfairly penalize employees for the misdeeds of
labor organizations \255\ and question whether the Board has
``appropriate remedial authority to address such circumstances.'' \256\
In further contrast, the Chamber suggests that remedies should be ``no
fault'' (applying to any misuse of the list, regardless of the
petitioner's intent), while the UFCW urges that the Board limit any
remedy to ``clearly defined circumstances involving willful and
egregious noncompliance with the rule.''
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\254\ See, e.g., Chamber II; SHRM II; AGC; ALG; Indiana Chamber;
CDW. Other comments propose less concrete remedies, such as
``affirmative steps to remedy misuse'' (SHRM) or ``severe''
consequences (Anchor Planning Group; LRI). On a slightly different
note, in order to prevent misuse to begin with, NRTWLDF suggests
that unions not be allowed to withdraw petitions once filed, and
Anthony Benish suggests that a union be barred from filing another
petition at that employer for one year after withdrawing a petition.
The potential for the supposed abuses NRTWLDF and Benish seek to
prospectively remedy already exists. Without any evidence of such
risks regularly materializing and negatively affecting employees,
the Board sees no need to change current practices. As shown,
regional directors already have discretion to reject a petitioner's'
request to withdraw its petition if the request would run counter to
the purposes of the Act or to approve the withdrawal with prejudice
to refiling. See Casehandling Manual Sections 11110, 11112, 11113,
11116, 11118.
\255\ See, e.g., SEIU (reply); UFCW.
\256\ See AFL-CIO. AFL-CIO further points out that non-Board
remedies are already available for the possible misuses identified
by opponents of the rule.
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After careful consideration of the comments, the Board has slightly
modified the proposed restriction language. The final rule shall read
in relevant part: ``The parties shall not use the list for purposes
other than the representation proceeding, Board proceedings arising
from it, and related matters.'' See amended Sec. Sec. 102.62(d),
102.67(l). This change sufficiently clarifies the circumstances under
which unions may use the list, balancing both privacy concerns and the
interests, noted above, in the fair and free choice of bargaining
representatives and the expeditious resolution of questions concerning
representation.
The restriction language will plainly allow the nonemployer parties
to use the contact information to provide employees with information
regarding the election and to investigate eligibility issues. Parties
can also use the information on the list for such purposes as
investigating challenges and objections and preparing for any post-
election hearings on determinative challenges and/or objections.
Parties may likewise use the information on the list in connection with
unit clarification proceedings to decide the status of individuals
whose status was not determined by the regional director or the Board
or who voted subject to challenge in an election but whose ballots were
not determinative. See Casehandling Manual Section 11490.1. Parties may
also use the information on the list to investigate, and prepare for
hearings regarding, unfair labor practice charges concerning the
employer's employees that are filed before or after the election takes
place. And, just as is the case currently, if post-election objections
are filed, a union (or decertification petitioner) could continue to
use the list to maintain their support and to campaign for votes in
connection with any rerun election that is held. In each of these
examples, the nonemployer parties would be using the list for purposes
of the representation proceeding, Board proceedings arising from it,
and related matters. At the same time, the Board believes it goes
without saying that nonemployer parties would run afoul of the
restriction if, for example, they sold the list to telemarketers, gave
it to a political campaign or used the list to harass, coerce, or rob
employees.\257\
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\257\ It is conceivable, as the Indiana Chamber comments, that a
party alleged to have misused the list might claim in its defense
that it managed to obtain the information independently of the
employer's provision of the list, and therefore that it was not
``using'' the list when it engaged in the challenged conduct. That
issue, like so many other issues, raises a question of fact for the
factfinder.
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[[Page 74359]]
While the Board thinks it is self-evident that misuse of the voter
list that adversely affects unit employees should result in some
remedy, the Board has concluded that it would not be appropriate at
this time to specify a remedy, or set of remedies, that would be
applicable in all situations. The Board notes in this regard that while
the Excelsior Board stated that it would ``provide an appropriate
remedy'' if a union used the list to harass or coerce employees
(Excelsior, 156 NLRB at 1244), the Excelsior Board did not specify the
remedies it would provide. Like the Excelsior Board, we will leave the
question of remedies to case-by-case adjudication.
For example, the Board rejects the notion advanced in some comments
\258\ that misuse of the voter list should always warrant setting aside
the results of an election won by the party misusing the list. As noted
below in connection with Sec. Sec. 102.64 and 102.66, the purpose of
the election is to answer the question of representation. For example,
the purpose of an election in an initial organizing case is to
determine whether employees in an appropriate unit wish to be
represented for the purposes of collective bargaining by the
petitioner. There is a strong presumption that ballots cast in a secret
ballot election reflect the true desires of the participating
employees. Accordingly, the burden is on the objecting party to
demonstrate that the election results ``did not accurately reflect the
unimpeded choice of the employees.'' Daylight Grocery Co., Inc. v.
NLRB, 678 F.2d 905, 909 (11th Cir. 1982). A party seeking to overturn
the outcome of an election based on another party's conduct has the
burden of showing not only that the conduct complained of occurred, but
also that it ``interfered with the employees' exercise of free choice
to such an extent that it materially affected the [results of the]
election.'' C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir.
1988). Accord Amalgamated Clothing Workers of America v. NLRB, 424 F.2d
818, 827 (D.C. Cir. 1970). The Board has indeed set aside elections
when union coercion resulted in objections to an election that were
sustained.
---------------------------------------------------------------------------
\258\ See, e.g., Chamber; Indiana Chamber.
---------------------------------------------------------------------------
But not every misuse of the list can be said to have interfered
with employee free choice in the election, let alone be said to have
materially affected the results of the election. For example, if a
union misuses the list after the election, by, for example selling the
list to telemarketers, the misuse could not possibly have affected
employee free choice in the election because the misconduct occurred
after the election. Even if the union were to sell the list before the
election, it could not be said to have impeded employee free choice if
no employee knew about it. Setting aside the results of the election in
such circumstances would interfere with employee free choice and would
be contrary to the Act's policy in favor of industrial stability.
Accordingly, while the Board certainly does not wish to convey that a
party's misuse of the voter list could never warrant setting aside an
election, the Board does not feel that it is appropriate to adopt a
rule that would set aside election results in every case where the
union chosen by employees misused the list in some way. At the same
time, the fact that misuse of the list could not warrant setting aside
the results of an election does not mean that the misuse should not be
remedied in a manner appropriate to the circumstances.
Similarly, the Board concludes that it would not be appropriate to
adopt a per se rule that would bar a labor organization from engaging
in future organizational drives whenever (and however) the labor
organization misused the list, for such a remedy would interfere with
the right of employees to petition for a specific labor organization to
represent them.\259\ The Board also declines to adopt a rule that would
require the General Counsel to seek injunctive relief in Federal
district court whenever a party misuses the list. Injunctive relief is
not the norm in our system, and while the Board does not wish to rule
out seeking injunctive relief in an appropriate case, it does not
believe that seeking such relief as a matter of course would
necessarily be appropriate.\260\
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\259\ Nor is it at all clear whether the Board even possesses
the requisite statutory authority to ban a union from filing future
representation petitions because of previous misbehavior. In any
event, the Board has long been loath to restrict employee free
choice with respect to union representation on the basis of union
misconduct. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962)
(``[I]nitially, the Board merely provides the machinery whereby the
desires of the employees may be ascertained, and the employees may
select a `good' labor organization, a `bad' labor organization, or
no labor organization, it being presupposed that employees will
intelligently exercise their right to select their bargaining
representative.''); Handy Andy, Inc., 228 NLRB 447, 454-56 (1977)
(rejecting employer's argument that a union's practice of race
discrimination preclude it from being certified as an exclusive
bargaining representative).
Nevertheless, Sec. 102.177 of the Board's Rules and Regulations
appears broad enough to cover an attorney's or party
representative's failure to abide by Board rules, including the rule
announced today regarding misuse of the voter list, depending on the
facts and circumstances of the violation. See Sec. 102.177(d)
(``Misconduct by an attorney or other representative at any stage of
any Agency proceeding, including but not limited to misconduct at a
hearing, shall be grounds for discipline. Such misconduct of an
aggravated character shall be grounds for suspension and/or
disbarment from practice before the Agency and/or other
sanctions.'') Moreover, if violations of the voter list restrictions
should occur that do not fall within the provisions of Sec.
102.177, the Board may look to amend that provision in the future.
\260\ Similarly, the Board hesitates to adopt a rule that would
require parties in all cases to apologize for misusing the list. An
apology would amount to an admission of guilt. Regional Directors,
acting on behalf of the General Counsel, regularly approve
settlements involving alleged unfair labor practices--even though
the settlements contain non admissions clauses--where they conclude
that the settlements effectuate the policies of the Act. The Board
does not wish to preclude regional directors from resolving cases
involving alleged misuse of voter lists in a manner the directors
deem acceptable merely because the parties alleged to have misused
the lists refuse to admit to having done so.
As for monetary sanctions, the Board observes that while it does
have the authority to make employees whole for their losses, it
lacks authority to impose penalties, as noted above. Accordingly,
the Board does not believe that a monetary sanction will be
appropriate in all cases of voter list misuse. Regarding CDW's
suggestion that the Board refer criminal conduct to law enforcement
authorities, the Board observes that under Casehandling Manual
Section 11029.3, the Agency already forwards evidence of forgery to
the appropriate law enforcement authorities.
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AGC suggests that misuse of the voter list should be deemed a
violation of Section 8(a)(1) or 8(b)(1). The Board rejects this
suggestion at this time for reasons similar to those that led us to
reject the suggestion that any misuse should warrant setting aside the
election results. There may be situations in which the Board finds that
a party has misused the voter list in violation of Section 8(a)(1) or
8(b)(a). Even if no such violation is found, the misuse may constitute
objectionable conduct, which could trigger a new election. The Board
believes that case-by-case adjudication is the appropriate way to
consider circumstances in which a remedial order is appropriate so that
it can tailor its order to the specific misuse and ensure that the
remedy it imposes is effective. As with all of the foregoing proposals,
the point is that in determining the appropriate remedy for a proven
misuse, the Board believes that it is appropriate to consider all the
circumstances and provide a remedy, where appropriate, which is
tailored to the misconduct found to have been committed.
MEMA II argues that any restriction must be accompanied by
requiring advanced security protocols to be implemented by petitioning
unions, and cites as models the regulatory regimes developed under the
Gramm-Leach-
[[Page 74360]]
Bliley Act (``GLBA''), 15 U.S.C. 6801, the Health Insurance Portability
and Accountability Act (``HIPAA''), 42 U.S.C. 1320d, and the Fair
Credit Reporting Act (``FCRA''), 15 U.S.C. 1681a. We disagree. The
personal information at issue in those statutes is far more sensitive
than what will be disclosed as part of the voter list amendments we
announce today. We do not believe that we can rationally equate the
financial and health-related information regulated by those statutes
with employee contact information, and identification of their work
location, shift, and job classification.\261\ In addition, MEMA's
comment loses sight of the fact that the nonemployer party who receives
the list in a given case may not be a large sophisticated institution
like an international union, but might be an unsophisticated individual
who files a decertification petition. Thus, in addition to the
information's relative lack of sensitivity, the Board believes that it
would be unrealistic to think that it could require individual
employees or small labor organizations to--as advocated by MEMA--
designate a security officer or develop a written security program.
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\261\ The legislative and administrative histories of the GLBA,
the HIPAA and the FCRA support our position that financial and
medical information is special and requires a closer degree of
protection than other types of information. See, e.g., U.S. Sen.
Conrad Burns Holds Hearing on Privacy on the Internet Before Sen.
Subcomm. on Commc'ns, 106th Cong. 1999 WL 542117 (1999) (``Last week
we unanimously testified in favor of legislation that would protect
the privacy of financial records, because financial records are
different. I would say the same thing about medical records.'');
Standards for Privacy of Individually Identifiable Health
Information, 64 FR 59918, 59919-20 (proposed November 3, 1999)
(codified at 45 CFR parts 160 and 164) (discussing why medical
records specifically warrant privacy protections); Statement of Mr.
Stephen Brobeck Before H. Comm. on Fin. Servs., 2003 WL 21541527
(2003) (discussing the need for revisiting and expanding the privacy
protections in the FCRA because of the exceptional nature of
financial information); see also Fact Sheet on Fin. Privacy and
Consumer Prot., 1999 WL 270108 (1999) (discussing need to protect
medical and financial information due to their particularly private
and important natures).
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Finally, regarding a petitioner's retention of the information
after a representation campaign ends, the Board observes that
petitioners are currently entitled to retain the list indefinitely
under Excelsior, and, as shown, there are certainly legitimate reasons
why petitioners might use the list after the election. Moreover, the
Board does not believe that a petitioner's retention of the information
on the list would implicate any privacy concerns beyond those
implicated by the initial disclosure under Excelsior. The Board
therefore declines the suggestion that petitioners be required to
destroy voter list information after a set period of time or upon an
individual employee's request.\262\ We reiterate, however, that the
Board will provide an appropriate remedy under the Act if misconduct is
proven and it is within the Board's statutory power to do so. In
addition, individuals may have recourse in other judicial fora.\263\
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\262\ See, e.g., Chamber; Daniel Wroblewski.
\263\ To be clear, the Board will not abdicate its
responsibility to utilize its statutory authority to remedy any
misuse that may occur following implementation of the voter list
amendments merely because the possibility of remedial authority
exists under a separate civil or criminal statutory scheme. Indeed,
the Board remains mindful of the possibility raised by J. Aloysius
Hogan (Testimony on behalf of the Competitive Enterprise Institute
II) that the voter list amendments could be found by a court to
preempt state statutes that might otherwise provide breach of
privacy remedies. Nevertheless, the Board is unprepared at this time
to say that no set of future circumstances will be appropriate for
the Board to defer remediation to another state or Federal judicial
forum, and it cannot assume that every statute potentially relevant
to misuse of the voter list will be preempted.
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5. Waiver
Although the proposed regulatory language did not explicitly so
state, the preamble section to the NPRM indicated that consistent with
existing practice, reflected in Mod Interiors, Inc., 324 NLRB 164
(1997), and Casehandling Manual Section 11302.1, and as recently noted
by the Board in The Ridgewood Country Club, 357 NLRB No. 181, n.8
(2012), an election shall not be scheduled for a date earlier than 10
days after the date by which the voter list must be filed and served,
unless this requirement is waived by the parties entitled to the list.
SEIU urges that instead of requiring the employer to provide the
voter list to the union within 2 days after the direction of election
with the ensuing 10-day pre-election period, the Board should require
the employer to provide a ``preliminary'' list of employees (including
contact information) to the union within 2 days after it receives the
union's election petition, and to update this list as necessary at the
pre-election hearing. SEIU points out that if this alternative
requirement were imposed, the 10-day practice would be largely
unnecessary since the union would have obtained the voter list at an
earlier point in the process. SEIU also requests that a post-direction
period of up to 10 days be available for the union to contact any
employees who were added to the list at the pre-election hearing.
However, the Excelsior Board justified the required disclosure in part
because the interest in the fair and free choice of a bargaining
representative must be deemed substantial when the regional director
has found that a question of representation exists or the employer
admits that such a question exists by entering into an election
agreement. See Excelsior, 156 NLRB at 1245. Absent an election
agreement, however, the director cannot find that a question of
representation exists and direct an election until the hearing closes.
Under the final rule, the hearing ordinarily will open 8 days after
service of the notice. Accordingly, the Board rejects SEIU's request
that the employer be required to furnish the other parties with the
employee contact information 2 days after the filing of the petition--
i.e., before either the director has found that a question of
representation exists or the employer has admitted such a question of
representation exists.
ALFA and SHRM assert that the waiver of the 10-day period should
not be permitted on the grounds that the 10-day period is provided for
the benefit of employees rather than unions, and that the 10-day period
is always necessary to permit employees to receive information from
their employers. In this respect, these comments assert that a waiver
of the 10-day period contributes to the overall shortening of the
period between the filing of a petition and the election effected by
the rule amendments, which they oppose. SHRM, quoting Excelsior,
emphasizes the priority of avoiding ``a lack of information with
respect to one of the [ballot] choices available.''
However, the comments take the quoted language out of context: The
Board imposed the requirement on the employer to disclose the list of
employee names and addresses in order to maximize the likelihood that
the voters will be exposed to the nonemployer parties' arguments. Thus,
as shown, the Excelsior Board observed (156 NLRB at 1240) that in
contrast to the union, ``[a]s a practical matter, an employer, through
his possession of employee names and home addresses as well as his
ability to communicate with employees on plant premises, is assured of
the continuing opportunity to inform the entire electorate of his views
with respect to union representation.'' The Board went on to note that
``by providing all parties with employees' names and addresses, we
maximize the likelihood that all of the voters will be exposed to the
arguments for, as well as against, union representation.'' Id. at 1241.
Similarly, in upholding the requirement, the Supreme Court reasoned
that the disclosure requirement allows ``unions the right of access to
employees that management already possesses.'' NLRB v. Wyman-Gordon
Co., 394 U.S. at 767. The Excelsior rule was accordingly found
[[Page 74361]]
necessary to provide the nonemployer parties with an opportunity to
communicate its message at least to the extent of having access to
employees' names and home addresses. Neither the employer's nor the
employees' interest is compromised by the union's exercise of the
waiver of the 10-day period, since that results in a reduction only of
the union's opportunity to further communicate with employees; and the
union can be expected to exercise the waiver only when it is confident
that employees have heard its message. The objection that a waiver of
the 10-day period shortens the opportunity for employers to communicate
with employees is therefore relevant not to the union's use of the
Excelsior list, but rather to the other rule amendments at issue here.
That objection is addressed in connection with The Opportunity for Free
Speech and Debate above.
SHRM also contends that if the waiver is retained, the waiving
party should be treated as also waiving the right to file election
objections based on the voter list, any failure of the employer to
properly post election notices, ``and any other potential procedural
objection.'' We are not persuaded by the suggestion that nonemployer
parties should not be permitted to waive all or part of the 10-day
period to use the list unless they also agree to waive objections to an
employer's failure to fulfill its obligations under the Board
representation case rules. For example, the fact that a union believes
that it needs only 5 days to communicate with the electorate if the
employer furnishes it with an accurate list of the eligible voters'
contact information certainly does not mean that the union has agreed
that it only needs 5 days to communicate if the employer furnishes it
with an inaccurate list of the eligible voters' contact information.
Accordingly, a union should not be deemed to have waived its right to
object to an employer's failure to provide an accurate voter list
merely because it waived its right to use the list for the full 10-day
period. Similarly, that a union agrees to waive part of the time for
using the voter list certainly does not mean that a union should be
held to have forfeited its right to object if the employer alters, or
fails to post, the Board's election notice and thereby misleads, or
fails to inform, employees as to the election details. In sum, although
the final rule does not so state, we reiterate that consistent with
current practice, an election shall not be scheduled for a date earlier
than 10 days after the date by which the voter list must be filed and
served, unless this requirement is waived by the parties entitled to
the list.
Sec. 102.63 Investigation of Petition by Regional Director; Notice of
Hearing; Service of Notice; Notice of Petition for Election; Statement
of Position; Withdrawal of Notice of Hearing
A. Introduction and Overview of Changes From NPRM
The Board proposed in the NPRM that, absent special circumstances,
the regional director would set the hearing to begin 7 days after
service of the notice of hearing. The Board further proposed that, with
the notice of hearing, the regional director would serve the petition,
the ``Initial Notice to Employees of Election,'' the description of
procedures in representation cases, and the Statement of Position form
on the parties. The NPRM also proposed that the regional director
specify in the notice of hearing the due date for Statements of
Position, which would be due no later than the date of the hearing. The
Board specifically sought comments on the feasibility and fairness of
these time periods and the wording and scope of the exceptions thereto.
79 FR 7328.
The Board received a great number of comments about these matters.
Comments criticizing the Statement of Position form attacked the scope
of the information solicited by the form \264\ and the due date for its
completion,\265\ as well as its binding nature and the consequences of
failing to complete it.\266\ Comments also criticized the proposed time
frame for the pre-election hearing \267\ and the wording and scope of
the exceptions thereto.\268\ Comments praising the proposals argued
that the Statement of Position form and proposed time frames largely
mirror best existing casehandling practices.\269\ However, some of
these comments suggested that the Board require completion of the
Statement of Position form even earlier.\270\
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\264\ See, e.g., ACC; Chamber; Chamber II; NAM; NAM II.
\265\ See, e.g., COLLE; Indiana Chamber; NAM; Chamber Reply;
Chamber II.
\266\ See, e.g., Chamber; Chamber II; NRF; MEMA.
\267\ See, e.g., Washington Farm Bureau; CDW; ACC.
\268\ See, e.g., Testimony of Russ Brown on behalf of LRI;
Chamber Reply.
\269\ See, e.g., AFL-CIO; AFL-CIO Reply; AFL-CIO II; SEIU; NELP.
\270\ See, e.g., SEIU and UFCW.
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The Board has carefully considered the comments and, as explained
more fully below, has decided to adopt the proposals with certain
significant changes:
(1) Except in cases presenting unusually complex issues, the
regional director will set the hearing to open 8 days--rather than 7
days--from service of the notice of hearing excluding intervening
Federal holidays. However, the regional director may postpone the
opening of the hearing up to 2 business days upon request of a party
showing special circumstances, and for more than 2 business days upon
request of a party showing extraordinary circumstances. Accordingly,
parties will have at least 8 days notice of the hearing.
(2) The Statement of Position will be due at noon on the business
day before the opening of the hearing if the hearing is set to open 8
days from service of the notice of hearing. Although the regional
director may set the due date for the position statement earlier than
at noon on the business day before the hearing in the event the hearing
is set to open more than 8 days from the service of the notice, parties
will have 7 days notice of the due date for completion of the Statement
of Position form in all cases. The Statement of Position form will be
due no later than at noon on the business day before the hearing so
that it may serve its intended purposes of facilitating entry into
election agreements and narrowing the scope of any hearing that must be
held, thereby enabling the Board to expeditiously resolve questions
concerning representation.\271\
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\271\ Just as is the case with respect to the opening of the
hearing, the regional director may postpone the due date for filing
and service of the Statement of Position up to 2 business days upon
request of a party showing special circumstances, and for more than
2 business days upon request of a party showing extraordinary
circumstances.
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(3) In the event the employer contends as part of its Statement of
Position that the proposed unit is not appropriate, the employer will
not be required to identify the most similar unit that it concedes is
appropriate or provide information about the employees in such a unit.
However, the employer will be required to state the basis for its
contention that the proposed unit is inappropriate, and state the
classifications, locations, or other employee groupings that must be
added to or excluded from the proposed unit to make it an appropriate
unit, and the employer will be required to disclose information about
the individuals in the classifications, locations, or other employee
groupings that the employer contends must be added to the proposed unit
to make it an appropriate unit, so that the petitioner will be able to
evaluate the employer's position and decide whether to amend its
petition to conform to the unit proposed by the employer.
[[Page 74362]]
(4) The final rule will not require the employer to disclose as
part of its Statement of Position any contact information for employees
in the proposed unit or for employees in any alternative unit proposed
by the Employer.
(5) The final rule clarifies the required Statements of Positions
in RM and RD cases to make them parallel to the required Statement of
Positions in RC cases, which will facilitate entry into election
agreements and narrow the scope of pre-election hearings in those
cases.
(6) The final rule states explicitly that the regional director may
permit parties to amend their Statements of Position in a timely manner
for good cause.
(7) The final rule also retitles the proposed ``Initial Notice to
Employees of Election'' as the ``Notice of Petition for Election,'' and
clarifies that within 2 business days after service of the notice of
hearing, the employer shall post the Notice of Petition for Election in
conspicuous places, including all places where notices to employees are
customarily posted, and shall also distribute it electronically if the
employer customarily communicates with its employees electronically,
and that failure to do so may be grounds for setting aside the
election.
B. Statement of Position Form
The Board proposed in the NPRM that the Statement of Position form
would solicit the parties' positions on the Board's jurisdiction to
process the petition; the appropriateness of the petitioned-for unit;
any proposed exclusions from the petitioned-for unit; the existence of
any bar to the election; the type, dates, times, and location of the
election; and any other issues that a party intends to raise at
hearing. In those cases in which a party takes the position that the
proposed unit is not an appropriate unit, the party would also be
required to state the basis of the contention and identify the most
similar unit it concedes is appropriate. In those cases in which a
party intends to contest at the pre-election hearing the eligibility of
individuals occupying classifications in the proposed unit, the party
would be required to both identify the individuals (by name and
classification) and state the basis of the proposed exclusion, for
example, because the identified individuals are supervisors. Finally,
parallel to the proposed amendment to the contents of petitions
described in relation to Sec. 102.61 above, the non-petitioning
parties would be required to designate, in their Statement of Position,
the individual who will serve as the party's representative in the
proceeding, including for service of papers. 79 FR 7328.
The NPRM also proposed that, as part of its Statement of Position,
the employer would be required to provide a list of all individuals
employed by it in the petitioned-for unit. The list would include the
same information described in relation to proposed Sec. 102.62 except
that the list served on other parties would not include contact
information. If the employer contends that the petitioned-for unit is
not appropriate, the NPRM proposed that the employer also would be
required to file and serve a similar list of individuals in the most
similar unit that the employer concedes is appropriate. 79 FR 7328-
7329.
Under the proposed amendments, the list filed with the regional
office, but not the list served on other parties, would also contain
available email addresses, telephone numbers, and home addresses. The
regional office could then use this additional information to begin
preparing the electronic distribution of the Notice of Election
discussed in relation to proposed Sec. 102.67. 79 FR 7329.
As set forth in the NPRM, completion of the Statement of Position
form would be mandatory only insofar as failure to timely file it would
preclude a party from raising issues, such as the appropriateness of
the unit, and participating in their litigation. A party would also be
precluded from litigating most issues that it failed to raise in a
timely filed Statement of Position. However, a party would not be
precluded from contesting the Board's statutory jurisdiction to process
the petition, or from challenging the eligibility of a particular voter
during the election. 79 FR 7328, 7329, 7330, 7358.
The NPRM set forth the Board's view that the information requested
by the Statement of Position would facilitate entry into election
agreements and narrow the scope of pre-election hearings in the event
parties are unable to enter into such agreements. The Statement of
Position form would guide prehearing preparation, thereby reducing the
time and other resources expended in preparing to participate in
representation proceedings. The NPRM also explained that parties who
enter into one of the forms of election agreement described in Sec.
102.62 prior to the due date for completion of the Statement of
Position would not be required to complete the Statement. 79 FR 7328-
29.\272\
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\272\ The Board believes that parties may be able to enter into
election agreements without awaiting completion of the Statement of
Position when the petitioned-for unit is presumptively appropriate
and when the nonemployer parties to the case are confident they are
familiar with all the employees.
---------------------------------------------------------------------------
The NPRM provided that the Statement of Position would be due no
later than the date of the hearing. 79 FR 7328. Some comments in favor
of the Statement of Position argue that if the statement is to fulfill
its intended purposes, then parties should be required to complete and
serve it before the hearing. UFCW; SEIU; Testimony of Melinda Hensel on
behalf of IUOE, Local 150 II. We agree. Requiring completion and
service of the Statement of Position such that it is received by the
parties named in the petition and the regional director at noon on the
business day before the opening of the hearing will help facilitate
meaningful negotiations concerning election agreements and will narrow
the scope of preelection hearings in the event parties are unable to
enter into election agreements. If the Statement of Position were not
due until the opening of the hearing, then an employer would not need
to disclose the information required by the form to the petitioner
until the hearing actually opened. As more fully explained below, this
would mean that if, as is often the case, the parties attempted to
negotiate an election agreement before the opening of the hearing, the
petitioner would lack much of the information necessary to
intelligently evaluate the merits of the employer's positions. In fact,
the parties to a representation case frequently attempt to negotiate
election agreements the day before a hearing opens as the immediate
prospect of litigation--and its attendant costs--serves to focus the
parties' attention on the matter at hand. Accordingly, requiring the
filing and service of the Statement of Position at noon on the business
day before the opening of the hearing should help the parties negotiate
election agreements at a time when they typically are actively engaged
in doing that very thing.
Requiring filing and service of the Statement of Position at noon
on the business day before the opening of the hearing will also help
the parties narrow the scope of the hearing in the event parties are
unable to enter into election agreements, thereby saving party and
government resources. For example, even if the parties are unable to
enter into an election agreement, the Statement of Position will enable
the parties to know which issues will actually be contested at the
hearing, so that it can run more smoothly and efficiently. In addition,
as Caren Sencer testified on behalf of Weinberg, Roger &
[[Page 74363]]
Rosenfeld II by enabling the parties to know what the disputed issues
are prior to the day the hearing opens, the requirement of a Statement
of Position could result in parties' needing to pull fewer employees
from the workplace to testify at the preelection hearing, which could
result in fewer disruptions to the employer's business.\273\
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\273\ Other commenters such as UNAC/UHCP likewise complained
that when employers refuse to tell unions what their issues are with
a petition, unions are forced to prepare for, and find witnesses to
testify on, all possible issues. Testimony of Kuusela Hilo on behalf
of UNAC/UHCP II.
---------------------------------------------------------------------------
The Croft Board held that 5 days (excluding intervening weekends
and holidays) constituted sufficient notice for an employer to prepare
for a hearing. Croft Metal, Inc., 337 NLRB 688, 688 (2002). As
explained below, the Board believes that the Statement of Position form
largely requires parties to do what they currently do to prepare for a
pre-election hearing.'' \274\ Accordingly, under amended Sec.
102.63(b)(1-3), a party will be provided with 7 calendar days (5
business days) notice of the due date for completion of the form, and
the hearing will ordinarily be set for 8 days from service of the
notice so that the parties have approximately 1 business day to use the
information on the form before the hearing opens.
---------------------------------------------------------------------------
\274\ In some respects, the Statement of Position form requires
less than what parties frequently do to prepare for a hearing. For
example, completion of the Statement of Position form does not
require witness preparation.
---------------------------------------------------------------------------
Although many employer comments attack the time frame for
completion of the Statement of Position form, its binding nature, and
the consequences of failing to complete it, even the Chamber does not
object to the proposal that parties be required to take positions on at
least some of the matters addressed by the Statement of Position form.
For example, the Chamber states in both its comments regarding the 2011
NPRM and the 2014 NPRM that in general it does not object to the
proposed requirement that the employer state whether it agrees that the
Board has jurisdiction and provide requested information concerning the
employer's relation to interstate commerce, except with respect to the
timing and legal effect of the Statement of Position form. Similarly,
the Chamber does not object in general to the proposed requirements
that the employer state whether it agrees that the proposed unit is
appropriate, and if the employer does not so agree, state the basis of
its contention that the proposed unit is inappropriate, except with
respect to the timing and legal effect of the Statement of Position
form. Chamber; Chamber II. Nor does the Chamber object in general to
the requirement that the employer raise any election bars, and state
the name and contact information of its representative. Chamber;
Chamber II.
It is not surprising that the Chamber does not object to the
requirement that an employer state whether it agrees that the Board has
jurisdiction and provide requested information concerning the
employer's relation to interstate commerce; that the employer state
whether it agrees that the proposed unit is appropriate, and if the
employer does not so agree, state the basis of its contention that the
proposed unit is inappropriate; that the employer raise any election
bars; and that the employer state the name and the contact information
of its representative.\275\ After all, requiring the employer to
provide such information plainly facilitates entry into election
agreements and helps narrow the scope of hearings in the event parties
are unable to enter into election agreements. For example, if the
employer explains why it believes that the proposed unit is not
appropriate before the hearing, the petitioner may decide that the
employer is correct and amend its petition to meet the employer's
objections, thereby obviating the need for a hearing. Similarly, if the
parties are unable to enter into an election agreement but the employer
provides the requested commerce information and agrees that the Board
has jurisdiction before the start of the hearing, the parties are
spared the time and expense of litigating that issue.\276\ Moreover,
regional employees currently request such information prior to the
opening of the pre-election hearing.\277\ And, of course, requiring the
employer to provide the name of, and contact information (including an
email address and fax number) for, its representative will enable the
Board and the other parties to utilize modern methods of communication
to communicate with the employer to resolve election issues and
transmit case-related documents.
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\275\ Although the final rule provides for Statements of
Position from different parties depending upon the type of petition
filed, most of the comments focused on employers completing forms in
the RC petition context. For simplification of the discussion, we
will focus on that context for the remainder of the section.
\276\ Because the Board must have statutory jurisdiction, the
final rule clarifies in Sec. 102.63(b)(2)(iii) and (b)(3)(i), (iii)
that the employer's Statement of Position in RM and RD cases
likewise must state whether the employer agrees that the Board has
jurisdiction over it and provide the requested information about the
employer's relation to interstate commerce.
\277\ See Casehandling Manual Sections 11008, 11009, 11012,
11016, 11025, 11030, 11187, 11189, 11217; Guide For Hearing Officers
in NLRB Representation and Section 10(k) Proceedings (``Hearing
Officer's Guide'') at 2-5, 14-18.
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To be sure, as comments by the Chamber (Reply) and CDW point out,
the Statement of Position form is a departure from current practice
because it mandates, rather than simply requests, that employers share
such information prior to the hearing. However, the information sharing
goals underlying the Statement of Position form are nothing new.
Indeed, they are reflected in best practices promoted more than a
decade ago, as well as the Casehandling Manual and the Hearing
Officer's Guide. A model representation-case opening letter circulated
in 1999 and the Casehandling Manual provide that regional personnel
should arrange a conference at least 24 hours before the opening of the
pre-election hearing, in order to explore entry into election
agreements or to narrow the issues for hearing. In conjunction with the
prehearing conference, regional office personnel solicit many of the
same positions requested by the form, and although not requiring
information disclosure, they encourage parties to share all available
information at the pre-hearing conference. In particular, they seek the
employer's permission to share a list of names and classifications of
all employees at issue with all parties because it is ``an excellent
aid in resolving many of the eligibility and unit questions that arise
during case processing.'' See OM Memo 99-56, http://www.nlrb.gov/reports-guidance/operations-management-memos; Casehandling Manual
Sections 11012, 11016, 11025.1.
Similarly, the Hearing Officer's Guide provides that the hearing
officer should meet with parties' representatives prior to the hearing
to discuss the issues they intend to raise, and that in preparation for
the hearing, the hearing officer should question the parties regarding
jurisdictional facts, unit scope, unit composition, availability of a
list of employee classifications, inclusions and exclusions, and the
issues that will be raised at the hearing. Hearing Officer's Guide at
2-5. The Guide instructs the hearing officer to encourage the parties
at the prehearing conference to share information and documents, and to
discuss the nature of the evidence to be presented. Hearing Officer's
Guide at 4-5. Put simply, the Board believes that the information at
issue is so helpful and important for purposes of facilitating entry
into election agreements and narrowing the scope of pre-election
hearings that the employer should be required to produce the
information or be precluded from litigating certain issues if it
refuses.
[[Page 74364]]
The Board also finds that use of the Statement of Position form is
consistent with Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994),
where the Board observed,''[I]n order to effectuate the purposes of the
Act through expeditiously providing for a representation election, the
Board should seek to narrow the issues and limit its investigation to
areas in dispute.'' Thus, the amendments give all parties clear,
advance notice of their obligations, both in the rules themselves and
in the statement of procedures and Statement of Position form. However,
the amendments are not intended to preclude any other formal or
informal methods used by the regional offices to identify and narrow
the issues.
Although the Chamber does not object to some of the information
solicited by the Statement of Position form, the Chamber and many
others do object to the requirement that the employer provide certain
items of information. For example, many comments object to the
requirement that the employer: (1) Describe the most similar unit that
it concedes is appropriate if it contends that the proposed unit is not
appropriate; \278\ (2) provide the lists of employees in the proposed
unit and in any proposed alternative unit; \279\ (3) identify any
individuals occupying classifications in the proposed unit whose
eligibility to vote the employer intends to contest at the pre-election
hearing, and the basis for each such contention; \280\ (4) identify all
other issues it intends to raise at the hearing; \281\ and (5) state
its position on election details such as the type, date, time, and
location of any election.\282\
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\278\ See, e.g., Chamber; Chamber II; ALFA; SHRM.
\279\ See, e.g., SHRM; CDW; Prepared Testimony of David Kadela
on behalf of Littler Mendelson.
\280\ Chamber; Chamber II.
\281\ Chamber; Chamber II.
\282\ See, e.g., ALFA; Chamber; Chamber II.
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Except as noted below, the Board is not persuaded by the comments
objecting to the content of the information requested by the Statement
of Position form. Thus, the Board believes that the Statement of
Position form asks parties to provide information that would facilitate
entry into election agreements and narrow the scope of hearings in the
event parties are unable to enter into such agreements, so as to
eliminate unnecessary litigation and help the Board expeditiously
conduct an election if it determines that a question of representation
affecting commerce exists. By doing so, the Statement of Position form
helps the Board to fairly and expeditiously resolve questions
concerning representation.\283\ The Board also believes that the
Statement of Position largely requires parties to do what they
currently do to prepare for a pre-election hearing.'' Amy Bachelder, a
former NLRB field attorney of 25 years, agrees. She testified that
``the issues related to the required Statement of Position in the pre-
election hearing reflect little more than what is current standard pre-
election hearing practice.'' \284\
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\283\ The Board categorically denies the National Small Business
Association's accusation that the Statement of Position form is
intended to coerce employers into entering into election agreements.
We take this opportunity to repeat that the form is designed to
facilitate election agreements and to narrow the scope of pre-
election hearings in the event parties are unable to enter into
election agreements. Thus, the form is intended to help the Board
avoid unnecessary litigation and expeditiously resolve questions
concerning representation.
\284\ See also National Nurses United (NNU) (``The requirement
for a prompt Statement of Position simply memorializes what Board
Agents assigned to processing petitions already try to do.'')
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1. Identification of Alternative Unit
Numerous comments address the Board's proposal (in Sec.
102.63(b)(1)(i)) that, in those cases in which the employer takes the
position that the proposed unit is not an appropriate unit, it would be
required to ``describe the most similar unit that the employer concedes
is appropriate.'' Many comments also address the Board's related
proposal (in Sec. 102.63(b)(1)(iii)) that, if the employer contends
that the proposed unit is not appropriate, it would be required to file
and serve a list of individuals in the ``most similar unit'' that it
concedes is appropriate. As discussed in the NPRM, these proposed
changes were intended to assist the parties in identifying issues that
must be resolved at a pre-election hearing and thereby facilitate entry
into election agreements. They were also intended to codify parties'
existing practice where they contend that the proposed unit is not
appropriate because the smallest appropriate unit includes additional
classifications or facilities. See, e.g., Westinghouse Electric Corp.,
137 NLRB 332 (1962).
A large number of comments oppose these proposals. In general,
those comments argue that an employer should not have to concede the
appropriateness of any unit before evidence is presented at a hearing
and the petitioner clarifies who specifically it wants included in, or
excluded from, the unit. For example, NAM contends that the requirement
that an employer posit an alternate appropriate unit ``places the
employer, as the non-petitioning party, in the extraordinary position
of having to concede the appropriateness of a unit where it may oppose
the propriety of the unionization effort and where it is without
determinative evidence that its employees wish to be unionized.'' SHRM,
among others, contend that this proposed requirement is vastly
different from the Board's current representation case procedures,
which, ``[a]t most * * * require non-petitioning parties to take a
position with respect to the appropriateness of the petitioned for
unit.''
Other comments, such as SHRM's, question the Board's statutory
authority for requiring non-petitioning parties to define the ``most
similar unit'' when the current rules permit parties to propose
alternative units that merely may be appropriate under the particular
circumstances. Those comments further contend that the Board should
explain the specific legal framework that it will use to determine
whether the alternative units proposed by employers are, in fact, the
``most similar'' to the unit described in the petition. SHRM further
seeks clarification that employers will not be required to identify all
potentially appropriate units or else risk waiver of any arguments
regarding such alternative unit descriptions at the hearing given the
large number of potentially appropriate bargaining units and the
potential difficulty in determining which alternative unit would be the
``most similar.''
Similarly, comments like CDW's object on the ground that the Act
does not require that elections occur in the most appropriate unit. See
Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950) (the Board need not
determine ``that the unit for bargaining be the only appropriate unit,
or the ultimate unit, or the most appropriate unit; the Act requires
only that the unit be `appropriate''') (emphasis in original). CDW
further contends that the proposed ``most similar unit'' rule unfairly
favors unions by permitting them to choose among the complete array of
potential ``appropriate'' units while, at the same time, limiting
employers to a single potential unit that is ``most similar'' to what
the union has proposed.
The Chamber argues that, unless and until the proposed unit has
been subject to examination at a hearing and either been agreed upon by
the parties or deemed appropriate by the Board, the proposed ``most
similar unit'' requirement poses a significant burden on employers.
Other comments, including the Chamber's, argue that the proposed
requirement that an employer not only agree or disagree with the
union's petitioned-for unit, but go
[[Page 74365]]
further and make a proposal itself, ``amounts to a forced pleading and
raises serious due process and free speech concerns.''
At least one comment questions the need for the proposed ``most
similar unit'' rule in the acute health care field. Thus, AHA asserts
that there is no need for an employer in the acute health care field to
recommend an alternative unit, as there are only eight appropriate
units under the Board's regulations, and unions organizing under those
rules are familiar with what constitutes an appropriate unit.
After careful consideration of all the comments concerning the
``most similar unit'' requirement proposed in the NPRM, the Board has
decided to modify this aspect of the NPRM. Accordingly, the final rule
will not require that, in those cases in which the employer takes the
position that the proposed unit is not an appropriate unit, the
employer ``describe the most similar unit that the employer concedes is
appropriate.'' Rather, in those cases where the employer takes the
position that the proposed unit is not an appropriate unit, Sec.
102.63(b)(1)(i) of the final rule will require the employer to ``state
the basis for its contention that the proposed unit is inappropriate,
and state the classifications, locations, or other employee groupings
that must be added to or excluded from the proposed unit to make it an
appropriate unit.'' \285\
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\285\ The amendments thus leave employers ``free to propose any
alternative unit that may be appropriate under the particular
circumstances.'' ACE II. The final rule also imposes similar
requirements on the individual or labor organization in the RM
context and on the employer and the certified or recognized
representative of employees in the RD context. Amended Sec. Sec.
102.63(b)(2)(i) and (b)(3)(i).
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The Board believes that the final rule will assist the parties in
identifying issues--including the appropriateness of the proposed
unit--that must either be agreed to by the parties and approved by the
regional director, or be resolved at a pre-election hearing.
Specifically, identification of the precise objections to the
appropriateness of a proposed unit before the pre-election hearing will
facilitate entry into election agreements and narrow the scope of
hearings in the event parties are unable to enter into such agreements.
Accordingly, the Board believes that the requirement will enable it to
more promptly resolve questions concerning representation.
To begin, the Board disagrees with comments, including SHRM's, that
argue that the proposed unit-appropriateness requirements are vastly
different from the Board's current representation-case procedures.
Merely by virtue of explaining the alleged problems with the proposed
unit, the employer typically must identify the necessary changes to
that unit. Thus, for example, if an employer with multiple facilities
says that a proposed single facility unit is not appropriate, the only
way to explain or support this argument is to point out what it
believes is inappropriate about it, i.e, that it excludes the employees
of its other facility, located across the street, who do the same work
under the same conditions and who frequently transfer back and forth
between the two facilities. And the employer is free to later agree to
the appropriateness of a different unit if the petitioner alters its
position regarding the unit in response to the position taken by the
employer. As such, the final rule merely codifies and standardizes the
best party practices under the current representation case procedures
and, therefore does not differ dramatically from the current
procedures.\286\ The biggest difference, as explained above, is that
employers will be required, rather than requested, to share their
positions on unit appropriateness, including inclusions and exclusions
of certain job classifications, locations, or other employee groupings
at noon on the business day before the hearing.
---------------------------------------------------------------------------
\286\ To the extent that comments perceived that the ``most
similar'' language charted a different path from current practice,
the change in the final rule should alleviate those concerns.
---------------------------------------------------------------------------
The Board believes that the change to the final rule language moots
comments based on statutory concerns for the proposed ``most similar
unit'' requirement since the Act does not require that elections occur
in the most appropriate unit, only an appropriate unit. Some of those
comments contend that it could be extremely difficult for non-
petitioning parties to determine which possible alternative unit would
be the ``most similar'' to the proposed unit, especially where the
proposed rules do not define what is meant by ``most similar.'' \287\
In response, the final rule makes clear that an employer only has to
specify the changes necessary to make an appropriate unit. And the
Board hereby clarifies, in response to SHRM's comment, that under the
final rule, a non-petitioning party that takes the position that the
proposed unit is not an appropriate unit does not have to identify all
potentially appropriate units; rather, it would merely have to specify
the basis for its contention, and state the classifications, locations
or other employee groupings that it believes must be added to or
excluded from, the proposed unit to make it an appropriate unit
(singular).
---------------------------------------------------------------------------
\287\ See, e.g., ACE; SHRM.
---------------------------------------------------------------------------
The Board concludes that the final rule will not significantly
burden employers. As explained above concerning the Statement of
Position form more generally, the Board believes that the time and
resources expended by employers to determine which classifications,
locations or other employee groupings must be added to or excluded
from, the proposed unit to make it an appropriate unit are largely the
same resources that would be expended in any event by a reasonably
prudent employer in preparing to either enter into an election
agreement or take contrary positions at a pre-election hearing under
the current rules.
The Board also disagrees with AHA's assertion that there is no need
for an alternative unit requirement in the acute health care field.
Under the final rule, if an employer takes the position that the
proposed unit is not an appropriate unit under the Board's regulations
that specifically apply to the acute health care field, the employer
will simply have to specify the classifications, locations or other
employee groupings that it believes must be added to or excluded from,
the proposed unit to make it an appropriate unit under those
regulations.
Other comments, such as the Chamber's, object that the proposed
rules absolve the Board of its responsibility to determine the
appropriate unit. To the extent that the rationale of those objections
also applies to the amended language of the final rule, the Board
believes that they are nevertheless in error. As the Chamber's comment
correctly points out, it is the Board's responsibility under Section
9(b) of the Act to make appropriate unit determinations. Nothing in the
final rule changes that. Indeed, the final rule ensures that the Board
will have sufficient evidence in the record to make an appropriate unit
determination even if the employer fails to complete its Statement of
Position. Specifically, if the employer fails to take a position
regarding the appropriateness of a proposed unit that is not
presumptively appropriate, then as discussed below in connection with
Sec. 102.66, the regional director may direct the hearing officer to
permit the petitioner to introduce evidence regarding the
appropriateness of the proposed unit.
Thus, contrary to CDW, the final rule does not permit the Board to
direct an election in an inappropriate unit simply because the employer
does not suggest an alternative unit in the Statement of Position.
Moreover, contrary to comments by ALFA and ACE, among
[[Page 74366]]
others, the Board has not shifted the burden. The final rule is
consistent with Allen Health Care Services, 332 NLRB 1308 (2000), in
which the Board held that even when an employer refuses to take a
position on the appropriateness of a proposed unit, the regional
director must nevertheless take evidence on the issue unless the unit
is presumptively appropriate. The final rule thus permits the
petitioner to offer evidence in such circumstances and merely precludes
non-petitioners, which have refused to take a position on the issue,
from offering evidence or cross-examining witnesses.
Likewise, there is no merit in Littler Mendelson's argument that,
under the proposed rules, the unit-appropriateness question will
necessarily turn on ``the extent to which employees have organized,''
in violation of Section 9(c)(5) of the Act. Prepared Testimony of David
Kadela on behalf of Littler Mendelson. In NLRB v. Metropolitan Life
Insurance Co., 380 U.S. 438, 441-442 (1965), the Supreme Court made
clear that, under Section 9(c)(5), the Board may consider the wishes of
a petitioning union as a factor in the making a unit determination, but
those wishes cannot be the only factor. Accordingly, in cases where the
proposed unit is not presumptively appropriate, the Board cannot stop
with the observation that the petitioning union proposed a particular
unit, but must proceed to determine, based on community-of-interest
factors, that the proposed unit is an appropriate unit. Again, nothing
in the final rule changes that, and the deletion of the ``most
similar'' language removes the application of the rule even further
from Littler Mendelson's concern.
2. Initial Employee Lists
The NPRM proposed that the employer provide as part of its
Statement of Position a list of the full names, work locations, shifts,
and job classifications of all individuals in the proposed unit, and if
the employer contends that the proposed unit is inappropriate, to also
provide a list of the full names, work locations, shifts, and job
classifications of all employees in the most similar unit that the
employer concedes is appropriate. 79 FR 7355. The NPRM also proposed
that the initial lists provided to the regional director, but not the
parties, also include contact information for such employees. 79 FR
7355. Several comments, such as ALFA's, question why production of such
employee lists (without personal contact information) is necessary
until an appropriate unit is identified by the regional director.
Others, like SHRM's, take issue with the necessity for multiple lists
to be provided as part of the Statement of Position form when the
employer proposes alternative groupings of employees to those
petitioned for by the union. And COLLE claims (Testimony of Deakins on
behalf of COLLE II) that the proposal to require employers to disclose
names and job classifications as part of the Statement of Position
conflicts with the NPRM proposal to defer deciding individual
eligibility or inclusion questions under the so-called 20 percent rule.
In contrast, SEIU's comment requests a blanket rule that employee lists
complete with contact information be provided to the petitioner within
2 days of the petition being filed.
As discussed above, the final rule provides that in the event the
employer contends that the proposed unit is not appropriate, the
employer shall state the basis for its contention that the proposed
unit is inappropriate, and state the classifications, locations, or
other employee groupings that must be added to or excluded from the
proposed unit to make it an appropriate unit. Amended Sec.
102.63(b)(1)(i). The Board concludes that requiring the employer
additionally to furnish a list of the names, job classifications, work
locations, and shifts of the individuals in the proposed unit, a
similar list for the individuals that the employer contends must be
added to the proposed unit to make it an appropriate unit, and the
names of the individuals, if any, whom it believes must be excluded
from the proposed unit to make it an appropriate unit will help the
Board to expeditiously resolve questions of representation by
facilitating entry into election agreements, narrowing the scope of the
preelection hearing in the event that parties are unable to enter into
an election agreement, and reducing the need for election-day
challenges based solely on lack of knowledge of the voters' identities.
As an initial matter, the Board concludes that the lists will help
ensure that all parties have access to the information they need to
resolve disputes concerning the appropriate unit in which to conduct
the election. As the comments of Caren Sencer (Testimony of Sencer on
behalf of Weinberg, Roger and Rosenfeld II) and Supplemental Written
Testimony of Thomas W. Meiklejohn on behalf of Livingston, Adler,
Pulda, Meiklejohn & Kelly demonstrate, one of the impediments to
reaching an election agreement is that the parties sometimes talk past
each other regarding the appropriate unit in which to conduct the
election because, unbeknownst to them, they are using different
terminology to describe the very same employees.\288\ In our
experience, parties also sometimes use different terms to describe work
locations and shifts. The requirement that employers disclose the
names, job classifications, work locations and shifts of employees will
enable the parties to discover if that is the problem, and therefore
assist the parties in entering into an election agreement.
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\288\ Sencer testified:
Frequently we have a problem where we talk past each other, The
employee identifies themselves as a technician. The employer
indentifying [sic] themselves as an associate. We say ``Technicians
are in'' and they say, ``We have no technicians, we only have
associates.'' And we might actually not have a disagreement, but
we're using different language to talk about the same points. So
simply having the classifications used by the employer would allow
for the easier resolution of issues because everyone would know what
they were talking about * * *.
See also Supplemental Written Testimony of Meiklejohn on behalf
of Livingston, Adler, Pulda, Meiklejohn & Kelly (``When the Employer
finally disclosed the names of the employees in the `disputed' job
classifications, it turned out that we were in agreement on many of
the employees. The first two days of hearing had, in large part,
been devoted to issues that were not in contention.'')
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Requiring employers to furnish this information to the nonemployer
parties to the case plainly facilitates entry into election agreements
and helps narrow the issues in dispute in the event the parties are
unable to enter into election agreements even if the parties do not
have a terminology problem. Under the current rules, the names of the
individuals occupying classifications (or falling within other employee
groupings) that the employer would like added to or excluded from the
unit in many cases are unknown to the petitioning union. Often, the
union also does not know where and on what shifts individuals in those
classifications (or in those employee groupings) work, what they do, or
even how many employees in each such classification (or employee
grouping) there are. Accordingly, the petitioner cannot make an
informed decision about whether it agrees with the employer's
objections to the proposed unit and with the employer's proposed
alterations to the unit. However, with information from such lists, a
petitioner, in consultation with its employee supporters, should be
able to make informed decisions about whether to amend its petition to
conform in whole or in part to the alternate unit suggested by the
employer.\289\ Accordingly, the
[[Page 74367]]
requirement that the employer provide the information in question
serves the goals of facilitating entry into election agreements which
obviates the need for pre-election litigation and by narrowing the
number of issues in dispute between the parties in the event the
parties are unable to enter into an election agreement.
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\289\ Similarly, if a petitioner petitions for a single facility
unit and the employer contends that the petitioned-for unit is not
appropriate because it does not also include the employees at its
other facility, the employer must so state and provide the list of
employees at the second facility.
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Indeed, as illustrated by comments like NNU's, without the
information contained in the initial lists, petitioning unions are
often ``in the dark'' as to the actual contours of any alternative
units proposed by an employer, including the alternative unit's size.
If parties are to reach reasonable agreements concerning which
classifications, locations or employee groupings the bargaining unit
should include, then nonemployers should have access to the information
that is necessary for them to intelligently evaluate an employer's
claim that certain classifications, locations or other employee
groupings should be added to or excluded from, the petitioner's
proposed unit. The Board is not persuaded that employers should be
allowed to keep plainly pertinent information to themselves that would
clearly assist parties to knowledgeably reach a voluntary resolution of
the issue.
The Board also concludes, in agreement with AFL-CIO II, that the
information will serve the salutary function of facilitating entry into
Norris-Thermador agreements, whereby parties definitely resolve issues
of eligibility by constructing a list of eligible voters and including
it in their election agreement. See Casehandling Manual Section 11324
(discussing Norris-Thermador Corp., 119 NLRB 1301 (1958)). Such
agreements obviously can expedite the period between the conduct of the
election and the certification of the results by essentially limiting
the potential universe of post-election disputes to those involving
election objections. Put simply, it will be easier for the nonemployer
parties to enter into a Norris-Thermador agreement if the employer is
required to disclose as part of its Statement of Position the names,
job classifications, work locations and shifts of employees in the
proposed unit and for any alternative unit it proposes.
The Board further concludes that the production of employee lists
complete with each employee's name, work location, shift, and job
classification prior to the opening of the pre-election hearing
furthers the second purpose articulated by the Board in Excelsior.
Thus, production of the initial lists of employees should reduce the
need for election-day challenges based solely on lack of knowledge of
the voters' identities by giving the nonemployer parties more time to
investigate and formulate knowledgeable positions about the eligibility
of any such employees.
For all these reasons, amended Sec. 102.63(b)(1)(iii) of the final
rule requires the employer to provide a list of the full names, work
locations, shifts, and job classifications of all individuals in the
proposed unit, and if the employer contends that the proposed unit is
inappropriate, to (1) separately list the full names, work locations,
shifts, and job classifications of all individuals that the employer
contends must be added to the proposed unit to make it an appropriate
unit and (2) indicate those individuals, if any, whom it believes must
be excluded from the proposed unit to make it an appropriate unit.\290\
And because, as shown, the information on the lists is useful for
purposes beyond resolving individual eligibility issues, we reject
COLLE's claim (Testimony of Deakins on behalf of COLLE II) that there
is a conflict between the initial list disclosure requirements in Sec.
102.63 and the Board's conclusion discussed below in connection with
Sec. Sec. 102.64 and 102.66 that resolution of disputes concerning the
eligibility or inclusion of individual employees ordinarily is not
necessary in order to determine if a question of representation exists,
and, therefore, that such disputes can be resolved, if necessary, post-
election.
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\290\ Senior Member Miller and Democratic House Members
characterize the proposal to give such basic information to the
nonemployer parties as a small but important improvement.
---------------------------------------------------------------------------
To be sure, facilitating agreements and thereby avoiding litigation
of these issues might best be served by mandating disclosure of
employee list information (including contact information) within 2 days
of a petition's filing (and well before the opening of a pre-election
hearing), as SEIU suggests. However, as discussed above in connection
with Sec. 102.62, the Board does not believe it would be appropriate
to require disclosure of employee contact information to the
nonemployer parties to the case before the regional director finds that
a question of representation exists (or the employer admits that a
question of representation exists by entering into an election
agreement). Moreover, given employer protests about their abilities to
prepare for a hearing in 7 days (when a petition's filing actually
takes them by surprise), the Board is hesitant to impose a blanket
requirement that such disclosures should occur so quickly after every
petition. At a minimum, the Board believes that stipulations concerning
the unit will be better facilitated and any pre-election hearings will
avoid unnecessary litigation, if the additional information is made
available 1 business day before the hearing is set to open.
Accordingly, the final rule provides that employee lists complete with
full names, job classifications, work locations, and shifts, will be
part of the Statement of Position, to be provided to the nonemployer
parties to the case at noon on the business day before the opening of
the pre-election hearing.
This amendment is yet another effort to build upon the existing
best practices in the Board's regional offices. Regional personnel
currently request from the employer--early in a representation case's
processing--a list of employees' names and job classifications in the
petitioned-for unit and each other unit that the employer contends is
appropriate for purposes of checking the showing of interest and
resolving potential eligibility and unit issues.\291\ Because regions
know that the provision of such information to all parties to the case
is an excellent aid in resolving many of the eligibility and unit
questions that arise during case processing, regions encourage the
employer to permit the region to provide the lists to the petitioner
and all other parties. See Casehandling Manual Sections 11009, 11025.1,
11030.5; OM Memo 99-56; Hearing Officer's Guide at 2-5. But employers
currently are not required to provide such information. Indeed, an
employer's refusal to do so currently has no legal consequences beyond
inhibiting the Board agent's efforts to resolve eligibility and unit
issues. The Board agrees with the AFL-CIO that parties should be able
to more promptly resolve disputes if this information is required to be
provided to both the Board and the nonemployer parties before any pre-
election hearing has begun, and therefore the rule precludes the
employer from litigating certain issues if the employer fails to
[[Page 74368]]
share the information.\292\ As discussed above, the final rule's
provision for the initial employee list(s) being provided to the
nonemployer parties no later than at noon on the business day before a
pre-election hearing is set to open should, consistent with the AFL-
CIO's analysis, make election agreements more likely and, in the event
a hearing is required, reduce the issues to be litigated and therefore
reduce cost and resources otherwise expended.
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\291\ For example, Casehandling Manual Section 11025.1 provides
that in its initial communication with the employer, the region
should request that the employer submit an alphabetized list of the
full names and job classifications of the employees in the
petitioned-for unit and, as the case develops, in any alternative
units proposed by the employer. Casehandling Manual Sections 11025.1
and 11030.5 indicate that the purpose of such lists is not just to
check the showing of interest, but also to resolve possible
eligibility and unit issues.
\292\ The Board believes that the purposes of the form will best
be realized if parties are faced with litigation preclusion for
failing to complete it. However, the Board is equally persuaded that
implementing the Statement of Position form would be an improvement
over the status quo even if it were not coupled with the threat of
preclusion, because we believe at least some employers would
complete and serve the form if the Board's rules explicitly required
it, and the form would guide hearing preparation. Thus, the Board
would mandate service of the form by petitioners (102.60(a)),
completion of the form by the nonpetitioning parties named on the
petition (102.63), and introduction of the form at the opening of
the hearing (102.66(b)), even if use of the form was not enforced
through mandatory litigation preclusion.
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The Board rejects the notion, raised by SHRM and others, that the
initial employee lists constitute improper unilateral pre-hearing
discovery. In fact, as the AFL-CIO points out (Reply), the Statement of
Position form--of which the initial employee lists are a part--
constitutes the employer's response to positions already taken by a
union in its petition, including: a description of the unit it desires
to represent, categories of employees it believes should be included in
or excluded from the unit, an estimate of the unit's total size, and
the type, date(s), time(s) and location(s) of election it seeks. As
described more fully in Sec. 102.66 below, immediately after the
Statement of Position is received into evidence at the hearing, the
petitioning union is required to respond to each position raised in the
statement. In the Board's view, there is no additional bilateral
discovery that employers would need from a petitioning union to
adequately contest unit issues at the hearing. After all, it is nearly
always the employer who is in possession of the relevant evidence on
virtually all issues likely to be contested at a pre-election hearing
concerning the proposed bargaining unit. Thus, as discussed more fully
below, the employer knows its employees' terms and conditions of
employment because it established them. And, as shown, regions already
ask employers for name and classification information.
As noted, the NPRM proposed that the initial lists provided to the
regional director, but not the parties, would include employee contact
information for the employees on the list(s). 79 FR 7355. Some
comments, such as those filed by ACE and the Chamber II, question the
need for that information. The NPRM proposed that the regional office
would use the email addresses and telephone numbers from this separate
list to begin preparing for electronic transmission of the election
notice that is issued once the parties enter into an election agreement
or the regional director directs an election. 79 FR 7329. ALFA
criticizes the proposal on the grounds that the provision of greater
information through the vehicle of initial employee lists will generate
more issues for litigation.
However, as discussed below in connection with Sec. 102.67, the
Board has decided to reject the proposal in the NPRM to require the
regional director to serve the affected employees with the election
notice. Accordingly, the Board has likewise decided to reject the
proposal in the NPRM to require the employer to disclose to the
regional director as part of its Statement of Position contact
information for employees on the initial lists. Accordingly, employers
will not be required to disclose employee contact information to either
the regional director or the nonemployer parties to the case as part of
its Statement of Position.
Cook Illinois, among others, express concerns about petitioners
misusing information received from an initial employee list, and
Littler Mendelson fears unions filing petitions simply to acquire
employee information concerning units that it has no intention of
representing. As expressed in Sec. 102.62 above, the Board has not
experienced significant misuse of information long-provided in
Excelsior lists, and it does not reasonably expect misuse of employee
names simply because that information will be provided prior to a
direction of election. Nor does the Board expect such misuse simply
because the employer will now be required to disclose job
classifications, work locations, and shifts. If such misuse occurs,
then the Board can provide a remedy. Currently, in appropriate
circumstances, a regional director may limit a petitioner's ability to
refile a petition as a condition for approving the withdrawal. See
Casehandling Manual Section 11118. Similarly, as mentioned in Sec.
102.60, the regional directors and the Board will continue to have
discretion to reject a petitioner's request for withdrawal of the
petition if the request would run counter to the purposes of the Act.
See Casehandling Manual Section 11110.
Some comments argue that it will be particularly burdensome to
produce multiple lists, but the Board believes that with modern record-
keeping and retrieval technology, the requirement can be easily met by
most employers.\293\ Whether the employer asserts that the unit should
go far beyond what the petitioner proposed is, of course, up to the
employer. For example, employers sometimes assert that a proposed unit
containing a handful of employee classifications must instead be
``wall-to-wall'' (including every employee classification at the
location) in order to be appropriate. If the employer's position on the
unit is proven correct, or nearly so, then the full information about
all or most of those employees would have to be provided pursuant to an
amended petition anyway when the election is directed. If the
employer's position is untenable, then the burden of producing a list
of employees in that alternative unit is truly self-imposed because the
employer chose to take an extreme litigating position. In any event, as
discussed above, the final rule language no longer contains a
requirement that the employer produce lists corresponding to ``the most
similar unit that the employer concedes is appropriate.'' So, to the
extent some comments foretold a need to produce multiple alternative
unit lists because of a lack of clarity concerning which concededly
appropriate iteration was ``most similar'' to the petitioned for unit,
that concern should be alleviated. Instead, if the employer contends
that the unit described in the petition is inappropriate, the final
rule clarifies that the employer need only produce one alternative list
containing information about employees in the unit that the employer
contends is an appropriate unit. Moreover, as discussed above, the
Board has decided to reject the proposal that employers provide
separate lists to the regional director containing contact information.
In short, employers will be required to produce fewer lists under the
final rule than the NPRM proposed, and the employer may file the same
list(s) with the regional director that it provides to the nonemployer
parties to the case.
---------------------------------------------------------------------------
\293\ SHRM; ACE; ACE II; NAM II.
---------------------------------------------------------------------------
We are not persuaded by SHRM's contention that there is little
reason to require the initial employee lists because they will not
necessarily reflect an accurate list of eligible voters. As already
explained above, the initial lists provided to the nonemployer parties
to the case should facilitate entry into election agreements and narrow
the scope of pre-election hearings in the
[[Page 74369]]
event parties are unable to enter into election agreements. Moreover,
the nonemployer parties to a case may still find it prudent to begin
their investigation of the eligibility of any unknown employees
notwithstanding the possibility of turnover in the unit--between the
date the initial lists are provided and the close of the eligibility
period--in which the election is ultimately directed. That the initial
lists may not entirely eliminate the need for election-day challenges
in all cases certainly does not mean that provision of the lists cannot
reduce the need for at least some election-day challenges in some
cases. Thus, the Board believes that more information earlier in the
process will avoid unnecessary delay in conducting elections and
resolving questions of representation.
Baker and McKenzie questions whether the employer will be obligated
to update the employee information that it provides in connection with
the Statement of Position when it provides the voter list pursuant to
Sec. 102.67 after an election is directed. The answer is ``yes.'' To
be sure, some of the information required to be produced as part of the
Statement of Position is also required to be produced as part of the
voter list in the event an election is agreed to or directed. For
example, both the Statement of Position and the voter list amendments
require employers to furnish the employees' names, job classifications,
work locations, and shifts. However, there may be employee turnover
between the time the Statement of Position is filed and the eligibility
date for voting in the election, even assuming the unit in which the
election is conducted does not differ from the petitioned-for unit. It
is also possible that employee job classifications, work locations, and
shifts may change during this interval. It would hardly serve the
purpose of maximizing the likelihood that all eligible voters be
exposed to the nonemployer party arguments concerning representation if
the employer were permitted to provide the nonemployer parties with an
outdated list of employees. Nor would it serve the goal of avoiding
challenges based solely on lack of knowledge of the identities of the
voters if the employer were permitted to provide the nonemployer
parties with a list of eligible voters containing outdated information
about them.\294\ Moreover, although an employer is not required to
furnish the nonemployer parties with employee contact information as
part of its Statement of Position, the employer is required to furnish
the nonemployer parties with employee contact information shortly after
the parties enter into an election agreement or the regional director
directs an election. Accordingly, as the amendments to Sec. Sec.
102.62(d) and 102.67(l) make clear, once an election is agreed to or
directed, the employer must furnish the nonemployer parties to the case
and the regional director with an (up-to-date) list of the full names,
work locations, shifts, job classifications and contact information
(including home addresses, available personal email addresses and
telephone numbers) of all eligible voters, and in a separate section of
the list the same information for those individuals the parties have
agreed to permit to vote subject to challenge or those individuals who,
according to the direction of election, will be permitted to vote
subject to challenge.\295\
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\294\ The possibility of having to update employee information
already existed under the prior rules. Thus, prior to the NPRM,
employers were required to furnish a list of the names and home
addresses of all eligible voters once an election was agreed to or
directed even though, as noted, the region had previously requested
the employer to submit an alphabetized list of the full names and
job classifications of the employees in the petitioned-for unit and
in any alternative units proposed by the employer. Casehandling
Manual Sections 11025.1 and 11030.5.
\295\ Consistent with the amendments to Sec. 102.62, the final
rule provides that the list(s) of names shall be alphabetized and be
in an electronic format approved by the General Counsel, unless the
employer certifies that it does not possess the capacity to produce
the list(s) in the required form.
The NPRM proposed in Sec. 102.63(b)(1)(v), (2)(v), and 3(v)
that the employer would be precluded from contesting the
appropriateness of the proposed unit at any time and from contesting
the eligibility or inclusion of any individuals at the pre-election
hearing if the employer fails to timely furnish the lists of
employees as part of the Statement of Position. 79 FR at 7355-7366.
The final rule moves this language to amended Sec. 102.66(d) in the
paragraph entitled ``Preclusion.''
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3. Identification of Individual Eligibility and Other Issues
As noted above, the NPRM proposed that as part of its Statement of
Position, the non-petitioner identify any individuals occupying
classifications in the petitioned-for unit whose eligibility to vote it
intends to contest at the pre-election hearing and the basis for each
such contention, and describe all other issues the non-petitioner
intends to raise at hearing.\296\ Comments criticize these requirements
as imposing unfair and unrealistic burdens because, for example, it may
not be possible to identify all legal issues until testimony is
taken.\297\
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\296\ The final rule uses the single term ``proposed unit'' in
place of the two terms ``proposed unit'' and ``petitioned-for unit''
that the NPRM used in Sec. 102.63 to describe Statement-of-Position
obligations. 79 FR at 7355.
\297\ See, e.g., Chamber; ACC.
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The Board is not persuaded by these comments. It clearly
facilitates entry into election agreements and helps narrow the scope
of the hearing if all parties state what they believe the open issues
(including eligibility issues) are and what they seek to litigate in
the event of a hearing. It is thus not surprising that Board agents
currently ask the parties to do precisely that now. For example, prior
to the scheduled hearing, Board agents attempt to secure the basic
facts with respect to each potential issue, including bargaining unit
and eligibility issues, and they use the payroll lists to resolve
eligibility and unit issues. Casehandling Manual Sections 11009, 11012,
11016, 11025, 11187. As also shown, the hearing officer attempts to
meet with parties' representatives prior to the hearing to discuss the
issues they intend to raise, and the hearing officer is instructed to
discuss at the pre-hearing conference ``each party's position on each
issue.'' Hearing Officer's Guide, 2-3, 5, 15-18 (emphasis added); OM
Memo 99-56.
Given that Board agents are already asking the parties to state the
issues (including individual eligibility issues) that they intend to
raise at the hearing, we reject the argument that it is unfair and
unrealistic for the Board to require the parties to do so as part of
their Statements of Position. Some comments, such as the Chamber's and
ACC's, complain that it will be difficult to identify individual
eligibility questions if the union's petition describes the unit in
vague terms. However, that situation could arise under the prior rules
and the employer may move to amend its Statement of Position if union
clarification of its positions at the hearing calls for more nuanced
responses from the employer.\298\
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\298\ UFCW requests that if an employer intends to contest at
the pre-election hearing the eligibility of an individual on the
basis of supervisory status, the employer should be required to
identify in its Statement of Position the particular indicia of
supervisory status that the individual possesses. The Board declines
to require the employer to do so. The Board notes in this regard
that a union currently is not required to identify on its petition
why it believes that the employees in its petitioned-for unit share
a community of interest. We think that for purposes of determining
whether to enter into an election agreement prior to the opening of
a hearing, a union can begin to evaluate the propriety of an
employer's contention that a particular individual is a supervisor
even if the employer declines to identify the particular indicia of
supervisory status in its Statement of Position. For example, the
union may consult with its supporters about the authority of the
alleged supervisor. The Board notes, however, that in the event a
regional director permits litigation of individual eligibility
issues, the employer bears the burden of proving that such
individuals are in fact supervisors.
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[[Page 74370]]
4. Election Details
The NPRM also proposed that the Statement of Position form require
the non-petitioning party to state its preferences with respect to the
type, date(s), time(s), and location(s) of the election and the
eligibility period. 79 FR7328, 7355. The final rule adopts this
proposal.\299\ This requirement eliminates unnecessary barriers to the
expeditious resolution of questions concerning representation in two
ways. First, it facilitates entry into election agreements. Parties
enter into election agreements only if they agree, among other things,
on the election details. It plainly serves the goal of making it easier
for parties to promptly enter into election agreements if the
petitioner is advised of the nonpetitioner's position on those matters
prior to the hearing. Second, in cases where the parties are unable to
enter into an election agreement, the amendment (in conjunction with
the provision in Sec. 102.66(g) that the hearing officer solicit all
parties' positions concerning the election details) ordinarily will
make it possible for the regional director to specify the election
details in the direction of election, and to simultaneously issue the
Notice of the Election with the Decision and Direction of Election,
because the parties will have provided their positions on the election
details prior to, and at, the hearing.
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\299\ The final rule makes explicit in amended Sec. Sec.
102.63(b)(1)(i), (b)(2)(i), (b)(3)(i) that nonpetitioning parties
must state their positions regarding election details in RM and RD
cases as well as in RC cases. Amended Sec. Sec. 102.63(b)(1)(i),
(b)(2)(iii), and (b)(3)(iii) also require the employer to state the
length of the payroll period for employees in the proposed unit and
the most recent payroll period ending date, information which Board
agents have long requested as it is useful for purposes of setting
the eligibility date. See, for example, Casehandling Manual Section
11086.3_(``The payroll period for eligibility should be designated
as ``the period ending,'' etc. Normally it should be the last period
ending before the Regional Director's approval of the
agreement.'');_Casehandling Manual Section 11312.1 (``If there is an
issue as to an unusual eligibility date, i.e., the use of a date
other than the payroll period ending before the approval of the
agreement or the Direction of Election, * * * the Board agent * * *
should obtain the information necessary for resolution of this
issue.'')
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Currently, however, the regional director frequently is unaware of
the parties' positions concerning the election details when the
director issues the direction of election, and, not surprisingly, the
decision and direction of election frequently does not specify those
details. Instead, a Board agent must contact the parties after the
direction issues to solicit their positions. After obtaining the
positions, the regional director must decide those details and then
draft and serve the official Notice of Election on the employer for
posting. This takes time and can unnecessarily delay the election.
The Chamber objects that until the appropriate unit is determined,
an employer cannot develop a reasoned position on the type, date(s),
time(s), and location(s) of the election and the eligibility period. To
the extent the Chamber is suggesting that the requirement is
unreasonable because an employer may have one position on these matters
if the petitioned-for unit is found to be appropriate, but another
position if the director finds some other unit, such as an employer's
alternate unit, appropriate, the Board disagrees. The employer will be
permitted to state its preferences in the alternative. And as the
amendments to Sec. 102.66(g) indicate, the hearing officer shall
solicit the parties' positions on the election details prior to the
close of the hearing. Thus, if the petitioner has modified its position
on the unit during the hearing in response to the employer's Statement
of Position, the employer will be able to present its position
regarding any new unit sought by the petitioner. Moreover, given the
relatively small size of bargaining units in representation cases, the
Board anticipates that it will be the exceptional case, rather than the
norm, where differences between the petitioned-for unit and any other
unit would cause the employer to feel the need to take such alternative
positions regarding the election details.\300\
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\300\ In addition, as noted below in connection with Sec.
102.67, the final rule grants regional directors discretion to
consult with the parties concerning election details after issuing a
direction of election where unusual circumstances warrant, such as
when the decision issues substantially after the close of the
hearing, or the election is directed in a unit very different from
that proposed by either the employer or the union.
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ALFA characterizes this requirement as indicating a possible
``abandonment of the long-established Board presumption favoring manual
ballot elections at employers' premises.'' However, the new requirement
is not intended to change Board policy in this respect.
C. Scheduling of Pre-Election Hearing
A great number of comments responded to the Board's call for
comments on the feasibility, fairness and proper scope of the proposed
exceptions to the NPRM provision that, absent special circumstances,
the regional director would set the hearing to begin 7 days after
service of the notice of hearing.\301\ As explained in the NPRM, this
proposal reflects the current practice of some regions, but would make
the practice explicit and uniform, thereby rendering Board procedures
more transparent and predictable. Under the proposed amendments,
parties served with a petition and description of representation
procedures, as described in relation to proposed Sec. 102.60, would
thus be able to predict with a high degree of certainty when the
hearing will commence even before service of the notice. 79 FR 7328.
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\301\ See, e.g., King & Ballow; GAM; Chamber; ALG; Arizona
Hospital and Healthcare Association; COSE.
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In the NPRM, the Board proposed that the amendments would be
implemented consistent with the Board's decision in Croft Metals, Inc.,
337 NLRB 688, 688 (2002), requiring that, ``absent unusual
circumstances or clear waiver by the parties,'' parties ``receive
notice of a hearing not less than 5 days prior to the hearing,
excluding intervening weekends and holidays.'' The amendments would
thus not require any party to prepare for a hearing in a shorter time
than permitted under current law. Rather, as the Board held in Croft
Metals, 337 NLRB at 688, ``By providing parties with at least 5 working
days' notice, we make certain that parties to representation cases
avoid the Hobson's choice of either proceeding unprepared on short
notice or refusing to proceed at all.'' \302\ Thus, contrary to PCA,
the NPRM's choice of a 7-day time frame was not arbitrary. The existing
regional best practice is to set the hearing in 7 days, and that
practice comports with the minimum notice standard that has governed
Board hearings for the last decade.
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\302\ To be clear, the date of the petition's filing was
irrelevant to the Board's holding in Croft Metals. Although the
hearing had been scheduled to open 14 calendar days from the
petition's filing in that case, it was undisputed that the employer
did not receive notice of the hearing until 3 working days before
the hearing was scheduled to open. Thus, the Board's holding in
Croft Metals, just as its proposal in the NPRM, was keyed only to
the time from service of the notice of hearing to the opening of the
hearing itself.
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Several comments directly suggest that the Board should alter the
proposed language governing exceptions to the hearing and Statement of
Position time frames. Specifically, the Board proposed that the
regional director would set a pre-election hearing to open in 7 days
``absent special circumstances.'' Dissatisfied with the standard's
perceived leniency, the AFL-CIO argues that ``special circumstances''
should be exchanged for ``unusual circumstances'' consistent with Croft
Metals, while
[[Page 74371]]
SEIU advocates that ``extraordinary circumstances'' would be the
appropriate descriptor. Attorney Nicholas Karatinos urges the Board to
allow regional directors to delay the opening of the hearing by 1-3
days upon a showing of hardship, and the Chamber (reply) submits that
the Board should adhere to section 11082.3 of the Casehandling Manual's
guidance that ``requests for postponement of the hearing will be
granted only for good cause.'' Maury Baskin, testifying on behalf of
ABC II, argued that ``sufficient cause, sometimes called good cause,''
is a ``good standard.'' Curiously, COLLE opines that regional
directors' rigid adherence to internal time targets make it a fool's
errand to consider which exception language would be most appropriate.
Thus, in COLLE's view ``the Board's invitation to suggest language to
guide exceptions to the target, even if it results in a stated test for
doing so that is not unreasonable, is likely to be ignored in practice
by the Regional Directors.''
The Board has carefully considered the comments in this area--
including COLLE's fatalistic assertion--and believes that the competing
interests represented would best be balanced by altering the language
in the proposed rules in several ways. First, as shown, consistent with
Croft Metals' concern for adequate hearing preparation, Sec. 102.63 of
the final rule, will guarantee employers (and all nonpetitioning
parties) 8 days notice of the hearing and 7 days notice of the due date
for completion of the SOP form. Second, as also shown, in order to
ensure that the Statement of Position serves its intended purposes of
facilitating entry into election agreements and narrowing the scope of
any pre-election hearings that must be held, Sec. 102.63(b)(1) of the
final rule requires the form to be filed with the regional director and
served on all parties such that it is received by them at noon on the
business day before the opening of the hearing. Third, to allow for
both changes listed above, Sec. 102.63(a)(1) of the final rule
provides that except in cases presenting unusually complex issues, the
regional directors will set pre-election hearings to open, in 8 days
from service of the notice excluding intervening Federal holidays, not
7.\303\ (Of course, if the 8th day would fall on a weekend or Federal
holiday, then the rule provides that the regional director shall set
the hearing to open on the following business day.) Thus, based on the
regional director's analysis of the complexity of the issues raised by
the petition, a director will have discretion, even without a party
filing a motion, to set the opening of the hearing beyond the normal 8-
day time frame if the director concludes such extra time is warranted.
Fourth, even if the director sets the hearing for the normal 8-day time
frame, the director will retain discretion under Sec. 102.63(a)(1) of
the final rule to extend the opening of the hearing for up to 2
business days upon request of a party showing special circumstances. By
cabining the regional directors' discretion to extend the hearing's
opening to 2 business days, the Board trusts that contrary to concerns
exhibited in some comments, the exception will not swallow the rule.
Finally, because the Board is persuaded that there may be the
exceptional case that should not go to hearing within that time frame,
regional directors will retain discretion under Sec. 102.63(a)(1) of
the final rule to postpone the opening of the hearing for more than 2
business days upon request of a party showing extraordinary
circumstances. The Board has concluded that the hearing scheduling
amendment will help the Board to expeditiously resolve questions
concerning representation because, absent an election agreement, the
Board may not conduct an election outside of the 8(b)(7)(C) and 9(e)
contexts without first conducting a pre-election hearing. The amendment
will also render Board procedures more transparent and uniform across
regions.\304\
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\303\ Although the Board has selected a hearing-opening baseline
of 8 days from service of the notice, in part, to allow parties to
use the completed Statement of Position form to explore entrance
into election agreements and to try to narrow the scope of the
hearing for approximately 1 business day before the hearing, the
Board views an 8-day baseline as an independent improvement over the
current regional variation in scheduling hearings. Accordingly, the
Board would implement an 8-day hearing baseline even in the absence
of the final rule's introduction of a Statement of Position form.
\304\ The IFA II argues that the timeline is too short in cases
where a union's petition raises novel or complex issues. But, as the
AFL-CIO II points out (Reply), such cases are relatively rare, and,
as discussed above, the final rule permits the regional director on
the director's own initiative to schedule the hearing to open at a
later date if the case presents unusually complex issues. The final
rule also provides a mechanism by which parties can request
postponements if they need additional time to prepare for a hearing
based on the novelty or complexity of the issues raised by the
petition.
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Some union comments suggest that the Board specify that regional
directors serve the notice of hearing immediately.\305\ We decline to
do so, because the regions, among other things, check the showing of
interest prior to serving the notice. However, in our experience,
regions currently are promptly serving the notices, and we anticipate
that the directors will issue the notices as soon as is practicable.
SEIU suggests that the regional director should mark any correspondence
regarding the hearing notice as ``urgent'' so as to help ensure that
the recipient will pay proper attention to it. The Board agrees, and
has so indicated in its statement of the general course.
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\305\ UFCW; SEIU.
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Many employer comments attack the proposed time frames. Although,
as shown, the final rule provides that, except in cases presenting
unusually complex issues, the hearing will open in 8 days--not 7 days--
from the notice and that parties will always have at least 7 days
notice of the due date for completion of the Statement of Position
form, we shall assume that all comments opposing the proposed time
frames would similarly object to the 8-day hearing/7-day Statement of
Position time frames.\306\
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\306\ The ACC, ACE II, and others found it troubling that the
NPRM's proposals would seemingly allow the Statement of Position
form to be due even sooner than 7 days from the regional director's
service of the notice of hearing. As shown, however, under the final
rule parties will always have a minimum of 7 days notice of the due
date for completion of their Statements of Position.
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A number of comments assert, with little legal analysis, that the
time frames for the opening of the pre-election hearing and completion
of the Statement of Position violate employer due process rights.\307\
However, due process does not require the Board to conduct a pre-
election hearing. See Inland Empire District Council v. Millis, 325
U.S. 697, 707, 710 (1945). But, to be sure, Section 9(c) does require a
pre-election hearing in the event parties are unable to reach an
election agreement. And, in determining whether the notice given under
the amendments is ``due notice'' as required by Section 9(c), the
procedural due process case law provides some helpful analogies.
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\307\ See, e.g, Seyfarth Shaw; NAM; Senator Alexander and
Republican Senators II.
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``[T]he timing and content of the notice and the nature of the
hearing will depend on appropriate accommodation of the competing
interests involved.'' Goss v. Lopez, 419 U.S. 565, 579 (1975). Under
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), three factors are
weighed in evaluating the adequacy of the notice: (1) The gravity of
the private interest that will be affected by the official action, (2)
the value of procedural safeguards, like additional time, in reducing
the risk of error, and (3) the public interest--including the burden of
additional time on the government.
The Board believes that the 8-day hearing/7-day Statement-of-
Position-form time frames provide parties with
[[Page 74372]]
``due notice.'' The final rule provides in amended Sec. 102.60 that
the petition, which describes the unit sought, is served upon the
employer as soon as it is filed in order to insure that the earliest
possible notice of the pendency of a petition is given to all parties.
Served together with the petition is an Agency form describing the
Board's representation case procedures, and a copy of the Agency's
Statement of Position form. Soon thereafter, the regional director
serves the notice of hearing, specifically informing the parties of the
time, place and subject of the hearing, and the deadline for the
position statement. Amended Sec. 102.63(a)(1) provides that except in
cases presenting unusually complex issues, the hearing will be ``8 days
[after] the date of service of the notice [of hearing] excluding
intervening Federal holidays,'' and that the Statement of Position will
be due at noon on the business day before the hearing, i.e. no sooner
than 7 days from the notice of hearing.
The courts have held that less than 8 days notice constitutes due
notice even when very substantial interests are at stake. For example,
in Wilkinson v. Austin, 545 U.S. 209, 213, 216 (2005), the Supreme
Court addressed the appropriateness of an Ohio procedure for placing
prisoners in a ``Supermax'' prison. The procedures involved at least 48
hours written notice of the issues that would be addressed at the
hearing. The unanimous Court held that the procedures satisfy due
process. Id. at 229. In Wolff v. McDonnell, 418 U.S. 539, 564 (1974),
the Court held that before a hearing on inmate discipline, ``[a]t least
a brief period of time after the notice, no less than 24 hours, should
be allowed to the inmate to prepare for the appearance [at the
hearing.]'' This advance notice was required in order to ``give the
charged party a chance to marshal the facts in his defense.'' Id.
In the Federal context, employees facing termination for criminal
conduct have a statutory right to ``a reasonable time, but in any event
not less than 7 days, to answer orally and in writing and to furnish
affidavits and other documentary evidence in support of [their
position].'' 5 U.S.C. 7513(b)(2). This provision has been upheld
against constitutional attack. Perez v. Dep't of Justice, 480 F.3d
1309, 1312 (Fed. Cir. 2007) (discussing cases). In Schapansky v. Dep't
of Transportation, 735 F.2d 477, 480, 486-88 (Fed. Cir. 1984), for
example, the Federal Circuit upheld the agency's firing of PATCO
strikers after 7-days notice. See also Darnell v. Dep't of
Transportation, 807 F.2d 943, 944-46 (Fed. Cir. 1986) (discharges not
unlawful where air traffic controllers had 7 days to prepare and
respond to notices of termination). And, in some cases, the interests
at stake are considered of such minor significance and the value of
additional preparation time so small that notice may be provided orally
and contemporaneous with the hearing: ``There need be no delay between
the time `notice' is given and the time of the hearing.'' Goss, 419
U.S. at 582 (suspension from school of 10 days or less).
Under the first Mathews factor, the arguable employer private
interest at stake in pre-election litigation typically concerns the
contours of the unit in which the election will be conducted, for the
employer risks losing the right to deal directly with the unit
employees. This interest, though important, is generally not so
important to the employer as the question at stake in the election
itself--that is, whether the Section 9 relationship will form. To the
extent that the employer has a legally cognizable interest in being
free to deal with its employees directly, the pre-election hearing
cannot deprive the employer of that freedom, because an employer loses
the right to deal directly with bargaining unit employees only if the
union wins the election. In any event, the time given is sufficient to
account for even the serious interests under Wilkinson, Wolff, and
Perez.
The Board also is of the opinion that the time frames in question
pose little risk of error, the second Mathews factor. The Board has
substantial experience applying the NLRA to various industries over the
last 7 decades. The factual subject matter that is the focus of the
hearing typically is not all that complex to litigate, and is
intimately familiar to the employer, permitting very rapid preparation.
As discussed, the Board need not direct an election in the most
appropriate unit; it need only select an appropriate unit. In
determining whether a group of employees constitutes an appropriate
unit, the Board analyzes whether the employees in that unit share a
community of interest by examining the employees' terms and conditions
of employment, the employees' job duties, skills, training, and work
locations, the employees' supervision, the extent of employee
interchange and contact with one another, and the history of collective
bargaining. The employer already knows all those things before the
petition is even filed. Thus, the employer knows its employees' terms
and conditions of employment because it established its employees'
terms and conditions of employment. The employer knows its employees'
job duties, work locations, and supervision, because it assigned those
job duties, work locations, and supervisors to its employees. The
employer knows its employees' skills because it sets the skill
requirements for its positions, and hires and evaluates its employees.
Similarly, the employer is aware of the collective bargaining history
of its employees, as well as the level of employee interchange and
contact, and the training it provides for its employees.\308\ The
employer likewise knows its connection to interstate commerce, and
whether the petitioned-for employees are covered by a collective-
bargaining agreement or participated in a valid election in the
preceding 12-month period, thereby barring an election. Even if
preparation within ``a few hours'' would not be feasible in some cases,
within a few days an employer should reasonably be able ``to gather his
thoughts and his evidence and to make an informed decision about the
best way to respond'' regarding the community of interest and other
issues. Staples v. City of Milwaukee, 142 F.3d 383, 385-86 (7th Cir.
1998). Furthermore, in those cases where the timeline would be too
short, the final rule provides exceptions so that, in practice, there
should be no impact on the likelihood of error.
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\308\ Some attorney commenters contend that when they start
asking their clients questions about community-of-interest factors,
such as employee interchange, they sometimes are met with ``a blank
look'' and are told ``research'' is necessary. See, e.g., Testimony
of Maury Baskin, on behalf of ABC II. The Board rejects any
suggestion that this anecdotal testimony renders the time frames
inappropriate. In the first place, in the case of very small
employers where the owner directly supervises, and even works
alongside, rank and file employees, it seems unlikely that the owner
will lack direct knowledge of the facts necessary to take positions
on the relevant issues. In any event, even if the owner or CEO who
might meet with an attorney does not have first-hand knowledge of
these things, it should not be particularly challenging or time-
consuming to identify the manager who would have that information
readily available. The Board is also confident that counsel can
minimize the likelihood of a ``wasted'' first meeting simply by
communicating in advance with the client that counsel needs to meet
with someone with first-hand knowledge of such matters as what the
petitioned-for employees do and how often they fill in for one
another.
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The Board also believes that the proposed time frames serve very
important public interests, the third Mathews factor. Put simply,
permitting a timely choice of representative is of inherent value under
the Act; each delay in resolving the question concerning representation
causes public harm by denying the employees their right to bargain
collectively through representatives of their own choosing--or denying
employees their right to rid themselves of an unwanted incumbent
[[Page 74373]]
representative. Moreover, Congress has already determined that the
expeditious resolution of questions concerning representation
``safeguards commerce from injury, impairment or interruption.'' 29
U.S.C. 151. As favorable comments indicate, providing such standard
time frames also has the salutary effect of conveying to the employees
that the Board, not the parties, is in charge of the process, and
reduces chances of manipulation of the process by the parties.\309\ The
establishment of uniform time frames across the regions also has the
salutary effect of affording employees' Section 7 rights the same
treatment across the country.\310\ The ability to exercise Section 7
rights should not turn on the particular region where the petition is
filed. The timeline will also reduce the Board's expenses and make the
process more economically efficient by discouraging abusive delays by
the parties and encouraging prompt settlement without litigation.
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\309\ See AFL-CIO; Testimony of Margaret McCann on behalf of
AFSCME.
\310\ See Joel Cutcher-Gershenfeld.
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For all the foregoing reasons, the Board believes that the time
frames do not run afoul of constitutional due process or statutory due
notice requirements. The Board also rejects the argument of many
comments that, as a matter of policy, the time frames proposed in the
NPRM are wholly insufficient,\311\ virtually impossible,\312\
draconian,\313\ facially absurd,\314\ unconscionable,\315\ and just too
short.\316\ A major premise of many of these comments is that employers
are completely unaware of any union organizing until the petition is
filed, and therefore have not even begun to think about contacting an
attorney or other advisor about how to respond to a petition. However,
as discussed more fully above in connection with the opportunity for
free speech and debate, these comments offer no reliable empirical
evidence establishing that employers are frequently blindsided by the
petition, and our experience and recent scholarly research suggest the
opposite. Put simply, in the multitude of cases where employers are
aware of the union drive before the petition, they have more, often
much more, than 7 days to contact an attorney or advisor or otherwise
begin to consider the issues listed on the Statement of Position form
and to prepare for a possible hearing.
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\311\ Chamber; Chamber II.
\312\ Ranking Member Enzi and Republican Senators.
\313\ COLLE.
\314\ NCISS II.
\315\ Indiana Chamber.
\316\ GAM.
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But even in cases where employers are caught completely unaware by
the petition, we reject the notion that employers will be unable to
consult advisors, complete the Statement of Position form, and prepare
for the hearing in the allotted time frames. As some of the comments
appear to concede, at least some employers facing petitions will have
ready access to labor counsel. Although we recognize that some
employers may not have labor counsel on retainer, in our experience,
employers are able to promptly retain advisers and prepare for the
hearing in relatively short order. For example, as the testimony of
Russ Brown on behalf of LRI and of Michael Pearson, a retired NLRB
field examiner with nearly 34 years of experience, indicate, under the
Board's current rules, management consultants regularly survey public
notice of the filing of representation petitions to offer their
services to employers named in the petition, and they would continue to
be able to do so under the final rule. Indeed, this is such a
widespread practice that a regional director's model opening letter to
employers to accompany service of the petition advises employers that
they may be contacted by organizations or persons who seek to represent
the employer before the Board in connection with the representation
case, but that such persons or organizations do not have any ``inside
knowledge'' or ``favored relationship'' with the Board. See OM Memo 99-
56.\317\ Similarly, the retired field examiner commented that it was
his experience that even small employers were able to obtain competent
legal counsel in short order. Michael Pearson supplemental statement;
Testimony of Pearson.
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\317\ Ranking Member Enzi and Republican Senators assert that
employers will significantly limit their use of legal counsel during
organizing campaigns due to the Department of Labor's recent NPRM
interpreting the advice exemption under the Labor Management
Reporting and Disclosure Act. See 76 FR 36178. Other commenters
share this view. See, e.g., COLLE II; NRF II. The Board doubts the
accuracy of this prediction given DOL's stated goal of publicizing
the interactions between employers and anti-union consultants, not
stopping those interactions from taking place. See id. at 36182,
36190. In any event, the Board views such concerns as more properly
directed to DOL and not the NLRB. If changes in the legal landscape
prevent parties from obtaining representation in a timely fashion,
the Board will take that into consideration in determining whether
to grant a party's request to postpone the opening of the hearing
and, more generally, whether there is a need to revise the final
rule's time frames.
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Indeed, despite the comments to the contrary, the proposed time
frames do not constitute a radical change from the status quo. Under
the final rule, hearings ordinarily will be scheduled to open 8 days
from service of the notice of hearing, but a party may for special
circumstances move to postpone the hearing by up to 2 business days and
for extraordinary circumstances for more than 2 business days. A 1997
Report of the Best Practices Committee provided that hearings should
open between 10 to 14 days of the petition's filing. GC 98-1. A model
opening letter in 1999 indicated that the hearing should open no later
than 7 days after service of the notice, which should issue no more
than 3 days after the filing of the petition. OM 99-56. The 2002 Board
held that 5 business days notice was sufficient: ``By providing parties
with at least 5 working days notice, we make certain that parties to
representation cases avoid the Hobson's choice of either proceeding
unprepared on short notice or refusing to proceed at all.'' Croft
Metals, Inc., 337 NLRB 688, 688 (2002). And, according to ALFA,
``[m]any Regions now schedule hearings within seven (7) days and are
reluctant to grant any postponements.'' Most pre-election
representation case hearings last only 1 day. Accordingly, the reality
is that under the current rules, employers sometimes must already
formulate, assert, and produce supporting evidence for all their
positions before a hearing officer within 7 days even though the
current rules do not mandate completion of a Statement of Position
form.\318\ Because the proposed time frames are not radically different
from the status quo and the Statement of Position form largely requires
an employer to do what it currently does to prepare for a hearing, the
Board rejects the Bluegrass Institute's contention that the proposed
time frames will result in significantly higher legal fees for
employers.\319\
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\318\ If, as some comments, including Fox Rothschild's, suggest,
a party's preferred witnesses are unavailable and no other available
witness has comparable knowledge, that party is free to move to
postpone the hearing. The fact that special circumstances may exist
to postpone some hearings, however, hardly warrants delaying the
opening of all hearings. No matter when the hearing is scheduled to
open, there is always the possibility that a witness may have a
conflict. Similarly, counsel may also adjust the order of his
planned presentation if it appears that the hearing may run more
than one day and a witness is not available the second day.
\319\ To be clear, consistent with the reasoning in Croft
Metals, the Board would set the baseline due date for the Statement
of Position form at 7 days even in the absence of the hearing being
scheduled in 8 days. Even if the pre-election hearing were to be
held at a point more distant than 8 days from service of the notice,
the timely sharing of the information contained in the Statement of
Position form should encourage the timely entrance into election
agreements and narrow the scope of the pre-election hearing in the
event parties are unable to enter into such agreements, thereby
contributing to the Board's goal of expeditiously resolving
questions concerning representation.
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[[Page 74374]]
The Board likewise rejects the notion that the amended scheduling
provisions are unfair because if a union does not know the correct
individual to serve, the petition might not be received by the proper
recipient for a day or more. Cook-Illinois; California Healthcare
Association (CHA) II. Thus, the same possibility existed under the
prior rules. Moreover, as shown, the region will also serve the
petition, the Statement of Position form, and related papers with the
notice of hearing (Sec. 102.63(a)(1)), and it is the practice of the
regional offices to have a Board agent contact parties as soon as
possible after the filing of a petition in order to facilitate the
election process. See Casehandling Manual Section 11010. The Board
likewise rejects COLLE's suggestion that the Board is incapable of
timely serving the notice of hearing on the person specifically named
in the petition as the employer representative to contact. In any
event, a nonpetitioning party may move to postpone the opening of the
pre-election hearing (and the date for filing the Statement of
Position) if it does not receive the notice of hearing (or the
Statement of Position form) in a timely manner.
Although many comments complain about the consequences of failing
to note something on the Statement of Position form, the fact of the
matter is that the Board's prior rules and case precedent already
required parties to raise contentions at specified times in the process
or face preclusion. Indeed, even taking the preclusion provisions into
account, the 7-day time frame for completion of the Statement of
Position--which can be extended up to two business days for special
circumstances and even further for extraordinary circumstances--does
not constitute a material change from what could, and sometimes did,
occur under the Board's prior rules and case precedent. Prior to the
NPRM, the Board held that a hearing officer may refuse to allow an
employer to introduce evidence regarding the supervisory status of
employees in certain job classifications if the employer refuses to
take a position on their status and their inclusion or exclusion from
the unit. Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994).
Similarly, under the rules in effect prior to the NPRM, a party could
``not [in a request for review of a regional director's decision and
direction of election] raise any issue or allege any facts not timely
presented to the regional director.'' 29 CFR 102.67(d) (2010).
Accordingly, even under the Board's prior rules, if a party failed to
present facts or take a position before the hearing officer at a
hearing, including one which opened and closed within 7-days of the
notice, it could not do so later.\320\
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\320\ There were numerous other examples prior to the NPRM of
parties being required to raise contentions at specified times in
the process or face preclusion. For example, under the rules in
effect prior to the NPRM, a party could not challenge the
eligibility of voters for the first time after an election by filing
an election objection. HeartShare Human Services of New York, Inc.,
317 NLRB 611, 611 n.1 (1995), enforced, 108 F.3d 467 (2d Cir. 1997).
See also Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994)
(disagreeing with regional director, Board states that because
employer refused to take a position at the pre-election hearing
regarding the supervisory status of leadpersons and quality control
inspectors and the regional director included those classifications
in the unit, the employer may not, absent changed circumstances,
challenge their votes on the basis that they are supervisors).
Similarly, the courts have held that because the representation
proceeding is the forum designed for parties to contest the
appropriateness of the unit, any issue that can be raised in the
representation case proceeding must be raised there and cannot be
raised for the first time in response to a complaint alleging an
unlawful refusal to bargain with a newly certified union. See Pace
University v. NLRB, 514 F.3d 19, 20, 23-27 (D.C. Cir. 2008)
(employer precluded from justifying its refusal to bargain with the
certified union on the ground that the bargaining unit is
inappropriate because employer did not raise its contention in the
underlying representation case proceeding).
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In view of the foregoing, the Board rejects as unfounded those
comments that complain that the proposed time frames are so short as to
inevitably cause parties to make mistakes.\321\ Moreover, the Board
indicated in the preamble to the NPRM that the hearing officer would
retain discretion to permit parties to amend their Statements of
Position for good cause. 79 FR at 7330. In its reply comment, the
Chamber complains (Reply) that the proposed regulations themselves did
not so provide.\322\ In response to the comment, the Board has modified
Sec. Sec. 102.63 and 102.66 to provide that the regional director may
permit parties to amend their Statements of Position in a timely manner
for good cause.\323\
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\321\ See, e.g., COSE; LRI.
\322\ Other commenters, such as U.S. Poultry II also appear to
question whether the proposal would permit parties to amend
Statements of Position at the hearing.
\323\ As discussed below in connection with Sec. 102.66, the
Board received a number of comments complaining about the hearing
officer's authority under the proposed amendments. Accordingly, the
Board has decided that the regional director, rather than the
hearing officer, should be the one to decide whether parties may
amend their Statements of Position.
Comments addressing the consequences of failing to timely
complete the Statement of Position are also addressed below in
relation to Sec. 102.66.
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The dissent argues that the Statement-of-Position and preclusion
provisions should be modified so that a party retains the right to
address issues it did not raise in its initial Statement of Position in
response to another party's contentions. No modification is necessary.
The Statement of Position in large part constitutes a response to
positions previously taken by the petitioner in its petition. For
example, after a union files a petition which identifies the unit it
seeks, the employer is required to state whether it agrees that the
petitioned-for unit is appropriate and whether there is a bar to
conducting an election in that unit. The final rule also provides that
the regional director may permit a party to amend its Statement of
Position in a timely manner for good cause. And a party typically will
have good cause to timely amend its Statement of Position to raise an
issue that is presented by virtue of a petitioner's amending its
petition. For example, it would constitute good cause for an employer
to amend its Statement of Position to raise for the first time a
contract bar issue if a petitioner amended its petition to change the
petitioned-for unit from one which is entirely unorganized to one
including employees who are covered by an existing collective-
bargaining agreement. Contrary to the dissent, the good-cause standard
governing amendments of statements-of positions is less strict than the
Pergament standard governing whether the Board may find a violation
that was never alleged in an unfair labor practice complaint. See
Pergament United Sales, Inc., 296 NLRB 333, 333-334 (1989) (Board may
find a violation even in the absence of a specific complaint allegation
if the unalleged violation is closely connected to the subject matter
of the complaint and has been fully litigated). Thus, if a union seeks
to amend its petition in a fundamental way, an employer may have good
cause to amend its Statement of Position even if the amendment is not
closely related to the original position taken by the employer.
Moreover, it is not clear how many of the retrospective criteria used
to determine whether Pergament's fully-litigated prong has been
satisfied could have any kind of coherence in the context of the
position statement, particularly where amendment is sought early in the
process.
At least one comment suggests that the Board should make clear that
the Statement of Position is required only to alert the Board to issues
that need to be decided during the pre-election stage, not to foreclose
legitimate issues that may be raised after the election. The Board
believes that the proposed
[[Page 74375]]
language already does so. Certainly, nothing in the NPRM or final rule
suggests that a party must raise post-election issues, such as
objectionable conduct, in its pre-election Statement of Position.
Although some employer comments concede that requiring completion
of the Statement of Position form is a good idea in theory, many
complain that it will be a bad idea in practice because the time frame
for completing it--coupled with the preclusion provisions--will cause
employers to list every conceivable issue on the form to preserve their
right to litigate such issues, which will only lengthen (and increase
the number of) hearings.\324\ The Board disagrees. As shown, we do not
believe that the information sought, time frames and preclusion
provision are unreasonable. To the contrary, they are similar to what
could occur under the Board's prior rules and case precedent. And, as
shown, under existing rules, most hearings currently last only a day,
and the Board's current rules and case precedent obviously are not
preventing the parties from entering into election agreements.
---------------------------------------------------------------------------
\324\ See, e.g., NADA II; Indiana Chamber; Miners; Pinacle
Health Systems of Harrisburg; Vigilant; Associated Oregon
Industries; Ohio Grocers Association II; US Poultry II; the Textile
Rental Services Association (TRSA) II.
---------------------------------------------------------------------------
Moreover, the Board is of the opinion that some of the comments
suggest that the Board adopt time frames which bear no relation to
reality. For example, NADA suggests that a 30-day period to complete
the Statement of Position form is necessary. Other comments suggest a
much shorter period is necessary, though not as short as the 7 day
period set forth in the amendments. Thus, the Indiana Chamber suggests
a period of 14-18 days. Put simply, we categorically reject any notion
that the Statement of Position form will routinely require such long
periods of time to complete. As shown, the Statement of Position form
largely requires parties to do what they currently do to prepare for a
pre-election hearing. The Croft Board held that 5 days (excluding
intervening weekends and holidays) constituted adequate notice of such
a hearing, and some hearings are already occurring within 7 calendar
days.
We also find it significant that parties commit to enter into
stipulated election agreements in 7 days or less. Under current rules,
by entering into a stipulated election agreement, a party waives the
right to raise issues at a pre-election hearing, and is precluded from
later challenging matters such as the appropriateness of the unit. See,
e.g., Micro Pacific Development, Inc. v. NLRB, 178 F.3d 1325, 1335-1336
(D.C. Cir. 1999). As is well known, approximately 90 percent of Board
elections are conducted pursuant to election agreements. Frankly, the
Board finds it difficult to believe that an employer would commit to
enter into a stipulated election agreement--and thereby waive its right
to raise issues at a pre-election hearing--before satisfying itself
that the Board did in fact have jurisdiction over it, that there were
no bars to an election, and that the unit described in the agreement
was appropriate. Indeed, as Jonathan Fritts testified on behalf of CDW,
``it's hard to say that negotiating a stip[ulated election agreement]
would necessarily take less time than preparing for the hearing[.] I
think that everything that precedes the negotiation, at least in my
experience, is something that you would do to identify the issues that
may be subject to litigation. And so, if you're going to negotiate a
stip I think you have to know what the issues are that you might go to
hearing on, and then you have to decide if you can resolve them. The
process of identifying those issues, what the evidence is, what the
circumstances are, that's going to happen I think regardless of whether
you go to a hearing or whether you go to a stip. It's only once you've
done all that that you really begin the process of negotiating a
stip.'' Testimony of Fritts on behalf of CDW II.\325\ In other words,
the fact that parties currently agree to enter into stipulated election
agreements in 7 days constitutes powerful evidence that employers can
in fact obtain advisers and have the conversations necessary to
formulate positions on the issues covered by the Statement of Position
form (and that would be addressed at a pre-election hearing) in the
time frames set forth in the final rule. And the Board is confident
that, if parties do not enter into election agreements, the offer-of-
proof procedures discussed below in connection with Sec. 102.66
provide tools for the region to swiftly dispose of unsupported
contentions that a party may set forth in its Statement of Position
simply to avoid triggering the preclusion provisions.\326\
---------------------------------------------------------------------------
\325\ Accordingly, we reject the contention of the NGA that the
time spent on the Statement of Position form would be better spent
trying to reach an election agreement. Testimony of Kara Maciel on
behalf of NGA II. As noted, the final rule gives the parties
approximately 1 business day--after completion of the Statement of
Position--to negotiate an election agreement. In response to
concerns raised by CDW and others, the Board wishes to clarify that
parties remain free to file joint postponement requests when they
need additional time to finalize election agreements. Nothing in the
final rule is intended to deprive regional directors of the
discretion they currently enjoy to postpone hearings when they
conclude that it is highly probable that the parties will be able to
enter into an election agreement.
\326\ Contentions that the Statement of Position form is
analogous to an appellate brief, such as the one made by the
National Meat Association, are wildly off the mark. The Statement of
Position form does not require a party to provide any legal
citations for its positions. For example, the Statement of Position
form requests the employer to state its position regarding election
details such as the type, date(s), time(s), and location(s) for the
election, and the names of, and information about, the employees in
the petitioned-for unit and in any alternative unit proposed by the
employer. Providing such information does not require case
citations. Similarly, the employer need not provide case citations
in providing information about its connection to interstate
commerce. Nor does an employer need to provide case citations to
support a contention that an election is barred because the
petitioned-for unit is covered by a collective-bargaining agreement
or participated in a valid election within the preceding 12-month
period. The employer likewise need not cite cases to explain why it
disagrees that the petitioned-for unit is appropriate. We similarly
reject contentions that completing the Statement of Position form
should be subject to the same timelines as filing a response to a
complaint in Federal court. See Clear Channel Outdoor; MEMA.
---------------------------------------------------------------------------
The Chamber II argues that the Board should have analyzed the
impact of the Board's decision in Specialty Healthcare and
Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), affd sub. nom,
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013)
before making the proposals in the NPRM. However, Specialty Healthcare
has not had, and is not likely to have, a significant impact on
representation case processing by the Board. Specialty Healthcare sets
forth a clear test for unit determinations when an employer contends
that a proposed bargaining unit is inappropriate because additional
groups of employees are excluded from the bargaining unit. Specialty
Healthcare, slip op. at 14. These issues are not addressed by the NPRM,
which does not affect the appropriateness of bargaining units.
Likewise, Specialty Healthcare does not implicate representation-case
procedures, which are addressed by the NPRM. Before Specialty
Healthcare, regional directors were required to determine whether the
petitioned-for unit was appropriate prior to directing an election but
were not required to resolve all individual eligibility issues in the
pre-election decision, and both remain true after Specialty Healthcare.
Some comments argue that Specialty Healthcare renders the proposed
time periods too short.\327\ They claim that more time is needed
because Specialty Healthcare constitutes a dramatic
[[Page 74376]]
change in the law and heightens the employer's burden when it wishes to
contest the appropriateness of the petitioned-for unit. However, the
premises for that argument were rejected in Specialty Healthcare and in
the litigation which followed. See Specialty Healthcare, slip op. at 14
(``Our dissenting colleague is simply wrong when he says that
`[t]oday's decision fundamentally changes the standard for determining
whether a petitioned-for unit is appropriate in any industry subject to
the Board's jurisdiction.' Our decision adheres to well-established
principles of bargaining-unit determination, reflected in the language
of the Act and decades of Board and judicial precedent.''). Thus,
Specialty Healthcare holds that ``the traditional community of interest
test * * * will apply as the starting point for unit determinations in
all cases not governed by the Board's Health Care Rule,'' and sets
forth a clear test--``using a formulation drawn from Board precedent
and endorsed by the District of Columbia Circuit''--for those cases in
which an employer contends that a proposed bargaining unit is
inappropriate because additional groups of employees are excluded from
the bargaining unit. Ibid. In such cases, the Board held, ``the
employer must show that the excluded employees share an `overwhelming
community of interest' with the petitioned-for employees.'' Ibid.
---------------------------------------------------------------------------
\327\ See, e.g., Chairmen Kline & Roe II; COLLE II; Chamber II;
SHRM II; Acme-McCrary and 56 other representatives of small, medium
and large businesses (Acme) II.
---------------------------------------------------------------------------
When the employer subsequently challenged the Specialty Healthcare
standard in the Sixth Circuit, the employer and amici such as COLLE and
the American Health Care Association, raised the same argument that
Specialty Healthcare had fundamentally changed the standard for
determining whether the petitioned-for unit is appropriate. See 2012 WL
1387314 *3, *44 (employer brief); 2012 WL 1494162 * 3-4 (COLLE amicus
brief); 2012 WL 1494157 *17 (American Health Care Association amicus
brief). The Sixth Circuit squarely rejected the argument. See Kindred
Nursing Centers East, LLC v. NLRB, 727 F.3d 552, 561 (6th Cir. 2013)
(``Kindred argues that this overwhelming-community-of-interest standard
represents a `material change in the law' and is not a mere reiteration
nor clarification. But this is just not so. The Board has used the
overwhelming-community-of-interest standard before, so its adoption in
Specialty Healthcare II is not new.'').
We also agree with the AFL-CIO that Specialty Healthcare makes
preparation easier by clarifying the standard. Reply II. As the Board
made clear in Specialty Healthcare, ``employees in the petitioned-for
unit must be readily identifiable as a group and the Board must find
that they share a community of interest using the traditional criteria
before the Board applies the overwhelming-community-of-interest
standard to the proposed larger group.'' Specialty Healthcare, slip op.
at 11 n.25 (emphasis added). And the employer possesses the evidence
relevant to whether the petitioned-for employees constitute a readily
identifiable group; \328\ whether the petitioned-for employees share a
community of interest,\329\ and whether the employees it seeks to add
share an overwhelming community of interest with the petitioned-for
employees.\330\ Accordingly, we reject the contention that Specialty
Healthcare renders the proposed time frames unworkable in the typical
case. In any event, as discussed above, if a petition raises an
unusually complex issue, the regional director has discretion to set
the hearing for a later date on the director's own initiative, and
parties remain free to file postponement requests themselves.\331\
---------------------------------------------------------------------------
\328\ For example, employees can be readily identifiable as a
group based on job classifications, departments, functions, work
locations, skills, or similar factors. Specialty Healthcare, slip
op. at 12. It is the employer who designates the job classifications
and functions of its employees, and it is the employer who assigns
its employees to their departments and work locations. The employer
knows the skills of its employees because it sets the skill
requirements for its positions, interviews applicants, and trains
and evaluates its employees.
\329\ Thus, it is the employer that establishes the terms and
conditions of employment of the petitioned-for employees.
\330\ The employer also establishes the terms and conditions of
employment of those employees that it wishes to add to the
petitioned-for unit. Because the employer establishes the working
conditions of all its employees, it also possesses the evidence
necessary to determine the extent to which the employees it seeks to
add to the petitioned-for unit share a community of interest with
the petitioned-for employees. See Specialty Healthcare, slip op. at
9 n.19 (``It is highly significant that, except in situations where
there is prior bargaining history, the community-of-interest test
focuses almost exclusively on how the employer has chosen to
structure its workplace. * * * * [M]ost of the facts at issue (lines
of supervision, skill requirements wage rates, etc) are established
by the employer,'' and the employer also typically draws ``the lines
across which those facts are compared,'' such as the lines between
``job classifications . . . , departments, functions, facilities,
and the like.'').
Employers also possess the evidence necessary to determine
whether a union has petitioned for a fractured unit, such as when a
union petitions for all employees occupying a nominally distinct
classification, but when the employees in that classification do not
in fact perform distinct work under distinct terms and conditions of
employment. See id., slip op. at 13 & n.31.
\331\ Comments about Specialty Healthcare are also discussed
below in connection with Sec. 102.66.
---------------------------------------------------------------------------
A number of comments also request exemptions from the time frames
proposed in the NPRM for particular employers, industries, or types of
petitions. We deal with these in turn.
1. Small Employers
Many comments complain that the time frames are particularly
unworkable for small employers because they may not have ready access
to labor relations advice and have no experience with Board
proceedings.\332\ Some of these comments, such as that filed by COSE,
also complain that the amendments ``disproportionately harm[] small
businesses,'' because they do not have large staffs, and the
requirements will distract them from running their businesses.
---------------------------------------------------------------------------
\332\ See, e.g., Chamber; Chamber II; ALG; Arizona Hospital and
Healthcare Association; American Feed Industry Association; NAM; NAM
II; CDW; Precision Fittings II; NGA II; INDA II; NFIB II.
---------------------------------------------------------------------------
The Board declines to carve out an exemption for small employers in
all cases. Prior to the NPRM, the Board did not have one set of best
practices for cases involving small employers and a different set of
best practices for cases involving large employers. Moreover, as shown,
the timing of the pre-election hearing under these amendments will not
be dramatically different from that which existed prior to the
amendments. Small employers, no less than large employers, are
intimately familiar with the factual subject matter of the Statement of
Position form and the hearing. Thus, for example, they know their
employees' terms and conditions of employment because they established
those terms and conditions. As previously discussed, small employers,
like large employers, may learn of the union drive prior to the
petition, in which case they may well retain advisors before the filing
of the petition. Even when the filing of the petition catches small
employers by surprise, they may retain advisors in relatively short
order. In some cases, they may well be solicited by firms providing
labor relations advice. As we note above in connection with the section
discussing the opportunity for free speech and debate, the well-
documented growth of the labor relations consulting industry undermines
the contention that small businesses are unable to obtain advice
quickly. And, small employers, like their larger counterparts, may be
members of trade organizations which provide assistance in responding
to the petition and in locating counsel. Testimony of Sencer on behalf
of Weinberg Roger & Rosenfeld II; Testimony of Maciel on behalf of NGA
II. As a former examiner commented, it was his experience that small
[[Page 74377]]
employers, like their larger counterparts, were able to retain counsel
in short order. Pearson supplemental statement; Testimony of Pearson.
The rule also provides that parties may move that the opening of the
hearing be postponed up to 2 business days based on special
circumstances and may move that the hearing be postponed for an even
longer period of time based on extraordinary circumstances.\333\
---------------------------------------------------------------------------
\333\ In the case of a very small employer with only ``one
boss'' who is scheduled to be away on business or a pre-planned
vacation on the date of the hearing (CNLP), the employer remains
free under the amendments to file a motion for postponement setting
forth such matters as the precise nature of the conflict, the harm
caused by rescheduling the other matter, and the length of the
postponement requested. The same holds true if the only person in
charge is away when the notice of hearing issues. We note in this
regard that small business owners may be away or have conflicts when
notices of hearing are served under the current rules.
RILA suggests that the time frames are inappropriate if the
petition is filed during ``holiday season'' when retail stores are
busy. The Board is confident that regional directors will continue
to exercise their discretion appropriately in the event a retail
employer files a motion to postpone a pre-election hearing. We note
in this regard that a petition filed just before Christmas
concerning the employees of a small, ``mom and pop'' retail store
would appear to raise different considerations than a petition filed
at the same time concerning the employees of a large department
store.
We also reject Elizabeth Milito's testimony that the time frames
are unfair because small employers ``wouldn't have a clue'' what to
do after they receive an election petition. Just as was the case
under the prior rules, employers and their advisors may communicate
with the Board agent assigned to the representation case and may
consult the Board's Web site which features links to a variety of
useful information, including the Casehandling Manual. Moreover, as
set forth above, the amendments provide that all employers will be
served, along with the petition, documents describing Board
representation procedures and providing information about their
responsibilities and employee rights. The Statement of Position form
will also guide the parties' preparation for any hearing that must
be held. We believe that, as a result of these amendments, employers
will have more guidance about ``what to do'' than they had under the
prior rules.
---------------------------------------------------------------------------
In the final analysis, however, the Board believes that small
employers, like their larger counterparts, will be able to
appropriately respond to the filing of a petition. Congress deemed it
appropriate to grant Section 7 rights to employees, notwithstanding any
resulting distractions to employers, even those of relatively small
size. The Board is confident that small employers can locate competent
advisors, should they choose to do so, within the time frames set forth
in the rule.
Nevertheless, the Board emphasizes that the final rule fully
protects small employers with respect to the two issues that, in our
experience, most concern small employers. First, even if a small
employer fails to complete a Statement of Position form, the small
employer will be able to challenge the Board's statutory jurisdiction
at any time. Second, even if a small employer fails to complete a
Statement of Position form, it will be able to challenge the
eligibility of a particular individual at the polls. See amended Sec.
102.66(d). Accordingly, we reject as mistaken comments such as the
National Meat Association's that argue that a small employer would
waive ``even objections to [statutory] jurisdiction'' if they did not
raise the issue in a Statement of Position.
2. Faculty Managerial Cases
ACE argues that the Board should exempt institutions of higher
education from the Statement-of-Position and hearing time frames. As
justification, ACE stresses the difficulty of adequately preparing in
such a short period for a hearing to determine whether petitioned-for
faculty are employees entitled to the protection of the NLRA or
managers without Section 7 rights to organize and bargain collectively.
ACE II. The Board declines to carve out a generalized exemption because
the parties may be able to complete the Statement of Position form and
adequately prepare for hearing in that time frame. For example, where
the Board has previously found the faculty at issue to be statutory
employees and the faculty are seeking to decertify the union currently
representing them, the Board believes that the 7-day Statement of
Position, 8-day hearing time frame would be appropriate.
However, the Board recognizes that petitions concerning faculty may
sometimes present unusually complex issues prompting regional directors
on their own initiative--or upon a party's motion--to set the opening
of the hearing beyond the normal time frame. The legal test for
determining the managerial status of college faculty involves
consideration of ``a long list of relevant factors'' (LeMoyne-Owen
College v. NLRB, 357 F.3d 55, 57 (D.C. Cir. 2004)); requires ``an
exacting analysis of the particular institution and faculty at issue *
* * [which] is made more difficult by the fact * * * that the Act is
not easily applied to labor relations in the university setting''
(Point Park University v. NLRB, 457 F.3d 42, 48 (D.C. Cir. 2006)); and
has met with some criticism in recent years. See id. at 47-51; LeMoyne-
Owen College v. NLRB, 357 F.3d at 57, 61. In addition, the
nonpetitioner bears the burden of proving that the petitioned-for
faculty are managers, and such cases typically involve large units.
Accordingly, while the Board declines to carve out an exemption for all
faculty managerial cases, the Board recognizes that cases involving
numerous or complex factual or legal issues may require additional time
and the rules provide a process by which the regional director on the
director's own initiative may grant more time as well as a process by
which the parties themselves can request additional time.
3. Construction Industry
Some comments argue that the Board should exempt construction
industry employers from the time frames governing the hearing and
Statement of Position. For example, AGC appears to argue that there is
no need to more expeditiously resolve questions concerning
representation in the construction industry because, in contrast to
typical representation cases, the petitioned-for construction industry
unit may already be covered by a collective-bargaining agreement
pursuant to Section 8(f) of the NLRA.\334\
---------------------------------------------------------------------------
\334\ Section 8(f) of the NLRA (29 U.S.C. 158(f)) permits a
construction industry employer and a union to enter into a
collective-bargaining agreement even though a majority of the
employees have never designated the union to be their collective-
bargaining representative. By contrast, it is unlawful for a
nonconstruction industry employer to enter into a collective-
bargaining agreement with a minority union. See American Automatic
Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 214 (4th Cir. 1998).
---------------------------------------------------------------------------
The Board disagrees for several reasons that it should carve out an
exemption for cases involving construction industry employers. By
definition, AGC's argument has no force whatsoever in those cases where
the petitioned-for unit is not already covered by an 8(f) collective-
bargaining agreement. Moreover, there are important reasons to
expeditiously resolve questions concerning representation even in those
cases where the petitioned-for employees are already covered by an 8(f)
collective-bargaining agreement. Section 8(f) imposes no enforceable
obligations in the absence of a collective-bargaining agreement. Allied
Mechanical Services, Inc., 351 NLRB 79, 83 (2007), enforced, 668 F.3d
758, 761, 771 (D.C. Cir. 2012). Accordingly, as soon as the 8(f)
collective-bargaining agreement expires, the employer is free to
unilaterally change the existing terms and conditions of employment and
withdraw recognition from the union as the representative of its
employees. By contrast, an employer that has a Section 9(a)
relationship with a union is obligated to maintain the status quo even
after expiration of its collective-bargaining agreement. See American
Automatic Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 211, 214-15
(4th
[[Page 74378]]
Cir. 1998). In short, because a Section 9(a) relationship provides much
greater protection to the unit employees than a Section 8(f)
relationship, a union and the unit employees it represents pursuant to
Section 8(f) have ample reason to desire a prompt resolution of the
union's 9(a) status through a Board-conducted election. See M&M Backhoe
Service, Inc. v. NLRB, 469 F.3d 1047, 1048-50 (D.C. Cir. 2006).
Similarly, employees already covered by an 8(f) collective-bargaining
agreement may wish to rid themselves of union representation entirely
or change their representative. Indeed, it may be especially important
to expeditiously resolve questions concerning representation in the
construction industry because construction industry work can be of
short duration.
In addition, the Board finds it highly significant that
construction industry employers frequently perform services on a common
job site alongside many other employers and groups of employees. The
Board is all too aware of how quickly labor strife between one employer
and a union on a common site can spill over and embroil neutral
employers, employees, and the public. See, e.g., NLRB v. Denver
Building & Construction Trades Council, 341 U.S. 675, 677-80, 688-92
(1951); NLRB v. International Union of Elevator Constructors, 902 F.2d
1297, 1303-05 (8th Cir. 1990). Accordingly, the Board is unable to
conclude that the public has less of an interest in the expeditious
resolution of questions concerning representation in construction
industry cases than it does in cases arising outside the construction
industry.
Alternatively, AGC, AGC II, ABC, ABC II, and many others argue that
the time frames are simply not feasible for construction industry
employers because of the complexity of issues arising in that industry
and the industry's unique nature.\335\ For example, ABC argues that it
will not be possible in the allotted time for them to produce the lists
of employees in the petitioned-for unit and in their alternative units,
because there is a special eligibility formula in the construction
industry that requires analysis of 2-years worth of payroll
records.\336\
---------------------------------------------------------------------------
\335\ See also C.J.M. Services, Inc. II; Sundt Construction II;
Knife River Materials.
\336\ As discussed above in connection with Sec. 102.62, that
formula, commonly known as the Daniel/Steiny formula, provides that,
in addition to those eligible to vote in Board conducted elections
under the standard criteria (i.e., the bargaining unit employees
currently employed), unit employees in the construction industry are
eligible to vote if they have been employed for at least 30 days
within the 12 months preceding the eligibility date for the election
and have not voluntarily quit or been discharged, or have had some
employment in those 12 months, have not quit or been discharged, and
have been employed for at least 45 days within the 24-month period
immediately preceding the eligibility date. See Steiny & Co. Inc.
(``Steiny''), 308 NLRB 1323, 1326-27 (1992), and Daniel Construction
Co., Inc. (``Daniel''), 133 NLRB 264, 267 (1961), modified, 167 NLRB
1078, 1081 (1967).
---------------------------------------------------------------------------
The Board disagrees. As the comment filed by The Building and
Construction Trades Department, AFL-CIO (BCTD) notes, the amendments do
not require the employer to produce a preliminary Daniel/Steiny
eligibility list as part of its Statement of Position. Instead, it need
only produce lists of the individuals employed at the time the petition
is filed, and the employer will have 7 days notice of the due date for
the Statement of Position. In a contested case, an eligibility list
complying with the Daniel/Steiny formula need only be produced 2
business days after an election is directed, which will be more than a
week after service of the petition. ABC's and AGC's related comment--
that they cannot produce the final voter list within the allotted
time--is addressed in the sections dealing with the voter list issues
generally.
Comments, such as those filed by AGC and ABC, also argue that such
an early hearing is not feasible because petitions involving
construction industry employees present complex matters, such as the
appropriate unit, disappearing and expanding units, craft issues, and
the supervisory status of working foremen. However, as BCTD notes,
Board precedent on these issues generally is long-standing and settled.
Individual supervisory issues may end up being deferred, because, as
discussed below in connection with Sec. Sec. 102.64 and 102.66,
disputes concerning individuals' eligibility to vote or inclusion in an
appropriate unit ordinarily need not be litigated or resolved prior to
the election. And the number and difficulty of the issues presented
will vary from case to case. Thus, for example, the issues are likely
to be fewer in cases where an incumbent union seeks to convert its
relationship from 8(f) to 9(a).\337\ Accordingly, the Board disagrees
that it should carve out a categorical exemption for all construction
industry employers.
---------------------------------------------------------------------------
\337\ Some comments, such as those filed by AGC also suggest
that it will be difficult for construction industry employers to
comply with the proposed time frames because they have decentralized
workplaces. However, the Board is confident that, with modern
methods of communication such as email, fax machines, and cell
phones, the party responsible for responding to the Statement of
Position can obtain the necessary information to complete the form
in a timely manner notwithstanding the employer may operate at more
than one location. For example, if the person responsible for
completing the form needs records stored at a separate location,
those records can be faxed (or scanned and then emailed) quickly.
---------------------------------------------------------------------------
4. Businesses Whose Owners or Employees Speak Foreign Languages
CNLP comments that the time frames are unworkable in those cases
where English is the not the primary language of the employer or the
petitioned-for employees. We decline to carve out a categorical
exemption for all such cases. Employers operating in the United States
are subject to the laws of this country whether English is the owner's
primary language or not. Some business owners and employees can
understand English even if English is not their primary language. Even
if certain business owners do not understand English at all, they may
have advisors or assistants who do. In any event, employers remain free
to file motions for postponements based on their particular
circumstances. Similarly, employers (and unions) remain free to request
that Board notices and ballots be translated into foreign languages
based on the needs of unit employees. Casehandling Manual Sections
11315. In short, the Board is confident that regional directors will
continue to reasonably exercise their discretion to accommodate the
language needs of the public.
5. Other Industries
A host of other comments argue that additional industries, such as
the healthcare industry, require exemptions from the standard time
frames, but they offer no persuasive justifications.\338\ For example,
AHA complains that hospitals don't have the capability to focus solely
on the completion of the Statement of Position for an entire week, that
the rule will place putative supervisors and unit members under a week
of scrutiny, and that the accelerated time frames will distract from
the employers' primary goal of treating and caring for ill patients.
However, they offer no specifics to support any of these assertions.
For example, the comments do not show, and the Board does not believe,
that hospitals will actually ask the medical professionals who provide
direct patient care to complete the employee lists or decide what
positions to take regarding a proposed bargaining unit. Nor does the
Board believe that the Statement of Position and hearing will require
an entire week of preparation that necessitates employer surveillance.
The employer already knows what its employees do because it assigns
those duties to them, and the employer
[[Page 74379]]
already knows their terms and conditions of employment because it
established them. Indeed, AHA appears to take the position elsewhere in
its comment that the Board's healthcare rule (29 CFR 103.30) eases the
parties' task by setting forth the appropriate units for cases
involving acute care hospitals.\339\
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\338\ See, e.g., AHA; AHA II; CHA II; Con-way; Testimony of
Robert Garbini on behalf of NRMCA.
\339\ ALFA argues that the time frames are unworkable if the
petition is filed when a facility ``is in the middle of a state
audit.'' Suffice it to say that the Board believes that a small
facility may be able to show special circumstances, and even
extraordinary circumstances, for requesting a postponement of a pre-
election hearing if the hearing were scheduled during a state audit
that required the administrator's attention, depending on the size
and particular factors involved.
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6. Decertification Cases
The SEIU argues that an exception should be created for
decertification cases, because, in essence, the interest in expedition
is not as strong where an employer is free to withdraw recognition
without having to go through the election process. The Board disagrees.
The Act makes no distinction as to the importance of expedition in
these two situations, and we decline to do so here. Although employer
agreement--whether by voluntary recognition, or withdrawal of
recognition, or even by procedural election agreements--can eliminate
delay in the effectuation of NLRA policies, as discussed elsewhere,
this does not alter the NLRA policy in favor of timely representation
procedures where no such agreement is forthcoming. The Board takes
seriously its responsibility to expeditiously resolve questions
concerning representation in the decertification context just as in an
initial organizing context.
D. Mandatory Posting of Notice of Petition for Election
The final rule adopts in amended Sec. 102.63(a)(1) the NPRM
proposal that, along with the petition, notice of hearing, description
of procedures in representation cases, and the Statement of Position
form, the regional director will serve a revised version of the Board's
Form 5492, currently headed Notice to Employees, on the parties. 79 FR
7328.\340\ The revised form will bear the heading ``Notice of Petition
for Election,'' (rather than the proposed heading ``Initial Notice to
Employees of Election'') to reflect that, as discussed below, although
such petitions seek Board-conducted elections, elections do not
necessarily occur in all cases after the filing of such petitions. It
will specify that a petition has been filed, as well as the type of
petition, the proposed unit, and the name of the petitioner; briefly
describe the procedures that will follow, and, just as it does
currently, it will list employee rights and set forth in understandable
terms the central rules governing campaign conduct. The notice will
also provide employees with the Board's Web site address, through which
they can obtain further information about the processing of petitions.
Unlike current Form 5492, which has no posting requirement, the final
rule requires employers to post the Notice of Petition for Election in
conspicuous places, including all places where notices to employees are
customarily posted,\341\ and employers who customarily communicate with
their employees electronically will also be required to distribute the
notice electronically. The final rule further requires that employers
maintain the posting until the petition is dismissed or withdrawn or
the Notice of Petition for Election is replaced by the Notice of
Election. The Board has concluded that the Notice of Petition for
Election will provide useful information and guidance to employees and
the parties.
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\340\ As discussed above in connection with Sec. 102.60, the
Board has concluded that service of the description of
representation case procedures will aid non-petitioning parties'
understanding of those procedures.
\341\ The NPRM proposed that the employer post the proposed
Initial Notice (which the final rule retitles as the ``Notice of
Petition for Election'') where notices to employees are
``customarily posted,'' and that the proposed final notice (which
the final rule accordingly retitles as the ``Notice of Election'')
be posted in ``conspicuous places.'' 79 FR 7354, 7359. Upon
reflection, the Board has concluded that to help ensure wide
dissemination of the important information contained therein, the
``Notice of Petition for Election'' should be posted ``in
conspicuous places, including all places where notices to employees
are customarily posted,'' and amended Sec. 102.63(a)(2) so
provides. The Board has decided to use similar language in amended
Sec. 102.67(k) to describe where the ``Notice of Election'' should
be posted.
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Baker & McKenzie question how soon the employer must post the
notice to comply with the proposed requirement that the Employer
``immediately'' post it. While we believe that most employers should be
able to comply with this provision by posting the notice on the same
day that it is received, the Board will not judge an employer to have
failed to comply with this provision so long as the notice is posted
within 2 business days of receipt, and, accordingly, the final rule
states that the employer shall post the Notice of Petition for Election
within 2 business days after service of the notice of hearing. We leave
to future case by case adjudication whether some unforeseen set of
factual circumstances might justify an employer taking a longer period
of time to post the notice. Accordingly, amended Sec. 102.63(a)(2)
further provides that the employer's failure properly to post or
distribute the Notice of Petition for Election ``may be'' grounds for
setting aside the election when proper and timely objections are filed.
Just as is the case with respect to the election notice, a party may
not object to the nonposting of notices if it is responsible for the
nonposting, and likewise may not object to the nondistribution of the
Notice of Petition for Election if it is responsible for the
nondistribution.
Baker & McKenzie also question whether an employer needs to
electronically distribute the notice to all employees in the
petitioned-for unit if the employer customarily communicates with only
some of the employees through electronic means. If the employer
customarily communicates with all the employees in the petitioned-for
unit through electronic means, then the employer must distribute the
Notice of Petition for Election electronically to the entire unit. If
the employer customarily communicates with only some of the employees
in the petitioned-for unit through electronic means, then the employer
need only distribute the Notice of Petition for Election electronically
to those employees.
Few objections were expressed as to the merit of the mandatory
posting requirement, and several comments emphasize the importance of
timely informing employees of an impending representation proceeding
and their related rights.\342\ Prompt posting of the Notice of Petition
for Election will inform not only the employees whose representation is
at issue but also the employer of the rights and protective
requirements imposed by the NLRA in the representation context. Such
posting will also assist employees in obtaining additional information
on a timely basis.
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\342\ AFL-CIO; SEIU; GAM.
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However, GAM expresses concern that the requirement to distribute
the notice electronically if the employer customarily communicates with
its employees electronically could lead to additional grounds for
filing objections to the election and subsequent litigation. The
possibility was also raised of unequal treatment of potential voters,
since some will have electronic access and some will not.
The Board recognizes that electronic distribution to employees does
not, in itself, guarantee that all eligible voters will receive the
Notice of Petition for Election. However, electronic
[[Page 74380]]
distribution will act in conjunction with the posting of paper notices
in conspicuous places, including all places where notices to employees
are customarily posted. Unless the employer can be shown to have
departed from its customary practice in electronic distribution, there
will be no basis for an objection and the requirement will only
increase the desired flow of information to employees.
ALFA suggests that the notice should warn employees that final
decisions have not been made regarding the unit and whether an election
will be conducted. The Board agrees that such warnings would accurately
describe the reality when the regional director furnishes the notice to
the employer for posting and distribution. Accordingly, the final rule
provides in Sec. 102.63(a)(2) that the Notice of Petition for Election
shall indicate that no final decisions have been made yet regarding the
appropriateness of the petitioned-for bargaining unit and whether an
election shall be conducted.
ALFA and the ACC complain that the Board should have included a
copy of the proposed Notice in the NPRM to permit the public to comment
on it. However, as discussed in the NPRM, it has long been the Board's
practice to ask the employer to voluntarily post a generic notice of
employee rights--Form 5492--upon the filing of a petition; the NPRM
described how the Board proposed to modify the contents of that notice,
such as by including a description of the proposed unit and the name of
the petitioner (79 FR 7324, 7328); and that notice was available to the
public. Accordingly, the Board rejects any suggestion that the public
was unable to comment on the proposal to require the employer to post a
notice after the filing of a petition but before an election is agreed
to by the parties or is directed by the regional director.\343\ As it
has in the past, the Board will use due care in crafting the notices,
the notices will be consistent with the regulations the agency has
promulgated, and the notices will comply with all existing laws and
regulations governing notices utilized by Federal agencies, including
the Paperwork Reduction Act as separately analyzed. Should a party feel
there is any error in a notice as promulgated, it can bring that to the
attention of the Board.\344\
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\343\ The Chamber II notes that the District of Columbia Circuit
and the Fourth Circuit struck down a Board rule requiring all
employers subject to the NLRA to post a notice of employee rights in
the workplace. The rule also noted that the failure to post could be
found to be an unfair labor practice. 76 FR 54006 (August 30, 2011).
The Board rejects any suggestion that the litigation over that rule
calls into question the validity of the proposal to require an
employer to post a notice upon the filing of a representation
petition. As the text of amended Sec. 102.63 makes clear, an
employer will only be required to post the Notice of Petition for
Election if it is the subject of a pending representation petition,
and the failure to post the notice will not constitute an unfair
labor practice. See Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 959
n.19 (D.C. Cir. 2013) (``Our conclusion here does not affect the
Board's rule requiring employers to post an election notice (which
similarly contains information about employee rights) before a
representation election[.] Because the failure to post the required
election notice does not constitute an unfair labor practice but may
be a basis for setting aside the election, see id. Sec. 103.20(d)
[of the Board's prior rules], the rule does not implicate Sec.
8(c).'') overruled in part, American Meat Institute v. U.S. Dep't of
Agriculture, 760 F.3d 18, 22 (D.C. Cir. 2014) (en banc). And the
Fourth Circuit specifically distinguished the rule, which applied
regardless of the pendency of an NLRA proceeding, from instances in
which representation petitions have been filed with the Board. See
Chamber of Commerce v. NLRB, 721 F.3d 152, 154, 156, 161, 163 (4th
Cir. 2013).
\344\ For much the same reasons, the Board likewise rejects the
Chamber's complaint that the Board should have included the proposed
Statement of Position form in the NPRM. As discussed, the NPRM set
forth at length the specific information that the proposed form
would solicit. 79 FR 7328-7329. Indeed, the Chamber concedes that
``the substantive information to be supplied by the employer for the
Statement of Position Form is described in the proposed
amendments.'' The numerous detailed comments that were submitted on
the Statement of Position proposal belie any suggestion that the
failure to provide the form itself in the NPRM deprived any party of
the ability to comment on the proposal. The Board similarly rejects
the Chamber's additional complaint that the Board should have
published the proposed description of representation case procedures
in the NPRM. As the NPRM indicated, this description is a substitute
for and an expanded version of Form 4812--and serves to inform
interested parties of their rights and obligations in relation to
the representation proceeding. 79 FR 7326, 7328, 7329. Form 4812 was
publicly available during the comment period.
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Sec. 102.64 Conduct of Hearing
As explained in the NPRM, the proposed amendments to Sec. 102.64
were intended to ensure that the pre-election hearing is conducted
efficiently and is no longer than necessary to serve the statutory
purpose of determining if there is a question of representation. 79 FR
at 7329. The final rule largely embodies the proposed amendments.
In amended Sec. 102.64(a), the Board expressly construes Section
9(c) of the Act, which specifies the purpose of the pre-election
hearing. The statutory purpose of the pre-election hearing is to
determine if there is a question of representation.\345\ A question of
representation exists if a proper petition has been filed concerning a
unit appropriate for the purpose of collective bargaining or concerning
a unit in which an individual or labor organization has been certified
or is being currently recognized by the employer as the bargaining
representative.\346\ If the regional director concludes, based on the
record created at the hearing, that such a question of representation
exists, the regional director should direct an election in order to
resolve the question.\347\
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\345\ Thus, Section 9(c)(1)(A) of the Act provides that the
Board must provide for a hearing if it has ``reasonable cause to
believe that a question of representation affecting commerce
exists,'' and that the Board must direct an election if it finds,
based on the record of that hearing, that ``such a question of
representation exists.''
\346\ A proper petition cannot be filed under Section 9(c)(1)
and a question of representation cannot arise under the Act unless
the employees in the unit are employed by an employer covered by the
Act. Thus, if any party contests the Board's statutory jurisdiction
or contends that the Board has declined to exercise its full,
statutory jurisdiction over the employer, the regional director must
resolve the resulting dispute based on the record of the pre-
election hearing. A proper petition cannot be filed under Section
9(c)(1) and a question of representation cannot exist under the Act
if there is a bar to an election, so the regional director must rule
on the existence of a bar prior to directing an election if any
party raises the issue. Similarly, a proper petition can be filed by
``an employee or group of employees or any individual or labor
organization.'' Thus, if a petition is filed by an entity and any
party contends that the entity is not a labor organization, the
regional director must resolve the resulting dispute based on the
record of the pre-election hearing. Moreover, the final rule ensures
that the nonemployer parties will have the opportunity to present
evidence on these issues even if the employer declines to take a
position on them. Thus, amended Sec. 102.66(b) makes clear that
even if the employer declines to take a position on issues such as
the appropriateness of a petitioned-for unit that is not
presumptively appropriate, the regional director has discretion to
direct the receipt of evidence concerning any issue, such as the
appropriateness of the proposed unit, as to which the director
determines that record evidence is necessary.
\347\ The hearing officer will retain authority to develop the
record relevant to any such contention using the ordinary procedures
already in use, which are designed to avoid burdening the record
with unnecessary evidence. For example, current rules give the
hearing officer discretion to require a party to make an offer of
proof before admitting evidence.
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Amended Sec. 102.64(a) makes clear that, as discussed in the NPRM
(79 FR at 7322, 7329), resolution of disputes concerning the
eligibility or inclusion of individual employees ordinarily is not
necessary in order to determine if a question of representation exists,
and therefore disputes concerning individual employees' eligibility to
vote and inclusion in the unit ordinarily need not be litigated or
resolved before an election is conducted. Such disputes can be raised
through challenges interposed during the election, if the disputed
individuals cast a ballot, and such disputes can be both litigated and
resolved, if necessary, post-election. The proposed rule provided in
Sec. 102.64(a) (79 FR at 7356):
If, upon the record of the hearing, the regional director finds
that such a question
[[Page 74381]]
of representation exists and there is no bar to an election, he
shall direct an election to resolve the question and, subsequent to
that election, unless specifically provided otherwise in these
rules, resolve any disputes concerning the eligibility or inclusion
of voters that might affect the results of the election.
The final rule provides in Sec. 102.64(a):
Disputes concerning individuals' eligibility to vote or
inclusion in an appropriate unit ordinarily need not be litigated or
resolved before an election is conducted. If, upon the record of the
hearing, the regional director finds that a question of
representation exists, the director shall direct an election to
resolve the question.
The change in language is due to the final rule not adopting the ``20-
percent rule'' as discussed below in relation to Sec. 102.66. For that
reason, the language, ``unless specifically provided otherwise in these
rules,'' has been removed. As more fully explained in relation to Sec.
102.66 below, the amendment expressly preserves the regional director's
discretion to resolve or not to resolve disputes concerning
individuals' eligibility to vote or inclusion in the unit until after
the election. It also grants the hearing officer authority to exclude,
at the regional director's direction, evidence concerning such disputes
on the grounds that such evidence is not relevant to the existence of a
question of representation. In addition, because a question of
representation cannot exist under the Act if there is a bar to an
election, see, e.g., Deluxe Metal Furniture Co., 121 NLRB 995, 1007
(1958) (contract bar); Randolph Metal Works, Inc., 147 NLRB 973, 974-75
(1964) (election and contract bars); Seven Up Bottling Co., 222 NLRB
278, 279 (1976) (certification bar), the Board has concluded that it is
superfluous for the regulatory text to refer to both the existence of a
question of representation and the absence of a bar. Accordingly, the
final rule provides that if the regional director finds that a question
of representation exists, the director shall direct an election to
resolve the question. See Section 9(c)(1) of the Act (``If the Board
finds upon the record of such hearing that such a question of
representation exists, it shall direct an election by secret ballot and
shall certify the results thereof.'')
The proposed rule provided in Sec. 102.64 (b) (79 FR 7356):
Subject to the provisions of Sec. 102.66 of this subpart, it
shall be the duty of the hearing officer to inquire fully into all
genuine disputes as to material facts in order to obtain a full and
complete record upon which the Board or the regional director may
discharge their duties under Section 9(c) of the Act.
The final rule provides in Sec. 102.64(b):
Subject to the provisions of Sec. 102.66 of this subpart, it
shall be the duty of the hearing officer to inquire fully into all
matters and issues necessary to obtain a full and complete record
upon which the Board or the regional director may discharge their
duties under Section 9(c) of the Act.
The Board has removed the ``genuine disputes as to material-facts''
language drawn from Federal Rule of Civil Procedure 56 in order to
avoid the confusion evident in some comments concerning the role of the
hearing officer. Therefore, amended Sec. 102.64(b) will provide,
``Subject to the provisions of Sec. 102.66 of this subpart, it shall
be the duty of the hearing officer to inquire fully into all matters
and issues necessary to obtain a full and complete record upon which
the Board or the regional director may discharge their duties under
Section 9(c) of the Act.'' However, amended Sec. 102.64(a) more
clearly specifies the Board's or regional director's ``duties under
Section 9(c) of the Act,'' and thus gives clear guidance to hearing
officers concerning what evidence is and is not necessary to develop a
``full and complete record'' upon which the Board or regional director
can discharge those duties.
Few comments address the proposed amendments to Sec. 102.64(a) and
(b). Those that do, question our construction of Section 9(c) of the
Act in Sec. 102.64 on the grounds that litigation of disputes
concerning individual employees' eligibility to vote and inclusion in
the unit should be permitted pre-election. These comments are addressed
below in relation to Sec. 102.66.
The Board's current rules provide that the hearing officer may, in
the officer's discretion, continue the hearing from day to day or
adjourn it to a later date. Although, as noted above, there was a great
deal of comment about the proposal to open the pre-election hearing 7
days from service of the notice absent special circumstances, there
were few comments about the proposal that the hearing continue day to
day until completed absent extraordinary circumstances. 79 FR at 7356.
The AFL-CIO and AFSCME submitted comments in support of this change.
The AFL-CIO argues that ``[t]his requirement is critical because the
current process, under which a 3-day hearing may extend over several
weeks, presents opportunities for manipulating the timing of the
election and maximizing the delay before any election is conducted.''
AFSCME adds that the amendment should not be controversial and benefits
all parties by injecting certainty into the election process. The AFL-
CIO also points out that the proposed amendment would merely codify a
``best practice'' listed in the General Counsel's 1997 ``Report of Best
Practices Committee--Representation Cases.'' \348\
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\348\ See also Section 11082.3 of the Casehandling Manual, which
provides that parties should be advised ``that the hearing, once
commenced, will be conducted on consecutive days, until completed,
unless the most compelling circumstances warrant otherwise.''
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However, the AFL-CIO suggests that the Board should require parties
to meet a stricter standard when seeking a continuance. Thus, the AFL-
CIO suggests that instead of requiring that hearings be conducted on
consecutive days ``absent extraordinary circumstances,'' the Board
adopt the language ``unless the most compelling circumstances warrant
otherwise,'' which is used in Section 11082.3 of the Board's
Casehandling Manual. In its reply to the AFL-CIO's comment, the Chamber
requests (Reply) at a minimum that the Board not abandon the
``extraordinary circumstances language.'' However, the Chamber also
urges the Board to temper the requirement of consecutive day hearings.
Thus, it suggests that the Board merely require a moving party to
demonstrate ``good cause'' for a hearing's continuance. According to
the Chamber (Reply), employers and their counsel will need to
reschedule other matters in order to comply with the 7-day hearing and
statement-of-position provisions, which will increase the chances of
scheduling conflicts if the hearing runs more than 1 day.
After careful consideration, the Board has decided to adopt the
proposed amendment with one change in amended Sec. 102.64(c) to make
clear that the regional director, rather than the hearing officer, will
make the determination in question. The Board concludes that continuing
the pre-election hearing from day to day until completed (absent
extraordinary circumstances) will remove unnecessary barriers to the
expeditious resolution of questions concerning representation because,
absent an election agreement, the election that is designed to answer
the question of representation cannot be held until the pre-election
hearing is completed. Thus, eliminating unnecessary delay in concluding
the pre-election hearing helps eliminate unnecessary delay in resolving
questions of representation. The amendment also allows the Board,
rather than the parties, to control the hearing schedule, and renders
hearing scheduling more transparent and uniform across regions.
The Board declines to adopt the Chamber's suggestion--that the
Board adopt a good-cause standard for granting
[[Page 74382]]
continuances--as largely being unnecessary in light of the final rule's
adoption of revised language in Sec. 102.63 regarding the scheduling
of the pre-election hearing and the changes to Sec. 102.64 and Sec.
102.66 regarding the conduct of the hearing. As set forth in amended
Sec. 102.63, except in cases presenting unusually complex issues, the
pre-election hearing will be scheduled to open 8 days from service of
the notice, but parties may request that the hearing be postponed up to
2 business days for special circumstances, and for more than 2 business
days for extraordinary circumstances. Moreover, the amendments to Sec.
102.64(a), clarifying the purpose of the hearing and that disputes
concerning individuals' eligibility to vote or inclusion in an
appropriate unit ordinarily need not be litigated or resolved before an
election is conducted, and the amendments to Sec. Sec. 102.63 and
102.66, providing for Statements of Position and responses to the
Statements of Positions, should serve to streamline the hearing, making
it less likely that the hearing will continue over several days.
The Board likewise declines to adopt the AFL-CIO's suggestion. Once
the hearing opens, the Board expects that the hearing will continue
from day to day until completed. In the Board's view, the
``extraordinary circumstances'' language does not differ significantly
from the existing Casehandling Manual guidance of ``the most compelling
circumstances,'' and in any event, is more widely used and easily
understood by parties who are new to Board processes.
However, the Board has concluded that just as the regional director
is the one who decides when the pre-election hearing will open, the
regional director, rather than the hearing officer, should be the one
to decide whether a pre-election hearing that requires more than 1 day
should continue day to day until completed or should be adjourned to a
later date. Accordingly, amended Sec. 102.64(c) provides that the
hearing will continue from day to day until completed unless the
regional director concludes that extraordinary circumstances warrant
otherwise.\349\
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\349\ The proposed amendment to Sec. 102.64 (b) also omitted
pre-existing language providing that the hearing officer also has
discretion to adjourn the hearing ``to a different place, by
announcement thereof at the hearing or by other appropriate
notice.'' Upon reflection, the Board has decided to reject the
proposed amendment, as hearings sometimes need to be relocated.
However, consistent with the amendment vesting the regional
director, rather than the hearing officer, with the authority to
decide whether a hearing that requires more than a day to complete
should continue day to day or whether it should be adjourned to a
later date, the final rule also provides in amended Sec. 102.64(c)
that the regional director has discretion to adjourn the hearing to
a different location by appropriate notice.
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Sec. 102.65 Motions; Intervention; Appeals of Hearing Officer's Rulings
Consistent with the effort to avoid piecemeal appeals, the NPRM
proposed to narrow the circumstances under which a request for special
permission to appeal would be granted. More specifically, the NPRM
proposed that such an appeal would only be granted under extraordinary
circumstances when it appears that the issue will otherwise evade
review. To further discourage piecemeal appeals, the NPRM proposed that
a party need not seek special permission to appeal in order to preserve
an issue for review post-election. Consistent with current practice,
the NPRM provided that neither the filing of a request for special
permission to appeal nor the grant of such a request would stay an
election or any other action or require impounding of ballots unless
specifically ordered by the Board. The NPRM also proposed that neither
a regional director nor the Board would automatically delay any
decision or action during the time permitted for filing motions for
reconsideration, rehearing, or to reopen the record. 79 FR at 7329,
7356-7357.
Upon reflection, the Board has decided not to adopt the proposed
narrower standard to govern requests for special permission to appeal
rulings of a hearing officer to the regional director. In the pre-
election hearing, the hearing officer is developing a record upon which
the regional director can make a decision. Moreover, the relation
between hearing officers and regional directors is, in practice, more
informal than that between a trial and appellate court or between a
regional director and the Board, with hearing officers not infrequently
seeking advice from the regional director during a hearing. For these
reasons, the final rule does not apply the proposed narrower standard
to requests for special permission to appeal rulings of hearing
officers to the regional director. However, to discourage such
piecemeal appeals, the final rule makes clear in amended Sec.
102.65(c) that a party need not seek special permission to appeal in
order to preserve an issue for later. Consistent with current practice,
the amendments provide that the filing of a request for special
permission to appeal will not stay the proceedings unless otherwise
ordered by the regional director.
Consistent with the interpretation of Section 3(b) of the Act that
our colleagues advanced in their dissent to the NPRM (79 FR at 7343 &
n.108), the Board has also decided to substitute the request for review
procedure, as modified as described below in connection with Sec.
102.67, for the request for special permission to appeal procedure that
the NPRM proposed to apply with respect to rulings made by the regional
director prior to the close of a hearing in proceedings governed by
Subpart C of Part 102. Accordingly, the Board has decided to amend
Sec. Sec. 102.65 and 102.67 to clarify that any party may request
Board review of any action taken by the regional director under to
Section 3(b) of the Act except where the Board's rules provide
otherwise.\350\
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\350\ For example, if a party enters into an agreement pursuant
to Sec. 102.62(c) of this subpart, providing for final regional
determination of both pre- and post-election disputes, a party may
not file a request for review of any regional director action.
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Few comments were submitted on the proposed amendments to Sec.
102.65. AHCA contends that the Board provides no examples of issues
that would meet the standard for ``otherwise evades review.'' Constangy
argues that limiting appeals to extraordinary circumstances, combined
with preventing regional directors from staying proceedings to consider
motions for reconsideration, will effectively result in the total
preclusion of review of pre-election rulings, preventing appeal of
legitimate disputes. AHCA and ALFA argue that special permission to
appeal serves little purpose because it will not stay proceedings. The
Board need not address these comments at length because, as shown, the
Board is not adopting the proposed narrower standard to govern requests
for special permission to appeal hearing officer rulings to the
regional director; the Board likewise has rejected the proposed
narrower standard to govern appeals (to the Board) of regional director
rulings made prior to the close of the hearing; and, as discussed below
in connection with Sec. 102.67, the Board has decided to permit
parties to request review of a regional director's post-hearing
decision and direction of election prior to the election. Moreover, the
final rule does not preclude the regional director or the Board from
granting a stay. Rather the final rule merely provides in amended Sec.
102.65(c) and amended Sec. 102.67(c) that such filings will not result
in an automatic stay.
The final rule adopts the proposed amendments to Sec.
102.65(e)(3). The Casehandling Manual provides in Section 11338.7 that
a Board agent should exercise discretion in deciding whether to allow a
vote under challenge
[[Page 74383]]
when a party claims that changed circumstances justify a challenge to
voters specifically excluded, or included, by the decision and
direction of election. Accordingly, the final rule adopts the proposal
in the NPRM that if a motion for reconsideration based on changed
circumstances or to reopen the record based on newly discovered
evidence states with particularity that the granting thereof will
affect the eligibility to vote of specific employees, the Board agent
shall have discretion to allow such employees to vote subject to
challenge even if they are specifically excluded in the direction of
election and to challenge or to permit the moving party to challenge
the ballots of such employees even if they are specifically included in
the direction of election in any election conducted while such motion
is pending.\351\
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\351\ Upon reflection, the Board has concluded that Board agents
should have discretion to challenge individuals who are explicitly
included in the direction of election when a party has filed a
motion as set forth above instead of having to rely on the moving
party.
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The final rule makes a few additional amendments to Sec. 102.65.
Under the Board's prior rules, the regional director could rule on
motions to intervene and to amend petitions or could refer such motions
to the hearing officer. 29 CFR 102.65(a), (b) (2010). As discussed
below in connection with Sec. 102.66, the Board received a number of
comments criticizing the authority of the hearing officer at the pre-
election hearing. Upon reflection, the Board has decided to amend Sec.
102.65(a) and (b) to provide that the hearing officer shall rule on
motions to intervene and to amend petitions only as directed by the
regional director. Thus, the amendments make clear that it will be the
regional director who decides whether a party may intervene and whether
a petition may be amended. The final rule also moves a sentence about
the record from Sec. 102.65(c) into amended Sec. 102.65(a). The final
rule's other amendments to Sec. 102.65 conform the provisions of this
section to the remainder of the amendments.\352\
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\352\ Because as discussed below in connection with Sec.
102.67, the Board has decided to eliminate the transfer procedure,
the final rule also omits references to the transfer procedure that
previously appeared in Sec. 102.65. The final rule also omits the
now outdated references to ``carbon copies'' in this and other
sections, and provides that extra copies of electronically-filed
papers need not be filed with the Board. These amendments update the
Board's representation case rules to reflect modern methods of
communication.
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The NPRM also proposed that any person desiring to intervene in a
representation case be required to complete a Statement of Position. 79
FR 7329, 7356. Upon reflection, the Board has decided to reject the
proposed amendment. Intervention happens in a wide variety of
circumstances and so regional directors should have discretion to
follow the procedure that best facilitates development of the record in
a particular case.
Sec. 102.66 Introduction of Evidence: Rights of Parties at Hearing;
Preclusion; Subpoenas; Oral Argument and Briefs
In the NPRM, the Board proposed a number of amendments to Sec.
102.66. The proposed amendments were designed to ensure that issues in
dispute would be more promptly and clearly identified and that hearing
officers could limit the evidence offered at the pre-election hearing
to that which is necessary for the regional director to determine
whether a question of representation exists. As explained below, the
final rule adopts only some of the proposals.
The NPRM proposed that hearing officers limit the evidence offered
at hearings to that evidence which is relevant to a genuine dispute as
to a material fact. The proposed amendments further provided that if,
at any time during the hearing, the hearing officer determined that the
only genuine issue remaining in dispute concerned the eligibility or
inclusion of individuals who would constitute less than 20 percent of
the unit if they were found to be eligible to vote, the hearing officer
would close the hearing, and the director would permit those
individuals to vote subject to challenge.
The NPRM proposed that hearing officers would follow a specified
process to identify relevant issues in dispute. Thus, the NPRM provided
that the hearing officer would open the hearing by reviewing, or
assisting non-petitioning parties to complete, statements of position,
and then would require the petitioner to respond to any issues raised
in the statements of positions, thereby joining the issues. The NPRM
further proposed that after the issues were joined, the hearing officer
would require the parties to make offers of proof concerning any
relevant issues in dispute, and would not proceed to take evidence
unless the parties' offers created a genuine dispute concerning a
material fact.
The Board proposed that a party would be precluded from raising any
issue that it failed to raise in its timely statement of position or to
place in dispute in response to another party's statement, subject to
specified exceptions.
The Board proposed in the NPRM that parties be permitted to file
post-hearing briefs only with the permission of the hearing officer.
Finally, the NPRM proposed, consistent with existing practice, that
a party that has been served with a subpoena may be required to file or
orally present a motion to quash prior to the 5 days provided in
Section 11(1) of the Act.
A. Rights of Parties at Hearing; Disputes Concerning Less Than 20
Percent of the Unit
Section 101.20(c) of the Board's pre-NPRM Statement of Procedures
provided in pertinent part, ``The parties are afforded full opportunity
[at the pre-election hearing] to present their respective positions and
to produce the significant facts in support of their contentions.'' And
the Board's pre-NPRM rules provided in Sec. 102.66(a):
Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, and any party and
the hearing officer shall have power to call, examine, and cross-
examine witnesses and to introduce into the record documentary and
other evidence. Witnesses shall be examined orally under oath. The
rules of evidence prevailing in courts of law or equity shall not be
controlling. Stipulations of fact may be introduced in evidence with
respect to any issue.
As discussed in more detail below, these provisions had been
interpreted to give parties a right to produce evidence about issues
that are not relevant to whether there is a question of representation.
The NPRM proposed to eliminate Sec. 101.20 (and the rest of
Subpart C of Part 101) and to amend Sec. 102.66(a) to state as
follows:
Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, and any party and
the hearing officer shall have power to call, examine, and cross-
examine witnesses and to introduce into the record documentary and
other evidence relevant to any genuine dispute as to a material
fact. The hearing officer shall identify such disputes as follows:
* * * * *
The Board also proposed to require the hearing officer to bar
litigation of disputes concerning the eligibility or inclusion of
individuals comprising less than 20-percent of the unit (the so-called
``20-percent rule''). Thus, Sec. 102.66(d) of the NPRM provided:
(d) Disputes concerning less than 20 percent of the unit. If at
any time during the hearing, the hearing officer determines that the
only issues remaining in dispute concern the eligibility or
inclusion of individuals who would constitute less than 20 percent
of the
[[Page 74384]]
unit if they were found to be eligible to vote, the hearing officer
shall close the hearing.\353\
\353\ The NPRM also proposed in Sec. 102.67(a) that ``[i]f the
hearing officer has determined during the hearing, or the regional
director determines after the hearing that the only issues remaining
in dispute concern the eligibility or inclusion of individuals who
would constitute less than 20 percent of the unit if they were found
to be eligible to vote, the regional director shall direct that
those individuals be permitted to vote subject to challenge.''
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The proposed amendments were designed to maximize procedural efficiency
by ensuring that hearing officers could limit the evidence offered at
the pre-election hearing to that which is necessary for the regional
director to determine whether a question of representation exists. As
discussed in the NPRM, whether or not a particular individual falls
within an appropriate unit and is eligible to vote is not ordinarily
relevant to whether a question of representation exists. 79 FR at 7322.
The NPRM expressed the Board's ``preliminary view * * * that deferring
both the litigation and resolution of eligibility and inclusion
questions affecting no more than 20 percent of all eligible voters
represents a reasonable balance of the public's and parties' interest
in prompt resolution of questions concerning representation and
employees' interest in knowing precisely who will be in the unit should
they choose to be represented.'' 79 FR at 7331.
As noted below in connection with Part 101, the final rule adopts
the proposal to eliminate Subpart C of Part 101, which contained Sec.
101.20(c). The final rule also amends Sec. 102.66(a) to provide:
Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, to call, examine,
and cross-examine witnesses, and to introduce into the record
evidence of the significant facts that support the party's
contentions and are relevant to the existence of a question of
representation. The hearing officer shall also have power to call,
examine, and cross-examine witnesses and to introduce into the
record documentary and other evidence. Witnesses shall be examined
orally under oath. The rules of evidence prevailing in courts of law
or equity shall not be controlling. Stipulations of fact may be
introduced in evidence with respect to any issue.\354\
\354\ In the proposed rule, the last two sentences were in a
separate paragraph (e).
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Rather than the proposed standard ``genuine dispute as to a material
fact,'' the Board has adopted the standard ``significant facts that
support the party's contentions and are relevant to the existence of a
question of representation.'' The proposed standard, which had been
borrowed from Federal Rule of Civil Procedure 56, suggested that the
hearing officer would be responsible for summary judgment, which struck
commenters as a signal that the hearing officer's role would change in
a way that was likely to pose administrative and statutory problems.
The standard of ``significant facts'' adopted in the final rule comes
from current 101.20(c), and preserves the hearing officer's essential
role. However, unlike current regulations, the final rule makes clear
that the ``significant facts'' that support the party's contentions
must also be ``relevant to the existence of a question of
representation.'' \355\ As discussed below, paragraph (d) of proposed
Sec. 102.66 is deleted because the final rule does not adopt the 20-
percent rule provisions, which would have required the hearing officer
to exclude evidence regarding individual eligibility or inclusion
issues involving less than 20 percent of the unit (and the regional
director to defer deciding individual eligibility or inclusion
questions involving less than 20 percent of the unit and to vote such
disputed individuals subject to challenge). See 79 FR at 7332.
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\355\ Although parties also have the right to litigate at the
pre-election hearing whether an election is barred, the Board has
concluded that it is not necessary to specify this in the regulatory
text because a question of representation cannot exist under the Act
if there is such a bar. Accordingly, evidence that is relevant to a
bar is also relevant to the existence of a question of
representation.
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The final rule's amendment of Sec. 102.66(a) together with the
modification of the language which previously appeared in Sec.
101.20(c) removes the basis of the Board's holding in Barre National,
Inc., 316 NLRB 877 (1995), that a hearing officer must permit full
litigation of all eligibility issues in dispute prior to a direction of
an election, even though the regional director and the Board need not
resolve the issues prior to the election. Together with the amendment
of Sec. 102.64(a), the amendment of Sec. 102.66(a) makes clear that,
while the regional director must determine that a proposed unit is
appropriate in order to find that a question of representation exists,
the regional director can defer litigation of individual eligibility
and inclusion issues that need not be decided before the election.
In its comment, Baker & McKenzie questioned how a hearing officer
would determine whether proffered evidence was relevant to voter
eligibility or voter inclusion as opposed to unit appropriateness. The
same question arises under current procedures when both the regional
director and the Board defer ruling on eligibility or inclusion
questions until after the election. Thus, existing case law in which
both regional directors and the Board have deferred deciding individual
eligibility and inclusion questions until after an election will
provide considerable guidance to hearing officers and regional
directors.\356\ Generally, individual eligibility and inclusion issues
concern either (1) whether an individual or group is covered by the
terms used to describe the unit, or (2) whether an individual or group
is within a particular statutory exclusion and cannot be in the unit.
For example, if the petition calls for a unit including ``production
employees'' and excluding the typical ``professional employees, guards
and supervisors as defined in the Act,'' then the following would all
be eligibility or inclusion questions: (1) Whether production foremen
are supervisors, see, e.g., United States Gypsum Co., 111 NLRB 551, 552
(1955); (2) whether production employee Jane Doe is a supervisor, see,
e.g., PECO Energy Co., 322 NLRB 1074, 1083 (1997); (3) whether workers
who perform quality control functions are production employees, see,
e.g., Lundy Packing Co., 314 NLRB 1042 (1994); and (4) whether Joe
Smith is a production employee, see, e.g., Allegany Aggregates, Inc.,
327 NLRB 658 (1999).
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\356\ As discussed below, the final rule provides in amended
Sec. 102.66(c) that the regional director shall direct the hearing
officer concerning the issues to be litigated at the hearing.
---------------------------------------------------------------------------
One exception concerns professional employees. The regional
director must address whether there are any professional employees in
an otherwise appropriate unit containing nonprofessionals. Under
Section 9(b)(1) of the Act, any professionals in a unit containing both
professional and nonprofessional employees must be given the choice of
whether they wish to be represented in such a mixed unit. Because this
requires special balloting procedures, see Sonotone Corp., 90 NLRB 1236
(1950), the question of whether any employees included in the otherwise
appropriate unit are professionals must be answered prior to the
election.\357\ Similarly, if a party
[[Page 74385]]
contends that, under Board precedent, an eligibility standard different
than the Board's ordinary standard \358\ should be used, the hearing
officer may take such evidence as may be necessary to resolve that
question since its resolution is a prerequisite to the conduct of the
election.
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\357\ On the other hand, if the unit description expressly
excludes professional employees, then no Sonotone balloting question
would be presented, and the issue would not have to be addressed. If
any party contends that an individual is a professional, and if the
individual wishes to vote, he or she can be permitted to vote
subject to challenge and the question can be resolved after the
election.
Although some comments similarly argue that the question of
whether any employees in a unit containing non-guards are guards
must be decided prior to the election, the Board disagrees. The Act
does not require any special election procedures for guards
equivalent to what Section 9(b)(1) requires for professionals. While
Section 9(b)(3) precludes the Board from finding that a ``mixed
unit,'' i.e., one containing both guards and nonguards, is
appropriate, if any party contends that an individual in an
otherwise appropriate unit of nonguards is a guard, the regional
director can find the unit ``excluding guards'' appropriate and, if
the individual attempts to cast a ballot, he or she can be permitted
to vote subject to challenge and the question can be resolved after
the election.
\358\ For example, in the entertainment industry, given that
employees may work intermittently with no expectation of continued
employment with a particular employer, the Board may apply a
different eligibility standard. See Kansas City Repertory Theatre,
Inc., 356 NLRB No. 28 (2010); see also Alaska Salmon Industry, 61
NLRB 1508, 1511-12 (1945) (changing eligibility formula for seasonal
industries).
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Some comments on the proposed amendments argue that limiting
evidence to that which is relevant to whether a question of
representation exists is inconsistent with the statute's requirement
that, absent an election agreement, the Board must hold an
``appropriate hearing'' prior to conducting an election.\359\ The Board
disagrees. Section 9(c)(1) of the Act provides that the Board must
provide for a hearing if it has ``reasonable cause to believe that a
question of representation affecting commerce exists,'' and that the
Board must direct an election if it finds, based on the record of that
hearing, that ``such a question of representation exists.'' Thus, as
explained above in relation to Sec. 102.64, the statutory purpose of
the pre-election hearing is to determine whether a question of
representation exists. The amendments to Sec. Sec. 102.64(a) and
102.66(a) are entirely consistent with Section 9(c)'s requirement that
``an appropriate hearing'' be held before the election is conducted.
The two amendments are consistent with Section 9(c) because both permit
parties to introduce evidence at the pre-election hearing that is
relevant to whether a question of representation exists. Indeed, the
amendment to Sec. 102.66(a) expressly vests parties with a right to
present evidence of the significant facts that support the party's
contentions and are relevant to the existence of a question of
representation. Nothing in Section 9(c) or any other section of the Act
requires the Board to permit parties to introduce evidence at a pre-
election hearing that is not relevant to whether a question of
representation exists.
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\359\ See, e.g., ALG; Constangy; NGA II. Other comments argue
generally that Section 9(c) requires the Board to conduct a pre-
election hearing on issues concerning eligibility and inclusion. See
GAM; AHA; ALFA; COLLE; CDW; Testimony of Homer Deakins on behalf of
COLLE II.
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The final rule's amendment of Sec. Sec. 102.64(a) and 102.66(a) is
also consistent with the final sentence of current Sec. 102.64(a),
which the final rule does not amend, though the sentence will now
appear in Sec. 102.64(b). That sentence provides that the hearing
officer's duty is ``to inquire fully into all matters and issues
necessary to obtain a full and complete record upon which the Board or
the regional director may discharge their duties under Section 9(c) of
the Act.'' (Emphasis added.) A hearing officer ensures ``a full and
complete record upon which the Board or the regional director may
discharge their duties under Section 9(c) of the Act'' when he or she
permits parties to present evidence of significant facts relevant to
the existence of a question of representation. The Board's duty under
Section 9(c) is to conduct a hearing to determine if a question of
representation exists and, if such a question exists, to direct an
election to answer the question and to certify the results. The final
rule expressly allows the hearing officer to create a record permitting
the regional director to do precisely that.
In short, the effect of the amendments is simply to permit the
hearing officer, acting at the behest of the regional director, to
prevent the introduction of evidence that is not needed in order to
determine if a question of representation exists. By definition, if the
hearing officer excludes evidence that is not relevant to whether a
question of representation exists, the hearing officer is not impeding
the ability of the regional director or the Board to discharge their
respective duties under Section 9(c) of the Act.
SHRM, among others, cites Barre-National, Inc., 316 NLRB 877 (1995)
for the proposition that both current rules and Section 9(c) of the
statute compel litigation of these matters. The Barre-National Board
cited both Sec. Sec. 102.66(a) and 101.20(c) in holding that
litigation was required. In support of its conclusions that the hearing
officer erred by excluding the evidence and the regional director erred
by permitting the disputed employees to vote subject to challenge, the
Board quoted the portion of Sec. 102.66(a), which then read:
Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, and any party and
the hearing officer shall have power to call, examine, and cross
examine witnesses and to introduce into the record documentary and
other evidence.
The Board also quoted the portion of Sec. 101.20(c), which then read:
The parties are afforded full opportunity to present their
respective positions and to produce the significant facts in support
of their contentions.
Based on its reading of those two provisions, the Board reasoned that,
``Section 102.66(a) of the Board's Rules and Section 101.20(c) of the
Board's Statements of Procedure entitle parties at such hearings to
present witnesses and documentary evidence in support of their
positions.'' 316 NLRB at 878. The Barre-National Board went on to hold
that, ``Under all the circumstances, the pre-election hearing held in
this case did not meet the requirements of the Act and the Board's
rules and Statements of Procedures.'' Id. Because of the use of the
conjunctive ``and'' rather than the disjunctive ``or'' and the fact
that nothing in Section 9(c) of the Act can possibly be understood to
give parties a right to litigate questions of individual eligibility or
inclusion prior to an election, as discussed further below, Barre-
National cannot be read to rest on a construction of the Act. Rather,
the Barre-National Board based its holding on its reading of Sec. Sec.
102.66(a) and 101.20(c). In light of the regulatory changes made today,
that reliance is no longer relevant.\360\
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\360\ Reliance on NLRB v. S.W. Evans & Son, 181 F.2d 427 (3d
Cir. 1950), by CDW is similarly mistaken. The Third Circuit
expressly limited its holding to an interpretation of the extant
regulatory language--in this case regulatory language from 1945
which is long gone today. 181 F.2d at 429-430; see 10 FR 14498 et
seq. (November 28, 1945).
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In addition, as explained in the NPRM, the result in Barre-National
is not administratively rational. The Board in that case recognized
that an entitlement to litigate issues at the pre-election hearing is
distinct from any claim of entitlement to a decision on all issues
litigated at the hearing, acknowledging that ``reviewing courts have
held that there is no general requirement that the Board decide all
voter eligibility issues prior to an election.'' Id. at 878 n.9. The
Board has concluded that it serves no statutory or administrative
purpose to require the hearing officer to permit pre-election
litigation of issues that both the regional director and the Board are
entitled to, and often do, defer deciding until after the election and
that are often rendered moot by the election results. It serves no
purpose to require the hearing officer at a pre-election hearing to
permit parties to present evidence that relates to matters that need
not be addressed in order for the hearing to fulfill its statutory
function of creating a record upon which the regional director can
[[Page 74386]]
determine if a question of representation exists. In other words, it is
administratively irrational to require the hearing officer to permit
the introduction of irrelevant evidence. The final rule eliminates such
wholly unnecessary litigation that serves as a barrier to the
expeditious resolution of questions of representation.
Thus, the central question is whether Congress intended that the
term ``appropriate hearing'' in Section 9(c) compel pre-election
litigation of matters that would not be decided before the election--
and likely would never need to be decided by the regional director.
Commenters, most notably CDW II, argue that the answer is yes. We
disagree.
The term ``appropriate hearing'' comes from the original 1935
Wagner Act. As stated by the Supreme Court: ``The section is short. Its
terms are broad and general * * *. Obviously great latitude concerning
procedural details is contemplated.'' Inland Empire Council v. Millis,
325 U.S. 697, 706-710 (1945). Although the hearing should provide
parties a ``full and adequate opportunity to present their
objections,'' \361\ nothing in Inland Empire suggests that the Board
must give a hearing to matters which will not be decided. To the
contrary, the phrase ``an appropriate hearing'' was intended to
``confer[] broad discretion upon the Board as to the hearing
[required],'' so as to avoid unnecessary litigation delays. Id.\362\ In
1947, when Congress revised the Act to ensure that a hearing was held
before the election, it left this essential language intact.\363\
Despite the many comments on this matter, no one has identified any
case in any legal or administrative context in which litigation was
required regarding issues that were not being decided--except Barre-
National.
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\361\ In this regard, the rules continue to require the hearing
officer ``to inquire fully into all matters and issues necessary to
obtain a full and complete record.'' Sec. 102.64(b).
\362\ Inland Empire held that the Board could hold the hearing
after the election. This was changed by the Taft-Hartley amendments,
as discussed. Notably, however, the language ``appropriate hearing''
was not changed, and thus Inland Empire's discussion of the broad
discretion given by the language remains relevant. Moreover, it
should be noted that, in Inland Empire, the Board had ``afforded the
opportunity [to raise issues] in the proceedings to show cause held
prior to the election,'' but the parties ``brought forward nothing
which required [the Board] to hold a further hearing for the taking
of evidence.'' Id. at 708-709. The Court expressly declined to
address whether this process ``would have been adequate or
`appropriate.' '' Id.
\363\ After the vote on the Taft-Hartley amendments in 1947,
Senator Taft placed in the record a ``Supplementary Analysis of the
Labor Bill as Passed.'' 93 Cong. Rec. 6858, 6860 (June, 12, 1947).
In that analysis, Senator Taft explained that the Conference
Committee had revised the amendments of Section 9(c)(4) of the Act
to eliminate a provision permitting ``pre-hearing elections.'' Id.
at 6860. The Supplementary Analysis then stated, ``That omission has
brought forth the charge that we have thereby greatly impeded the
Board in its disposition of representation matters. We have not
changed the words of existing law providing a hearing in every case
unless waived by stipulation of the parties. It is the function of
hearings in representation cases to determine whether an election
may properly be held at the time, and if so, to decide questions of
unit and eligibility to vote.'' Id. (emphasis added). CDW cites to
the language ``decide questions of unit and eligibility to vote'' as
support, but the problems with this approach are manifest. First of
all, this is the statement of a single legislator, made after the
dispositive vote, describing a term that he expressly admits the Act
does not change. This cannot be used to alter the meaning of the
language. The same flaw applies to CDW's discussion of still later
legislative history of marginal relevance. Second, Senator Taft said
``decide questions of unit and eligibility to vote''--not
``litigate''--and where it is undisputed that the Board does not
need to ``decide'' the question, Senator Taft's subsequent remarks
cannot be read to compel litigation.
---------------------------------------------------------------------------
Even assuming that the Barre-National Board did look to Section
9(c)--a point previously debated at length, see 76 FR 80165; 77 FR
25550-51; 77 FR 25562-63--the statutory analysis in Barre-National is
essentially non-existent. There is no meaningful discussion of the
statutory language, no analysis of the legislative history or the plain
language of Section 9(c), and no explanation for why it would make
sense to require litigation of issues that will not be decided--in
short, nothing whatsoever to substantively support its supposed
interpretation of the statute. On the contrary, the Board, for the
reasons discussed above, believes that the legislative history shows
the Board is not required to allow pre-election litigation of issues
that will not be decided pre-election. It is beyond dispute that
``reviewing courts have held that there is no general requirement that
the Board decide all voter eligibility issues prior to an election.''
Barre-National, 316 NLRB at 878 n.9. Put plainly, ``deferring the
question of voter eligibility until after an election is an accepted
NLRB practice.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir.
1994).\364\ This has been so since the early days of the Act. Brown &
Sharp Mfg., 70 NLRB 709, 709 (1946); Humble Oil, 53 NLRB 116, 126
(1943). As the Supreme Court expressly held in NLRB v. AJ Tower Co.,
329 U.S. 324, 330-35 (1946), the Board has authority to resolve voter
eligibility through the election-day challenge procedure.\365\ As
discussed below in relation to the rejected ``20-percent rule,'' this
rule does not change which issues will be decided.
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\364\ The United States Court of Appeals for the Second Circuit
similarly held that ``the determination of a unit's composition need
not be made before the election.'' Sears, Roebuck & Co. v. NLRB, 957
F.2d 52, 55 (2d Cir. 1992). As stated in the NPRM, the Board has
consistently sustained regional directors' decisions to defer
resolution of individual employees' eligibility to vote until after
an election (in which the disputed employees may cast challenged
ballots). See, e.g., Sears, Roebuck, 957 F.2d at 54-55. The Second
Circuit has explained that the regional director has ``the
prerogative of withholding a determination of the unit placement of
[a classification] of employees until after the election.'' Id. at
56. In Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004), the
Board characterized this procedure as the ``tried-and-true `vote
under challenge procedure.' '' See also HeartShare Human Services of
New York, Inc., 320 NLRB 1 (1995), enforced, 108 F.3d 467 (2d Cir.
1997). Even when a regional director resolves such a dispute pre-
election, the Board, when a request for review is filed, often
defers review of the resolution, permitting the disputed individuals
to vote subject to challenge. See, e.g., Silver Cross Hospital, 350
NLRB 114, 116 n.10 (2007); Medlar Elec., Inc., 337 NLRB 796, 796
(2002); Interstate Warehousing of Ohio, LLC, 333 NLRB 682, 682-83
(2001); Orson E. Coe Pontiac-GMC Truck, Inc., 328 NLRB 688, 688 n.1
(1999); American Standard, Inc., 237 NLRB 45, 45 (1978).
\365\ Again, as noted above, the legislative history of the 1947
amendments shows that Congress did not intend to require the Board
to allow litigation of voter eligibility matters prior to conducting
elections.
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Therefore, in light of the broad discretion accorded by Section 9,
and the express purpose of ensuring that litigation does not
unnecessarily delay the proceeding, we do not find the interpretation
of Section 9(c) posited by SHRM and CDW, or that of the Barre-National
Board, to be persuasive. In our considered view, Section 9 does not
give parties a right to litigate questions of individual eligibility or
inclusion at the pre-election hearing if the regional director will not
decide those questions prior to the election. For these reasons, the
Board hereby overrules Barre-National, together with cases resting
solely upon its holding such as North Manchester Foundry, Inc., 328
NLRB 372 (1999).
The Board also concludes that without clear regulatory language
giving the regional director authority to limit the presentation of
evidence to that relevant to the existence of a question of
representation, the possibility of using unnecessary litigation to gain
strategic advantage exists in every case.\366\ That specter, sometimes
articulated as an express threat according to some comments,\367\ hangs
over all negotiations of pre-election agreements. In other words,
bargaining takes place in the shadow of the law, and so long as the
law, as embodied in the Board's
[[Page 74387]]
regulations, does not limit parties to presenting evidence relevant to
the existence of a question of representation, some parties will use
the threat of protracted litigation to extract concessions concerning
the election details, such as the date, time, and type of election, as
well as the definition of the unit itself. Comments by the UFCW, LIUNA,
AFT, NELP, and Retired Field Examiner Michael D. Pearson all point to
the impact of that specter of unnecessary litigation on negotiations of
pre-election agreements. Some commenters specifically stressed that the
current rules have the effect of disenfranchising statutory employees.
According to these commenters, instead of resolving bargaining unit
issues on their merits, election agreements are driven by the threat of
a hearing devoted to the litigation of unnecessary issues.\368\
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\366\ See generally Testimony of Roger King on behalf of SHRM II
regarding which issues should be litigated at the pre-election
hearing (``Yes, there is maneuvering on both sides. We all know
that. Good lawyers use procedures to their clients' advantage. You
could call it delay. I don't agree with that. My union colleagues
take every advantage of the blocking charge procedure. That's their
right at this point.'').
\367\ See AFT; IBEW; LIUNA.
\368\ See CWA II; BCTD; Testimony of Brenda Crawford II; UNAC/
UHCP II.
---------------------------------------------------------------------------
The temptation to use the threat of unnecessary litigation to gain
such strategic advantage is heightened by both the right under the
current rules to take up to 7 days to file a post-hearing brief (with
permissive extensions by hearing officers of up to 14 additional days)
and the 25-day waiting period, both of which are triggered
automatically when a case proceeds to hearing. Every experienced
participant in the Board's representation proceedings who wishes to
delay the election in order to gain strategic advantage knows that
under the current rules, once the hearing opens, at least 32 days (7
days after the close of the hearing and 25 days after a decision and
direction of election) will pass before the election can be conducted.
The incentive to insist on presenting evidence, even though there are
no disputes as to facts relevant to the existence of a question of
representation, is thus not simply the delay occasioned by the hearing
process, but also the additional mandatory 32-day delay, not to mention
the amount of time it will take the regional director to review the
hearing transcript and write a decision--a task that has added a median
of 20 days to the process over the past decade. Accordingly, the
bargaining units and election details agreed upon in the more than 90%
of representation elections that are currently conducted without pre-
election litigation are unquestionably influenced by the parties'
expectations concerning what would transpire if either side insisted
upon pre-election litigation.
Of course, distinct aspects of the final rule eliminate the 25-day
waiting period and the default position of allowing 7 and up to an
additional 14 days to file a post-hearing brief. Yet in the Board's
preliminary view at the NPRM stage (79 FR 7331), even without these
collateral delays, there remained no persuasive reason to allow parties
to lengthen the hearing and decisional process by unnecessarily
litigating individual eligibility issues that are not relevant to the
question concerning representation.\369\ We did not, and do not, view
permitting the litigation of individual eligibility issues as a cost-
free proposition. Every non-essential piece of evidence that is adduced
adds time that the parties and the Board's hearing officer must spend
at the hearing, and simultaneously lengthens and complicates the
transcript that the regional director must analyze in order to issue a
decision. The Board expects that if irrelevant litigation at the pre-
election hearing were reduced, then not only would hearings be shorter
(with attendant savings to the parties), but also that regional
directors would correspondingly have to spend less time writing pre-
election decisions, and be able to issue those decisions in less time
than the current 20-day median. Thus, the Board viewed its mandatory
proposal of barring litigation or resolution of individual eligibility
issues regarding less than 20% of a petitioned-for unit as an overall
benefit to agency efficiency, in addition to being a reasonable balance
of the public's and parties' interest in prompt resolution of questions
concerning representation and in employees' interest in knowing who
would be in the unit should they choose to be represented.
---------------------------------------------------------------------------
\369\ Some commenters challenge the premise that litigation of
individual eligibility issues causes delay. For example, Homer
Deakins testified on behalf of COLLE II that he could count on one
hand the number of times a hearing has gone into the second day
because of litigation of a supervisory issue. However, even if in
some cases litigation of an individual eligibility issue would not
add an extra day or days to the pre-election hearing, we are not
persuaded that such litigation would not unnecessarily delay the
election in those cases. After all, as shown, during the last decade
it has taken regional directors a median of 20 days to issue their
decisions following a pre-election hearing. Moreover, litigation of
irrelevant issues that the regional director need not resolve
imposes unnecessary costs on the parties and the government.
---------------------------------------------------------------------------
There is certainly reason to believe that the 20% figure proposed
in the NPRM--and upon which the Board has historically relied in terms
of deferring resolution of individual eligibility issues--is indeed an
administratively appropriate balance. For example, more than 70% of
elections in FY 2013 were decided by a margin greater than 20% of all
unit employees, suggesting that deferral of up to 20% of potential
voters in those cases (and thus allowing up to 20% of the potential
bargaining unit to vote via challenged ballots, segregated from their
coworkers' ballots) would not have compromised the Board's ability to
immediately determine election results in the vast majority of
cases.\370\ Thus, had any thorny litigation issues concerning
individual eligibility been deferred in those cases, it would likely
have saved significant party and agency resources in that the pre-
election hearings would have been shorter, the director's decisions
issued quicker and with less effort, and the representation dispute
resolved sooner, all without necessitating another post-election
hearing to resolve those issues because they would have been proven by
the tally of ballots to be non-determinative of the election outcome.
And in the comparatively smaller percentage of cases in which the
election margin required resolution of the challenged voters' ballots,
the regional director could have committed resources to developing and
analyzing the relevant evidence in a post-election hearing with full
confidence that the effort would not be wasted.\371\
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\370\ In addition, post-election litigation of these challenges
will only take place where the proponent of the challenge is winning
after the unchallenged ballots are tallied--otherwise the challenge
can simply be withdrawn. This should result in mooting about half of
the remaining litigation, even in those cases where the vote margin
is narrow. Thus, at most, only 15% of deferred issues will ever have
to be addressed.
To be clear, the union win rate is irrelevant because both
unions and employers could be contesting the relevant matters. We
also wish to emphasize that this does not mean that 15% of all
elections will have outcome determinative challenges: This is the
maximum number reached by assuming that every election will defer
20% of voter eligibility questions. In reality, the vast majority of
cases will involve far fewer such disputes, either because they are
resolved by stipulation or because they are never contested at the
pre-election hearing.
\371\ In this regard we reject the testimony of Elizabeth Milito
on behalf of NFIB II who claimed that the Board should abandon the
20% rule because many small business owners would ``concede defeat''
and not be able to afford to litigate deferred individual
eligibility issues in a post-election hearing. As shown, deferring
individual eligibility issues should reduce pre-election costs for
all parties participating in pre-election hearings--including small
employers--and in the vast majority of cases, there should never be
a need to incur the extra costs of a post-election proceeding to
determine the individual's eligibility to vote because the ballots
cast by individuals permitted to vote subject to challenge are
likely to be nondeterminative. In any event, the final rule grants
discretion to the regional director to permit the litigation of
individual eligibility issues, and parties are free to make whatever
arguments they wish as to why the director should do so.
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[[Page 74388]]
Nevertheless, the Board is mindful that a one-size-fits-all
approach may not be the most desirable or necessary method to
accomplish the gains in efficiency sought by the proposed 20-percent
rule. Specifically, the changes to 102.64 and 102.66(a) provide
regional directors with the tools to defer unnecessary litigation, and
it may produce a better outcome on a case-by-case basis if regional
directors retain discretion to apply those tools or to provide for
litigation and resolution of discrete issues as the regional directors
deem appropriate.\372\ For example, the regional director may be able
to quickly discern that certain eligibility issues--presented by the
parties in their offers of proof--could be quickly and easily disposed
of, in which case little would be gained from deferring the issue.
Moreover, given the mandatory language of the proposed 20-percent rule,
parties could argue that elections should be set aside based solely on
the ground that the hearing officer and director made a minor
computational error in concluding that the individual eligibility or
inclusion issues they were deferring involved less than 20 percent of
the unit. In our view, having to set aside elections merely because of
computational errors (such as deferral of individual eligibility
questions involving 21--rather than 20--percent) would be particularly
unfortunate when the addition of the disputed employees to the unit
would not be unfair to the voters (because it would not materially
change the character or scope of the unit). We further conclude that
the mandatory proposal could perversely encourage parties to raise
frivolous individual eligibility issues that they otherwise would not
have raised just so the 20-percent ceiling was breached.
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\372\ Keeping discretion in the hands of the regional directors
is sensible in that it is the directors who are responsible for
issuing decisions and directions of elections following pre-election
hearings, and it is directors who directly supervise the hearing
officers in their conduct of the hearings. Moreover, under the final
rule it is the directors who must resolve determinative challenges.
---------------------------------------------------------------------------
Accordingly, the Board has decided to preserve the discretion that
regional directors enjoyed even before the NPRM to defer resolving
disputes concerning individuals' eligibility to vote or inclusion in
the unit until after the election or to decide such disputes before the
election in the decision and direction of election. In the final rule,
rather than require hearing officers to bar parties from introducing
evidence regarding individual eligibility or inclusion issues involving
less than 20 percent of the unit, the Board has decided to grant
hearing officers the authority, on the instruction of the regional
director, to exclude evidence concerning such disputes. However, the
regional director is free to direct that such evidence be admitted if
the director resolves to decide prior to the election the individual
eligibility questions at issue, or if the director is uncertain about
whether to decide an issue. In sum, while we continue to believe that
individual eligibility disputes ordinarily need not be litigated at the
pre-election hearing or resolved in a direction of election, we no
longer adhere to the preliminary view expressed in the NPRM that
adoption of a bright-line, mandatory 20-percent deferral rule best
serves the interests of the parties and the employees as well as the
public interest in the effective administration of the representation
case process.\373\
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\373\ The effect of our decision to reject the proposed 20-
percent rule coupled with the amendments leaving to the director's
discretion whether to defer litigation and resolution of individual
eligibility or inclusion issues until after the election, means that
the final rule does not establish any bright-line ceiling beyond
which litigation and resolution of individual eligibility or
inclusion issues cannot be deferred. We note, however, that the
Board has uniformly held that a change affecting no more than 20
percent of the unit does not require a new election. On occasion,
the Board has also permitted regional directors to defer resolution
of the eligibility of an even higher percentage of potential voters,
though we have recognized that allowing 25 percent of the electorate
to vote subject to challenge is not optimal. See, e.g., cases cited
at 79 FR at 7331& n.54. We are confident that directors will
consider that precedent in exercising their discretion under the
final rule, and strongly believe that regional directors' discretion
would be exercised wisely if regional directors typically chose not
to expend resources on pre-election eligibility and inclusion issues
amounting to less than 20 percent of the proposed unit. And, as with
any other issue that comes before us, we will consider relevant case
precedent in evaluating the merits of objections to the regional
director's direction of election, the regional director's conduct of
the election or the hearing officer's handling of the pre-election
hearing. We would further expect regional directors to typically
exercise their discretion in favor of approving parties' stipulated
election agreements in which up to 20% of the unit is to be voted
under challenge.
---------------------------------------------------------------------------
Several comments criticize the proposed 20-percent rule on policy
grounds. For example, some comments argue that it is unfair to defer
resolution of supervisory status questions, because employers need to
know who their supervisors are so they know who they can require to
campaign against employee representation.\374\ Similarly, comments
argue that employers need to know which employees are eligible to vote
so they know whom to address concerning the question of
representation.\375\ Numerous comments additionally express the
position that deferral of eligibility questions under the 20-percent
rule would impair employee rights. More specifically, many comments
assert that deferral would deprive employees of knowledge about the
precise parameters of the bargaining unit, thereby depriving them of
the right to cast an informed ballot\376\ or impeding their ability to
determine whether they share a community of interest with the other
voters.\377\ Similarly, a number of comments express the view that
deferral of eligibility issues would engender confusion among the
voting employees.\378\ Other comments generally suggest that the
deferral of eligibility issues would increase the likelihood that
disputed individuals would refrain from voting in an election. For
example, a number of comments express the position that employees,
faced with the prospect of having their votes challenged, might simply
refrain from voting,\379\ some as a result of a concern that-
particularly in smaller units-they could be easily identified as the
individuals whose votes determined the outcome of the election.\380\
Finally, with respect to the deferral of supervisory status questions,
several comments generally express concern that employees with disputed
supervisory status would not know whether they could appropriately
speak in favor of or against union representation, attend union
meetings, or sign authorization cards,\381\ and SHRM asserts that
employees would be
[[Page 74389]]
chilled in the exercise of their Section 7 and First Amendment rights.
---------------------------------------------------------------------------
\374\ See, e.g., Seyfarth Shaw; COSE; Indiana Chamber; U.S.
Poultry II; CDW II. SHRM also suggests that deferring resolution of
supervisory status questions might somehow threaten attorney-client
communications if counsel communicates with an individual the
employer believes is a supervisor who is later held not to be a
supervisor. This same concern exists under the current procedures as
explained above. Moreover, the test the Board uses to determine who
is a supervisor under the Act is not and need not be the same as the
various tests used to determine if attorney communications to an
individual employed by the attorney's client are privileged.
\375\ See, e.g., PIA.
\376\ See, e.g., Testimony of Michael Lotito on behalf of IFA
II; AEM II; GAM; Constangy; NRF; Baker & McKenzie. IBEW, in
contrast, states that, in its experience, employee voters are
motivated primarily by whether they desire representation and not by
precisely which employees will be in the unit. See also Testimony of
Gina Cooper on behalf of IBEW II (``My experience is that employees
are voting for union representation and the unit issue never comes
into their decision.'')
\377\ See, e.g., Associated Oregon Industries; COSE; Seyfarth
Shaw; Kuryakyn; John Deere Water.
\378\ See, e.g., NGA II; Leading Age II; SHRM; ACE; AHA.
\379\ See, e.g., SHRM II; Pinnacle Health Systems; Arizona
Hospital and Healthcare Association.
\380\ See, e.g., LRI; Anchor Planning Group; Bluegrass
Institute.
\381\ See, e.g., Seyfarth Shaw; ACE; Sheppard Mullin II.
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However, in this final rule the Board has determined not to adopt
the 20-percent rule, but rather, to retain the existing discretion of
regional directors to defer deciding such questions until after the
election. Prior to the amendments, regional directors were free to
decide individual eligibility and inclusion questions prior to the
election if they wished to do so or to defer such decisions until after
the election and direct that disputed individuals vote subject to
challenge. The same is true under the final rule. Although the
amendments permit the hearing officer, at the direction of the regional
director, to exclude evidence that is not relevant to determining
whether a question of representation exists--and thereby permit the
hearing officer to exclude evidence regarding some eligibility and
inclusion questions--the regional director is free to direct that such
evidence be admitted if the director resolves to consider the
eligibility questions at issue.
In any event, the Board is not persuaded by the policy argument
that it should permit litigation of all individual supervisory status
questions--even though such questions are ordinarily irrelevant to the
statutory purpose of the hearing--on the grounds that resolution of
such questions is necessary for an employer to effectively campaign
against union representation. \382\ Most fundamentally, while the
question of whether particular individuals are supervisors as defined
in the Act has generated considerable litigation, the question exists
only at the margin. In the Board's experience, in virtually every case,
even where there is uncertainty concerning the supervisory status of
one or more individual employees, the employer nevertheless has in its
employ managers and supervisors whose status is not disputed and is
undisputable.\383\
---------------------------------------------------------------------------
\382\ To be sure, it is not the purpose of the pre-election
hearing to determine employers' spokespersons in the ongoing
representation campaign.
\383\ See, e.g., McAlester General Hospital, 233 NLRB 589, 589-
90 (1977) (noting that even without considering employees whose
supervisory status was in dispute, employer employed one supervisor
for every eight unit employees and, if the employer filled open
supervisory positions, it would employ one supervisor for every
three unit employees).
---------------------------------------------------------------------------
The policy argument contained in these comments is also based on a
set of faulty premises. First, as explained above and in the NPRM,
employers have no right to a pre-election decision concerning
individual eligibility under the current rules. Second, even under the
current rules, a regional director cannot issue a decision on any
eligibility question until well after the filing of the petition
because a hearing must be noticed (no sooner than 5 business days after
the notice), the hearing must be completed, and the regional director
must issue a decision. Thus, even where the regional director resolves
the individual eligibility issue in the decision and direction of
election, the employer will not have the benefit of the decision for a
substantial part of any campaign, including a substantial part of the
``critical period'' between the filing of the petition and the
election.\384\ Third, under the current rules, even if the regional
director issues a decision concerning an individual eligibility
question, the decision is subject to a request for review by the Board.
The Board rarely rules on such requests until shortly before the
election and, sometimes, not until after the election. See, e.g.,
Mercedes-Benz of Anaheim, Case 21-RC-21275 (May 18, 2011) (day before
the election); Caritas Carney Hospital, Case 1-RC-22525 (May 18, 2011)
(after the election); Columbus Symphony Orchestra, Inc., 350 NLRB 523,
523 n.1 (2007) (same); Harbor City Volunteer Ambulance Squad, Inc., 318
NLRB 764, 764 (1995) (same); Heatcraft, Div. of Lennox Indus., Inc.,
250 NLRB 58, 58 n.1 (1980) (same). Fourth, the problem identified by
the employer comments is even more acute for unions, which must obtain
a showing of interest prior to filing a petition. If the union asks
employees to help gather a showing of interest and the employees are
later determined to be supervisors, the Board may find that the showing
of interest is tainted and overturn election results favoring union
representation on that ground. See Harborside Healthcare Inc., 343 NLRB
906 (2004). That problem cannot possibly be solved through any form of
post-petition, pre-election hearing. Fifth, under the Act itself, even
if a regional director's decision and final Board decision are issued
prior to an election, the Board decision is potentially subject to
review in the courts of appeals and the court of appeals' decision
cannot be issued pre-election. See 29 U.S.C. 159(d) and 160(e); Boire
v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).\385\ Thus, the
uncertainty with which the comments are concerned, which affects all
parties, exists under the current rules and cannot be fully eliminated.
---------------------------------------------------------------------------
\384\ Additionally, as the AFL-CIO II points out in its reply
comment, the extant period of uncertainty under the current rules is
extended still further when employers begin their campaigns--as they
often do--prior to a petition's filing.
\385\ FMI II and INDA II, among others, express concern that if
an alleged supervisor is permitted to vote subject to challenge, the
results of the election might be set aside pursuant to an objection
citing the presence of a supervisor in the polling area if the
individual is found to be a supervisor after a post-election
hearing. As explained above, this scenario can arise under the
current procedures. See, e.g., Sorenson Lighted Controls, 286 NLRB
969, 989 (1987). The Board is not aware of any case holding such
conduct per se objectionable under these circumstances, and the
existence of the new rules would be a factor the Board would
consider if such an objection arises in the future.
---------------------------------------------------------------------------
Nor does the Board agree that the proposed amendments improperly
deprive employees of the ability to make an informed choice in the
election. As explained above, under the amendments, as under the
current rules, the regional director must determine the unit's scope
and appropriateness prior to the direction of the election.
Accordingly, at the time they cast their ballots, the voting employees
will be fully informed (via the Notice of Election) as to the
description of the unit, and will be able to assess the extent to which
their interests may align with, or diverge from, other unit employees.
Although the employees may not know whether particular individuals or
groups ultimately will be deemed eligible or included and therefore a
part of the bargaining unit, that is also the case under the Board's
current rules, because, as explained above, regional directors were
free to defer deciding individual eligibility or inclusion questions
prior to directing an election (and parties were free to agree to
permit disputed employees to vote subject to challenge in the election
agreement context). In addition, as pointed out by SEIU, a similar
choice has confronted voters in mixed professional/non-professional
units since 1947, when Congress amended the Act to provide that a
majority of the professional employees must vote separately for
inclusion with a bargaining unit of non-professional employees and the
results of that separate vote, which takes place simultaneously with
the vote in the non-professional unit, are not known when any of the
employees cast their ballots. See Section 9(b)(1); Sonotone Corp., 90
NLRB at 1241-42. In that context, the Board has held: ``Such a
procedure * * * presents the employees with an informed choice.'' Pratt
& Whitney, 327 NLRB 1213, 1218 (1999).
Many comments cite the courts of appeals' decisions in NLRB v.
Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir.
1997) (unpublished per curiam opinion), and NLRB v. Parsons School of
Design, 793 F.2d 503 (2d Cir. 1986). As explained in the
[[Page 74390]]
NPRM, those two decisions represent the minority view in the courts,
and the Board continues to disagree with them. The majority of the
courts of appeals have upheld the Board's vote-under-challenge
procedures and upheld election results even when the eligibility or
inclusion of certain employees was not resolved until after the
election.\386\ Moreover, under the final rule, the regional director
has discretion to permit litigation and to resolve eligibility and
inclusion questions, and we expect regional directors to permit
litigation of, and to resolve, such questions when they might
significantly change the size or character of the unit, thus addressing
the courts' concerns in both Beverly and Parsons. In addition, as
explained in the NPRM, the courts' concern in both of those cases was
that voters were somehow misled when the regional director defined the
unit in one way prior to the election and the Board revised the
definition after the election. The final rule would actually help
prevent exactly that form of change in unit definition from occurring
by codifying regional directors' discretion to defer deciding
individual eligibility or inclusion questions until after the election
and by providing in amended Sec. 102.67(b) that where the director
does defer deciding such questions, the Notice of Election will inform
employees prior to the election that the individuals in question ``are
neither included in, nor excluded from, the bargaining unit, inasmuch
as the regional director has permitted them to vote subject to
challenge,'' and that their unit placement ``will be resolved, if
necessary, following the election.'' Thus, employees will not in any
manner be misled about the unit. Rather, they will cast their ballots
understanding that the eligibility or inclusion of a small number of
individuals in the unit has not yet been determined. The Board views
this alteration to the election notice as meeting the concerns raised
by the Beverly court and as specifically countenanced by the Second
Circuit in Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992)
(regional director permitted employees in one classification to vote
subject to challenge and included section in notice which ``detailed
the special voting posture of the automotive floor sales employees and
the circumstances for including their votes'').\387\
---------------------------------------------------------------------------
\386\ See, e.g., Sears, Roebuck & Co. v. NLRB, 957 F.2d 52 (2d
Cir. 1992); Nightingale Oil Co. v. NLRB, 905 F.2d 528, 533-34 (1st
Cir. 1990); NLRB v. Clark Distributing, 917 F.2d 24 (6th Cir. 1990)
(unpublished); Prudential Ins. Co. of America v. NLRB, 832 F.2d 857,
861 (4th Cir. 1987).
\387\ CDW II questions how the proposed 20-percent rule can be
reconciled with such final notice language because if individual
eligibility or inclusion issues need not be identified in the
Statement of Position or litigated at the hearing, then the regional
director will presumably be unaware of them when the final notice is
prepared. As explained above, however, the Board is not adopting the
proposed 20-percent rule. Accordingly, because regional directors
have discretion to allow individual eligibility issues to be
litigated, parties may seek to put the regional director on notice
of such issues through their statement of position and at the
hearing. While it is true that there may also be election-day
challenges that could not have been anticipated in advance by the
regional director, this is the case currently, and it is not the
situation that concerned the courts in Beverly or Parsons.
---------------------------------------------------------------------------
PIA and Bluegrass Institute suggest that deferring resolution of
individual eligibility questions until after the election threatens the
secrecy of the ballot and that employees who are permitted to vote
subject to challenge are less likely to vote because they fear that the
parties will learn how they voted. However, the Board is not persuaded
that the final rule threatens the secrecy of the ballot or voter
turnout. The courts have upheld the Board's current practice of
deferring individual eligibility questions under most circumstances.
Moreover, the ballots cast by the employees directed to vote subject to
challenge are not counted if they are not determinative.\388\
Accordingly, ballot secrecy is preserved in those cases. Even if
challenged ballots are determinative, the ballots are not counted if
the employees who cast them are ultimately found to be ineligible after
the post-election hearing. And, even if the challenged ballots are
determinative and a post-election hearing results in the individuals
who cast them being found eligible, the ballots are not opened and
counted one-by-one, but rather the ballots of all individuals found to
be eligible are ``thoroughly mixed'' before being opened and counted.
See Casehandling Manual Section 11378. Accordingly, the Board believes
that it is only in cases where there is just one determinative
challenge, or where all of the potentially determinative challenged
ballots are marked in the same way, that the parties will learn how the
employees voted. However, that is both rare and unavoidable in any
system that permits challenges, including the current system. Thus,
even if regional directors were prohibited from deferring individual
eligibility issues, which is not the case currently, parties would
still have a right to challenge voters for good cause at the polls and
the commenters' concern would remain.\389\
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\388\ As shown above, deferral of up to 20% of eligible voters
would have left the challenged ballots non-determinative in more
than 70% of all representation elections conducted in FY 2013. If
there were no need to defer as many as 20% of the eligible voters
because not that many individual voter eligibility issues were
contested, then the percentage of elections where challenged ballots
would be non-determinative of the election's outcome would be
greater still. For example, in FY 2013 more than 85% of elections
had margins greater than 10% of the eligible voters.
\389\ The Board also notes that to the extent the amendments do
result in more individuals casting challenged ballots than under the
current rules, the amendments may well have the effect of making it
less likely that parties will be able to discover how particular
individuals voted because the pool of determinative ballots would be
larger.
---------------------------------------------------------------------------
The Board is also unaware of any evidence of significant
differences between the turnout of employees whose eligibility to vote
has not been disputed or has been resolved prior to the election and
employees permitted to vote subject to challenge. The case law
demonstrates that even in cases where only a single individual is
permitted to vote subject to challenge, the individual is not
necessarily deterred from voting. See, e.g., NLRB v. Cal-Western
Transport, 870 F.2d 1481, 1483, 1486 (9th Cir. 1989) (regional director
permitted single employee to vote subject to challenge and he did so);
NLRB v. Staiman Brothers, 466 F.2d 564, 565 (3d Cir. 1972) (deciding
vote cast by single employee permitted to vote subject to challenge by
agreement of the parties).
Nor is the Board persuaded by SHRM II's attempt to analogize to
scholarly criticism of states' voter challenge laws in political
elections as evidence that the Board's challenged ballot procedure does
or would lead to reduced participation in NLRB elections. The Board
agrees with the AFL-CIO II (Reply) that the significant differences
between the political challenge process and the NLRB challenge process
undermine SHRM's attempted analogy. In particular, during political
elections, voters' veracity is challenged, and they are often subject
to questioning and required to swear an oath before voting; whereas
during NLRB elections, voters will know in advance via the election
notice that although their eligibility to vote--through no fault of
their own--has not yet been determined with finality, they will be
permitted to cast ballots, they will be advised as to the procedure for
their voting, and they will be invited to contact a Board agent with
any questions that they may have in advance of the election about the
challenge process. The Board also agrees with SEIU II (Reply) that the
additional structural safeguards in a Board election--including its
supervision by a Board agent, the presence of observers
[[Page 74391]]
for both sides, and the Board agent's duty to disallow argument
concerning the merits of the challenge and to explain to the voter the
measures that will be taken to protect the secrecy of the challenged
ballot\390\--make it unlikely that challenged voters in NLRB elections
would decide not to cast a ballot. Furthermore, as both the AFL-CIO and
SEIU point out, SHRM cites no evidence of voter suppression in NLRB
elections resulting from our longstanding challenge procedures,\391\
nor does SHRM attempt to grapple with the differences between the
challenge processes in political elections and NLRB elections.
---------------------------------------------------------------------------
\390\ See Casehandling Manual Section 11338.6.
\391\ SHRM II also fails in its attempts to use the results of a
2014 FOIA response from the Board to show that the Board's current
use of the challenge ballot procedure is ``limited'' by arguing that
in the 1,763 elections conducted during FY 2011-13 in which ballots
were challenged, there were ``only 4.5 [challenged ballots] per
election.'' Considering that the median size of bargaining units
ranged from 24-28 employees over that same period of time, the
statistics cited by SHRM do not appear to support the implication
that the number of challenged ballots under the final rule (which
does not include a mandatory 20-percent rule) would be radically
different than under the Board's current practice. Indeed, in reply
to SHRM, the AFL-CIO II (Reply) cites to research showing use of
challenged ballots in 40% of NLRB elections conducted between 1972
and 2009.
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Finally, balanced against any asserted employer or employee
interests in pre-election litigation of individual eligibility or
inclusion questions is the statutory interest in prompt resolution of
questions of representation. As explained above and in the NPRM,
permitting the litigation of such matters imposes serious costs, and no
comments on the NPRM convinced the Board otherwise. It plainly
frustrates the statutory goal of expeditiously resolving questions of
representation, and it frequently imposes unnecessary costs on the
parties and the government. As explained in the NPRM, it often results
in unnecessary litigation and a waste of administrative resources as
the eligibility of potential voters is litigated (and in some cases
decided), even when their votes end up not affecting the outcome of the
election. If a majority of employees votes against representation, even
assuming all the disputed votes were cast in favor of representation,
the disputed eligibility questions become moot. If, on the other hand,
a majority of employees chooses to be represented, even assuming all
the disputed votes were cast against representation, the Board's
experience suggests that the parties are often able to resolve the
resulting unit placement questions in the course of bargaining once
they are free of the tactical considerations that exist pre-election
and, if they cannot do so, either party may file a unit clarification
petition to bring the issue back before the Board. See New York Law
Publishing Co., 336 NLRB No. 93, slip op. at 2 (2001) (``The parties
may agree through the course of collective bargaining on whether the
classification should be included or excluded. Alternatively, in the
absence of such an agreement, the matter can be resolved in a timely
invoked unit clarification petition.''). As the Eighth Circuit
observed, ``The NLRB's practice of deferring the eligibility decision
saves agency resources for those cases in which eligibility actually
becomes an issue.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir.
1994). The Sixth Circuit similarly found that ``[s]uch a practice
enables the Board to conduct an immediate election.'' Medical Center at
Bowling Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir. 1983).
NRTWLDF argues that application of the 20-percent rule at the
hearing might cast into question the regional office's earlier,
administrative determination that the petition was accompanied by an
adequate showing of interest. Whether or not that is the case, the
final rule does not adopt the 20-percent rule. Moreover, the concern
expressed in the comment could equally be expressed about the current
procedures under which regional directors and the Board routinely defer
ruling on eligibility questions without revisiting the adequacy of the
showing of interest. Furthermore, the required showing of interest is
purely an internal administrative matter, as explained in current Sec.
101.18(a): ``it being the Board's experience that in the absence of
special factors the conduct of an election serves no purpose under the
statute unless the petitioner has been designated by at least 30
percent of the employees.'' The adequacy of the showing is non-
litigable, as discussed in connection with Part 101 below. The Borden
Co., 101 NLRB 203, 203 n. 3 (1952) (``the question[] of the sufficiency
of the showing of interest * * * [is a matter] for administrative
determination and not subject to litigation by the parties);
Casehandling Manual Section 11028.3.
In a related vein, Jonathan Fritts on behalf of CDW II raised a
series of thoughtful questions concerning exactly how the proposed 20-
percent rule would be implemented in the context of several possible
hearing contingencies. Of course, the 20-percent rule is not being
adopted. Nevertheless, given our expectation that regional directors
will consider the relative percentage as a significant factor in
deciding whether to decide or defer an issue, we address those
questions below.
CDW's first three questions concern how the choice to take evidence
would interact with the proposed 20-percent threshold. Specifically,
CDW asks:
If, at the outset of the hearing, there are eligibility and
inclusion issues that affect more than 20% of the bargaining unit,
will the hearing officer take evidence on all of those issues?
Or will the hearing officer take evidence on only ``just
enough'' issues so that the remaining eligibility issues fall below
20%? If so, how will the hearing officer decide which issues to take
evidence on in these situations?
As explained more thoroughly in connection with the offer of proof
proposal below, the discretion to determine which issues will be
deferred or decided will reside with the regional director. Recognizing
that there is no mandatory 20-percent rule, if the regional director
wished to defer deciding individual eligibility or inclusion questions
involving 20% of the unit, the regional director would simply identify
a subset of the issues which impacted 20% of the unit and defer them,
and would take evidence on the rest. This exercise of discretion is
analogous to what currently happens in post-election proceedings
involving determinative challenges, where there is a known margin
before challenged ballots are opened, and regional directors sometimes
decide to resolve only a few of the challenged ballot issues and open
the resolved ballots in order to see whether the new tally obviates
having to resolve the remaining challenges.\392\ We expect that the
regional director would consider many of the same factors that the
regional directors currently consider in deciding whether to rule on
all determinative challenges or just a few. For example, the regional
director might consider how long it would take the parties to present
their evidence on the disputed individuals, and then decide to take
evidence on the individuals who require the least amount of time and
defer the remainder. The regional director might also instruct the
hearing officer to see whether the parties can agree on which
individuals' eligibility should be litigated in order to leave a
smaller percentage to be deferred. The regional director might also
consider offers of proof and decide which issues would be easiest to
resolve or whether a common issue would resolve the eligibility status
of multiple individuals, and take evidence accordingly. In sum,
regional directors will not be mandated to follow
[[Page 74392]]
any particular course of decision-making as to the taking of evidence
on individual eligibility issues, but will instead retain discretion to
use their judgment as to what evidentiary structure will result in the
most efficient use of party and agency resources.
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\392\ See Casehandling Manual Section 11361.3.
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CDW next questions how 20% of the unit would be measured if the
size of the unit is in dispute, asking specifically:
If the appropriateness of the bargaining unit is in dispute, how
will the 20% be measured? Will it be 20% of the petitioned-for unit?
If the employer asserts that the only appropriate unit is a
larger unit, will the rule be applied based on 20% of that larger
unit?
If there are significant differences in the sizes of the parties'
preferred bargaining units, then regional directors should evaluate the
individual eligibility and inclusion issues in dispute relative to the
petitioned-for unit, and any other unit in which the petitioner is
willing to proceed to an election. For example, if the petitioner
asserts at hearing that it would be unwilling to proceed to an election
concerning an employer's alternative unit that is larger than the
petitioned-for unit, then the regional director need not take into
account the employer unit's size in evaluating individual eligibility
or inclusion issues to be deferred, because there will either be an
election in the petitioned-for unit--if found appropriate by the
regional director--or no election at all. If, on the other hand, the
petitioner is willing to proceed to an election in a significantly
larger unit as proposed by the employer, then the regional director
will retain discretion to decide the most efficient means of
structuring the litigation of potential individual eligibility issues.
In such a situation, the regional director may, of course, consider the
relative percentage of individual eligibility issues presented in each
of the proposed units. Each such case will present its own
complications, and there is no particular litigation structure mandated
by the final rule.
CDW also questions whether and how unit appropriateness issues
might be deferred under the final rule. The primary answer to these
questions is that under the final rule, as under the Board's current
regulations, the regional director must always decide on the
appropriateness of the unit before directing or conducting an election.
So, a regional director will not defer taking evidence or resolving
individual eligibility or inclusion issues whose resolution could
render inappropriate an otherwise appropriate unit.
However, under the final rule, as under the Board's current
regulations, and completely apart from the 20-percent proposal in the
NPRM, a hearing officer will be free to require an offer of proof
concerning any unit appropriateness arguments raised by an
employer.\393\ If the evidence sought to be introduced would be
insufficient to sustain the employer's position--for example, whether
to overcome a presumptively appropriate unit or to show an overwhelming
community of interest between petitioned-for classifications and
excluded classifications--then the regional director would direct the
hearing officer not to allow the evidence to be received.\394\ This is
distinct from deferring a question to the challenge process: as has
always been the case under Board rules only ``significant facts'' can
be litigated, and if a party's contentions are meritless they are never
entitled to litigate them, nor can these voters be challenged without
good cause. Thus, although regional directors cannot defer
consideration of unit appropriateness issues under the final rule, they
will continue to enjoy discretion to instruct hearing officers to deny
the introduction of evidence to ``protect the integrity of [the
Board's] processes against unwarranted burdening of the record and
unnecessary delay.'' Laurel Associates d/b/a Jersey Shore Nursing and
Rehabilitation Center, 325 NLRB 603, 603 (1998).
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\393\ In fact, the Board's pre-NPRM regulations permitted
hearing officers, on their own volition, to allow or prevent
litigation of issues based on offers of proof. But in practice,
hearing officers faced with such a decision typically chose to seek
guidance from the regional director and we think that this is the
better practice. See Testimony of Caren Sencer on behalf of
Weinberg, Roger & Rosenfeld II and Gabrielle Semel of behalf of CWA
II (discussing current practice of hearing officers pausing to
consult with regional directors when necessary).
\394\ In this regard, the Board rejects the suggestion of the
IBEW II that we create a mechanism to automatically defer litigation
challenges to presumptively appropriate units. Rather, in the
circumstances that IBEW describes, we would expect hearing officers
to typically require an offer of proof from an employer arguing
against the appropriateness of a unit considered presumptively
appropriate under Board caselaw. If the employer's proffered
evidence would be insufficient to rebut the presumption, then it
would be appropriate for the regional director to foreclose receipt
of the evidence without regard to the proposed 20% rule.
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CDW then poses a follow-up question running to whether certain
classifications of employees--excluded from the petitioned-for unit by
virtue of a legally insufficient offer of proof made by their
employer--will nevertheless be eligible to vote in the election,
subject to challenge. Generally, no, but the answer will vary from case
to case. Thus, the rules do not require the casting of challenged
ballots in such circumstances and the Board's policy continues to be
that when a regional director has specifically ruled on an employee's
inclusion in or exclusion from the unit, then it would generally not be
appropriate to vote that employee, even subject to challenge. However,
as discussed below in connection with Sec. 102.67, the final rule
contains a procedure for requesting segregation and impoundment of
ballots, and so challenged ballots concerning unit appropriateness
issues may be permitted in a particular case.
Some comments criticize the 20-percent rule on the grounds that it
will lead to more post-election litigation and result in more elections
being set aside as a result of post-election rulings concerning the
eligibility of employees.\395\ Similarly, at least two comments raise
the concern that because the bargaining obligation attaches at the time
of the tally, employers will be required to invest time and money in
bargaining with a union that has questionable representative
status.\396\ These comments misunderstand the proposals. As under the
current rules, if decisions concerning individuals' eligibility or
inclusion are deferred until after the election, the individuals will
vote subject to challenge. If their votes are not potentially outcome
determinative, the matter will not be litigated, thus decreasing the
total amount of litigation. If their votes are potentially outcome
determinative, their eligibility may be litigated and the resolution
may affect the results of the election, but it will not lead to the
results of the election being set aside. As under the current
procedures, post-election proceedings concerning challenged ballots
will proceed and conclude promptly at the regional level. As explained
above and below in relation to Sec. Sec. 102.62(b) and 102.69, any
Board review of the disposition will be expedited by the final rule.
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\395\ See, e.g., Chairmen Kline and Roe II; CDW II; Leading Age
II; U.S. Chamber Workforce Freedom Initiative II; Associated Oregon
Industries; Bluegrass Institute.
\396\ See COSE; Constangy.
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Finally, a few comments argue that deferral of voter eligibility
questions will create more issues for the parties to address during
first contract negotiations.\397\ AHA makes the related claim that
``leaving the individuals' inclusion or exclusion from the unit to be
used as a bargaining chip is unfair to employees and disrespectful of
their Section 7 rights and counter to the Act's purposes of promoting
labor peace[.]''
[[Page 74393]]
As explained above, this already happens under the current rules, when
the regional director or the Board defers decision on the questions and
does not decide them post-election because the votes of the disputed
individuals were not potentially outcome determinative. The Board does
not believe addressing such questions will complicate bargaining,
particularly when the parties can file a timely unit clarification
petition if they are unwilling or unable to resolve the matter.\398\
Neither does the Board believe that negotiations between the parties
concerning employees' inclusion in or exclusion from the bargaining
unit is substantively different, vis-[agrave]-vis their Section 7
rights, whether the parties are negotiating a first contract or a
stipulated election agreement. Both are inherently acceptable
mechanisms under the Board's extant procedures, and AHA does not
suggest, for example, that the Board cease accepting party stipulations
concerning the parameters of proposed bargaining units in deference to
employees' Section 7 rights.\399\ In any event, we would reject such a
suggestion for the same reason that we reject AHA's instant comment:
the fundamental design of the Act is to encourage agreement between the
parties as much as possible and not to interject the Board's judgments
in place of collectively-negotiated terms.\400\ So long as parties
negotiate terms regarding which individuals or classifications to
include in a bargaining unit that do not contravene the Act's
provisions or settled Board policies, then it would be inappropriate
for the Board to disallow their agreements.\401\ In relation to AHA's
concerns about the promotion of labor peace, the Board believes that
labor peace is more likely if parties are permitted to voluntarily
resolve their differences.
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\397\ See, e.g., Testimony of Doreen Davis on behalf of RILA II;
SHRM II; CDW II.
\398\ As SEIU observes:
If the union wins, the parties can negotiate unit inclusion
issues through the collective bargaining process, when both parties
have an eye towards the appropriate composition of the bargaining
unit (rather than maneuvering to exclude or include particular
workers to skew the election results). Indeed, in our experience,
the unit placement of workers permitted to vote under challenge is
almost always resolved, after certification, without the necessity
of returning to the Board for clarification.
See also Testimony of Semel on behalf of CWA II.
\399\ Indeed, some commenters claim that petitioning unions
under the current rules are compelled to modify the parameters of
their preferred unit solely to avoid the delay associated with
litigating the voter eligibility of certain individuals or
classifications--a context that would seem no less ``unfair'' to
employees as the post-election negotiations posited by AHA. See,
e.g., Testimony of Brenda Crawford II; Testimony of Martin Hernandez
on behalf of UFCW II.
\400\ Cf. H.K. Porter Co. v. NLRB, 397 U.S. 99, 106 (1970)
(``the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the substantive terms
of collective bargaining agreements'').
\401\ See, e.g., Micro Pacific Development, Inc. v. NLRB, 178
F.3d 1325, 1335-36 (D.C. Cir. 1999).
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Many comments additionally challenge the proposed amendments to
102.66 by arguing against the aggregated effects of the various
proposed changes, including the mandatory 20-percent rule. For example,
comments question: the hearing officer's role in administering the
changed pre-election hearing; whether hearings under the proposed
amendments would result in an inadequate record for subsequent appeals;
and whether the hearings under the proposed amendments would be
inconsistent with Section 9(c) of the Act. We respond to each of these
groups of commentary below in connection with the changes regarding
joinder and offers of proof.
B. Identification of Issues in Dispute; Discretionary Offers of Proof;
Preclusion
In the NPRM, the Board proposed a number of amendments to Sec.
102.66 which were designed to ensure that issues in dispute would be
more promptly and clearly identified and that hearing officers could
limit the evidence offered at the pre-election hearing to that which is
necessary for the regional director to determine whether a question of
representation exists. 79 FR 7329-32. The NPRM proposed that hearing
officers would follow a specified process to identify relevant issues
in dispute. Thus, the NPRM provided that the hearing officer would open
the hearing by reviewing, or assisting non-petitioning parties to
complete, Statements of Position, and then would require the petitioner
to respond to any issues raised in the Statements of Positions, thereby
joining the issues. The NPRM further proposed that after the issues
were properly joined, the hearing officer would require the parties to
make offers of proof concerning any relevant issues in dispute, and
would not proceed to take evidence unless the parties' offers created a
genuine dispute concerning a material fact, a standard derived from
Rule 56 of the Federal Rules of Civil Procedure.
The Board also proposed that a party would be precluded from
raising any issue, or presenting any evidence or argument about any
issue, that it failed to raise in its timely Statement of Position or
to place in dispute in response to another party's Statement. However,
any party would be permitted to present evidence as to the Board's
statutory jurisdiction, and the petitioner would be permitted to
present evidence as to the appropriateness of the unit if the
nonpetitioning parties declined to take a position on that issue. In
addition, consistent with the proposed amendments' intent to defer both
litigation and consideration of disputes concerning the eligibility or
inclusion of individual employees until after the election, no party
would be precluded from challenging the eligibility or inclusion of any
voter during the election on the grounds that no party raised the issue
in a Statement of Position or response thereto. 79 FR 7329-30.
The Board received a great number of comments about these
proposals. As discussed at length in relation to Sec. 102.63, the
Board has decided to adopt the proposal requiring nonpetitioners to
complete Statements of Position, but has revised the due date for the
completion of the Statements so that the Statements can serve their
intended purposes of facilitating entry into election agreements and
narrowing the scope of pre-election hearings in the event the parties
do not enter into such agreements. Thus, amended Sec. 102.63(b)
requires nonpetitioners to file and serve their Statements of Position
such that they are received by the regional director and all parties
identified in the petition by noon on the business day before the
scheduled opening of the pre-election hearing.
After careful consideration of the comments, and as more fully
discussed below, the Board has decided to require, in amended Sec.
102.66(b), the other parties to respond to each issue raised in a
Statement of Position. The same paragraph expressly authorizes the
regional director to permit Statements of Position, as well as
responses, to be amended in a timely manner for good cause.\402\ It
then provides that ``[t]he hearing officer shall not receive evidence
concerning any issue as to which parties have not taken adverse
positions.'' We believe that this amendment will help the Board
maximize hearing efficiency by eliminating unnecessary litigation,
expeditiously resolve questions of representation and make Board
procedures more transparent and uniform across regions. As discussed in
relation to Sec. 102.63, although parties currently are asked to
provide much of the information requested by the
[[Page 74394]]
Statement of Position form, they are not required to do so, and some
parties do not disclose the information even though it is needed to
ensure efficient hearings and to expeditiously resolve questions of
representation. Similarly, parties are not currently required to
respond to positions taken by other parties on issues that need to be
determined by the regional director. The required Statements of
Position and responses will enable the hearing officer and the parties
to ascertain at the outset of the hearing the issues in dispute and,
conversely, those that are not in dispute. As to the latter, it follows
as a matter of administrative efficiency and common sense that
litigation would unjustifiably waste the time and resources of the
Board and the parties. Thus, the amendment will prevent wasteful
litigation of matters that are not in dispute.\403\ It also helps to
streamline the hearing and ensure that the hearing proceeds in an
orderly fashion if parties are precluded from raising issues that they
did not raise in their Statements of Position or place in dispute in
response to another party's Statement. Absent good cause, parties
should not be permitted to raise new issues just prior to the close of
the hearing.\404\
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\402\ We have thereby adopted the Chamber's suggestion that the
regulatory text explicitly provide that parties may timely amend
their Statements of Position for good cause, as discussed above in
relation to Sec. 102.63(b). Accordingly, we have also explicitly
provided in the regulatory text for required responses to any
amendments to a Statement of Position.
\403\ The sentence--providing that the hearing officer shall not
receive evidence concerning any issue as to which the parties have
not taken adverse positions--includes an exception that preserves
the regional director's discretion to permit the introduction of
evidence relating to an issue that is necessary for the director to
address even if the parties have not taken adverse positions. For
example, if an employer declines to complete a statement of position
in a case where the petitioned-for unit is not presumptively
appropriate, the director must still determine whether the
petitioned-for unit is appropriate in order to determine whether a
question of representation exists. Accordingly, the final rule
permits the director to instruct the hearing officer to take
evidence on this issue. Similarly, if an employer takes no position
regarding the Board's jurisdiction over it, the final rule permits
the director to instruct the hearing officer to take evidence on
that issue as well. In particular, the regional director must find
that the Board has statutory jurisdiction over the employer before
the director may conduct an election. However, under the final rule,
the Board will continue its longstanding practice of presuming that
an employer satisfies the Board's discretionary jurisdictional
standards when the employer refuses to voluntarily provide
information requested by the Board in order to apply those
standards. See, e.g., Seaboard Warehouse Terminals, Inc., 123 NLRB
378, 382-83 (1959); Tropicana Products, Inc., 122 NLRB 121, 123-24
(1958).
The Board declines to adopt some provisions of a similar proviso
that was contained in Sec. Sec. 102.66(a)(1), (2), and (3) of the
proposed rule. With respect to supplementing the record as to issues
relating to the appropriateness of the unit that no party has placed
in dispute, the proposed proviso called for the petitioner to supply
the evidence. It also specifically provided for the use of secondary
evidence, such as sworn statements or declarations. We see no need
to specify the petitioner or any other party as responsible for
supplementing the record in this regard; the means and manner of
insuring the adequacy of the record should remain within the
discretion of the regional director, or the hearing office on the
director's behalf, where it currently resides. Similarly, hearing
officers already enjoy discretion to receive secondary evidence in
appropriate circumstances, and we see no need to limit that
discretion or predetermine the form of evidence that might be
appropriate for this purpose.
\404\ Moreover, as previously discussed, one purpose of
requiring the Statement of Position in advance of the hearing is to
narrow the scope of the pre-election hearing by alerting the
petitioner as to issues the nonpetitioner is seeking to litigate in
the hearing on the petitioner's petition. This will avoid a
situation where one party is not prepared to proceed because they
did not believe that certain issues required litigation. For all the
foregoing reasons, the Board rejects the notion that parties should
be able to amend their Statements of Position even in the absence of
good cause.
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The Board declines to adopt the proposed rule's use of the term
``joinder'' in connection with the requirement of responses to issues
raised in a Statement of Position. While, as explained above, the
important concept of identifying the issues in dispute and precluding
litigation of undisputed matters is retained in the final rule, the
term ``joinder'' is not necessary to describe the concept and might
give rise to a mistaken belief that the body of law concerning civil
pleading requirements was intended to be imported and applied to our
representation-case proceedings. We believe that would be inappropriate
for the relatively informal administrative hearings governed by this
rule. The Board has also eliminated the duplicative numbered
subdivisions of Sec. 102.66(a), consolidating their provisions, as
modified, as Sec. 102.66(b).
The Board adopts in all material respects the ``Preclusion''
paragraph of the proposed rule, numbered here as Sec. 102.66(d). This
complements Sec. Sec. 102.63(b) and 102.66(b), and helps achieve an
important objective of those provisions. As explained above, the
requirements of the Statement of Position and responses, permitting
identification of the issues in dispute, together with the preclusion
of evidence of issues not timely raised, substantially improves the
Board's procedures by saving the parties and the Board the time and
expense of wasteful litigation. As also discussed here and in
connection with Sec. 102.63, hearing officers working under the prior
rules often sought to obtain this result by soliciting the positions of
the parties in order to narrow the issues and avoid unnecessary
litigation. However, parties sometimes failed or refused to provide the
necessary information, thereby frustrating those efforts. Section
102.66(d) supplies the incentive for parties to comply with the
requirements of Sec. Sec. 102.63(b) and 102.66(b), consistent with
Board precedent discussed above, by precluding parties from litigating
issues as to which they have failed to take positions required either
as part of a Statement of Position or in response to a Statement of
Position. Put another way, Sec. 102.66(d) constitutes the enforcement
mechanism for Sec. Sec. 102.63(b) and 102.66(b), in a way that tracks
Board precedent. It includes an exception for litigation of the issue
of statutory jurisdiction, and it expressly exempts from the preclusive
effect of the paragraph a party's ability to challenge the eligibility
of any voter during the election.
Upon reflection, the Board has decided not to adopt the proposed
mandatory offer-of-proof procedure. Under the proposal, once the issues
raised in a party's statement of position were properly responded to by
the petitioner, the hearing officer would require the parties to make
offers of proof concerning any relevant issues in dispute, and would
not proceed to take evidence unless the parties' offers created a
genuine dispute concerning a material fact. Thus, the proposed rule
provided, in relevant part:
(b) Offers of proof; discussion of election procedure. After
identifying the issues in dispute pursuant to paragraph (a) of this
section, the hearing officer shall solicit offers of proof from the
parties or their counsel as to all such issues. The offers of proof
shall take the form of a written statement or an oral statement on
the record identifying each witness the party would call to testify
concerning the issue and summarizing the witness' testimony. The
hearing officer shall examine the offers of proof related to each
issue in dispute and shall proceed to hear testimony and accept
other evidence relevant to the issue only if the offers of proof
raise a genuine dispute as to any material fact. . . .
79 FR at 7358 (Sec. 102.66(b)). The final rule provides with respect
to offers of proof (emphasis added):
(c) Offers of proof. The regional director shall direct the
hearing officer concerning the issues to be litigated at the
hearing. The hearing officer may solicit offers of proof from the
parties or their counsel as to any or all such issues. Offers of
proof shall take the form of a written statement or an oral
statement on the record identifying each witness the party would
call to testify concerning the issue and summarizing each witness's
testimony. If the regional director determines that the evidence
described in an offer of proof is insufficient to sustain the
proponent's position, the evidence shall not be received.
See amended Sec. 102.66(c).
The final rule thus makes clear that hearing officers will not
require parties to make offers of proof raising genuine disputes as to
material facts before
[[Page 74395]]
proceeding to hear testimony and accept other evidence. Instead,
consistent with pre-existing practice, the Board has decided to leave
it to the hearing officer's discretion whether to require parties to
submit offers of proof on disputed issues. The Board has also removed
the language drawn from Federal Rule of Civil Procedure 56. The
substitute language makes clear that in the event the hearing officer
decides to require parties to make an offer of proof, the evidence will
not be received if the regional director determines that the evidence
described in the offer of proof is insufficient to sustain the
proponent's position.
The Board believes that codifying hearing officers' discretion to
require offers of proof (and regional directors' discretion to
determine that the evidence described therein is insufficient to
sustain the proponent's position and thus that it will not be received)
will help the Board to avoid unnecessary litigation and expeditiously
resolve questions of representation in a manner that fully protects the
rights of all parties. As discussed above, subject to the provisions of
Sec. 102.66, the hearing officer has a duty ``to inquire fully into
all matters and issues necessary to obtain a full and complete record
upon which the Board or the regional director may discharge their
duties under Section 9(c) of the Act.'' Amended Sec. 102.64(b) (which
was formerly Sec. 102.64(a)). However, as the Hearing Officer's Guide
has long recognized, the hearing officer ``also [has a] duty . . . to
keep the record as short as is commensurate with its being complete.''
Hearing Officer's Guide at 1. Thus, the Board has a concomitant ``duty
to protect the integrity of its processes against unwarranted burdening
of the record and unnecessary delay.'' Laurel Associates, Inc. d/b/a
Jersey Shore Nursing & Rehabilitation Center, 325 NLRB 603, 603 (1998).
See Casehandling Manual Section 11188.1 (``The hearing officer should .
. . exclude irrelevant and cumulative material.'').
In order to protect against unwarranted burdening of the record and
unnecessary delay, the Board has long sanctioned a hearing officer's
authority to require a party to submit an offer of proof summarizing
and explaining its proffered evidence as well as a hearing officer's
authority to rule on the offer of proof. See Laurel Associates, Inc.,
325 NLRB at 603; Mariah, Inc., 322 NLRB 586, 586 (1996). Indeed,
because offers of proof can be an effective tool for controlling and
streamlining the hearing and achieving an uncluttered record free of
irrelevant and cumulative material, the Hearing Officer's Guide
expressly encourages the hearing officers to utilize offers of proof.
Hearing Officer's Guide at 6, 38 (``the hearing officer should . . .
utilize offers of proof in order to achieve an uncluttered record.'').
See Casehandling Manual Section 11185, 11188.1. But, we no longer
believe that we need insist on a rigid formality by mandating that
offers of proof be taken on every potential issue before any evidence
is introduced. We think that hearing officers will continue to be
capable of judging when offers of proof are likely to be helpful in
safeguarding the record, and will continue to require them as
appropriate, without removing their discretion to let the hearing
proceed organically where pro forma offers of proof might burden,
rather than streamline, the hearing record. However, given protests in
the comments concerning the hearing officers' role (as discussed
below), out of an abundance of caution we clarify that hearing officers
must seek the regional director's determination as to whether to
receive proffered evidence relating to an issue that the regional
director determined should be litigated. This ensures that discretion
to foreclose litigation resides with the statutorily appropriate agent
of the Board. This comports with current best practices, where hearing
officers briefly adjourn hearings to communicate with regional
directors to ensure that the record is developed consistent with the
regional director's view of the case.\405\
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\405\ See Testimony of Caren Sencer on behalf of Weinberg, Roger
& Rosenfeld II and Gabrielle Semel on behalf of CWA II (discussing
current practice of hearing officers pausing to communicate with
regional directors when necessary).
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In sum, amended Sec. 102.66(c) does no more than reaffirm and
codify the authority of the hearing officer to require parties to make
offers of proof if the hearing officer believes it would be useful to
do so. See Laurel Associates, Inc., 325 NLRB at 603 & n.1 (hearing
officer properly required employer to make an offer of proof in support
of its claim that the presumptively appropriate petitioned-for unit was
not in fact appropriate and then properly rejected it); Mariah, Inc.,
322 NLRB at 586 n.1, 588 (hearing officer properly permitted employer
to make, and then properly rejected, an offer of proof regarding the
eligibility of strikers because such matters are decided post election
if necessary); Franklin Hospital Medical Center, 337 NLRB 826, 826-27 &
n.2 (2002) (hearing officer properly rejected employer's offer of proof
regarding alleged supervisor status of certain individuals); Colgate-
Palmolive Co., 120 NLRB 1567, 1568 & n.2 (1958) (hearing officer
properly rejected proffered evidence because it was not material); W.B.
Willet, 85 NLRB 761, 761 n.2 (1949) (hearing officer properly rejected
offer of proof in support of party's contract bar claim, because it
could not have constituted a bar to the proceeding).
A number of comments criticize the role of, and the authority
assigned to, the hearing officer under the proposed rule. Of those
comments, several suggest that the Board's proposed procedures
represent an unprecedented expansion of the hearing officer's role and
vest the hearing officer with too much discretion.\406\ Similarly, some
comments express the view that the statute prohibits hearing officers
from making decisions such as whether disputed issues relate to a
material fact, or whether offers of proof are sufficient to establish
the existence of a genuine dispute as to a material fact, as Section
9(c) prohibits hearing officers from even making recommendations with
respect to the representation hearing.\407\ In addition, several
comments note that not all hearing officers are attorneys,\408\ and
numerous comments questioned the competency of hearing officers--
particularly in the absence of guidance from the Board--to assess the
parties' position statements and offers of proof and to apply the legal
standards embodied in Federal civil procedure to make judgments as to
what constitutes a disputed issue of material fact.\409\ According to
several comments, the likely result of such required judgments--which
may not be made in a uniform manner among hearing officers--will be an
increase in post-election litigation and post-certification
challenges.\410\
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\406\ See, e.g., SHRM; Bluegrass Institute; ACC; CDW II. In that
regard, Baker & McKenzie asserts that the proposed rule changes the
role of the hearing officer from that of fact gatherer to
gatekeeper/judge, a role for which the hearing officer does not have
the requisite experience or training.
\407\ See, e.g., ALFA;Testimony of Roger King on behalf of SHRM
II; COLLE II.
\408\ See, e.g., ACE; SHRM II; Bluegrass Institute; GAM; York
SHRM.
\409\ See, e.g., SHRM; CNLP; AHCA; National Mining Association;
ACE; Bluegrass Institute. AHA further asserts that, should the Board
adopt the proposed procedures, it should engage in an open dialogue
regarding the standards that the hearing officers would apply, and
should invite comments on proposals that provide for more detailed
and comprehensive descriptions of the process to be followed by the
hearing officers.
\410\ See, e.g., National Mining Association; Baker & McKenzie;
GAM; NAM II.
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Responsive comments express the contrary position that the proposed
rules grant no greater discretion to hearing officers than that which
they
[[Page 74396]]
already exercise under current Board procedures, as hearing officers
have always been responsible for controlling the hearing, assuring that
there is a complete record, and excluding evidence that is not material
to the case.\411\ In addition, SEIU asserts that the proposed rules do
not suggest that hearing officers are to weigh the proffered evidence
of the parties, or to ascertain whether assertions made in position
statements are accurate or reliable; rather, the hearing officer is to
examine the position statements and offers of proof to ascertain
whether there is conflicting evidence as to any material fact.
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\411\ See, e.g., AFL-CIO II; SEIU Reply.
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Many comments also focus on the use of language similar to that
used in Rule 56. The AFL-CIO supports the proposal claiming that it
will appropriately eliminate the ability of a party to strategically
delay the election by forcing the litigation of undisputed or
immaterial issues and provide the hearing officer with the authority to
prevent an ``empty show'' hearing, while simultaneously ensuring that
the parties are provided the opportunity to present their positions on
all issues and to present evidence or offers of proof on all material
factual issues. In addition, the AFL-CIO contends that ``most major
agencies in the Federal system have opted to make available procedures
for the summary disposition of adjudicatory matters,'' and that such
procedures are particularly appropriate in the context of an ``informal
and nonadversarial'' pre-election hearing. Similarly, several comments
assert that the offer-of-proof procedure is consistent with both the
Board's current post-election practice and civil litigation in Federal
and state courts.\412\
---------------------------------------------------------------------------
\412\ See, e.g., NELP; UFCW; Testimony of Peter Ford on behalf
of UFCW II.
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Conversely, several comments express the position that the
mandatory offer-of-proof procedure inappropriately deprives the parties
of the opportunity to develop a full and complete record.\413\ Other
comments assert that the procedures proposed in 102.66 deny employers
the due process protections to which they are entitled,\414\ and that
they are inconsistent with the statutory requirement that the Board
provide an ``appropriate hearing'' prior to the election. In the latter
regard, several comments argue that Section 9(c) of the Act requires a
pre-election evidentiary hearing at which the parties are afforded the
opportunity to present their evidence and positions, and cross-examine
witnesses.\415\
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\413\ See, e.g., SHRM; ACE; AHA; CDW II. Moreover, SHRM asserts
that the incomplete record resulting from the hearing officer's
decision regarding the offers of proof, together with the
possibility that the Board might exercise its discretion to deny
post-election review, will result in more frequent remands to the
Board from the Federal courts of appeals, as the courts will not
have an adequate record for review.
\414\ See, e.g., SHRM; ACE; U.S. Poultry II.
\415\ See, e.g., SHRM; CNLP; AHCA II; CDW II.
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Several responsive comments dispute the claims that the Board's
proposed procedures are violative of due process guarantees.\416\ These
comments assert that there is a notable absence of support for the
claim that due process requires the Board to expend resources in
connection with the litigation of issues that are neither material nor
in dispute, and that due process requires ``something less than a full
evidentiary hearing.'' Similarly, several comments express support for
the Board's preliminary view in the NPRM that the statutorily-
prescribed ``appropriate hearing'' does not mean an evidentiary hearing
when there are no issues in dispute or the parties fail to submit an
offer of proof demonstrating a genuine dispute as to a material
fact.\417\ The comments additionally assert that, pursuant to the
Supreme Court's interpretation of Section 9(c) of the Act, the Board
has discretion to determine the appropriate parameters of the
investigatory representation hearing.
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\416\ See, e.g., AFL-CIO Reply; SEIU Reply.
\417\ See, e.g., AFL-CIO Reply; SEIU Reply; UFCW; LIUNA MAROC
II.
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In addition to challenging the Board's proposed limitations on the
hearing as inconsistent with due process and statutory requirements,
many of the comments in opposition to the proposed procedures express
the view that, contrary to the Board's suggestion in the NPRM, the
summary procedures are not analogous to the summary judgment framework
established by Rule 56 of the Federal Rules of Civil Procedure. More
specifically, a number of comments contend that a fundamental
distinction between the Board's proposed procedures and Rule 56 is the
fact that summary judgment under the Federal rule takes place only
after the parties have had the opportunity to conduct discovery.\418\
According to comments from SHRM and ACE, non-petitioning parties cannot
reasonably be expected to articulate and substantiate their positions
through an informal summary judgment process in the absence of a full
record or, at a minimum, access to all of the relevant evidence. SHRM,
ACE, and AHA additionally contend that the Board's analogy to Rule 56
is inapt in that summary judgment procedures are utilized to resolve
legal questions only after the facts have been established to the point
where no material facts are in dispute; the summary judgment procedure
has never been used to determine whether to receive and evaluate
evidence.
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\418\ See, e.g., AHA; ALFA; SHRM; NAM; ACE; National Mining
Association. CNLP additionally asserts that when a summary judgment
motion is filed as an answer under Rule 56, the non-moving party may
request time for additional discovery to provide a response.
In response, a reply comment from the SEIU asserts that, in
contrast to Federal court proceedings, the employer in a
representation proceeding before the Board has access to, and
exclusive control over, all of the relevant information and,
accordingly, does not have the same need for discovery.
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A comment from NAM II additionally asserts that, as the Board's
proposal requires the non-moving party to identify issues, submit an
offer of proof, marshal arguments, and introduce evidence supporting
its position, it completely reverses the burden of proof applicable
under Rule 56. In addition, unlike the Federal rule, the Board's
procedures do not afford the parties the opportunity for oral argument.
In response to the comments criticizing the Board's reliance on
Rule 56, the SEIU (Reply) counters that, under the Board's proposed
rules, ``employers may force hearings by producing far less than a
litigant must produce under Rule 56, and may easily meet its burden
without the discovery that often precedes summary judgment motions.''
Indeed, argues the SEIU, employers would be subjected to a much lower
bar than that necessary to overcome a summary judgment motion; whereas
a non-moving party under Rule 56 cannot rest on its pleadings, but must
submit significant probative evidence in support of its claims, a party
seeking to introduce evidence at a representation hearing need only
raise an issue in its position statement and, subsequently, submit an
offer of proof identifying its likely witnesses and summarizing their
anticipated testimony. See FRC.P. 56(e).
We agree with the criticism of the proposed rule's use of Rule 56
of the Federal Rules of Civil Procedure as a model for the procedural
rules governing representation cases, based on the substantial
differences between the different kinds of proceedings. The Federal
Rules are designed for formal judicial actions before a Federal judge
or magistrate judge that may address any issue raised in connection
with almost the full range of claims cognizable under Federal or state
statutory or common law. The Board's representation cases, by contrast,
involve informal administrative proceedings that address a narrow
subset of the issues arising under a single Federal statute. The range
of issues is even narrower in pre-election
[[Page 74397]]
proceedings. The cases are presided over and decided by hearing
officers and regional directors, respectively, some of whom are not
lawyers, and it is more common than in district court for parties not
to be represented by counsel. We agree that it makes little sense to
burden an informal proceeding that performs a simple, narrow function
with trappings of full-dress Federal litigation. We therefore have
declined to adopt the language of proposed Sec. 102.66(c) that was
drawn from Rule 56. Similarly, in Sec. Sec. 102.64(b) and 102.66(a) we
have rejected proposed language imported from Rule 56, and in Sec.
102.66(a) we have eliminated the proposed ``joinder'' nomenclature in
connection with the identification of disputed issues through the
responses to statements of position.
It is important to recognize, however, that Sec. 102.66 of the
final rule, Rule 56, and many other rules governing adjudication of
disputes are animated by a common principle of economy and common
sense: A tribunal need not permit litigation of a fact that will not,
as a matter of law, affect the result, or as to which the party that
seeks to litigate the fact cannot identify evidence that would sustain
its position. For example, suppose that a party asserts, concerning a
petition for a unit including all dispatchers, that dispatchers are
supervisors, and suppose that even if all of its witnesses testify
credibly as it says they will testify and all of the documents it
proposes to introduce show what it says they will show, the party's
testimonial and documentary evidence will not, as a matter of law,
establish that dispatchers are supervisors. Under such circumstances,
there is no need for an evidentiary hearing on the issue. There is no
need to require the hearing officer to try the factual issue to find
out whether the party's witnesses might by some chance testify to
something different from what the party said they would. That would be
the definition of unnecessary litigation, and the formalities of
summary judgment under Rule 56 are not needed to reach the obvious
conclusion that the issue should not be tried.
The Board is confident that hearing officers are fully capable of
performing their role under the final rule, including asking
petitioners to respond to each position taken by the nonpetitioners and
administering the preclusion provision. Put simply, we believe that the
amendments to Sec. 102.66(b) codify nothing more than what hearing
officers are supposed to do currently. The Hearing Officer's Guide has
long provided that at the outset of the hearing, the hearing officer
should have the parties clearly state their positions on each issue.
Hearing Officer's Guide at 6, 13, 14, 16. Casehandling Manual Sections
11187 and 11188 likewise provided long before the NPRM that the hearing
officer should guide, direct and control the hearing, seek responses to
issues raised by the parties, and take an active role in exploring all
potential areas of agreement and narrowing the issues that remain to be
litigated. Similarly, hearing officers have experience precluding
parties from presenting evidence relating to an issue if the parties
have not taken a position on that issue. See Bennett Industries, Inc.,
313 NLRB 1363, 1363 (1994). See also Casehandling Manual Section 11217
(the hearing officer should advise a party that refuses to state its
position on an issue that it may be foreclosed from presenting evidence
on that issue). Accordingly, we believe that hearing officers are
capable of determining when parties are seeking to present evidence
about issues they did not raise in their Statements of Position or in
response thereto.\419\
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\419\ In any event, Sec. 102.66(b) also vests authority in the
regional director to permit parties' timely amendments to their
Statements of Position or response thereto under a good cause
standard, mooting some of the concerns parties had concerning the
hearing officer's proposed role.
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Nor would the Board be persuaded by any claim that hearing officers
are incapable of administering the amended offer-of-proof procedure. As
discussed above, amended Sec. 102.66(c) does not expand the hearing
officer's role beyond that which existed under the Board's prior rules;
rather, it merely confirms that the hearing officer--in the interests
of protecting the record from being burdened by cumulative or unhelpful
evidence and preventing unnecessary delay--has the discretion to
require the parties to submit an offer of proof. Thus, the hearing
officer's role is limited to the traditional one of ``guid[ing],
direct[ing], and control[ling] the hearing, excluding irrelevant and
cumulative material, and not allowing the record to be cluttered with
evidence submitted `for what it's worth.' '' Hearing Officer's Guide at
6, 38. See Casehandling Manual Section 11188.1. As shown, prior to the
NPRM, hearing officers had discretion to require parties to submit
offers of proof. Under the final rule, hearing officers continue to
have discretion to require offers of proof, subject to the
clarification that it is the regional director who will make the
ultimate decision on the offer's sufficiency. Nothing in the amendments
denies parties the ability to argue orally about whether a particular
offer of proof should be rejected. In our experience, hearing officers
have been fully capable of requesting offers of proof and seeking
direction from regional directors on whether to allow evidence to be
received, and there is no reason to think that the amendments will
change that.\420\
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\420\ Regional directors assign either field attorneys or field
examiners to serve as hearing officers. Field attorneys must possess
a J.D. degree and be an active member of a bar. Field examiners must
possess a B.A. degree. The Board has traditionally provided written
guidance to hearing officers as well as periodic training. Hearing
officers also participate in a video training program that covers
the subject of conducting a hearing as well as relevant professional
development programs. There is also a lengthy publication entitled
Guide for Hearing Officers in NLRB Representation and Section 10(K)
Proceedings, which is periodically updated and made available to
hearing officers (and the public on the Board's Web site). Hearing
officers are also routinely given feedback on their conduct of
hearings by the staff members assigned to assist the regional
director in drafting the resulting decision as well as by the
regional director. The Board intends to continue to provide these
types of assistance, feedback, and training. Finally, the
qualifications of hearings officers are not set by statute or
regulation. To the extent the regional directors or the Board find
that the existing hearing officers cannot competently perform the
role assigned them under the final rule, the Board will provide
necessary training or alter the qualifications for service as a
hearing officer.
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There will be adequate evidence on the record to decide the
relevant issues. To be sure, prior to the NPRM, the Board had construed
its rules as granting parties the right to litigate individual
eligibility or inclusion questions, whereas the final rule provides
that disputes concerning individuals' eligibility to vote or inclusion
in the unit found appropriate ordinarily need not be litigated or
resolved before an election is conducted. The Board has concluded that,
although this provision may operate to exclude evidence from the record
concerning individuals' eligibility to vote or inclusion in the unit
found appropriate, such evidence is not relevant to the existence of a
question of representation. As such, it would be administratively
irrational to require that parties be permitted to litigate such issues
at the pre-election hearing if the regional director will not be
deciding those issues prior to the election. But, under the final rule,
regional directors are free to direct that evidence regarding
individuals' eligibility to vote or inclusion in the unit be admitted
if the director resolves to consider the individual eligibility
question at issue prior to the election.\421\
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\421\ We also disagree with the suggestion of the IBEW II that
the process would be improved if the hearing officer took control of
the hearing by subpoenaing witnesses and becoming the primary
questioner to develop the record. To say nothing of the hearing
officer being the individual least suited to determine, as an
initial matter, which witnesses would be best situated to provide
the necessary evidence, we are also guided by the principal that the
hearing officer is not an advocate for either side and must be
impartial in developing the record. As the Casehandling Manual
cogently explains, the hearing officer should avoid the appearance
of providing undue assistance to one party or another and ``should
also exercise self-restraint, should give the parties prior
opportunity to develop points, and should refrain from needlessly
taking over.'' 11188.1. We think that the tools provided in the
final rule will allow the hearing officer and the regional director
to adequately control development of the record without taking
steps--as suggested by IBEW--that could lead their impartiality to
be called into question.
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[[Page 74398]]
Contrary to some of the comments, the hearing officer's
determination to require a party's offer of proof and seeking a ruling
from the regional director on whether to receive the described evidence
does not constitute a ``recommendation'' or decision for purposes of
Section 9(c)(1) of the Act. Thus, in deciding whether to require an
offer of proof, and presenting that offer to the regional director, the
hearing officer is not recommending, or deciding, whether a question of
representation exists or whether an election should be directed to
resolve that question. See Casehandling Manual Section 11185 (``The
hearing officer's role is to guide, direct, and control the
presentation of evidence at the hearing [but] [t]he hearing officer
does not make any recommendations or participate in any phase of the
decisional process.'') \422\ Moreover, as discussed above, the final
rule makes clear in amended Sec. 102.66(c) that it is the regional
director, not the hearing officer, who will determine the issues to be
litigated and whether evidence described in an offer of proof will be
admitted.
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\422\ Indeed, hearing officers have long been charged with
passing on the admissibility of evidence, and ruling on petitions to
revoke subpoenas that are filed after the hearing opens. See
Sec. Sec. 102.64, 102.65, 102.66, 102.68 (2009); Hearing Officer's
Guide at 1, 22, 29, 33-39; Casehandling Manual Sections 11188.1,
11185, 11194; 11204, 11207, 11212.
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We would also find unpersuasive any claim that the amendments
deprive parties of their right to an ``appropriate'' pre-election
hearing under Section 9(c) of the Act. Section 9(c)(1) of the Act
states that the Board must provide for ``an appropriate hearing'' if it
has ``reasonable cause to believe that a question of representation
affecting commerce exists,'' and that the Board must direct an election
if it finds, based on the record of that hearing, that ``such a
question of representation exists.'' Thus, the statutory purpose of the
pre-election hearing is to determine whether a question of
representation exists.\423\ In the absence of an election agreement,
the Board's duty under Section 9(c) of the Act is to conduct a hearing
to determine if a question of representation exists and, if such a
question exists, to direct an election to answer the question and to
certify the results.
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\423\ As noted, a question of representation exists if a proper
petition has been filed concerning a unit appropriate for the
purpose of collective bargaining or concerning a unit in which an
individual or labor organization has been certified or is being
currently recognized by the employer as the bargaining
representative. However, a proper petition cannot be filed under
Section 9(c)(1) of the Act, and a question of representation cannot
arise under the Act, unless the employees in the unit are employed
by an employer covered by the Act. Thus, the regional director must
determine that a proper petition has been filed in an appropriate
unit in order to find that a question of representation exists.
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Amended Sec. 102.66 does not deprive parties of their right to
``an appropriate [pre-election] hearing'' under Section 9(c) of the
Act. After all, as explained above, amended Sec. 102.66(a) expressly
provides that parties have the right to introduce evidence ``of the
significant facts that support the party's contentions and are relevant
to the existence of a question of representation.'' Codifying hearing
officers' discretion to require parties to make offers of proof in
Sec. 102.66(c) likewise does not deprive parties of their right to
``an appropriate [pre-election] hearing'' or their right to litigate
relevant issues. To the contrary, offers of proof are a recurring
feature of pre-election hearings under the NLRA (and of administrative
and state and Federal court hearings across the land). An offer of
proof is simply a tool to enable the regional director to determine
whether it is appropriate to receive the evidence a party wishes to
introduce. See Hearing Officer's Guide at 38. Thus, for example, if the
proffered evidence is not relevant to whether a question of
representation exists and the offer is rejected, parties have not been
deprived of their right to a pre-election hearing, because parties have
no right--under the NLRA, the APA, or the due process clause of the
United States Constitution--to present evidence that is not relevant to
the statutory purpose of the pre-election hearing.\424\ Indeed, as
shown, hearing officers had authority under the Board's prior rules to
seek responses to party positions and to require parties to make offers
of proof.
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\424\ See Mariah, Inc., 322 NLRB at 586 n.1 (hearing officer
acted consistent with his role in ensuring that the record is both
complete and concise in refusing to permit the introduction of
irrelevant evidence at the pre-election hearing); National Mining
Ass'n v. DOL, 292 F.3d 849, 873-74 (D.C. Cir. 2002) (the APA
``empowers agencies to `exclu[de] * * * irrelevant, immaterial, or
unduly repetitive evidence' as `a matter of policy''') (citation
omitted); U.S. v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001) (although
a criminal defendant ``has a wide-ranging right to present a
defense, * * * this does not give him a right to present irrelevant
evidence''); U.S. v. Vazquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008)
(same). Accordingly, parties have no right to present irrelevant
evidence at a pre-election hearing, which is not governed by the
APA's formal adjudication provisions. See 5 U.S.C. 554 (a)(6); In re
Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir.
1979) (representation case proceedings exempt from APA formal
adjudication requirements); NLRB v. Champa Linen Service Co., 437
F.2d 1259, 1262 (10th Cir. 1971) (same).
We also wish to reiterate that if pursuant to the regional
director's direction, a hearing officer prevents receipt of evidence
regarding an individual eligibility or inclusion question (on the
grounds that the proffered evidence is not relevant to determining
whether a question of representation exists,) the party remains free
to present such evidence at a post-election hearing if that
individual casts a determinative challenged ballot. Similarly, if
the disputed votes are not determinative, parties can bring the
issue back before the Board through a timely filed unit
clarification petition if the union wins the election and they
cannot resolve the issues through collective bargaining. Thus, the
amendments do not limit any party's right to present such evidence,
but merely give the regional director discretion to defer
introduction of such evidence until after the election.
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Moreover, because offers of proof are part of the record as
discussed below in connection with amended Sec. 102.68, parties'
rights are preserved even if the evidence is rejected in error. Thus,
the offer of proof is in the record for the regional director (or the
Board or a reviewing court) to review, and if the director (or the
Board or a reviewing court) concludes that the evidence was rejected in
error and that the error prejudiced the party making the offer, then
the director (or the Board or a reviewing court) can order that the
record be reopened and the evidence taken. Hearing Officer's Guide at
38.\425\
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\425\ As noted, hearing officers have long had discretion to
require offers of proof at the pre-election hearing. The courts of
appeals have not remanded a significant number of cases because of
erroneous hearing officer rulings regarding offers of proof, and we
see no reason for this to change as a result of the final rule. If
anything, the requirement that regional directors determine whether
evidence described in the offer of proof should be received lessens
the chance of erroneous rulings.
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Nor will the preclusion provisions prevent development of an
adequate record upon which the regional director can determine whether
there is an appropriate unit in which the Board may properly conduct an
election. As explained in the NPRM, hearing officers had authority
under the Board's prior rules to preclude parties from presenting
evidence when they refused to take positions on issues. See 79 FR 7329-
30; Bennett Industries Inc., 313 NLRB 1363, 1363 (1994) (hearing
officer properly refused to allow employer to introduce evidence
regarding
[[Page 74399]]
supervisory status of leadpersons and quality control inspectors
because employer refused to take a position regarding their status and
their inclusion or exclusion from the unit); Allen Health Care
Services, 332 NLRB 1308 (2000); Casehandling Manual Section 11217. Even
if the hearing officer exercises the authority to limit an employer's
presentation of evidence when the employer fails to take a position
regarding the appropriateness of a petitioned-for unit, the regional
director will retain the discretion to direct the receipt of evidence
needed to make the required determination concerning a petitioned-for
unit which is not presumptively appropriate. That evidence may include
testimony adduced from the employer's owners, managers, or supervisors
as witnesses, called under subpoena or otherwise, and documents
obtained from the employer.
Thus, for example, amended Sec. 102.66(b) contains an exception
which explicitly provides that ``this provision shall not preclude the
receipt of evidence regarding the Board's jurisdiction over the
employer or limit the regional director's discretion to direct the
receipt of evidence concerning any issue, such as the appropriateness
of the proposed unit, as to which the regional director determines that
record evidence is necessary.'' \426\ And amended Sec. 102.66(a)
provides that the hearing officer ``shall also have the power to call,
examine, and cross-examine witnesses and to introduce into the record
documentary and other evidence.'' The Board has concluded that
employers who are unable or unwilling to take a position concerning the
appropriateness of a proposed unit of their own employees are unlikely
to provide assistance to the hearing officer in the development of an
adequate record upon which to address that question. And we reiterate
our further conclusion that not vesting hearing officers with clear
authority to limit such employers' participation in the hearings under
those circumstances threatens the hearing officer's ability to control
the proceedings and avoid burdening the record.
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\426\ The NPRM proposed a slightly different version of this
language, keyed only to the need for petitioner to adduce evidence
concerning the appropriateness of the petitioned-for unit when the
employer refused to take a position on the issue. See 79 FR 7357.
However, the Board was persuaded in part by the comment of the AFL-
CIO II that the Board's proposed language should be modified to
include a reference to evidence concerning jurisdiction, and a catch
all covering any issue concerning which record evidence is necessary
for those circumstances in which the record might lack other
necessary evidence concerning issues that are neither contested, nor
stipulated. For example, a petitioner's status as a labor
organization could be such an issue in certain cases.
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In short, if the parties do not enter into an election agreement,
there will be a pre-election hearing. But Section 9(c) does not require
a full evidentiary hearing in every case. Rather, it requires ``an
appropriate hearing.'' The Board concludes that a hearing where
irrelevant evidence must be introduced is an inappropriate hearing.
Thus, if the parties come to the hearing and the regional director
determines that there are no disputes that must be resolved prior to
the election (because, for example, all parties agree on the record
that the Board has jurisdiction and that the only dispute concerns the
supervisory status of one individual in a 10-person unit that all
parties agree on the record is appropriate), an appropriate hearing
does not require introduction of further evidence. See United States v.
Storer Broadcasting, 351 U.S. 192, 205 (1956); accord American
Airlines, Inc. v. Civil Aeronautics Board, 359 F.2d 624, 628 (en banc),
cert. denied, 385 U.S. 843 (1966). On the other hand, if, as discussed
above, the petitioned-for unit is not presumptively appropriate and the
employer refuses to take a position on the appropriateness of the unit,
then although the amendments to Sec. 102.66 preclude the employer from
presenting evidence and argument about the appropriateness of the unit,
the amendments allow the petitioner to demonstrate the appropriateness
of the unit at the hearing, or adduce evidence concerning any other
issue for which record evidence is necessary. See Sec. 102.66(b).
Thus, the amendments are consistent with Allen Health Care Services,
332 NLRB 1308, 1308-09 (2000), where the Board held that if the
employer refuses to take a position on a unit that is not presumptively
appropriate, the hearing officer must take evidence sufficient to allow
the regional director to find that the unit is appropriate before the
director may direct an election in that unit.\427\ Similarly, unless
the employer concedes the Board has jurisdiction, evidence must be
taken on the Board's statutory jurisdiction to process the petition.
Indeed, amended Sec. 102.66(b) provides that receipt of evidence
regarding the Board's jurisdiction will not be precluded even if the
employer takes no position on this issue, and amended Sec. 102.66(d)
contains language that expressly provides that ``no party shall be
precluded from * * * presenting evidence relevant to the Board's
statutory jurisdiction to process the petition.''
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\427\ Likewise, because, as the IFA points out, current Board
law holds that employees who are jointly employed by two entities
cannot be included in the same bargaining unit with employees who
are solely employed by one of those entities without the consent of
both entities (Oakwood Care Center, 343 NLRB 659 (2004)), the Board
may not find such a ``mixed unit'' to be appropriate merely on the
basis that neither entity submits a Statement of Position. At the
same time, it would be inappropriate to dismiss the petition simply
based on the failure of the two entities to file Statements of
Position, as for example, both entities could consent at the
hearing. The petitioner could also amend its petition and seek to
represent only the employees who are jointly employed by both
employers (see id. at 662, 666 (a joint employer unit consisting
solely of the jointly-employed employees is appropriate, even absent
the employers' consent)), or the union could amend its petition and
seek to represent just the employees who are solely employed by one
of the two entities.
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Many comments specifically claim that the rule's preclusion
provision is unfair, biased, or too severe a consequence for an
employer's failure to raise an issue in its position statement,
particularly in light of the abbreviated period of time permitted for
its preparation; \428\ one such comment (ACC) additionally questions
the Board's authority to preclude litigation of significant issues
based on an inadvertent omission from the position statement. In
addition, a number of comments argue that the short-time frame will
lead employers to file ``pro forma'' position statements and may cause
employers to put forward every argument rather than risk
preclusion.\429\ We have already explained above in relation to Sec.
102.63 why we disagree with the claim that the Statement of Position
form due date and the pre-election hearing scheduling provisions render
preclusion unfair. We have likewise explained above why we disagree
with the notion advanced in some comments that the preclusion proposal
will lengthen pre-election hearings and therefore will be
counterproductive.
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\428\ See, e.g., Cook-Illinois; AGC; Sheppard Mullin; ACC; NRF;
Indiana Chamber.
\429\ See, e.g., Bluegrass Institute; NMMA; Testimony of Curt
Kirschner; GAM; Constangy.
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We also disagree with the comments that appear to challenge the
very notion of preclusion itself as well as the Board's authority to
preclude parties from raising issues that they did not raise in their
Statements or in response to another party's Statement. Thus, the fact
of the matter is that, as discussed above, prior to the NPRM, parties
were required to raise contentions at specified times in the process or
face preclusion. Indeed, as shown, Casehandling Manual Section 11217
provided that the hearing officer should advise parties that they may
be
[[Page 74400]]
foreclosed from presenting evidence on issues if they refuse to take a
position on those issues. Prior to the NPRM, the Board had held that a
hearing officer may preclude an employer from introducing evidence
regarding the supervisory status of employees in certain job
classifications if the employer refuses to take a position on their
status and their inclusion or exclusion from the unit. Bennett
Industries, Inc., 313 NLRB 1363, 1363 (1994). Similarly, under the
rules in effect prior to the NPRM, a party could ``not [in a request
for review of a regional director's decision and direction of election]
raise any issue or allege any facts not timely presented to the
regional director.'' 29 CFR 102.67(d) (2010). Moreover, Sec.
102.65(e)(1) of the prior rules provided that motions for
reconsideration or to reopen the record needed to be based on
extraordinary circumstances, and that neither the regional director nor
the Board would entertain a motion for reconsideration or to reopen the
record with respect to any matter which could have been but was not
raised pursuant to any other section of the Board's rules. Accordingly,
even under the Board's prior rules, if a party failed to present facts
or take a position before the hearing officer at a hearing which opened
and closed within 7-days of the notice, it could not do so later
regardless of whether the failure was inadvertent. In addition, as
discussed above in connection with Sec. 102.63 (and Sec. 102.66), we
have explicitly provided that parties may seek to amend their
Statements of Position either before or during the hearing in a timely
manner for good cause.
In view of the foregoing, we categorically reject those comments
that contend that we lack authority to impose preclusion, and that
preclusion is too severe a consequence, for a party's failure to
complete the Statement of Position form. We likewise reject Professor
Estreicher's suggestion that the preclusive effect of failing to take a
position required by the Statement of Position form should not extend
beyond the pre-election period. Put simply, the Board believes, for
example, that permitting parties to raise unit appropriateness issues
after the election even if they did not raise those issues before the
election would be inconsistent with the Board's goal of expeditiously
resolving questions of representation, and would thwart the Board's
interest in certainty and finality of election results. Moreover, as
shown, the Board's prior rules already required parties to raise
certain issues before the election in order to preserve their ability
to raise those issues subsequent to the election.
Contrary to comments of GAM, the amendments do not operate to
preclude challenges to the eligibility of an individual voter at the
polls merely because the party seeking to challenge the voter at the
polls failed to provide the initial lists of employees as part of its
Statement of Position or failed to raise the issue of that individual's
eligibility at the hearing. Amended Sec. 102.66(d) merely provides
that the employer ``shall be precluded from contesting * * * the
eligibility or inclusion of any individuals at the pre-election
hearing'' if it fails to furnish the lists of employees as part of its
Statement of Position. (emphasis added). Similarly, amended Sec.
102.66(d) explicitly provides that ``no party shall be precluded, on
the grounds that a voter's eligibility or inclusion was not contested
at the pre-election hearing, from challenging the eligibility of any
voter during the election.'' In short, as noted above, even if an
employer fails to complete a Statement of Position form, it will
generally be able to challenge the eligibility of a particular
individual at the polls, unless, of course, the regional director
specifically ruled on that individual's eligibility prior to the
election. Cf. Casehandling Manual Section 11338.7 (``Persons in job
classifications specifically excluded by the Decision and Direction of
the Election should be refused a ballot, even under challenge, unless
there have been changed circumstances.'') GAM argues that the
provisions are confusing, but does not provide suggested language for
clarifying the provisions. The Board does not view the language as
confusing, and thus has determined that no change is necessary.
SHRM argues that the preclusive effect of the rules is unfair
because it operates primarily against the employer. We disagree. The
preclusion provisions do not just apply in RC cases where the employer
is the nonpetitioner and must complete the Statement of Position form.
Rather, under amended Sec. 102.66(b) and (d), the preclusion
provisions apply in all cases, without distinction, including RD
(decertification cases) as well as RM cases, where the individual or
labor organization currently representing employees, or seeking to
represent employees, is the nonpetitioner and is responsible for
completing a Statement of Position form. Moreover, where a labor
organization is the petitioner, amended Sec. 102.66(b) and (d)
preclude it from seeking to introduce evidence concerning any issue
that it did not place in dispute in response to another party's
Statement of Position. We also reiterate that, contrary to SHRM's
contentions that the amendments favor unions and impose one-sided
burdens, if the employer refuses to take a position regarding the
appropriateness of a petitioned-for unit that is not presumptively
appropriate (or claims that the unit is not appropriate but fails to
specify the classifications, locations, or other employee groupings
that must be added to or excluded from, the petitioned-for unit to make
it an appropriate unit), the petitioner cannot simply rest, but must
demonstrate the appropriateness of the petitioned-for unit. Similarly,
evidence must be taken as to the Board's statutory jurisdiction to
process the petition if the employer refuses to concede jurisdiction
and fails to provide the commerce information in its Statement of
Position form. See amended Sec. 102.66(b). This is so even though the
nonpetitioner employer unquestionably has greater access to the
relevant information relating to those issues, as the employer
established its employees' terms and conditions of employment and knows
the extent of the connection between its business and interstate
commerce.
C. Subpoenas
The final rule does not adopt the proposed amendment to Sec.
102.66(c) specifying that a party that has been served with a subpoena
may be required to file or orally present a motion to quash prior to
the 5 days provided in Section 11(1) of the Act. The Board had proposed
to codify the existing practice noted in the Casehandling Manual, which
provides that case authority ``holds that the 5-day period is a maximum
and not a minimum.'' Section 11782.4.\430\ Upon reflection, however,
the Board does not feel that it would be appropriate to codify the
limited caselaw in this area, and instead prefers to allow the
continued development of best practices among the Board's regional
directors and its administrative law judges concerning motions to quash
subpoenas. \431\
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\430\ Accord Hearing Officer's Guide at 22; NLRB Administrative
Law Judge Bench Book Section 8-220 (2010) (``[T]o avoid unnecessary
delay, a party seeking to revoke a subpoena may be required to
respond in less than 5 days'').
\431\ Because the final rule does not codify any particular
practice, Klein II's complaint that the Board is reducing the time
for motions to quash is no longer relevant to the final rule.
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D. Discussion of Election Details
The NPRM proposed that prior to closing the hearing, the hearing
officer would inform the parties what their obligations under these
rules would be
[[Page 74401]]
if the regional director directs an election. The NPRM also proposed
that the hearing officer would solicit all parties' positions on the
type, dates, times, and location of the election, and the eligibility
period. However, the NPRM also made clear that although parties would
be solicited to provide their positions on the election details in
their statements of position and at the hearing, the resolution of
these issues would remain within the discretion of the regional
director, and the hearing officer would not permit them to be
litigated. 79 FR at 7330, 7358.
The Board has decided to adopt these proposals in amended Sec.
102.66(g), which provoked little comment. The Board believes that
parties to a representation proceeding will be provided with useful
guidance if the hearing officer advises them what their obligations
will be if the director directs an election.
In addition, as noted above in relation to Sec. 102.63, the Board
believes that the solicitation of the parties' positions regarding the
election details will help the Board to expeditiously resolve questions
of representation. Because the parties will have fully stated their
positions on the election details either in their statements of
position or at the hearing, the regional director will be able to take
the parties' positions on those matters into account and ordinarily
will be able to specify the election details in the direction of
election, instead of needing a series of unnecessary phone calls or
emails with the parties to discuss election details after the decision.
And, because the director ordinarily will specify the election details
in the direction of election, the director ordinarily will be able to
issue the Notice of Election simultaneously with the direction. This
will avoid unnecessary delay, because the election cannot be conducted
until the details of the election are set, and the Notice of Election
advises the employees of when, where, and how they may vote. And by
enabling the director to let the employees vote sooner, the amendment
will help the Board to more expeditiously resolve questions of
representation.
As discussed above in connection with Sec. 102.63, the Chamber
claims that it is not possible for a party to state its position
regarding the election details until the regional director determines
the unit. We find this objection unpersuasive in this context as well.
Thus, parties are free at the hearing to present their positions on
election details in the alternative if they believe that the parties'
various unit positions would impact their views on the election
details. Moreover, given the small size of bargaining units in
representation cases in recent years, the Board anticipates that it
will be the exceptional case rather than the norm where differences
between the petitioned-for unit and any other unit would cause the
employer to feel the need to take such alternative positions regarding
the election details. Finally, a regional director has discretion to
contact the parties to ascertain their positions regarding the election
details if the director ultimately chooses to direct an election in a
unit that is materially different from that proposed by either party at
the hearing.\432\
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\432\ According to Casehandling Manual Sections 11842.3(a) and
(b), the regional director should provide to both the parties and
their designated representatives the election notice to be posted by
the employer as well as the decision and direction of election. The
final rule clarifies in Sec. 102.66(g)(2) that the hearing officer
will solicit the name, address, email address, facsimile number, and
phone number of the employer's on-site representative, which will
aid the regional director in complying with that practice. The final
rule also clarifies in Sec. 102.66(g)(3) that the hearing officer
will inform the parties that the director will transmit the decision
and direction of election to both the parties and their designated
representatives.
---------------------------------------------------------------------------
GAM questions whether the Board intends to abandon its current
practice of taking into account the parties' positions on the election
details. The answer is ``no.'' The very purpose of soliciting the
parties' positions on these details in the Statement of Position and at
the hearing is so the regional director can consider them in setting
the election. Contrary to the comment, parties remain free under the
final rule to explain the background reasons for their positions
regarding the details of the election even though the issue is not
litigable at the pre-election hearing. The Board points out, however,
that even prior to the NPRM, the Board was not bound by the parties'
preferences. See, e.g., Casehandling Manual Section 11302. Accordingly,
contrary to GAM, the Board does not believe that the amendment will
decrease the likelihood that parties will enter into election
agreements. To the contrary, just as was the case prior to the
amendments, one of the reasons why parties may want to enter into an
election agreement and waive a pre-election hearing is to gain
certainty over the election details.
E. Oral Argument and Briefs
The NPRM proposed amending Sec. Sec. 102.67 and 102.66(h) to vest
the hearing officer with discretion to control the filing, subjects,
and timing of any post-hearing briefs. The final rule amends this
proposal to vest the regional director with discretion to grant a
request to file a post-hearing brief in amended Sec. 102.66(h).
The NPRM explained that, given the often recurring and
uncomplicated legal and factual issues arising in pre-election
hearings, briefs are not necessary in every case to permit the parties
to fully and fairly present their positions or to facilitate prompt and
accurate decisions. Yet under existing Sec. Sec. 102.67(a) and
101.21(b), in nearly all cases parties are afforded a right to file
briefs at any time up to 7 days after the close of the hearing, with
permissive extensions granted by hearing officers of up to 14
additional days.\433\ By exercising that right or even by simply
declining to expressly waive that right until after the running of the
7-day period, parties could potentially delay the issuance of a
decision and direction of election and the conduct of an election
unnecessarily.
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\433\ Despite the current regulations, the Board has denied
review of a direction of election when one argument made by the
party requesting review was that the hearing officer had refused to
permit post-hearing briefs. Unifirst Corp., Case 5-RC-15052 (Aug.
16, 2000). The Board reasoned that the party had showed no prejudice
and was able to fully present its substantive argument in the
request for review. Id. at n.1.
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Various comments, including those of SHRM, AHA, AHA II, AHCA II and
ALFA, oppose the proposed amendment on the ground that briefs are
needed to sum up the evidence presented at the pre-election hearing.
SHRM, ACE, and AHA point out that this cannot be done as effectively in
oral argument at the close of the hearing because the full transcript
is not yet available and parties need time to conduct research and
formulate legal arguments. Bruce E. Buchanan argues that briefs serve
to narrow the issues in dispute and identify relevant case law. The
AFL-CIO points out that the current Casehandling Manual recognizes that
briefs are not necessary or even of assistance in every case. Section
11242 provides, ``Before the close of the hearing, the hearing officer
should encourage the parties to argue orally on the record rather than
to file briefs.'' \434\
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\434\ A preference for oral argument in lieu of briefing was
among the ``best practices'' identified by the Board's General
Counsel in a 1997 report. See G.C. Memo. 98-1, ``Report of Best
Practices Committee--Representation Cases December 1997'', at 10, 28
(``It is considered a best practice that the hearing officer should
solicit oral argument in lieu of briefs in appropriate cases since
in some cases briefs are little, if any, assistance to the Regions
and may delay issuance of the decision.'').
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Curt Kirschner opposed the proposed amendment on the ground that
hearing officers are not authorized to control briefing under Section
9(c)(1). Testimony on behalf of AHA II. And numerous other comments
argue that
[[Page 74402]]
elimination of briefing by right denies parties due process.\435\
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\435\ See GAM; INDA II; AEM II; U.S. Poultry II.
---------------------------------------------------------------------------
Having considered these comments, the Board has concluded that
post-hearing briefing is not required or even helpful in every case. In
this regard, it is important to note that amended Sec. 102.66(h) does
not prevent parties from filing post-hearing briefs. Rather, as
amended, the final rule simply vests the regional director with
discretion to permit or not permit such filings and to otherwise
control the content and timing of any post-hearing briefs. Vesting the
regional director with the authority and discretion to decide whether
post-hearing briefs are necessary in a particular case eliminates any
concerns that hearing officers are not permitted to control briefing
under Section 9(c)(1). In addition, where complex issues arise, parties
can argue to the regional director why briefing is necessary in that
particular case. In the majority of representation cases, where
briefing is not necessary, the final rule will eliminate unnecessary
delay. Moreover, there is no denial of due process because in every
case, parties aggrieved by a decision of the regional director will
have a right to file a brief in support of their request for review.
Thus, in every representation case that proceeds to a pre-election
hearing, a party aggrieved by a ruling of a hearing officer or decision
of the regional director will have had the opportunity to file at least
one and sometimes two briefs before the close of the case. Finally, in
relation to the need for a transcript before parties can adequately sum
up the evidence, the Board notes that the typical pre-election hearing
lasts for one day or less.
It also bears mentioning that, even under the current rules,
parties do not enjoy a right to file post-hearing briefs in certain
kinds of representation cases. For example, the Board's current rules
do not permit the filing of briefs absent ``special permission'' after
a pre-election hearing conducted under Sections 8(b)(7) and 9 of the
Act. See 29 CFR 101.23(c). Similarly, there is no right to file post-
hearing briefs after a hearing on challenges or objections. See
Casehandling Manual Section 11430; Hearing Officer's Guide at 167 (``In
a hearing on objections/challenges, the parties do not have a right to
file briefs. To the extent that briefs are not necessary and would
interfere with the prompt issuance of a decision, they should not be
permitted.'').
Regarding the arguments that the proposal denies due process, the
Board points out that the final rule does not deny any party's right to
file at least one post-hearing brief with the Board before the close of
the representation proceeding. Moreover, the rule permits the filing of
a post-hearing brief with the regional director if such a request is
granted. Combined with the right to file a pre-hearing brief or to file
a hearing brief before the close of the hearing and to present closing
oral argument in every case, the opportunities for the filing of post-
hearing briefs provided in the final rule do not deprive any party of
due process nor are they inconsistent with the statutory requirement of
an ``appropriate hearing.'' In Morgan v. United States, 298 U.S. 468
(1936), the Supreme Court considered the essential element of the
``full hearing'' required by the Packers and Stockyards Act, 7 U.S.C.
310. The Court held that the requirement of a full hearing was not met
if the decision-maker was an individual ``who has not considered
evidence or argument.'' Id. at 481. However, the Court also made clear
that the ``requirements are not technical,'' that ``[e]vidence may be
taken by an examiner,'' and that [a]rgument may be oral or written.''
Id. See also Abbott Laboratories v. NLRB, 540 F.2d 662, 665 n.1 (4th
Cir. 1976) (``With respect to proceedings before the hearing officer,
the Board ruled that its hearing officer was not required, either by
statute or the due process clause, to accept posthearing briefs since
the parties had the opportunity to express their views in writing both
before and after the case was referred to the hearing officer * * * We
see no error of fact or law in these rulings.''); Lim v. District of
Columbia Taxicab Commission, 564 A.2d 720, 726 (DC App. 1989) (``there
exists no due process right * * * to file a brief'').
The APA and its legislative history contain evidence of Congress's
intent not to require that the Board permit post-hearing briefing after
every pre-election hearing. Enacted in 1946, Section 8 of the APA, 5
U.S.C. 557(c), provides, in pertinent part, that in formal agency
adjudication ``parties are entitled to a reasonable opportunity to
submit * * * proposed findings and conclusions * * * and supporting
reasons for the * * * proposed findings or conclusions.'' But Section
5(6) of the APA, 5 U.S.C. 554(a)(6), specifically exempts from the
category of formal adjudication those cases involving ``the
certification of worker representatives.'' The courts have held that
this exemption applies to both pre- and post-election hearings. See In
re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir.
1979); NLRB v. Champa Linen Service Co., 437 F.2d 1259, 1262 (10th Cir.
1971). The Senate Committee Report explained that the exemption was
inserted into the APA because the Board's ``determinations rest so
largely upon an election or the availability of an election.'' S. Rep.
No. 752, at 202 (1945). The committee also pointed to ``the simplicity
of the issues, the great number of cases, and the exceptional need for
expedition.'' Senate Committee on the Judiciary Comparative Print on
Revision of S. 7, 79th Cong., 1st Sess. 7 (1945).
Congress did not revisit this decision in 1947 when Section 9 of
the NLRA was amended, and the APA continues to exempt representation
cases from its formal adjudication requirements. In fact, between 1964
and 1966, Congress considered removing all the exceptions contained in
Section 5 from the APA, but decided not to do so. In 1965, the Board's
Solicitor wrote to the Chairman of the Senate Subcommittee on
Administrative Practice and Procedure objecting strenuously to removal
of the exemption for representation cases. The Solicitor specifically
objected that ``election case handling would be newly freighted and
greatly retarded by * * * [s]ubmission to the hearing officer of
proposed findings of fact and conclusions of law.'' Administrative
Procedure Act: Hearings on S. 1663 Before the Subcomm. on Admin.
Practice and Procedure of the Comm. on the Judiciary, 88th Cong., 2d
Sess. 532 (1964) (letter submitted by William Feldesman, NLRB
Solicitor, May 11, 1965). The Solicitor concluded, ``After Congress has
done so much to help speed the processing of election cases to avoid
the dangers of delay, this would hardly be the time to inaugurate
procedural changes which serve dilatory ends and have the potential to
cause that bottleneck the Board has for years been attempting to
prevent.'' Id. at 534. In 1966, the Senate Committee on the Judiciary
reported out a bill containing a provision, not ultimately enacted,
that would have removed all the exemptions. But the Committee Report
carefully explained, ``It should be noted, however, that nonadversary
investigative proceedings which Congress may have specified must be
conducted with a hearing, are not to be construed as coming within the
provisions of section 5(a) because of the deletion of the exemptions.
An example of such a proceeding would be certification of employee
representatives proceedings conducted by the National Labor Relations
Board.'' S. Rep. No. 1234, 89 Cong., 2d Sess. 12-13 (1966). This
history demonstrates that Congress's intent in the APA was to
[[Page 74403]]
ensure that written briefing was not required in representation cases
because of the interest in expedition. Congress has steadfastly
maintained this view, and has expressly rejected any written briefing
requirement in representation cases whenever the matter has arisen. The
change is therefore consistent with the requirements of the law and the
intent of Congress.
SEIU suggests amending the proposed rule to require that any
briefing be completed within 14 days of the close of the hearing. The
Board has considered this suggestion and decided that the regional
director who will be writing the decision and considered the parties'
request to file a post-hearing brief is in the best position to
determine if briefing should be permitted, what subjects any briefing
should address, and when briefs should be filed. Accordingly, we
decline to set a 14-day limit on post-hearing briefing.
Sec. 102.67 Proceedings Before the Regional Director; Further Hearing;
Action by the Regional Director; Appeal From Actions of the Regional
Director; Statement in Opposition; Requests for Extraordinary Relief;
Notice of Election; Voter List
The NPRM proposed a number of amendments to Sec. 102.67,
addressing matters such as the regional director's discretion to
transfer a case to the Board before issuing a decision, the contents of
the pre-election decision, the final election notice, the voter list,
and the pre-election request for review procedure and the accompanying
25-day waiting period. 79 FR at 7332-33, 7358-60. As discussed below,
after careful consideration, the Board has decided to adopt some of the
amendments as originally proposed, to adopt modified versions of other
proposals, and to reject the remainder.
A. Elimination of Transfer Procedure
In the NPRM, the Board proposed to eliminate the regional
director's authority to transfer a case at any time to the Board for
decision. 79 FR at 7333. This authority has rarely been used and, when
it has been used, has led to extended delays in the disposition of
petitions. See, e.g., Centurion Auto Transport, Inc., 329 NLRB 394
(1999) (transferred December 1994, decided September 1999); Roadway
Package System, Inc., 326 NLRB 842 (1998) (transferred May 1995,
decided August 1998); PECO Energy Co., 322 NLRB 1074 (1997)
(transferred October 1995, decided February 1997); Johnson Controls,
Inc., 322 NLRB 669 (1996) (transferred June 1994, decided December
1996). The Board did not receive any significant comments regarding
this proposal, and the final rule adopts it. Accordingly, the final
rule eliminates, for example, Sec. Sec. 102.67 (h), (i), and (j) of
the current rules which referenced the transfer procedure, and
reletters various subparts of Sec. 102.67.\436\
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\436\ Because Sec. 102.67(j) of the current rules also
addressed Board action regarding issues raised by a party's request
for review (in addition to Board action regarding issues that had
been referred to it by a regional director via the transfer
procedure), amended Sec. 102.67(h) clarifies (consistent with
current Sec. 102.67(j)) that upon granting a request for review,
the Board may provide for oral argument or further hearing, and
shall make such disposition of the request for review as it deems
appropriate.
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B. The 20-Percent Rule
As discussed above in connection with Sec. 102.66, the Board has
decided to reject the proposed 20-percent rule which in relevant part
would have required the hearing officer to close the hearing if the
only issues remaining in dispute concerned the eligibility or inclusion
of individuals who would constitute less than 20 percent of the unit if
they were found to be eligible to vote. 79 FR at 7330. The Board has
likewise decided to reject the portion of the proposed 20-percent rule
which would have required the regional director to defer deciding
individual eligibility or inclusion questions involving less than 20
percent of the unit. 79 FR at 7332. Instead, for the reasons discussed
above in connection with Sec. 102.66, the Board has decided to
preserve the discretion regional directors enjoyed even before the NPRM
to defer resolving disputes concerning individuals' eligibility to vote
or inclusion in the unit until after the election or to decide such
disputes before the election in the decision and direction of election.
However, the final rule adopts in Sec. 102.67(b) the NPRM proposal
that, in the event a regional director defers deciding individual
eligibility or inclusion questions until after the election, the Notice
of Election shall explain that the individuals in question ``are
neither included in, nor excluded from, the bargaining unit, inasmuch
as the regional director has permitted them to vote subject to
challenge,'' and the procedures through which their eligibility will be
resolved. 79 FR at 7332, 7359.\437\ The Board concludes that this
provision will ensure that employees will not in any manner be misled
about the unit. Rather, they will cast their ballots understanding, if
applicable, that the eligibility or inclusion of a small number of
individuals in the unit has not yet been determined. The amendment
thereby provides guidance to employees and the parties and renders
Board procedures more transparent.
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\437\ The final rule provides for this in Sec. 102.67(b),
rather than in Sec. 102.67(a) as proposed in the NPRM, and retitles
the proposed ``Final Notice to Employees of Election'' as the
``Notice of Election,'' in light of the final rule's retitling the
proposed ``Initial Notice to Employees of Election'' as the ``Notice
of Petition for Election.'' The final rule also states in Sec.
102.67(a), rather than in Sec. 102.67(b), that the decision by the
regional director shall set forth the director's findings,
conclusions, and order or direction.
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GAM asserts that the inclusion in the election notice of an
explanation that individuals whose eligibility has not been determined
will be permitted to vote subject to challenge precludes employees from
``know[ing] the voting unit,'' and that this violates the Act and due
process pursuant to the reasoning in the Fourth Circuit's unpublished
decision in NLRB v. Beverly Health and Rehabilitation Services, 120
F.3d 262 (4th Cir. 1997). However, under the amendments, as under the
prior rules, the regional director must determine the unit's scope and
appropriateness prior to directing the election, and employees will be
informed of the unit via the Notice of Election. Accordingly, as noted
in connection with Sec. 102.66, at the time they cast their ballots,
the voting employees will be fully informed as to the scope of the
unit, and will be able to fully assess the extent to which their
interests may align with, or diverge from, other unit employees.
Although the employees may not know whether particular individuals
ultimately will be deemed eligible or included and therefore a part of
the bargaining unit, that was also the case under the Board's current
rules, as explained above, because regional directors and the Board
have long had the discretion to defer deciding individual eligibility
or inclusion questions until after the election, and parties could
agree to permit disputed employees to vote subject to challenge.
Indeed, Section 11084.3 of the Casehandling Manual in effect prior to
the NPRM provided that where the parties agree that certain
classifications of employees should vote subject to challenge, the
notice of election ``should indicate the classifications that will vote
subject to challenge.''
Moreover, the court's concern in Beverly was that voters were
somehow misled when the regional director defined the unit in one way
prior to the election and the Board revised the definition after the
election. The final rule would actually help prevent exactly that form
of change in unit definition from occurring by codifying regional
directors' discretion to defer deciding individual eligibility or
inclusion questions until after the election and by
[[Page 74404]]
providing in amended Sec. 102.67(b) that if the direction of election
provides for individuals to vote subject to challenge because their
eligibility has not been determined, the Notice of Election shall so
state, thereby advising employees prior to the election that the
individuals in question ``are neither included in, nor excluded from,
the bargaining unit, inasmuch as the regional director has permitted
them to vote subject to challenge,'' and that their unit placement
``will be resolved, if necessary, following the election.'' As already
explained, the Board views this alteration to the Notice of Election as
meeting the concerns raised by the Beverly court and as specifically
countenanced by the Second Circuit in Sears, Roebuck & Co. v. NLRB, 957
F.2d 52, 55 (2d Cir. 1992).
C. Direction of Election With Statement of Reasons to Follow
In the NPRM, the Board proposed to grant the regional director
discretion to issue a direction of election without simultaneously
providing a statement of reasons so long as the director provided his
findings and statement of reasons prior to tallying the ballots. The
Board expressed its tentative view that granting such discretion to the
regional director would avoid unnecessary delay in the conduct of
elections. 79 FR at 7332.
SEIU praised the proposal, claiming it could be instrumental in
facilitating a timely election. On the other hand, GAM claims that the
proposed amendment would be unfair because, without knowing the basis
for the direction of election, parties could not evaluate whether to
request review of the regional director's direction of election.
Negative comments also claimed, among other things, that the proposal
would lead to poor decision-making by the regional directors (Fox,
GAM); could give rise to unhelpful suspicion regarding the basis for
the direction of election (Testimony of Curt Kirschner on behalf of AHA
II); and could cause regional directors to set later election dates in
complex cases (Fox).
Upon reflection, the Board has decided to reject the proposal. The
NPRM set forth the Board's tentative view that the proposal to permit
the regional director to direct an election without simultaneously
providing a statement of reasons would not prejudice any party in light
of another proposed amendment which would defer parties' right to
request Board review of pre-election rulings until after the ballots
cast in the election were tallied. 79 FR at 7332. In other words, no
party would be prejudiced by the proposal because the regional director
would be required to furnish his statement of reasons before the
ballots were tallied and because the time for filing a request for
review of the direction of election would not start to run until after
the tally of ballots. However, as discussed below, the Board has
decided to reject that other proposal that would have deferred all
parties' right to request review of the regional director's pre-
election rulings until after the election. Because, under the final
rule, a party may file a request for review of a direction of election
prior to the election, the Board has likewise decided to reject the
proposal that would have permitted the regional director to direct the
election without simultaneously providing a statement of reasons.
Rejection of this proposal will not create a new source of delay in
conducting elections because the pre-NPRM rules already require
regional directors to set forth their findings and conclusions in the
decision and direction of election. 29 CFR 102.67(b) (2010).\438\
Moreover, upon reflection, we conclude, in agreement with the testimony
of Kirschner II that the time savings that would have been achieved by
adopting the proposal would have been relatively modest because they
would have represented only the time it would have taken for the
regional director to memorialize the decision. Thus, even under the
proposal, the director could not have directed an election without
first concluding that a question of representation did indeed exist in
the unit in which an election was being directed.
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\438\ As noted above, the final rule moves this requirement from
Sec. 102.67(b) to Sec. 102.67(a).
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D. Specification of Election Details in Direction of Election;
Scheduling of Election
In the NPRM, the Board proposed that in the event the regional
director directs an election, the direction of election ``shall
specify'' the type, date, time, and place of the election, and the
eligibility period. 79 FR at 7359. Under prior practice, these details
were resolved after the hearing and decision in sometimes lengthy phone
consultations and negotiations with the various parties. As one
commenter noted, ``It is really frustrating when you go back to a
bargaining unit and say, `We have your decision and direction of
election, and now we'll start the negotiation process about when your
election is actually going to be held.' * * * [The rule] eliminates one
of the choke points later on in getting to an election in a timely
manner * * *.'' Testimony of Gabrielle Semel on behalf of CWA II.
Instead of requiring the regional director to specify the election
details in every direction of election, the Board has decided to
provide in Sec. 102.67(b) of the final rule that the direction of
election ``ordinarily will'' specify the election details.\439\
Because, as discussed above in connection with Sec. Sec. 102.63 and
102.66, the parties will have stated their positions on the election
details in their petitions, in their Statements of Position and at the
hearing, the regional director ordinarily will not need to solicit
their positions on the election details yet again after issuing the
direction of election, and therefore ordinarily will be able to specify
the election details in the direction of election. And, because the
director ordinarily will specify the election details in the direction
of election, the director ordinarily will be able to issue the Notice
of Election for the employer to post and distribute simultaneously with
the direction, and amended Sec. 102.67(b) so provides. These
amendments will enable the regional director to let the employees vote
sooner, because the election cannot be conducted until the details of
the election are set and the Notice of Election advises the employees
of when, where, and how they may vote. In sum, by enabling the regional
director to conduct the election without unnecessary delay, the
amendments will help the Board to more expeditiously resolve questions
concerning representation.
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\439\ The Board has changed the language because there may be
situations where the regional director concludes that it is
appropriate to consult with the parties regarding election details
after issuing the direction of election, notwithstanding the prior
solicitation of the parties' positions regarding those details.
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GAM suggests that some employers might refuse to allow elections on
their premises if the regional director simply sets the election
details in the direction of election instead of first contacting the
employer. This comment misunderstands the rule. The Board hearing
officer will ``contact'' the employer at the hearing itself, and there
is no reason to think that contact at that time would be less
efficacious in obtaining employer consent than contact after the
decision.\440\ The change
[[Page 74405]]
will obviate the need for a wasteful post-decision consultation process
in favor of more efficient consultations during the hearing itself.
Given that all parties will be present at the pre-election hearing, it
seems eminently reasonable to solicit the parties' positions at that
time, rather than have the Board agent attempt to solicit input
individually after the direction issues. In any event, as shown, the
final rule leaves the director free to consult with the parties yet
again after issuing a direction of election if the director concludes
that it is appropriate to do so. For example, if the regional director
directs an election in a unit significantly different from the union
petitioner's proposed unit and the employer's alternative unit, the
regional director should consult with the parties concerning the
election details. Moreover, contrary to the suggestion in the comment,
regional directors were not bound by the parties' preferences regarding
the election details prior to the NPRM. See Casehandling Manual Section
11302.\441\
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\440\ Thus, when hearing officers solicit the parties'
positions, they can tell the parties the approximate time frame in
which the regional director expects to issue the decision, and
parties can reference that time frame in stating their positions.
This is analogous to what happens now when Board agents contact
parties after the decision issues and solicit their positions
concerning the details of an election which cannot be held for at
least 25 days pursuant to Sec. 101.21(d).
\441\ GAM asks what will happen if the employer refuses to
comply with the direction of election. The short answer is that,
consistent with current practice, if the employer refuses to comply
with the direction of election, then the Board will conduct the
election by mail or offsite.
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The final rule also adopts in Sec. 102.67(b) the NPRM proposal
that in the event the regional director directs an election, the
director ``shall schedule the election for the earliest date
practicable consistent with these rules.'' 79 FR at 7332, 7359. Many
comments object to the NPRM proposals, claiming (incorrectly) that the
Board improperly focused on the need to expeditiously resolve questions
concerning representation to the exclusion of other factors. In fact,
as discussed above in connection with the need for the rule and the
opportunity for free speech and debate, the Board did not focus
exclusively on the statutory goal of expeditiously resolving questions
concerning representation. The Board likewise categorically rejects the
notion that the proposed language, which the final rule adopts,
constitutes a sea change from the Board's practice which existed prior
to the NPRM. In fact, it represents no change. Thus, the Casehandling
Manual in effect prior to the NPRM already provided that ``[a]n
election should be held as early as is practical[,]'' Casehandling
Manual Section 11302.1.\442\ The language in the final rule is
virtually identical to the Casehandling Manual language which predated
the NPRM, going back decades. See, e.g., Casehandling Manual Section
11302.1 (1975). The Board takes this opportunity to reassure the public
that, as noted above in connection with the opportunity for free speech
and debate, the regional director will continue to consider the various
policies protected by the Act--as well as operational considerations
and the relevant preferences of the parties--in selecting an election
date. Id.\443\ Thus, for example, the regional director should avoid
scheduling the election on dates on which past experience indicates
that the rate of attendance will be low. Id. At the same time, just as
was the case prior to the NPRM, the regional director is not bound by
the parties' desires concerning the election date. Casehandling Manual
Section 11302.\444\ The Board intends to leave the precise scheduling
of elections to the discretion of the regional directors under the
supervision of the General Counsel.
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\442\ And the Casehandling Manual in effect prior to the NPRM
also referenced the Board's prior Statements of Procedures in
determining when the election should be scheduled. Thus, it cited
the 25-day waiting period provided in Sec. 101.21(d) and stated,
``When the Regional Director directs an election, the election
normally should not be scheduled prior to the 25th day thereafter,
unless the right to file a request for review has been waived, nor
later than the 30th day thereafter Sec 101.21(d), Statements of
Procedure.'' Casehandling Manual Section 11302.1.
\443\ We reject Vigilant's claim that the scheduling language
will result in the Board having to conduct more mail ballot
elections because ``it will be nearly impossible to * * * have a
Board agent conduct the election in person'' under the ``compressed
election time frame[s].'' Just as was the case prior to the NPRM,
regional directors will continue to take operational considerations
(including Board agent availability) into account in setting the
election date. Moreover, the final rule sets no rigid timetables for
conducting elections.
\444\ We have previously addressed the complaints that the
amendments deprive employers of an effective opportunity to campaign
against union representation or otherwise interfere with employee
free choice.
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E. Regional Director Transmission of Direction of Election and Notice
of Election; Posting and Distribution of Notice of Election
In the NPRM, the Board proposed that both the decision and
direction of election and the election notice be electronically
transmitted to the parties' designated representatives when the parties
have provided the relevant email addresses to the regional office or
the documents would be transmitted by facsimile.\445\ If a party
provides neither an email address nor a facsimile number, the regional
director would transmit the direction of election and the election
notice via overnight mail. 79 FR at 7332, 7359. The final rule adopts
these proposals in Sec. 102.67(b). The final rule also provides in
Sec. 102.67(b) that those documents will also be transmitted in the
same manner to the parties themselves. This is consistent with
Casehandling Manual Section 11842.3, which provides that the regional
director furnish both the parties and their representatives with
election notices and representation case decisions. And, because, as
discussed above, the director ordinarily will specify the election
details in his direction of election, the final rule likewise provides
that the Notice of Election will ordinarily be transmitted
simultaneously with the direction of election. These amendments permit
the Board to use modern methods of communication to transmit important
representation case documents and to expeditiously resolve questions of
representation in a more cost-efficient manner as electronic mail is
cheaper and quicker than more traditional means of transmitting
documents.
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\445\ As discussed above, the final rule retitles the proposed
``Final Notice to Employees of Election'' as the ``Notice of
Election.''
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Section 103.20 of the Board's current rules addresses the posting
of the election notices. The NPRM proposed to eliminate Sec. 103.20,
the only section of part 103 of the regulations governing procedures in
representation proceedings, and to integrate its contents into part
102, as modified in proposed Sec. 102.67. 79 FR at 7334. The final
rule adopts this proposal which should make it easier for parties to
comply with their obligations by describing the obligations in one
place.
The NPRM proposed that employers be required to post copies of the
election notice ``in conspicuous places,'' but that the notice to be
posted upon the filing of the petition (before an election is agreed to
by the parties or directed by the regional director) be posted where
notices to employees are customarily posted. 79 FR at 7354, 7359. Upon
reflection, the Board has concluded that to help ensure wide
dissemination of the important information contained in the Notice of
Election, it should be posted ``in conspicuous places, including all
places where notices to employees in the unit are customarily posted,''
and the final rule so provides in amended Sec. 102.67(k). This
amendment parallels the final rule's amendment to Sec. 102.63(a)(2)
concerning the ``Notice of Petition for Election.''
The NPRM also proposed to require the employer to electronically
distribute the election notice if it customarily communicates with its
employees electronically. 79 FR at 7359-7360. The final rule adopts
this proposal in Sec. 102.67(k), which parallels the amendments to
Sec. 102.63(a)(2) regarding the Notice of Petition for Election. Thus,
if the employer customarily
[[Page 74406]]
communicates with employees in the unit by emailing them messages, it
will need to email them the Notice of Election. Similarly, if the
employer customarily communicates with its employees by posting
messages on an intranet site, it will need to do that. The Board
concludes that the amendment will facilitate wider dissemination of the
important information in the Notice of Election, thereby providing
greater guidance to the employees.
The proposal to require the employer to electronically distribute
the election notice was received with little controversy in the
comments. Some comments, such as those filed by GAM and U.S. Poultry
II, express concern that the requirement to distribute the election
notice to employees electronically if the employer customarily
communicates with its employees electronically could lead to additional
grounds for filing objections to the election and subsequent
litigation, particularly if some intended recipients do not receive the
transmission. Unless an employer can be shown to have departed from its
customary practice in electronic distribution, there will be no basis
for an objection. The Board views the possibility of litigation delays,
where an employer fails to comply with the final rule's electronic
distribution requirement, as outweighed by the expected benefit of more
effective distribution of the election details to eligible voters.
GAM also speculates that employees are likely to print and
distribute the notices to each other, but it is unclear why it would be
objectionable if employees merely distributed copies of the actual
election notice. GAM expresses concern that employees may modify the
sample ballots on the notice which will lead to objections, but just as
was the case prior to the NPRM, the Notice of Election will warn
employees that the notice must not be defaced by anyone, that any
markings on any sample ballot or on the notice were made by someone
other than the National Labor Relations Board, and that the National
Labor Relations Board ``does not endorse any choice in the election.''
Form 707. In any event, the possibility of employees marking up the
sample ballot on the election notice existed under the prior rules
because the employer was required to physically post the notices in
``conspicuous places.'' See 29 CFR 103.20(a)(2010).
The NPRM also proposed to reduce the minimum time for posting of
the notice of the election from 3 to 2 working days, because of the
provisions for the mandatory posting of a more detailed initial notice
of election, for manual and electronic posting of the final notice by
employers, and, to the extent practicable, for electronic transmission
of the final notice of election to affected employees by the regional
director. 79 FR at 7332. However, as discussed below, under the final
rule, the regional director will not be transmitting the Notice of
Election directly to the affected employees. Accordingly, the Board has
decided to maintain the current 3 working-day posting requirement,
rather than reduce it to 2 days. The final rule preserves in amended
Sec. 102.67(k) the relevant language about the time for posting that
previously appeared in Sec. 103.20(a) and (b).\446\
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\446\ However, because of the potential unfairness of
conclusively presuming that the employer received the notice if it
does not inform the region to the contrary within 5 work days, the
final rule also adopts the NPRM proposal (79 FR at 7332) to
eliminate the provision creating such a conclusive presumption in
Sec. 103.20(c) of the prior rules.
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Consistent with the pre-NPRM version of Sec. 103.20(c), and (d),
the final rule also provides in Sec. 102.76(k) that the employer's
failure properly to post (or distribute) the election notices shall be
grounds for setting aside the election whenever proper and timely
objections are filed. However, just as was the case prior to the NPRM,
the final rule also provides that a party is estopped from objecting to
the nonposting if it is responsible for the nonposting, and likewise is
estopped from objecting to the nondistribution of notices if it is
responsible for the nondistribution.
The NPRM also proposed that the regional director would
electronically transmit the notice to the affected employees to the
extent practicable. 79 FR at 7359. Thus, if the employer provided
employee email addresses to the regional director, the regional
director would transmit the notice to those employees. 79 FR at 7332.
The AFL-CIO praises this proposal as a positive contribution to
information-sharing. Some comments, such as those filed by ALFA and GAM
object on the grounds that it could cause an increase in the number of
objections being filed if, for example, the Board fails to serve
employees or the Board's attempts at service are blocked by the
recipients' spam filter. Moreover, Ms. Kutch (relying on her background
in online organizing and bulk email delivery) explained that navigating
spam filters to ensure high rates of bulk email deliverability to the
individuals at issue would likely be beyond the agency's technological
capacity (or our foreseeable budgetary restrictions). Testimony of Jess
Kutch on behalf of Coworker.org II. ALFA also implies that direct
notification by the regional office is unnecessary since the NPRM would
still require the employer to post paper copies of any election notice.
Upon reflection, the Board has decided to reject the proposal that
the regional director transmit the election notice to employees to the
extent practicable. Under the final rule, an employer must post the
Notice of Election in paper form in conspicuous places, including all
places where notices to employees in the unit are customarily posted
for at least 3 full working days. In addition, as discussed above, if
the employer customarily communicates with its employees by emailing
them messages, it will need to email the Notice of Election to them as
well. Similarly, if the employer customarily communicates with its
employees by posting messages on an intranet site, it will need to post
the notice on its intranet site as well. So any transmission by the
Board in those circumstances would be largely duplicative. Moreover,
given Jess Kutch's testimony that email providers can, and often do,
block bulk emails (even if the intended recipients would like to
receive the emails in question), it seems highly speculative that
regional directors could effectively transmit the Notice of Election to
unit employees electronically. In any event, the regional director will
not have the information necessary to transmit the Notice of Election
to employees at work under the final rule, because the final rule does
not require the employer to furnish either the work email addresses or
work phone numbers to the regional director. As for personal email
addresses, if the employer customarily communicates with its employees
via their personal email addresses, it will be required to distribute
the notices that way as well under the final rule. And because the
employer must furnish the nonemployer parties to the case with the
available personal email addresses of its employees, the nonemployer
parties will be able to transmit the Notice of Election themselves if
they care to do so (even if the employer does not customarily
communicate with them via personal email addresses). Accordingly, the
Board declines to adopt the proposal to require the regional director
to electronically transmit the final election notice to employees.
F. Voter List
The final rule makes the same changes with respect to the content,
timing, format and service of the list of eligible voters that the
employer must file after a direction of election as were
[[Page 74407]]
described above in relation to Sec. 102.62 after entry into any form
of consent or stipulated election agreement. In addition, Sec.
102.67(l) provides that the employer shall also include in a separate
section of the list the voter list information for those individuals
who, according to the direction of election, will be permitted to vote
subject to challenge, including, for example, individuals in
classifications or other groupings that will be permitted to vote
subject to challenge. The Board concludes that this requirement will
serve the goal of ensuring that employee votes are recorded accurately
and efficiently and help the Board to expeditiously resolve questions
of representation. Thus, if the names of such disputed individuals are
put in a separate section of the list, it makes it more likely that the
Board agent (and the parties' observers) will realize which employees
who show up to vote were directed to vote subject to challenge, and
therefore makes it more likely that those employees will be instructed
to put their ballots in challenged ballot envelopes before placing them
in the ballot box. See Casehandling Manual Sections 11338.2(b),
11338.3.\447\ This provision will reduce the chances of objections
being filed on the grounds that disputed employees' ballots were
comingled with other employees' ballots. This provision is also
consistent with the amendments providing that in the event a regional
director chooses to defer deciding individual eligibility or inclusion
questions until after the election, the Notice of Election shall
explain that such individuals are being permitted to vote subject to
challenge and what that means.
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\447\ As was the case prior to the NPRM, the Board agent must
challenge anyone who has been permitted by the regional director to
vote subject to challenge. Casehandling Manual Section 11338.2(b).
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G. Requests for Review of the Regional Director's Decision and
Direction of Election
In the NPRM, the Board proposed amendments to the current pre-
election request-for-review procedure. Under the current rules, the
parties are required to request Board review within 14 days of a
regional director's decision and direction of election or be deemed to
have waived any arguments that were or could have been made concerning
rulings at the pre-election hearing or in the decision and direction of
election. Sec. 102.67(b), (f); see, e.g., A.S. Horner, Inc., 246 NLRB
393, 394-95 (1979). But elections were scheduled no sooner than 25 days
after the direction of election, and thus, as a practical matter,
parties were required to file a request for review of the direction of
election prior to the election. This was the only opportunity for Board
review of this decision.
The Board proposed to eliminate the pre-election request-for-review
procedure in the NPRM and instead permit parties to file any such
request after the election, when it could be consolidated with any
request for review of the director's disposition of post-election
disputes arising out of challenges or objections. The Board explained
that the proposed consolidation of Board review would eliminate
unnecessary litigation because many issues raised through pre-election
requests for review are either rendered moot by the election results or
are resolved by agreement of the parties post-election. In addition,
the Board explained, permitting parties to consolidate, in a single
filing, requests that the Board review pre- and post-election rulings
would result in efficiencies for the parties and the Board. 79 FR at
7329, 7333.
Comments praising the proposal to eliminate the current pre-
election request for review procedure point out that it would conform
Board procedures with the ordinary rules in both Federal and state
courts, which generally disfavor interlocutory appeals as wasteful,
piecemeal litigation that can cause delay and which therefore generally
require parties to conclude all litigation in a case before filing an
appeal or seeking review. See, e.g., AFL-CIO II; Supplemental Testimony
of Thomas Meikeljohn; Testimony of Brian Petruska on behalf of LIUNA
MAROC II. There is a great deal of force to this argument, which is
consistent with sound judicial and administrative policy developed over
centuries, and is in the best interest of all parties to representation
cases.\448\
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\448\ As Justice Story stated, ``causes should not come up here
in fragments, upon successive appeals. It would occasion very great
delays, and oppressive expenses.'' Canter v. Am. Ins. Co., 28 U.S.
307, 318 (1830). ``Trial court errors become moot if the aggrieved
party nonetheless obtains a final judgment in his favor, and
appellate courts need not waste time familiarizing themselves anew
with a case each time a partial appeal is taken.'' Mitchell v.
Forsyth, 472 U.S. 511, 544 (1985) (Brennan, J., concurring in part).
The final judgment rule was adopted by the common law English courts
from at least the 1300s, and in America was enshrined in the
Judiciary Act of 1789 and retained in every subsequent revision of
the judicial code. See C.M. Crick, The Final Judgment Rule as a
Basis for Appeal, 41 Yale L.J. 539, 539-552 (1932); see also T.D.
Frank, Requiem for the Final Judgment Rule, 45 Texas L. Rev. 292,
292-93 (1966) (``[The rule] effectuates, in general, an efficient
utilization of judicial manpower and permits the initial stage of
the litigation to operate in a smooth, orderly fashion without
disrupting appeals.'').
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However, Section 3(b) states that ``upon the filing of a request
therefor with the Board by any interested person, the Board may review
any action of a regional director delegated to him under this
paragraph, but such a review shall not, unless specifically ordered by
the Board, operate as a stay of any action taken by the regional
director.'' The argument has been presented that this provision grants
parties a right to request interlocutory review.\449\ Although we do
not agree that the statute compels this result,\450\ we have concluded
that the Board's objectives are better served by amending the rules in
a manner that preserves the opportunity to request review of ``any
action of a regional director delegated to him under Section 3(b)'' at
any time, and, where necessary, to request a stay.
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\449\ See Dissenting Views of Members Miscimarra & Johnson to
NPRM, 79 FR at 7343 & n.108 (the NPRM proposal is ``directly
contrary to Section 3(b) of the Act,'' and the proposed request-for-
special-permission-to-appeal ``is qualitatively different from what
Section 3(b) requires.''); see also, e.g., COLLE II; Chamber II;
Testimony of Curt Kirschner on behalf of AHA II.
\450\ The statute does not expressly state that parties are
entitled to request review of a regional director's pre-election
decision before the election. Moreover, Section 3(b) clearly gives
the Board discretion to deny review, see Magnesium Casting Co. v.
NLRB, 401 U.S. 137, 142 (1971), and, just as the Board can exercise
its discretion to decide hospital units ``in each case'' by a single
rule, see Am. Hosp. Assn., 499 U.S. at 606, 610-613, it seems to us
that the Board could also deny review of entire categories of cases
by rule. The proposed rule would have merely delayed, rather than
denied, review, and logically the greater power should include the
lesser.
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The final rule is intended to codify the text of the statute. Thus,
the relevant portion of the final rule begins by stating, in Sec.
102.67(c):
Upon the filling of a request therefor with the Board by any
interested person, the Board may review any action of a regional
director delegated to him under Section 3(b) of the Act except as
the Board's rules provide otherwise, but such a review shall not,
unless specifically ordered by the Board, operate as a stay of any
action taken by the regional director.
The emphasized language is the only alteration from the text of the
statute, and its purpose is primarily to clarify that parties which
waive the right to Board review in an election agreement under Sec.
102.62(a) or (c), or under Sec. 102.67(g) are no longer entitled to
request review under this provision.\451\ The rule then goes on to
state that: ``The request for review may be filed at any
[[Page 74408]]
time following the action until 14 days after a final disposition of
the proceeding by the regional director. No party shall be precluded
from filing a request for review of the direction of election within
the time provided in this paragraph because it did not file a request
for review of the direction of election prior to the election.''
Finally, a number of other changes are made to carry out and clarify
the essential amendments here.
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\451\ This exception is also necessary in light of the different
procedures for Board review applicable to dismissal of petitions
under Sec. 102.71, and procedures for elections which implicate
Section 8(b)(7) of the Act, and other specialized circumstances
addressed elsewhere in the regulations.
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1. The Parties Will Have Greater Latitude to Choose When to File a
Request for Review
The first notable change is that the due date for filing requests
is relaxed. The Board's current practice of requiring parties to seek
such review of directions of election before the election--or be deemed
to have waived their right to take issue with the decision and
direction of election--not only encourages unnecessary litigation, but
actually requires parties to conduct unnecessary litigation. Thus, in
the Board's experience, many pre-election disputes are either rendered
moot by the election results or can be resolved by the parties after
the election and without litigation once the strategic considerations
related to the impending elections are removed from consideration.\452\
For example, if the regional director rejects an employer's contention
that a petitioned-for unit is inappropriate and directs an election in
the unit sought by the union, rather than in the alternative unit
proposed by the employer, the Board's current rules require the
employer to request review of that decision prior to the election or be
precluded from contesting the unit determination at any time
thereafter. But if the union ends up losing an election, even though it
was conducted in the union's desired unit, the employer's disagreement
with the regional director's resolution becomes moot (because the
employer will not have to deal with the union at all), eliminating the
need for litigation of the issues at any time. The current rules thus
impose unnecessary costs on the parties by requiring them to file pre-
election requests for review in order to preserve issues.
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\452\ For this reason, the Board disagrees with comments which
contend that the proposed rule would not have expedited commencement
of bargaining, but would simply shift review until after the
election. See, e.g., Testimony of Michael Prendergast on behalf of
Holland & Knight; AHA; Seyfarth Shaw.
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Accordingly, the Board has decided to amend the current pre-
election request for review procedure and to provide that any party may
request review of a regional director decision to direct an election
either before the election or after the election. Thus, the final rule
provides that the request for review of the direction of election may
be filed at any time after the direction of election issues until 14
days after a final disposition of the proceedings by the regional
director. Under the amendments, a party can choose to file a request
for review of the regional director's decision to direct an election
before the election or can choose to wait to file the request for
review until after the election.\453\ We conclude that this amendment,
which relieves parties of the burden of requesting pre-election review
in order to preserve issues that may be mooted by the election results,
will further the goal of reducing unnecessary litigation because, in
our view, rational parties ordinarily will wait to file their requests
for review until after the election, to see whether the election
results have mooted the basis for such an appeal. The amendment should
also reduce the burdens on the other parties to the case and the
government, by avoiding the need for the other parties to file
responsive briefs and for the Board to rule on issues which could well
be rendered moot by the election results.
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\453\ The final rule does not change the standard for granting
requests for view. Just as was the case prior to the NPRM, the Board
will grant a request for review ``only where compelling reasons
exist therefor.''
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Some comments also raise policy arguments which could apply to the
final rule's provision permitting parties to file requests either
before or after the election. For example, SHRM, AHA, and ACE generally
commented that in cases where review would otherwise have been granted,
the proposed rule would result in elections being run unnecessarily,
causing both the Board and the parties to incur unnecessary expense.
The comments pose the example of a regional director failing to find a
bar to the conduct of an election, and thereby erroneously directing an
election. But this example aptly illustrates the flaw in the argument.
Even under the current rules, if a regional director finds no contract
bar and directs an election, and a party files a request for review
that the Board ultimately grants, the election is regularly held anyway
and the ballots impounded prior to Board resolution of the issue. See,
e.g., VFL Technology Corp., 329 NLRB 458, 458 (1999); Western Pipeline,
Inc., 328 NLRB 925, 925 n.1 (1999). Thus, the same expenses may be
unnecessarily incurred under current procedures. See, e.g., Mercy
General Health Partners Amicare Homecare, 331 NLRB 783, 785-86 (2000)
(Board directed that impounded ballots not be counted and that second
election be held after ruling on pre-election request for review post-
election). Moreover, given the small number of requests for review
filed each year, and the extraordinarily small percentage of regional
directors' decisions that are ultimately reversed,\454\ the number of
cases of the type described in these comments is likely to be very
small. In any event, under the final rule, a party may still file a
request for review before the election.
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\454\ Out of the 6686 RC, RM, and RD elections held from FY10 to
FY13, there were only 14 cases in which regional director decisions
were reversed.
Relatedly, some comments argue that deferring review of issues
that were previously raised in a pre-election request for review
until after the election will result in the Board addressing more
issues subsequent to the opening of the ballots. See, e.g., PIA;
COLLE; ACE. This point is true but not significant because less
overall litigation will be required, and because, as discussed,
requests for review are so rarely found meritorious by the Board.
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AHA comments that the Board's own failings in timely processing
requests is not a basis for eliminating the right of parties to review.
This point is no longer applicable because parties will retain the
right to seek pre-election review. In addition, the Board is entitled
to and must consider its own adjudicative and administrative capacities
and past performance in evaluating its procedural rules. The
elimination of the requirement that parties file pre-election requests
for review should, as explained above, reduce the number of disputes
reaching the Board. The Board will, therefore, be able to dispose of
those disputes that do reach it more promptly.
Other comments suggest that limiting pre-election review will mean
that the parties will be unsure who is a supervisor during the pre-
election campaign.\455\ This objection is addressed at length above in
relation to Sec. 102.66. The current pre-election review procedures do
not entitle the parties to a final Board determination on such matters
prior to the election and rarely result in such a determination. In
addition, under current procedures, even in the very rare cases where
the Board both grants review and rules on the merits prior to the
election, as explained above, the ruling typically is issued only days
before the election, i.e., well into the critical period between
petition and election, and thus does not serve the purpose the comments
suggest
[[Page 74409]]
will be thwarted if the pre-election request for review is eliminated.
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\455\ See, e.g., Testimony of Harold Weinrich on behalf of
Jackson Lewis LLP; Chamber II.
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We also reject any suggestion that the final rule will increase the
number of technical 8(a)(5) cases by denying parties ``the palliative
of Board review'' of the regional director's pre-election
determinations. Chamber II. Under the final rule, parties retain the
right to request review of the regional director's decision to direct
an election. The change is only that rather than being required to file
the request for review prior to the election, parties may request such
review either before or after the election, if the election results
have not rendered the basis for such an appeal moot. As for parties
being able to seek Board review of a regional director's post-election
determinations, that issue has been addressed above in connection with
Sec. 102.62.
2. Ballots Will No Longer Be Automatically Impounded While a Request
for Review is Pending
Second, the final rule eliminates the automatic impound procedure.
The amendments thereby codify the statute's approach to stays, which
will not take place ``unless specifically ordered by the Board.'' The
current rules contain the following language on stays:
The Regional Director shall schedule and conduct any election
directed by the decision notwithstanding that a request for review
has been filed with or granted by the Board. The filing of such a
request shall not, unless otherwise ordered by the Board, operate as
a stay of the election or any other action taken or directed by the
Regional Director: Provided, however, That if a pending request for
review has not been ruled upon or has been granted ballots whose
validity might be affected by the final Board decision shall be
segregated in an appropriate manner, and all ballots shall be
impounded and remain unopened pending such decision.
In amending the rules to codify Section 3(b) as written, the
amendments eliminate the segregation and impoundment proviso of the
former rules, which appear nowhere in the statute. As Section 3(b)
contemplates, the regional director will continue to schedule and
conduct elections notwithstanding that a request for review has been
filed with or granted by the Board; however, the voting and counting of
ballots will now also proceed notwithstanding the request for review,
unless the Board specifically orders otherwise. This is consistent with
the purpose of Section 3(b) to prevent delays in the Board's processing
from impacting regional Section 9 proceedings.
As discussed above, some comments argue that the proposed rule
would result in unnecessarily re-running elections. Of course,
impoundment, standing alone, could not and did not prevent rerunning
elections. Rather, comments argue that prior procedures for segregating
ballots might permit the Board to issue a decision on review which
would obviate the need for a rerun, and by postponing requests for
review until after the election the proposed amendments-eliminate that
possibility. However, as discussed below, the final rule contains a
procedure for requesting segregation and impoundment, as well as a pre-
election request for review, and so the Board will still have the
option to segregate and impound where necessary in a particular case.
In addition, if, as discussed above, a regional director has chosen to
defer deciding an individual eligibility or inclusion question and to
permit such individuals to vote subject to challenge, then those
employees will indeed cast challenged ballots and their ballots will be
segregated and impounded. Finally, the possibility of reruns is
minimized further because the Board rarely reverses the regional
director.
3. Motions for Expeditious Consideration, Stays, and Impoundment May Be
Filed
Finally, in light of the references in the rules to requests for a
stay, a new paragraph (j) in Sec. 102.67 is created. This paragraph
states that parties may separately move the Board for expedited
consideration; a stay; or impoundment and/or segregation of ballots.
The paragraph also clarifies, however, that ``[t]he pendency of a
motion does not entitle a party to interim relief, and an affirmative
ruling by the Board granting relief is required before the action of
the regional director will be altered in any fashion.'' Id. As
discussed above, the current rules stated that stays would not be
granted ``unless otherwise ordered by the Board,'' and the final rules
continue and expand this prohibition of stays ``unless specifically
ordered by the Board'' in conformity with the statutory text. And yet,
notwithstanding this implicit reference to orders by the Board on
stays, the current rules provided no specific procedural mechanism for
filing a motion for such a stay. In cases where such relief was sought,
parties generally cited a catchall ``special permission to appeal''
procedure.
The final rule makes explicit the right to request a stay, or
related forms of immediate Board relief such as expeditious
consideration, or segregation or impoundment of ballots. This is not
intended to reflect any change in the current practice or standards for
moving for or granting such relief; however, in light of the changes to
the Board's existing automatic impoundment process discussed above, we
recognize that this provision is likely to be of increased significance
to some parties seeking interlocutory review of regional director
actions.
Two additional points should be addressed. First, under current
practice, these motions are very rarely granted, and we expect that
this will remain true, particularly in light of the strong statutory
and regulatory policy against unnecessary stays or litigation delays
expressed above. The requirement of a ``clear showing that it is
necessary under the particular circumstances of the case'' will not be
routinely met.
Second, although we expect that motions under this paragraph will
generally be acted upon in a timely fashion, we emphasize that, as is
the case with motions more generally, ``the pendency of a motion does
not entitle a party to interim relief, and an affirmative ruling by the
Board granting relief is required before the action of the regional
director will be altered in any fashion.'' Thus, filing a motion for a
stay is not the same as having a motion granted, and the proceeding
will continue unless and until any such motion is granted.
H. The 25 Day Waiting Period
The Board also proposed eliminating the 25-day waiting period
because, even under the current rules, it serves little purpose in
light of the vote-and-impound procedure, and its stated purpose would
be eliminated by the elimination of the pre-election request for
review. 79 FR at 7333.
The Board's current Statements of Procedures provide that elections
``normally'' are delayed for a period of at least 25 days after the
regional director directs that an election should be conducted, in
order to provide the Board with an opportunity to rule on any request
for review that may be filed:
The parties have the right to request review of any final
decision of the Regional Director, within the times set forth in the
Board's Rules and Regulations, on one or more of the grounds
specified therein. Any such request for review must be a self-
contained document permitting the Board to rule on the basis of its
contents without the necessity of recourse to the record, and must
meet the other requirements of the Board's Rules and Regulations as
to its contents. The Regional Director's action is not stayed by the
filing of such a request or the granting of review, unless otherwise
ordered by the Board. Thus, the Regional Director may proceed
immediately to make any necessary arrangements for an election,
including the
[[Page 74410]]
issuance of a notice of election. However, unless a waiver is filed,
the Director will normally not schedule an election until a date
between the 25th and 30th days after the date of the decision, to
permit the Board to rule on any request for review which may be
filed.
29 CFR 101.21(d) (2010).
The final rule adopts the proposal to eliminate the 25-day waiting
period. 79 FR at 7333. Elimination of the 25-day waiting period
eliminates an unnecessary barrier to the fair and expeditious
resolution of questions concerning representation. By definition, the
waiting period delays the election, which is designed to answer the
question of representation. The 25-day waiting period--which
effectively stays the election in every contested case for 25 days--is
in tension with Congress' instruction in Section 3(b) of the Act that
even the grant of review of a regional director's action ``shall not,
unless specifically ordered by the Board, operate as a stay of any
action taken by the regional director.'' Although the 25-day waiting
period by its terms only applies to contested cases, the waiting period
also has the effect of delaying elections in stipulated-election cases.
As discussed above in connection with Sec. 102.66, bargaining takes
place in the shadow of the law, and some parties use the threat of
insisting on a pre-election hearing--and the resulting 25 day waiting
period--to extract concessions concerning election details, such as the
date of the election and the unit itself. The 25-day waiting period
also serves little purpose under the existing rules. The stated purpose
of the 25-day period is merely ``to permit the Board to rule on any
request for review which may be filed.'' 29 CFR 101.21(d) (2010).
However, such requests are filed in a small percentage of cases, are
granted in an even smaller percentage,\456\ and result in orders
staying the conduct of elections in virtually no cases at all. Thus, if
the Board has not yet ruled on the request at the time of the election,
as is not infrequently the case, the election is held and the ballots
impounded until the Board can rule. Even if the Board grants the
request, the Board almost never stays the election and the same vote-
and-impound procedure is used.\457\ Finally, there is even less reason
for the waiting period under the final rule, which should reduce the
number of requests for review filed before elections by virtue of the
amendment permitting parties to file such requests after the election.
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\456\ A comparison of the total number of elections to the total
number of grants of review (including grants of review after
petitions were dismissed) during the period 2004 to 2013 reveals
that review was granted in less than 1 percent of all representation
cases in which an election was conducted and in approximately 15
percent of those cases in which a request was filed. See NLRB Annual
Reports (Fiscal Years 2004-2009) and NLRB Office of the General
Counsel, Summaries of Operations (Fiscal Years 2004-2012). Data for
2010-2013, after publication of the Annual Reports was discontinued,
was produced from the NLRB's electronic case processing system.
\457\ Accordingly, the Board would adopt the proposal to
eliminate the 25-day waiting period even if the Board did not make
any change to the request-for-review procedure.
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Very few comments specifically object to the elimination of the 25-
day waiting period. Indeed, there is near consensus that this period
serves little purpose.\458\ In support of the proposed rule, several
comments observe that parties typically do not use the waiting period
to request review and that a single post-election review process
eliminates use of the Board's processes to achieve tactical
delays.\459\
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\458\ See Testimony of Professor Samuel Estreicher; SEIU reply;
Testimony of Arnold Perl on behalf of TN Chamber II (``I think the
blocking charge policy is one of those areas, like the 25 day rule
you were just discussing eliminating in the request for review
procedure, that the Board could and should as a matter of policy
deal with, because you're targeting specific problem areas rather
than an overall reformulation or representation policies that's
contained in the notice of proposed rulemaking.'').
\459\ See Professor Joel Cutcher-Gershenfeld; Senior Member
Miller and Democratic House Members; IBEW; Thomas Meiklejohn.
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Some comments, such as the hearing testimony of Jay P. Krupin on
behalf of NGA, maintain that the 25-day period serves an important
purpose because the ``rules of the game'' are not set until the
decision and direction of election, so the parties are not sure which
voters they need to persuade or which employees can speak on behalf of
the employer until the decision issues. However, the stated purpose of
the 25-day period is not to give parties an opportunity to campaign.
Section 101.21(d) states only that the 25-day waiting period is ``to
permit the Board to rule on any request for review which may be
filed.'' Moreover, the concern raised in this comment is addressed at
length above in Sec. 102.66. Finally, the regional director retains
discretion to consider any significant changes in the scope of the unit
that result from the decision and direction of election in setting the
election date.
A few comments observe that the waiting period serves a purpose in
the small minority of cases where the Board finds that a request for
review has merit. These comments suggest that a waiting period would be
appropriate where a pre-election request for review is actually filed.
AHCA and ALFA suggest an alternative to the proposed rule, whereby the
Board would ask parties whether they intend to file a request for
review. If they answer affirmatively, then and only then would the
regional director wait at least 25 days to hold the election. However,
their proposal would create a perverse incentive for parties to file a
request for review solely to delay the election. Moreover, in many
cases, the delay would still be wholly unnecessary when the issue
raised in the pre-election request for review is rendered moot by the
election results. Under current procedures, even where a request for
review is granted and eventually found to have merit, there is little
reason that the request should be filed pre-election or that the
election should be delayed so that the Board can consider it, because
the election almost always proceeds using the vote-and-impound
procedures before the Board's decision on the merits issues.
Some comments argue that the elimination of the 25-day waiting
period, combined with other proposed amendments, interferes with
employers' right to free speech under Section 8(c) of the Act and the
First Amendment and undermines the free discussion of the question of
representation essential to employee free choice. However, the statute
does not provide for a 25-day waiting period, and the 25-day waiting
period provided by the Board in the current rules was not intended to
give parties an opportunity to campaign. Instead, once again, the
stated purpose of the 25-day waiting period was merely to give the
Board an opportunity to rule on any request for review which might be
filed. The more general point is addressed at length above in
connection with the opportunity for free speech and debate.
Sec. 102.68 Record in Pre-Election Proceeding; What Constitutes;
Transmission to Board
The proposed amendments to Sec. 102.68, which currently defines
the record in a proceeding conducted pursuant to Sec. 102.67, were
quite minor as they were designed merely to conform its contents to the
proposed amendments to other sections. First, the Board clarified that
Statements of Position would be part of the record. While many comments
objected to the requirement that parties make a binding statement of
position on various issues, there were no significant comments
concerning the proposal to make the Statement of Position a part of the
record. Second, the proposed amendment deleted references to the
transfer procedure, because the Board proposed eliminating the ability
of regional directors to transfer a case to the Board before deciding
it. The Board
[[Page 74411]]
received no significant comments regarding that proposed change either.
The final rule in Sec. 102.68 adopts those portions of the proposal.
The final rule also amends Sec. 102.68 to make responses to Statements
of Position part of the record. In the NPRM, the Board also proposed
adding language to state that Sec. 102.68 would define the record in
proceedings conducted pursuant to Sec. 102.69. Although no significant
comments were filed concerning this proposed change, the Board has
considered the matter and is now of the view that the proposed addition
is unnecessary, because Sec. 102.69(d)(1) defines the record in
proceedings conducted pursuant to Sec. 102.69.
GAM and U.S. Poultry II complain that there is no express provision
that the record also includes written offers of proof. Prior to the
amendments, there was no express provision that the pre-election
hearing record include written offers of proof. Yet, prior to the
amendments, offers of proof, whether written or oral, could be part of
the record of the pre-election hearing. Thus, if the offer of proofs
were in written form, they could be received as ``exhibits;'' if oral,
they could be part of ``the stenographic report of the hearing.'' In
response to the comment, however, the final rule explicitly provides in
Sec. 102.68 that offers of proof made at the pre-election hearing are
part of the record.
Sec. 102.69 Election Procedure; Tally of Ballots; Objections;
Certification by the Regional Director; Hearings; Hearing Officer
Reports on Objections and Challenges; Exceptions to Hearing Officer
Reports; Regional Director Decisions on Objections and Challenges
The proposed amendments to Sec. 102.69 dealt with a variety of
matters including the filing and service of objections, the procedure
to be used by the regional director when faced with election objections
or determinative challenges, post-election hearing scheduling and
procedure, and appeals of decisions and directions of elections and
decisions on objections and challenged ballots.
A. Simultaneous Service of Objections on Parties; Simultaneous Filing
of Offer of Proof With Election Objections
In the NPRM, the Board proposed to amend Sec. 102.69 to require
that a party filing objections simultaneously file a written offer of
proof supporting the objections as described above in relation to Sec.
102.66(c) and serve the objections, but not the offer of proof, on the
other parties. After carefully considering the proposal in light of the
commentary, the Board has decided to adopt it with one modification,
which would grant regional directors discretion to permit additional
time for filing the offer of proof upon a showing of good cause. The
Board has concluded that the amendments will provide the parties with
the earliest possible notice of the pendency of election objections,
reduce unnecessary litigation, and help the Board to more expeditiously
resolve election objections, and thereby help it more expeditiously
resolve questions of representation.
The Board's prior rules did not require a party filing objections
to simultaneously serve a copy of its objections on the other parties,
just as the Board's prior rules did not require a party filing a
representation petition to simultaneously serve a copy of its petition
on the parties named in the petition. Requiring a party that files
election objections to simultaneously serve a copy of its objections on
the other parties to the representation case provides the other parties
with the earliest possible notice of the pendency of the election
objections, just as amended Sec. 102.60's new requirement--that every
petitioner simultaneously serve a copy of its representation petition
when it files it with the Board--gives the other parties the earliest
possible notice of the pendency of the petition.
The final rule maintains the current time period (7 days after the
tally) for the filing of objections to the conduct of the election or
to conduct affecting the results of the election. The final rule also
maintains the current requirement that a party's objections contain a
short statement of the reasons therefor. However, the final rule
eliminates the extra 7-day period parties currently enjoy to file
evidence in support of their objections.\460\
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\460\ The amendments also codify existing practice permitting
parties to file, but not serve, evidence in support of objections.
Amended Sec. 102.69(a) also preserves the pre-existing practice of
having the regional director furnish a copy of the objections to
each of the other parties to the case.
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Many employer comments complain that 7 days is an insufficient time
both to investigate objections and provide an offer of proof.\461\ The
Board is not persuaded by these comments. Under the Board's prior
rules, a party had only 7 days to file election objections, and those
objections had to contain a short statement of the reasons therefor. 29
CFR 102.69(a) (2010). The only change concerns the time to produce the
offer of proof in support of the objections. The change is based on the
view that objections to a secret-ballot election should not be filed by
any party lacking factual support for the objections and, therefore, a
filing party should be able to describe the facts supporting its
objections at the time of filing. The Board notes in this regard that
objections may be filed concerning events that occurred before the
election and events that occurred during the election. The Board
presumes that a party that becomes aware of objectionable conduct
before the election will note such misconduct and begin gathering
evidence relating to the misconduct immediately. Accordingly, a party
often has more than 7 days to prepare the offer of proof regarding such
misconduct. As to misconduct that occurs during the election in the
polling area, parties are commonly represented by an equal number of
observers, and the parties typically speak with their observers
immediately after the election before the tally of ballots even begins.
For this reason, the Board believes that parties generally should be
aware of both the misconduct and possible witnesses to it shortly after
the balloting ends. Accordingly, the Board finds unpersuasive the
complaints that 7 days ordinarily will be an insufficient amount of
time to produce evidence in support of objections.
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\461\ See, e.g., GAM; Chamber Reply; ACE; SHRM; AHCA; Summa
Health Systems (Summa); AHA II; US Poultry II.
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Moreover, the amendment furthers the goal of expeditiously
resolving questions concerning representation. For example, a question
of representation cannot be answered until the election results are
certified, which cannot occur until objections and determinative
challenges are resolved. And a regional director cannot evaluate the
objections until it receives the objecting party's supporting evidence.
Because requiring the evidence in support of objections at the same
time the objections are filed serves the goal of timely certifications,
SEIU supports the proposed amendment even though it believes that the
amendment poses a greater burden on unions than employers, who have
greater access to the workforce. The amendment is also consistent with
the policy articulated in Casehandling Manual Section 11360.1, that
``the prompt resolution of challenges and/or objections should be given
priority attention [because] certification of the employees' choice in
the election is delayed by challenges and/or objections.''
The AFL-CIO suggests, however, that the Board provide that a party
may move for additional time to file the offer of proof in support of
its objections in ``unusual circumstances,'' such as when a union finds
it difficult to locate and
[[Page 74412]]
contact witnesses in a large unit. The Chamber (Reply) opposes the
amendments reducing the period of time to file offers of proof, but
argues that if an exception is to be provided, it should be for ``good
cause'' rather than ``unusual circumstances.''
Upon reflection, the Board has decided to amend Sec. 102.69(a) to
provide that a regional director may extend the time for filing the
written offer of proof in support of the election objections upon
request of a party showing good cause, as the Chamber suggests. As
noted, the Board believes that ordinarily parties should be able to
file their offers of proof in support of their election objections
simultaneously with the objections. Indeed, the Board concludes that
the amendments to Sec. Sec. 102.62(d) and 102.67(l)--requiring the
employer to include the available personal phone numbers and personal
email addresses, of the employees on the voter list--makes this likely.
However, as noted above in connection with Sec. 102.62, some comments
claim that some employers may not maintain records of their employees'
personal phone numbers and email addresses, which would require that
unions use slower forms of communication to contact potential witnesses
to prepare the offers of proof, which in turn could make it more
difficult to submit the offer of proof simultaneously with the election
objections in some cases. In addition, depending upon the severity of
the alleged objectionable misconduct, it may be difficult for a union
or employer to persuade employees with knowledge of the relevant facts
to come forward. The Board also notes that although the current rules
afford parties an additional 7 days to produce the supporting evidence
after they file their objections, regional directors have discretion to
grant still more time. See 29 CFR 102.69(a) (2010) (``Within 7 days
after the filing of objections, or such additional time as the Regional
Director may allow, the party filing objections shall furnish * * * the
evidence * * * to support the objections.''); Casehandling Manual
Section 11392.6. Accordingly, the Board has concluded that a regional
director should have discretion to grant additional time for filing the
offer of proof when good cause is shown, and amended Sec. 102.69(a) so
provides.
In sum, requiring the objecting party to simultaneously serve a
copy of its objections on the other parties and to simultaneously file
an offer of proof with its election objections will provide the other
parties with the earliest possible notice of the objections and help
the Board to expeditiously resolve questions of representation because
the election results cannot be certified until objections and
determinative challenges are resolved. The amendment will also reduce
unnecessary litigation and conserve resources for the Agency and the
nonobjecting party by reducing the likelihood that a party will file
objections that it cannot support. At the same time, when a party has
allegedly engaged in conduct which has destroyed a fair election, the
alleged abuse of workers' rights should not be disregarded merely
because a party justifiably needs additional time to furnish its offer
of proof. Accordingly, the final rule provides a good-cause exception
to the simultaneous offer-of-proof requirement.
B. Uniform Procedure for Handling Objections and Potentially
Determinative Challenges and Requests for Review of Regional Director
Post-Election Determinations in Stipulated and Directed Elections
The final rule adopts the NPRM proposals to (1) codify the regional
director's discretion to dispose of both determinative challenges and
objections through an investigation without a hearing when they raise
no substantial and material factual issues, (2) establish a uniform
procedure when a hearing is conducted, and (3) make Board review of
regional directors' post-election dispositions discretionary in
stipulated and directed elections. 79 FR at 7333-34, 7361.
The final rule codifies existing practice permitting the regional
director to investigate determinative challenges and objections by
examining evidence offered in support thereof to determine if a hearing
is warranted.\462\ The final rule also creates a uniform procedure in
those cases in which there are potentially outcome-determinative
challenges or objections which the regional director determines raise
substantial and material factual issues that require a hearing.
Adopting the procedure currently contained in Sec. 102.69(d) and (e),
the final rule provides that, in such cases, the regional director
shall provide for a hearing before a hearing officer who shall, after
such hearing, issue a report containing recommendations as to the
disposition of the issues.\463\ Within 14 days after issuance of such a
report, any party may file exceptions with the regional director and
the regional director will dispose of the exceptions. If no exceptions
are filed to such report, the regional director decides the matter upon
the expiration of the period for filing such exceptions. Consistent
with the changes described above in relation to Sec. 102.62(b), the
final rule makes Board review of regional directors' resolutions of
post-election disputes discretionary in cases involving directed
elections as well as those involving stipulated elections, unless
challenges and objections are consolidated with unfair labor practice
charges for hearing before an administrative law judge.\464\ The Board
anticipates that this change will leave a higher percentage of final
decisions concerning disputes arising out of representation proceedings
with the Board's regional directors.
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\462\ At least one comment argues that the amendments improperly
permit regional directors to administratively dismiss objections
without a hearing, thereby denying parties the right to a hearing
and the ability to create a record for subsequent review. However,
regional directors may administratively dismiss objections and
challenges without a hearing under the current rules where they do
not raise substantial and material issues that would warrant setting
aside the election. 29 CFR 102.69(d) (2011). This well-settled
practice avoids wasteful litigation, is no different from a trial
court granting a motion to dismiss, and has been approved by the
courts of appeals. See NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th
Cir. 1967); NLRB v. Air Control Products of St. Petersburg, Inc.,
335 F.2d 245, 249 (5th Cir. 1964); Puerto Rico Aqueduct & Sewer
Auth. v. EPA, 35 F. 3d 600, 605-06 (1st Cir. 1994) (``To force an
agency fully to adjudicate a dispute that is patently frivolous, or
that can be resolved in only one way, or that can have no bearing on
the disposition of the case, would be mindless * * *.''); Fenn C.
Horton III, The Requirements of Due Process in the Resolution of
Objections to NLRB Representation Elections, 10 J. Corp. L. 493,
495-509 (1985). The amendments specify in Sec. 102.69(d) what
constitutes the record in such no-hearing cases, just as they
specify what constitutes the record in cases that proceed to a
hearing.
\463\ Matters such as the scheduling of the post-election
hearing and procedure at the post-election hearing are addressed
below.
\464\ The final rule clarifies that when objections and
challenges have been consolidated with an unfair labor practice
proceeding for purposes of hearing and the election was conducted
pursuant to a stipulated election agreement or a direction of
election, (1) the provisions of Sec. 102.46 shall govern with
respect to the filing of exceptions or an answering brief to the
exceptions to the administrative law judge's decision; and (2) a
request for review of the regional director's decision and direction
of election shall be due at the same time as the exceptions to the
administrative law judge's decision are due. The final rule also
clarifies that if the election was conducted pursuant to a consent
or full consent agreement, and the objections and challenges have
been consolidated with an unfair labor practice proceeding for
purposes of hearing, the administrative law judge shall, after
issuing a decision, sever the representation case and transfer it to
the regional director for further processing, as is done currently.
The final rule uses the single term, ``decision,'' to describe
the regional director's disposition of challenges and/or objections
in place of the two terms, ``report'' and ``decision,'' used in the
current rules.
---------------------------------------------------------------------------
Some comments question whether the Board will resolve
nondeterminative challenges post-election. The final rule maintains the
status quo in this regard:
[[Page 74413]]
The Board will not address nondeterminative challenge ballots at a
post-election hearing, though parties may bring the matter to the Board
by filing a timely unit clarification petition if they are unable to
resolve the resulting question of whether particular employees are in
the bargaining unit (``unit placement'' questions) by agreement. See,
e.g., Orson E. Coe Pontiac-GMC Truck, Inc., 328 NLRB 688, 688 n.1
---------------------------------------------------------------------------
(1999):
Under standard Board practice, when a classification of
employees votes under challenge and their challenged ballots would
not be determinative of the election results, the ensuing
certification contains a footnote to the effect that they are
neither included nor excluded. Casehandling Manual Section 11474.
Even though there was no occasion to resolve the issue in a ballot
challenge hearing, the issue need not stay unresolved. If the
parties do not subsequently agree on whether to add the car prep/
finisher technician to the unit, the matter can be resolved in a
timely invoked unit clarification proceeding. See Kirkhill Rubber
Co., 306 NLRB 559 (1992); NLRB v. Dickerson-Chapman, Inc., 964 F.2d
493, 496-497, 500 fn. 7 (5th Cir. 1992).
AHA argues that permitting parties to resolve such issues in bargaining
is ``disrespectful'' of employee Section 7 rights because it makes
eligibility a ``bargaining chip.'' This contention has been addressed
above in relation to Sec. 102.66.
Many comments criticize the proposal to make Board review of
regional directors' post-election determinations discretionary in cases
involving directed elections. These comments are fully addressed above
in relation to Sec. 102.62, which also addresses discretionary Board
review of the regional director's post-election determinations in
stipulated election cases.
Bluegrass Institute suggests, however, that the 20-percent rule
renders discretionary Board review of the regional directors' post-
election determinations inappropriate. It argues that the Board's
current rules guarantee parties Board review of eligibility questions
deferred in the pre-election decision, and therefore the provision
making Board review of the director's post-election determinations
discretionary constitutes a material change. However, the final rule
does not adopt the proposed 20-percent proposal. To the extent the
commenter would raise the same objections to the final rule, the Board
would find them unpersuasive. Under the final rule, if eligibility
disputes are deferred using the vote-and-challenge procedures, the
hearing officer's recommendations on determinative challenges will in
all cases be subject to exceptions to the director, and a party may
thereafter file a request for review with the Board. This parallels how
such matters are handled under the current rules when a hearing
officer's recommendations go to the director. Thus, Section 11366.2 of
the Board's Casehandling Manual provides with respect to challenges to
voters in the context of a directed election, ``If the Regional
Director directs that the hearing officer's recommendations be made to
the Regional Director, then exceptions to the hearing officer's report
will be filed with him/her * * *. The Regional Director must thereafter
rule in a supplemental decision upon the hearing officer's report and
such exceptions as may be filed. The Regional Director's supplemental
decision is subject to a request for review to the Board.'' \465\
Moreover, under the current rules, if a regional director resolves
eligibility questions on the merits in his or her decision and
direction of election, the parties are able to challenge the decision
only by filing a request for review with the Board. The comment does
not explain why a party should have a greater right to Board review if
the regional director decides eligibility questions after the election
than if the regional director decides them prior to the election, and
the final rule corrects this anomaly.
---------------------------------------------------------------------------
\465\ It is only when regional directors direct that hearing
officer reports go to the Board that parties currently have the
right to Board review. See Casehandling Manual Section 11366.2.
---------------------------------------------------------------------------
Citing Member Hayes' dissent to the original NPRM, PIA and others
argue that the deferral of litigation from the pre-election phase to
the post-election phase is likely to lengthen the period between the
election and final certification, which will lengthen the period during
which the employer is uncertain whether it can unilaterally change its
employees' working conditions. See Mike O'Connor Chevrolet, 209 NLRB
701, 703 (1974). As shown, however, the Board believes that the final
rule will not simply shift litigation from before the election to after
the election. Rather, the Board believes that the amendments will
significantly reduce the total amount of litigation, because the
current rules require parties to litigate issues that are often
rendered moot by the election results. Moreover, the Board anticipates
that permitting it to deny review of regional directors' resolution of
post-election disputes, i.e., when a party's request raises no
compelling grounds for granting such review, will eliminate the most
significant source of administrative delay in the finality of election
results. The Board anticipates that the final rule will thus reduce the
period of time between the tally of votes and certification of the
results and thus the period during which employers are uncertain about
their duty to bargain.
A number of other amendments to this section conform its provisions
to the remainder of the amendments. For example, the NPRM proposed to
address the procedure for requesting review of the direction of
election in Sec. 102.69(b) in line with the proposed amendment
deferring all parties' rights to request review of the decision and
direction of election until after the election. 79 FR at 7333, 7360.
However, as discussed above in connection with Sec. 102.67, the Board
has decided to reject that proposal and instead to permit parties to
request review of the direction of election prior to the election if
they choose to do so. Accordingly, the procedure for filing such
requests appears in Sec. 102.67 of the final rule, rather than in
Sec. 102.69(b) as proposed in the NPRM. And because parties will not
be filing requests for review of the regional director decisions and
directions of elections pursuant to proposed Sec. 102.69(b), there is
no need for this final rule to provide (as the December 22, 2011 final
rule provided (76 FR at 80174, 80188)) in Sec. 102.69(e)(1)(ii)) that
the decision and direction of election and the record previously made
as defined in Sec. 102.68 will also be part of the record in a
proceeding pursuant to Sec. 102.69 in which no hearing is held. In
other words, just as was the case prior to the NPRM, under the final
rule, the record in a proceeding pursuant to Sec. 102.69 in which no
hearing is held will not include the decision and direction of election
and the record previously made as defined in Sec. 102.68.
Similarly, prior to the NPRM, Sec. 102.69(b) provided, ``If no
objections are filed within the time set forth above, if the challenged
ballots are insufficient in number to affect the results of the
election, and if no runoff election is to be held pursuant to Sec.
102.70, the regional director shall forthwith issue to the parties a
certification of the results of the election, including certification
of representative where appropriate, with the same force and effect as
if issued by the Board, and the proceeding will thereupon be closed.''
The final rule rejects the NPRM proposal to restyle this paragraph
``Sec. 102.69(c) and to include a reference to no request for review
being filed (proposals which the December 22, 2011 final rule adopted).
[[Page 74414]]
79 FR at 7360-7361; 76 FR at 80187.\466\ In cases where the election is
conducted pursuant to one of the three types of election agreements,
there is, by definition, no decision and direction of election about
which a party can possibly seek review.\467\ And where there are no
objections, determinative challenges, or runoffs, the regional director
should issue to the parties a certification of the results of the
election, including certification of representative where appropriate,
notwithstanding the possibility that a party may still file a request
for review of any decision and direction of election previously issued.
This is not unlike what happened under the prior rules in directed
election cases. Casehandling Manual Section 11472.3 (In directed
election cases, the regional director's supplemental decision based on
an administrative investigation, a hearing or both, ``should include
the certification; issuance of the certification should not be delayed
until after the expiration of the time for filing a request for review
[of that decision].'') Similarly, certifications are issued under the
current rules, notwithstanding parties may challenge the validity of
the representation case decisions in a technical 8(a)(5) proceeding in
the courts of appeals. However, the final rule makes one small change
to the text of pre-existing Sec. 102.69(b) by deleting the reference
to the closure of proceedings. Because under the final rule a party may
choose to wait to file its request for review of the decision and
direction of election until after the election, a proceeding cannot
necessarily be considered closed in the absence of the election
objections, determinative challenges or a runoff election.
---------------------------------------------------------------------------
\466\ The NPRM had proposed to restyle paragraph (b) as (c)
because, as discussed above, the NPRM had also proposed adding a new
Sec. 102.69(b) to address requests for reviews of regional director
decisions and directions of elections. Because the final rule does
not add that new paragraph (b) to Sec. 102.69, the Board has
decided to leave the text in question in Sec. 102.69(b) of this
final rule.
\467\ Thus, when the election is conducted pursuant to a consent
election agreement or a stipulated election agreement, the regional
director does not issue any pre-election decision at all. See
Sec. Sec. 102.62(a) and (b). Although the regional director does
issue a pre-election decision when the parties enter into a full
consent election agreement, the parties waive their right to request
review of that decision in their agreement. See Sec. 102.62(c).
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C. Post-Election Hearing Scheduling
The NPRM proposed that any post-election hearing on objections and
challenged ballots would open within 14 days of the tally of ballots or
as soon thereafter as practicable. 79 FR at 7333.
The Board received a number of comments about the proposed
scheduling of the post-election hearing. The AFL-CIO supports the
hearing-scheduling amendment, noting that Casehandling Manual Sections
11365.3 and 11395.4 already provide that ``[s]ince postelection matters
are to be resolved with the utmost dispatch, * * * the hearing should
be scheduled at the earliest practical date.'' SEIU likewise supports
the amendment outside the context of decertification elections because
timely post-election hearings are necessary for timely certifications,
which in turn are necessary for labor relations stability. Professor
Cutcher-Gershenfeld also supports the amendment, noting that the
proposal ``minimizes the risk of process delays being used by either
side for tactical advantage,'' and that establishment of consistent
timing across regions comports with good administrative practice.
However, many employer comments complain about the time frame for
post-election hearings, claiming the proposed schedule provides
insufficient preparation time for both the party that filed the
election objections and the nonobjecting party.\468\ For example, some
comments, such as those filed by ACC and AHCA II, complain that 14 days
is not sufficient time for the aggrieved party to prepare for a hearing
on its objections because it must also prepare its request for review
of the decision and direction of election during this same time period.
According to these comments, the proposed post-election procedure
simply requires ``too much, too soon.'' Other comments, such as those
filed by SHRM, complain that 14 days is insufficient time to prepare
for the post-election hearing because, in addition to having to prepare
to present evidence regarding the objections, parties may also be
required to present evidence regarding the eligibility of employees who
were permitted to cast challenged ballots pursuant to the proposed 20
percent rule. Buchanan complains that the proposed post-election
hearing schedule raises due process issues because the nonobjecting
party will have such a short time to prepare for the objections
hearing. Buchanan also claims, along with the AHA, that the amendment
will be counterproductive because it will leave regional directors with
insufficient time to weed out frivolous objections. Thus, Buchanan
posits that instead of eliminating wasteful litigation, the amendments
will have precisely the opposite effect.
---------------------------------------------------------------------------
\468\ See, e.g., GAM; ACE; SHRM; AHA; Summa; Buchanan; ACC; AHCA
II.
---------------------------------------------------------------------------
After careful consideration of the comments, the Board has decided
to modify its proposal regarding the scheduling of the post-election
hearing to provide (in amended Sec. 102.69(c)(1)(ii)) that, unless the
parties agree to an earlier date, the post-election hearing on
objections and determinative challenges should open 21 days--rather
than 14 days--from the tally of ballots or as soon as practicable
thereafter, thereby affording all parties an additional 7 days between
the due date for the filing of election objections and the opening of
the post-election hearing. We believe that providing an additional
week's time is appropriate. If a party took the full 7 days to which it
is entitled to file its objections under Sec. 102.69(a), the
nonobjecting party would receive at most 7 days notice of the hearing
if the hearing opened 14 days from the tally of ballots as proposed in
the NPRM. Moreover, if a party filed its election objections at the
close of business on the 7th day following the tally, the regional
director might not be able to issue a notice of hearing until the 8th
day following the tally. If the hearing in such a case opened on the
14th day following the tally as provided in the proposal, that would
mean that the nonobjecting party received less than 7 days notice of
the hearing. Accordingly, we believe that providing an additional
week's time is responsive to the concerns raised in some of the
comments about parties needing more than 14 days from the tally of
ballots (and 7 days from the filing of objections) to prepare for the
post-election hearing.\469\
---------------------------------------------------------------------------
\469\ Admittedly, our decision to require that post-election
hearings be scheduled to open 21 days from the tally (and 14 days
from the filing of objections) depends, in part, on the
implementation of the new requirement that parties filing objections
simultaneously file their offers of proof supporting those
objections with the regional director. Ordinarily, the regional
director cannot evaluate whether a hearing is necessary until the
director receives the objecting party's offer of proof, which the
pre-NPRM version of Sec. 102.69(a) gave parties an extra 7 days to
provide. Accordingly, without the amendment requiring the
simultaneous filing of offers of proof with the objections, the
offer of proof would not be due until 14 days from the tally, in
which case a regional director could have no choice but to give
parties less than 7 days notice of the post-election hearing in
order to meet the 21-day post-election hearing scheduling goal. And
that would give rise to the same concerns which our revised post-
election timetable seeks to allay.
---------------------------------------------------------------------------
Providing that the post-election hearing open 21 days from the
tally (and 14 days from the filing of the objections) is also
responsive to the criticism that the proposal might not provide enough
time for the regional directors to weed out frivolous objections. By
providing
[[Page 74415]]
that the post-election hearing should open 21 days from the tally of
ballots or as soon as practicable thereafter, we provide the regional
directors with additional time to evaluate the objections and
accompanying offers of proof--particularly in cases where they are not
filed until the close of the 7th day following the tally, where the
objections are voluminous, or where the regional director grants
parties more time to file their supporting offers of proof--but still
well within a time frame when the directors can issue notices of
hearing in compliance with Board practice. And, just as was true under
the Board's prior rules, directors may cancel previously scheduled
hearings if subsequent developments render the hearing unnecessary.
In sum, we conclude that the revised 21-day post-election hearing
schedule takes into account the critical comments in a manner that
serves the goals of eliminating unnecessary litigation and
expeditiously resolving questions of representation. In addition, the
amendments should help make the scheduling of post-election hearings
more uniform across regions and provide transparency to the parties.
To the extent that the authors of those critical comments would
object that setting the post-election hearing to open 21 days from the
tally of ballots (and 14 days from the filing of the objections) is
still unfair to the nonobjecting party, the Board would find them to be
unpersuasive. In cases where the objections allege that the election
should be set aside because of employer misconduct, the union has to
prove that the employer was responsible for the misconduct. Under the
revised schedule, even if the notice of hearing issues 1 or more days
after the objections are filed, the nonobjecting party should still
have close to 2 weeks to investigate the objections and prepare its
response unless, of course, the parties agree to an earlier hearing
date. Thus, under the amendments, as under the prior rules and case law
that the amendments leave undisturbed, the party seeking to overturn
the election must file its objections within 7 days of the tally, and
the objections must contain a specific, nonconclusory statement of the
reasons therefor so as to provide notice of the alleged objectionable
conduct. The nonobjecting party will promptly learn of the filing of
objections, because the objecting party will now be required to
simultaneously serve a copy of its objections on all parties when it
files its objections with the regional director (and the regional
director will continue the practice of furnishing a copy as well).
Sec. 102.69(a); Casehandling Manual Sections 11392.5 and 11392.9.
Accordingly, the nonobjecting party need not wait until the notice
of the post-election hearing actually issues to begin investigating the
objections and preparing its response, but instead can do so as soon as
it is served with a copy of the objections, which will be at least 14
days before the opening of the post-election hearing, unless the
parties agree to an earlier date. In most cases, given the relatively
small median bargaining unit size in recent years, there is likely to
be only a relatively limited number of potential witnesses with
knowledge of the relevant facts. The employer should have ready access
to its supervisors, managers, and agents. And even prior to the
amendments, nonobjecting parties were sometimes requested to produce
their evidence opposing the objections just 7 days after the objections
were filed and, along with the objecting parties, were sometimes
advised that the post-election hearing could open 14 days from the
filing of objections (i.e. 21 days from the tally of ballots).\470\ It
also bears mentioning that because the hearing on objections only
occurs after the election, parties desiring a labor attorney or
consultant to represent them in connection with the post-election
objections hearing in all likelihood will have retained the attorney or
consultant before the objections will have even been filed, in contrast
to the pre-election scenario painted by some comments of unrepresented
employers being taken by surprise by the filing of a representation
petition and having to scramble to retain an attorney or
consultant.\471\
---------------------------------------------------------------------------
\470\ For example, the December 1997 Report of the Best
Practices Committee indicates that some regions requested that all
parties (both objecting parties and nonobjecting parties) submit
their evidence within 7 days of the filing of objections. G.C. Memo.
98-1,``Report of Best Practices Committee--Representation Cases
December 1997'' at 22. And a sample letter attached to the Best
Practices Committee Report provided for the objections hearing to
open 5-to-7 days after the due date for filing evidence in support
of objections, which, under the rules then in effect, was 7 days
from the filing of the objections. See Attachment J 1-3 (objections
filed August 16; evidence in support of (and in opposition to)
objections due not later than August 23; objections hearing
tentatively scheduled for the period August 28, 29, or 30'').
\471\ In our experience, those parties who use attorneys or
consultants to represent them in connection with post-election
hearings frequently use the same attorneys or consultants that they
retained to represent them in connection with the pre-election
hearings or the negotiation of the election agreements.
---------------------------------------------------------------------------
To the extent that ACC and AHCA would claim that a 21-day post-
election hearing schedule is still unfair to the objecting party
because the objecting party has to prepare its request for review of
the direction of election at the same time it must prepare for the
objections hearing, the Board would find such claims unpersuasive. In
the Board's view, such claims would reflect a misunderstanding of the
amendments. Amended Sec. 102.67(c) makes clear that the request for
review of the direction of election is not due until after the regional
director disposes of election objections and determinative challenges.
Accordingly, parties preparing for a post-election hearing on
objections and or challenged ballots will not need to simultaneously
prepare their requests for review of the decision and direction of
election. Moreover, even if no objections are filed, a party seeking to
file a request for review of the decision and direction of election
will have more time to do so under the final rule than it has under the
current rules.
The Board also finds unpersuasive the claim that the revised 21-day
post-election hearing schedule is unfair because, in addition to having
to prepare to present evidence regarding the objections, parties may
also be required to present evidence regarding the eligibility of
employees who were permitted to cast challenged ballots pursuant to the
20 percent rule. First of all, the Board has not adopted the 20 percent
rule. Thus, the final rule grants the regional director discretion to
instruct hearing officers to permit litigation of individual
eligibility issues if the director resolves to consider them prior to
the election. Accordingly, parties are free under the final rule to
request that they be permitted to litigate individual eligibility
issues at the pre-election hearing. By definition, if a party requests
at the pre-election hearing that it be permitted to litigate an
individual's eligibility or inclusion, that means that the party has
prepared to litigate it at the pre-election hearing. The comments do
not explain just why a party that has prepared to litigate an issue at
the pre-election hearing should need substantial additional time to
prepare to litigate the identical issue at a post-election hearing. And
if in the direction of election, the regional director directs that
particular individuals be permitted to vote subject to challenge, the
parties are on notice that the status of such individuals is
unresolved, and so they may begin to investigate the facts surrounding
the individuals' eligibility at that time even before the election
occurs.
Even in cases where election-day challenges take one of the parties
by surprise, all parties can begin preparing their cases with respect
to the determinative challenges immediately after the tally of ballots,
because the
[[Page 74416]]
parties know who cast challenged ballots no later than the tally of
ballots.\472\ Indeed, informing all parties at the election that they
must present their evidence regarding determinative challenges by the
date objections are due was labeled a best practice in 1997. See G.C.
Memo. 98-1, ``Report of Best Practices Committee--Representation Cases
December 1997,'' at 23. And, as was noted in connection with the
scheduling of the pre-election hearing, the facts surrounding
individual eligibility or inclusion questions are peculiarly within the
employer's knowledge and control, because the employer established its
employees' terms and conditions of employment. Accordingly, we would
firmly reject any suggestion that 21 days is generally an insufficient
amount of time to prepare for a hearing on objections, simply because
the employer might also have to prepare to present evidence regarding
challenges. We also note that the amendments grant the regional
director discretion to open the hearing at a later date in an
appropriate case.\473\
---------------------------------------------------------------------------
\472\ Thus, parties typically are represented by an equal number
of observers at the polls; the parties' observers are the ones who
either challenge the voters or who observe one of the other parties
or the Board agent challenge the voters; and the parties, who
usually attend the count, discuss any challenges that were made
before the ballots are counted in an attempt to resolve them. See
Casehandling Manual Sections 11338.2, 11338.3, 11340.2, 11340.3,
11340.9(a).
\473\ Thus, the amendments to Sec. 102.69(c)(1)(ii) do not
require that the hearing open 21 days from the tally (and 14 days
from the filing of objections) in all cases. Instead, the amendments
merely require the director to set the hearing for 21 days from the
tally ``or as soon as practicable thereafter.''
---------------------------------------------------------------------------
Finally, it bears emphasis that even prior to the NPRM, the post-
election hearing could involve both objections and challenge issues.
Thus, the regional director has long had discretion to defer deciding
eligibility issues until after an election, and parties could always
challenge voters for cause at the election.
Retired Field Examiner Michael Pearson suggests (Pearson
Supplemental Statement) that the Board should require that post-
election hearings on objections and challenged ballots, like pre-
election hearings, continue on consecutive days until completed in
order to avoid situations where multi-day hearings turn into multi-week
affairs. The NPRM proposed to do just that, albeit not explicitly.
Thus, proposed Sec. 102.69(d)(1)(iii) provided that the post-election
hearing be conducted in accordance with Sec. 102.64 insofar as
applicable, and proposed Sec. 102.64(c) provided that the hearing
should continue from day to day until completed absent extraordinary
circumstances. However, to avoid any possible confusion, the final rule
provides in amended Sec. 102.69(c)(1)(iii) that the hearing on
objections or on challenged ballots or on both shall continue from day
to day until completed unless the regional director concludes that
extraordinary circumstances warrant otherwise.\474\ This amendment is
consistent with the policy set forth in Casehandling Manual Sections
11365.3 and 11395.4, which provide that hearings on determinative
challenges and objections ``should be held on consecutive days until
completed.'' Conducting post-election hearings on consecutive days
until completed serves the goal of expeditiously resolving questions
concerning representation because in cases involving post-election
hearings, the question concerning representation cannot be resolved
until the hearing is completed. The amendment also renders Board
procedures more transparent and uniform across regions.
---------------------------------------------------------------------------
\474\ As discussed above in connection with Sec. 102.64, we
found unpersuasive the Chamber's objection to the proposal that pre-
election hearings continue on consecutive days until completed. We
find equally unpersuasive any opposition to the amendment providing
that post-election hearings will continue day to day until completed
absent extraordinary circumstances. Indeed, we believe that a party
and its attorney or consultant will have more lead time to rearrange
their schedules, if necessary, to attend a multiday post-election
hearing than they have with respect to the pre-election hearing,
because under the amendments we are adopting the post-election
hearing is supposed to open 21 days after the tally of ballots and
14 days after the filing of objections. And, as noted previously,
because the hearing on objections and determinative challenges only
occurs after the election, many of the parties desiring labor
attorneys or consultants to represent them in connection with the
post-election hearings in all likelihood will have retained the
attorneys and consultants before the objections will have been
filed, in contrast to the pre-election scenario painted by some
comments of unrepresented employers being taken by surprise by the
filing of the representation petition and having to scramble to
retain an attorney or consultant.
---------------------------------------------------------------------------
D. Procedure at the Post-Election Hearing on Objections and Challenged
Ballots
The NPRM proposed that the post-election hearing would open with
the parties stating their positions on any challenges and objections,
followed by mandatory offers of proof as described in proposed Sec.
102.66. 79 FR at 7333-34. SHRM complains that such an offer-of proof
procedure would deprive parties of their right to a meaningful post-
election hearing.
However, as discussed above in relation to Sec. 102.66, the Board
has decided not to adopt the proposed mandatory offer-of-proof
procedure at the pre-election hearing. The Board has likewise decided
not to adopt the proposed mandatory offer-of-proof procedure at the
post-election hearing. Instead, we have decided to codify hearing
officers' discretion to require parties to make offers of proof and to
permit hearing officers to rule on such offers.
To the extent that SHRM would argue that such a discretionary
offer-of proof procedure deprives parties of their right to a
meaningful post-election hearing, we would find it unpersuasive. While
parties have a right to a pre-election hearing under the NLRA, they
have no right to a post-election hearing under the NLRA. See NLRB v.
Hood Furniture Mfg. Co., 941 F.2d 325, 332 (5th Cir. 1991); NLRB. v.
Metro-Truck Body, Inc., 613 F.2d 746, 751 (9th Cir. 1979), cert.
denied, 447 U.S. 905 (1980). As discussed above even prior to the NPRM,
regional directors could evaluate a party's objections and challenges
and overrule them (without a hearing) if they did not raise substantial
material issues. See also 29 CFR 102.69(d) (2009); Casehandling Manual
Sections 11394.3, 11395.1. Moreover, hearing officers had discretion
prior to the NPRM to require parties to make offers of proof before
admitting evidence and to rule on the offers. See Casehandling Manual
Section 11424.3(b); Hearing Officer's Guide at 38, 158 (``Offers of
proof can be an effective tool for controlling and streamlining a
hearing.''). As shown, an offer of proof is simply a tool to enable the
hearing officer to determine whether it is appropriate to receive the
evidence a party wishes to introduce. Thus, a party has no cause to
complain if the hearing officer rejects proffered evidence that is not
relevant to or probative of the matters to be determined at the post-
election hearing.
Consistent with its complaints about the proposed offer-of-proof
procedure to be used at the pre-election hearing, SHRM also complains
that it is inappropriate for hearing officers, who may not even be
attorneys, to administer a mandatory offer-of-proof procedure at the
post-election hearing as well. Assuming that SHRM would argue that it
is likewise inappropriate for hearing officers to administer the
discretionary offer of proof procedure, we would find it unpersuasive.
Indeed, the persuasive force of this contention is even weaker in this
context than it was in the context of the pre-election hearing, because
the statutory language regarding pre-election hearings is not
controlling with respect to post-election hearings. While Section
9(c)(1) of the NLRA gives parties a right to a pre-election hearing and
provides that the hearing officer who
[[Page 74417]]
presides at the pre-election hearing shall make no recommendations with
respect to the question the pre-election hearing is designed to answer,
the NLRA contains no similar provisions regarding post-election
hearings. Thus, prior to the amendments, hearing officers--whether
field attorneys or nonattorney field examiners--could, and did, resolve
credibility issues at the post-election hearing and could, and did,
make recommendations regarding the ultimate disposition of the
objections and determinative challenges. See 29 CFR 102.69(e) (2010)
(``[U]pon the close of such a hearing, the hearing officer shall * * *
prepare and caused to be served on the parties a report resolving
questions of credibility and containing findings of fact and
recommendations as to the disposition of the issues.''). And prior to
the amendments, the courts regularly deferred to the hearing officer's
evaluation of the evidence. See Amalgamated Clothing & Textile Workers
Union v. NLRB, 736 F.2d 1559, 1562-63, 1564-65 (D.C. Cir. 1984) (``The
Hearing Officer was uniquely well-placed to draw conclusions about
credibility when testimony was in conflict[.]''). Accordingly, if, as
was also true prior to the NPRM, the hearing officer is permitted to
make findings of fact and to recommend the ultimate disposition of all
issues in the case based on the record of the post-election hearing, we
fail to see how it is inappropriate for a hearing officer to require,
and rule on, offers of proof at the post-election hearing.\475\
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\475\ As noted, the NPRM proposed that the post-election hearing
would be conducted in accordance with Sec. Sec. 102.64, 102.65, and
102.66, insofar as applicable. 79 FR at 7361. The final rule
clarifies in amended Sec. 102.69(c)(1)(iii) that any party at the
post-election hearing shall have the right to introduce into the
record evidence of the significant facts that support the party's
contentions and are relevant to the objections and determinative
challenges that are the subject of the hearing. In contrast to
amended Sec. 102.66(c), amended 102.69(c)(1)(iii) also makes clear
that the hearing officer presiding over a post-election hearing may
rule on offers of proof without consulting with the regional
director. Prior to the NPRM, hearing officers presiding over post-
election hearings were not required to consult with regional
directors before ruling on offers of proof. Moreover, as discussed
above, hearing officers presiding over post-election hearings have
greater authority than hearing officers presiding over pre-election
hearings, because the former, unlike the latter have long been
charged with making factual findings, credibility resolutions, and
recommendations as to the ultimate disposition of the case. See,
e.g., Casehandling Manual Section 11424.3(b). Furthermore, it will
be clear to all parties prior to the opening of the post-election
hearing which if any individual eligibility or inclusion questions
will in fact be litigated at the post-election hearing. Thus, the
post-election hearing, by definition, does not occur until after
there are determinative challenges or objections, and the regional
director sets the parameters for the post-election hearing on
determinative challenges and objections prior to the opening of the
post-election hearing. See, e.g., Casehandling Manual Section
11428.1 (``The frame of reference for the hearing on objections/
challenges is the notice of hearing and order directing the hearing;
the hearing officer must limit the hearing to the matters that the
Regional Director has set for hearing.''). Similarly, amended Sec.
102.69(c)(1)(iii) makes clear that briefs following the close of the
post-election hearing shall be filed only upon special permission of
the hearing officer and within the time and addressing the subjects
permitted by the hearing officer. This is consistent with the pre-
NPRM practice. See Hearing Officer's Guide at 167.
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The amendment fully protects the rights of the parties. Offers of
proof made at the post-election hearing are part of the record. See
amended Sec. 102.69(d)(1)(i). Parties have a right to file exceptions
to the hearing officer's decision with the regional director, and
thereafter (in stipulated or directed election cases) to file a request
for review with the Board. Sec. 102.69(c)(1)(iii), (2). Thus, if the
regional director, or the Board, concludes that the hearing officer
erred, the director or the Board is free to remand to case to the
hearing officer to take additional evidence.
Sec. 102.71 Dismissal of Petition; Refusal To Proceed With Petition;
Requests for Review by the Board of Action of the Regional Director
The amendments to this section eliminate the now-outdated reference
to carbon copies and clarify that extra copies of electronically-filed
papers need not be filed.
Subparts D & E, Sec. Sec. 102.73 Through 102.88, Procedure for Unfair
Labor Practice and Representation Cases Under Sections 8(b)(7) and 9(c)
of the Act and Procedure for Referendum Under Section 9(e) of the Act
The amendments in these two subparts merely conform their
provisions to amendments in Subpart C described above.\476\
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\476\ The final rule's amendments to these two subparts differ
in some respects from the amendments made to these subparts by the
December 22, 2011 final rule. In some instances, this is because the
2011 final rule deferred for further consideration some of the
proposed amendments that the Board has now decided to adopt. For
example, because the 2011 final rule deferred for further
consideration the proposal to eliminate the transfer procedure (76
FR at 80171), the 2011 final rule did not delete the references to
the transfer procedure in Sec. Sec. 102.77(b) and 102.86. 76 FR at
80188-80189. Now that the Board has decided to eliminate the
transfer procedure, the final rule deletes the references to the
transfer procedure in Sec. Sec. 102.77(b) and 102.86. Similarly,
the 2011 final rule deferred the proposals (79 FR at 7362-7363) to
amend Sec. Sec. 102.83 and 102.84 to permit electronic filing of
petitions and to require the simultaneous filing of the showing of
interest with the petition. Now that the Board has decided to permit
electronic filing of petitions and to require the simultaneous
filing of the showing of interest, the final rule amends those
sections to so provide. In other instances, the Board has concluded
that certain amendments were not necessary. Because as discussed
above in connection with Sec. 102.69, the Board has decided to
reject the NPRM proposal (79 FR at 7360), which the 2011 final rule
adopted (76 FR at 80187), to add a new paragraph (b) to Sec. 102.69
addressing requests for review of regional director directions of
elections, the final rule for example does not adopt the NPRM
proposal (79 FR at 7363), which the 2011 final rule adopted (76 FR
at 80189), to amend Sec. 102.86 to provide that in cases arising
under Subpart E, posthearing procedure would be governed, insofar as
applicable, by Sec. Sec. 102.63 through 102.69. Accordingly, just
as was the case prior to the NPRM, the method of conducting the
hearing and the procedure following the hearing in cases arising
under Subpart E of part 102 will be governed, insofar as applicable,
by Sec. Sec. 102.63 through 102.68. Because the Board has decided
to reject the proposal to eliminate Subpart D of Part 101, it is not
necessary to, and the final rule rejects the NPRM proposal (79 FR at
7362) to, amend Sec. 102.77(b) to incorporate language from
preexisting Sec. 101.23(e) to the effect that if a petition has
been filed which does not meet the requirements for processing under
Subpart D's expedited procedures, the regional director may process
it under the procedures set forth in Subpart C. Under the final
rule, that language remains in Sec. 101.23(e).
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Subpart I--Service and Filing of Papers
Sec. 102.112 Date of Service; Date of Filing
In the NPRM, the Board proposed to correct an omission concerning
the effective date of service by electronic mail. The final rule
provides that where service is made by electronic mail, the date of
service shall be the date on which the message is sent. The Board did
not receive any significant comments regarding this provision.
Sec. 102.113 Methods of Service of Process and Papers by the Agency;
Proof of Service
The final rule adds electronic mail as an approved method of
service of Board papers other than complaints, compliance
specifications, final decisions and orders in unfair labor practice
cases, and subpoenas. The existing rules include regular mail, private
delivery service and facsimile transmission (with consent), along with
personal service and certified and registered mail. Related Sec.
102.114 has provided for service of parties' papers by electronic mail
since 2009. The amendment thus updates the Board's representation case
procedures to reflect modern electronic communications technology.
In general, there is little objection to adding electronic mail as
an approved method of service. Of the few comments addressing these
changes at all, PIA explicitly favors the service of Board documents by
electronic mail,\477\ and
[[Page 74418]]
the Chamber raises no general objection to electronic service of
representation case documents, with the exception of the voter
list.\478\
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\477\ PIA relatedly contends, however, that because electronic
service of documents will speed the election process, there is no
need to further speed the process by making other changes. The Board
does not agree that just because electronic service will be an
improvement, the other changes adopted in the final rule are
unnecessary. Indeed, two improvements in efficiency are generally
better than one. As discussed at greater length above, one of the
goals of the final rule is to remove unnecessary barriers to the
expeditious processing of representation cases. Permitting
electronic service by itself plainly does not fully accomplish that
goal.
\478\ The Chamber's prediction of an electronic voter list
inviting abuse is discussed in relation to Sec. 102.62.
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AGC opposes electronic service because it might be defeated by spam
filters and similar tools that are used to protect computer data and
equipment. AGC surmises that this could lead to an increase in
litigation surrounding the election process if parties fail to receive
electronically-served documents, which could slow down the Board
process. These concerns are, at best, speculative. Electronic service
is very common, spam filters notwithstanding. The Board has yet to
experience any dramatic increase in litigation due to spam filters
intercepting parties' current electronic service of their papers in
either representation or unfair labor practice proceedings. Moreover,
the Board has received no significant complaints regarding spam filters
in connection with its ongoing pilot program to electronically serve
published Board and Division of Judges' decisions where parties have
registered for such service. Thus, the Board has little reason to
believe that spam filter problems will suddenly become pronounced when
the Board itself begins serving representation case documents
electronically.
Indeed, parties will have provided their email addresses and
fascimile numbers to the regional director when they filed their
petitions and Statements of Positions and participated in a hearing
pursuant to amended Sec. Sec. 102.61(a)(9), (b)(1), (c)(4), (d)(10),
(e)(7); 102.63(b)(1-3)(ii); and 102.66(g)(2). At the time parties are
providing this information, they may customize their email settings to
ensure that the system does not inadvertently flag official documents
as spam when they are sent by regional personnel from ``.gov''
domains.\479\ Furthermore, as already discussed in relation to Sec.
102.60, any concerns about spam filters intercepting service of a
petition will be mitigated by the practice of the regional offices to
have a Board agent contact parties as soon as possible after the filing
of a petition in order to facilitate the election process. See
Casehandling Manual Section 11010. Upon implementation of this rule,
the Board expects regional offices to additionally place follow up
phone calls to all parties as soon as a decision and direction of
election is sent by email or facsimile, to provide an added safeguard
against delivery failures.
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\479\ In addition, the testimony of Jess Kutch on behalf of
Coworker.org II concerning potential spam filter problems discussed
in connection with Sec. 102.62 above would not implicate these
types of service, which would not be attempted via bulk emails.
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In sum, the Board is not persuaded that spam filter interception
will be such a significant problem that the agency should continue to
use slower and more expensive means to transmit its documents to
parties.
Sec. 102.114 Filing and Service of Papers by Parties; Form of Papers;
Manner and Proof of Filing or Service; Electronic Filings
The amendments to this section merely conform its provisions to
certain amendments in Subpart C described above.
Sec. 103.20 Election Procedures and Blocking Charges; Filing of
Blocking Charges; Simultaneous Filing of Offer of Proof; Prompt
Furnishing of Witnesses
Under the Board's prior rules, Sec. 103.20 was entitled ``Posting
of election notices.'' As discussed above in connection with Sec.
102.67, the final rule adopts the proposal to integrate its contents as
modified into Sec. 102.67 of part 102.\480\ However, the NPRM also
requested comment regarding the Board's blocking charge policy. 79 FR
7334-35. As discussed below, the Board has decided to codify certain
revisions to that policy here in Sec. 103.20. Accordingly, the final
rule retitles Sec. 103.20 ``Election procedures and blocking charges;
filing of blocking charges; simultaneous filing of offer of proof;
prompt furnishing of witnesses.''
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\480\ As noted in Sec. 102.62, the election notice changes also
apply in cases where the parties agree to an election.
---------------------------------------------------------------------------
The NPRM specifically asked for comments on various proposed
revisions of the Board's blocking charge policy. As explained in the
NPRM, the blocking charge policy is not codified in the current
regulations. Rather, it is the product of adjudication and is described
in the non-binding Casehandling Manual. See Casehandling Manual
Sections 11730 to 11734.
As explained in Section 11730 of the Casehandling Manual, ``The
Agency has a general policy of holding in abeyance the processing of a
petition where a concurrent unfair labor practice charge is filed by a
party to the petition and the charge alleges conduct that would
interfere with employee free choice in an election, were one to be
conducted.'' This policy is designed to ensure that violations of the
Act which interfere with employees' right to vote are remedied before
any election is conducted. In other words, it ``blocks'' the election
process until such time as a fair and free election can be held.
Charges alleging conduct that is inherently inconsistent with the
petition itself may also result in a petition being held in abeyance.
See id. at Section 11730.3. However, there are significant exceptions
to the general policy of having a charge ``block'' a petition. See id.
at Section 11731. Accordingly, the filing of an unfair labor practice
charge does not automatically cause a petition to be held in abeyance.
Furthermore, ``the policy is not intended to be misused by a party as a
tactic to delay the resolution of a question concerning representation
raised by a petition.'' Id. at Section 11730.
Some comments urge that the policy be maintained in order to ensure
a free and uncoerced choice in selecting representatives for purposes
of collective bargaining.\481\ In the view of these commenters, simply
holding a rerun election will not fully and completely remedy the
employer's unfair labor practices. As the AFL-CIO explains, this is so
because there is a substantial risk that the tainted election will
compound the effects of the unfair labor practices: an employee who
voted against union representation under the influence of the
employer's unlawful conduct is unlikely to reconsider the issue and
change his or her vote in the rerun election. See NLRB v. Savair Mfg.
Co., 414 U.S. 270, 277-78 (1973).\482\ Moreover, according to the AFL-
CIO, ``opening the ballots cast in a tainted election would only
compound the effects of the unfair labor practices in the event that a
majority votes against representation because it would create
[[Page 74419]]
the misimpression that the tally reflects the uncoerced choice of the
voters.'' SEIU also asserts that holding a tainted election is an
inherently coercive event separate and apart from the unfair labor
practice giving rise to the taint, because it drills into the unit
employees' minds the lesson that engaging in the election process is
futile.
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\481\ See SEIU; AFL-CIO (Reply); UFCW; Testimony of Melinda
Hensel on behalf of IUOE Local 150 II.
\482\ SEIU (Reply) supports this observation by pointing out
that it is grounded not only on its own long organizing experience,
but also on social psychologists' research into the cognitive
dissonance theory. According to SEIU, ``These experts have found
that people will try to bring their attitudes in line with their
actions, in order to reduce the dissonance in their minds.'' As Leon
Festinger, the father of cognitive dissonance theory, explained, a
classic example is when a person is forced to do something she may
not support; ultimately, researchers have found that her attitude
towards that issue becomes more positive than it otherwise would
have been. See generally Leon Festinger, A Theory of Cognitive
Dissonance (1957); Leon Festinger and James M. Carlsmith, Cognitive
Consequences of Forced Compliance, Journal of Abnormal Psychology,
Vol. 58, 203-210 (1959).
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Other comments suggest changes in the blocking charge policy,
including its elimination.\483\ Professor Samuel Estreicher suggests
that application of the blocking charge policy be restricted to
``unusual circumstances,'' because it is generally desirable to hold
the election and defer consideration of contested matters to the post-
election stage. Other comments assert that the policy should be
eliminated because it creates opportunities for needless delay of
elections--particularly decertification elections.\484\ SHRM also
points out that blocking charges can result in elections being delayed
for many months, and asserts that blocking charges cause much of the
significant election delays in representation cases.\485\ Some comments
assert, specifically with respect to decertification elections, that
experience shows that when unions have determined that they are likely
to lose the upcoming election they will file unfair labor practice
charges in order to block the election and frustrate the employees'
efforts to end union representation.\486\
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\483\ Curiously, the IFA II claims a hindrance in being able to
adequately respond to the solicitation for comments on the Board's
blocking charge policy because the Board does not publish statistics
including ``the number of blocking charges filed per year.'' Yet,
the Board provided information to the IFA concerning elections held
during the last 3 fiscal years that had previously been blocked for
some period of time as part of a joint FOIA request during the
comment period, along with the average and median number of days
between petitions and election in cases in which blocking charges
were filed. (We also provided similar information in response to a
FOIA request from commenters in 2011, and additionally provided
blocking charge information made publicly available by Professor
Estreicher in his 2009 law review article referenced below.) We are
thus not sympathetic to IFA's suggestion that lack of additional
blocking charge statistics--statistics not included in their FOIA
request--should cause the Board to extend the period of time to
comment on potential changes to the blocking charge doctrine. In any
event, IFA's initial position--that blocking charges delay
elections--is unassailable based on the statistics provided to them,
those analyzed by Professor Estreicher 5 years ago, and simple
logic. We discuss below IFA's policy suggestions flowing therefrom.
\484\ See, e.g., AHA II; COLLE; CDW; CNLP; PIA; NRMCA II.
\485\ SHRM references a study conducted by Professor Estreicher
of data pertaining to blocking charges filed in 2008, in which
Professor Estreicher determined that the filing of blocking charges
in a case increased the time to an election, on average, by 100
days. Samuel Estreicher, Improving the Administration of the
National Labor Relations Act Without Statutory Change, 25 ABA J.
LAB. & EMP. L. 1, 9-10 (2009).
\486\ See, e.g., NRTWLDF; Chamber II; COLLE.
---------------------------------------------------------------------------
After careful consideration, the Board has decided to continue
applying the blocking charge policy and to block elections in
circumstances where unfair labor practice charges allege conduct that,
if proven, would interfere with employee free choice in an election or
would be inherently inconsistent with the petition itself, and no
special circumstances are present that would warrant further processing
the petition in the face of the charges. The Board is duty bound to
ensure that employees can express their choice of representative free
of unlawful coercion, and regional directors will therefore not
generally process a petition through to an election in the face of a
pending charge if they believe employee free choice is likely to be
impaired. Furthermore, we agree that holding a tainted election results
in damage beyond that caused by the employer's unfair labor practices,
which damage cannot be fully remedied simply by conducting a rerun
election. As the Fifth Circuit noted in Bishop v. NLRB, 502 F.2d 1024,
1028 (5th Cir. 1974), the salutary purposes for imposing the blocking
charge policy, a policy the Board has followed since 1937, ``do not
long elude comprehension.''
Nevertheless, the Board is sensitive to the allegation that at
times, incumbent unions may abuse the policy by filing meritless
charges in order to delay decertification elections.\487\ To that end,
the Board notes that the General Counsel already has in place
procedures requiring the expedited investigation of blocking charges in
an effort to ensure that non-meritorious charges do not delay
elections. Under the agency's Impact Analysis system for prioritizing
the processing of cases, blocking charge cases are designated as
Category III (Exceptional) cases, which have the highest priority and
the shortest time goals for disposition. See Casehandling Manual
Section 11740.
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\487\ See, e.g., NRTWLDF; Chamber.
---------------------------------------------------------------------------
The Board has also decided to codify several new practices to
protect against abuse of the blocking charge policy by those who would
use the unfair labor practice procedures to unnecessarily delay the
conduct of elections. Parallel to the amendments to Sec. 102.61(a)(7),
(b)(8) and (c)(8) providing for the simultaneous filing of the showing
of interest with election petitions, and Sec. 102.69(a) providing for
the simultaneous filing of offers of proof together with election
objections, the Board's amendments to Sec. 103.20 will require any
party to a representation proceeding that files an unfair labor
practice charge together with a request that it block the processing of
the petition to simultaneously file a written offer of proof. The offer
of proof must provide the names of the witnesses who will testify in
support of the charge, and a summary of their anticipated testimony. If
the regional director determines that the party's offer of proof does
not describe evidence of conduct that, if proven, would interfere with
employee free choice in an election or would be inherently inconsistent
with the petition itself, and thus would require that the processing of
the petition be held in abeyance absent special circumstances,\488\ the
regional director will continue to process the petition and conduct the
election where appropriate. The party seeking to block the processing
of the petition must also promptly \489\ make the witnesses identified
in its offer of proof available to the regional director so that the
director can promptly investigate the charge, as required by Section
11740.1 of the Casehandling Manual.\490\ These practices will serve to
provide the regional director with the information necessary to assess
whether the unfair labor practice charges have sufficient support and
involve the kind of
[[Page 74420]]
violations that warrant blocking an election, or whether the charges
are filed simply for purposes of delay. This information will also be
provided within a time frame that will assist the regional director in
making a more expeditious decision on whether to hold the petition in
abeyance. Of course, even after the initial decision to hold a petition
in abeyance, if it is determined that a charge lacks merit, the
regional director will resume processing the petition.
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\488\ Our use of the term ``special circumstances'' is merely
intended to recognize the longstanding reality that regional
directors have discretion to continue to process petitions
notwithstanding the pendency of charges that would otherwise result
in a petition being held in abeyance. In this way, regional
directors will continue to have discretion to engage in a balancing
of relative hardships concerning the blocking of an election as
requested by comments such as IFA II. See Section 11731.2 of the
Casehandling Manual.
\489\ Although the NPRM had used the descriptor ``immediately''
in describing when the filer of a blocking charge must make the
witnesses identified in its offer of proof available to the regional
director, the final rule uses the descriptor ``promptly'' to avoid
the connotation that the filer must physically bring the witnesses
along with them in order to file a blocking charge in one of the
Board's regional offices. We think that the requirement of prompt
witness availability will be adequate to ensure an avoidance of
unnecessary delay in the investigation of blocking charges.
\490\ Similarly, the final rule provides in amended Sec. 103.20
that if a party files a petition after filing an unfair labor
practice charge and then subsequently requests that its previously
filed unfair labor practice charge block further processing of the
petition, the party must likewise simultaneously file an offer of
proof and also promptly make available to the regional director the
witnesses identified in its offer of proof. The final rule likewise
provides that even if a party requests that its previously filed
unfair labor practice charge block further processing of the
petition, the regional director should continue to process the
petition and conduct the election where appropriate if the regional
director determines that the party's offer of proof does not
describe evidence that, if proven, would interfere with employee
free choice in an election or would be inherently inconsistent with
the petition itself.
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Implementation of these new practices is supported by comments
representing employer, employee and labor organization interests who
agree that requiring simultaneous offers of proof and prompt witness
availability will expedite the investigation of blocking charges.\491\
And expediting such investigations will necessarily remove an
unnecessary barrier to the fair and expeditious resolution of questions
concerning representation.
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\491\ See AHA II; NRTWLDF; AFL-CIO; NNU.
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The only significant opposition to either the offer of proof
requirement or the production of witnesses requirement was submitted by
SEIU, which opposes the offer of proof requirement on the basis that
parties are already obligated to cooperate with Board agents, and it is
unclear whether SEIU's objection is simply that the requirement is
redundant. The Casehandling Manual does generally require petitioners
to cooperate with Board agents in processing petitions,\492\ and
requires charging parties to cooperate with Board agents investigating
unfair labor practice charges.\493\ We view, however, the addition of
both the offer of proof requirement and the production of witnesses
requirement to the Rules and Regulations as important explications of
the duty to cooperate and not mere redundancies.
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\492\ Casehandling Manual (Part Two) Representation Proceedings
Section 11012.1.
\493\ Casehandling Manual (Part One) Unfair Labor Practice
Proceedings Section 10054.1.
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We decline to adopt the AFL-CIO's suggestion that the Board
proclaim it presumptively appropriate to seek preliminary injunctive
relief under 29 U.S.C. 160(j) to remedy an unfair labor practice charge
that has blocked an election. Under the express language of Section
10(j) of the Act, the issuance of a complaint is a necessary predicate
to any decision to seek injunctive relief in the Federal district
courts, and the General Counsel's discretion to issue complaints--and
to accept pre-complaint settlements and post-complaint but pre-hearing
informal settlements--is unreviewable by the Board. See NLRB v. UFCW,
Local 23, 484 U.S. 112, 118-33 (1987).\494\ In addition, injunction
litigation obviously involves the expenditure of significant resources
by the agency, and obtaining a 10(j) injunction from a district court
requires the court to engage in a case-specific inquiry.\495\ To be
sure, since the 1950s, with limited exceptions, the Board has reserved
to itself the privilege of approving any plans by the General Counsel
to pursue Section 10(j) injunction proceedings,\496\ but no prior Board
has sought to exercise greater control over the General Counsels'
discretion, even in the face of widely varying use of the preliminary
injunction as an enforcement tool.\497\ Thus, we decline the invitation
to cabin the General Counsel's prosecutorial discretion in making the
initial determination whether a particular complaint warrants the
agency pursuing Section 10(j) injunctive relief. By declining, however,
we do not mean to suggest that it would be inappropriate in a
particular case for the General Counsel to seek injunctive relief to
remedy unfair labor practices that have blocked an election.
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\494\ In contrast, under the Board's existing regulations,
parties have long enjoyed an opportunity to request Board review of
a decision to hold a petition in abeyance under the blocking charge
policy. See Sec. 102.71(b) (``Where the regional director * * *
directs that the proceeding on the petition be held in abeyance, and
such action is taken because of the pendency of concurrent
unresolved charges of unfair labor practices, and the regional
director, upon request, has so notified the parties in writing, any
party may obtain a review of the regional director's action by
filing a request therefor with the Board in Washington, DC . . .'').
\495\ See Chester v. Grane Healthcare Co., 666 F.3d 87, 93-94
(3d Cir. 2011) (cataloguing the varying standards employed by the
circuit courts in deciding whether the facts of a particular unfair
labor practice case warrant injunctive relief).
\496\ See Frankl v. HTH Corp., 650 F.3d 1334, 1352 (9th Cir.
2011).
\497\ See Catherine L. Fisk & Deborah C. Malamud, The NLRB in
Administrative Law Exile: Problems with its Structure and Function
and Suggestions for Reform, 58 Duke L. J. 2013, 2030 tbl. 1 (2009)
(demonstrating the range of 10(j) injunctions filed per year over
the last several decades from a high of 78 in 1995 to a low of 10 in
2004); see also NLRB Performance Accountability Report, 5, 38
(Fiscal Year 2013) (reporting that 10(j) injunctions were authorized
in 41 cases out of the 1,272 total complaints issued that year).
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We further decline to adopt AHA II's preferred change to the
blocking charge policy, that ``unless the regional director finds that
there is probable cause to believe that an unfair labor practice was
committed that requires that the processing of the petition be held in
abeyance, the regional director shall continue to process the
petition.'' 79 FR 7334. SEIU argues that implementing this change would
improperly shift the presumption away from the one described in the
Casehandling Manual, where a charge can serve to block the processing
of a representation case unless the regional director finds that
employees' exercise of free choice is possible notwithstanding the
charge, to one where the petition is processed unless and until the
regional director makes a further determination concerning the
likelihood of a complaint issuing and the seriousness of the unfair
labor practice involved. As described above, we believe that regional
directors should generally continue to process petitions if the
directors determine that the charging party's offer of proof does not
describe sufficient evidence to warrant blocking an election. On the
other hand, in situations where parties have raised sufficient offers
of proof, we believe that the presumption should run in favor of
holding in abeyance the processing of the petition absent special
circumstances. In short, we cannot agree that reversing the presumption
to one where the election proceeds in the face of a charge of unlawful
conduct unless the regional director makes an additional probable cause
determination would be a further improvement. Rather, such a standard
could cause a regional director to conduct an election in circumstances
where conduct has occurred that has a tendency to interfere with
employee free choice, simply because the director was not yet able to
make the requisite additional determination.\498\
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\498\ For the same reason we reject IFA II's suggestion that the
Board should require a ``charging party to establish a likelihood of
success on the merits'' before a representation petition would be
blocked.
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Part 101, Subpart C--Representation Cases Under Sec. 9(c) of the Act
and Petitions for Clarification of Bargaining Units and for Amendment
of Certifications Under Sec. 9(b) of the Act
In the NPRM, the Board proposed to eliminate redundant sections of
its regulations contained in Subpart C of Part 101 describing
representation case procedures. The relevant sections of Subpart C of
Part 101 currently include an essentially complete restatement of the
representation case procedure established in Subpart C of Part 102. As
the Board noted in the NPRM, ``Describing the same representation
procedures in two separate parts of the regulations may create
confusion.'' 79 FR at 7325.
The final rule eliminates Subpart C of Part 101. A few, non-
redundant portions are moved into Part 102. For example, the
description of the pre-election conference is moved to Sec. 102.69(a).
[[Page 74421]]
The Board received no significant comments opposing this proposal.
Comments from a variety of viewpoints supported the Board's effort to
eliminate redundant regulations.
As noted in the NPRM, Sec. 101.1 states that the purpose of Part
101 is to provide the public with a statement of ``the general course
and method by which the Board's functions are channeled and
determined.'' \499\ The purpose of a separate statement of the general
course ``is to assist the public in dealing with administrative
agencies,'' but should not be ``carried to so logical an extreme as to
inconvenience the public.'' \500\ The NPRM stated that codifying this
statement in the Code of Federal Regulations risked confusing the
public. Instead, the Board proposed to publish the statement in the
Federal Register without codification. This accords with general
administrative practice.\501\ The NPRM contained an uncodified
statement of the general course, 79 FR at 7324-7325, and proposed that
any final rule that might issue would also include an uncodified
statement of the general course. A Statement of the General Course of
Proceedings Under Section 9(c) of the Act is provided below.\502\
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\499\ See 5 U.S.C. 552(a)(1)(B). The original language of this
provision stated that the section would ``amplify and supplement
the[] rules of procedure.'' 12 FR 5651 (August 22, 1947).
\500\ Tom C. Clark, Attorney General's Manual on the
Administrative Procedure Act, 17, 19 (August 27, 1947).
\501\ See, e.g., 26 CFR 601.702(a)(1)(ii) (``[T[he Commissioner
publishes in the Federal Register from time to time a statement,
which is not codified in this chapter, on the organization and
functions of the IRS.'').
\502\ The Board will also continue to publish, update, and make
available on its Web site the detailed statement of representation
case procedures set forth in its Casehandling Manual.
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Prior Sec. 101.18 provided, ``The evidence of representation
submitted by the petitioning labor organization or by the person
seeking decertification is ordinarily checked to determine the number
or proportion of employees who have designated the petitioner, it being
the Board's administrative experience that in the absence of special
factors the conduct of an election serves no purpose under the statute
unless the petitioner has been designated by at least 30 percent of the
employees.'' ALFA submits that revised Sec. 102.61 should explicitly
state that a proper showing of interest must include authorization
cards or signatures from 30 percent of the employees in an appropriate
unit. The Board declines to adopt this proposal. The Board's current
Rules and Regulations set forth in Part 102 do not specify a precise
threshold for the administratively required showing of interest. As
explained in former Sec. 101.18, the purpose of the showing of
interest on the part of labor organizations and individual petitioners
that initiate or seek to participate in a representation case is merely
to determine whether there is sufficient employee interest in
selecting, changing or decertifying a representative to warrant the
expenditure of the agency's time, effort, and resources in conducting
an election. See also Casehandling Manual Section 11020. As such, the
purpose of the showing of interest is purely an administrative one; the
size of the showing of interest in support of certification and
decertification petitions that the Board currently requires is not
compelled by the Act. As an administrative matter it is not litigable.
The Borden Co., 101 NLRB 203, 203 n.3 (1952); Casehandling Manual
Section 11028.3. However, at this time, the Board has no intention of
changing the size of the required showing of interest and the
uncodified statement of the general course that follows states that the
required showing remains 30 percent.\503\
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\503\ The Board's form petition, Form NLRB 502 also states, and
will continue to state, that the required showing of interest is 30
percent (see Form section 6(b)).
In response to comments that erroneously suggest that 30 percent
is the threshold for resolving a question of representation, the
Board reiterates here that if a question of representation exists,
it is resolved by a majority of valid votes cast in an election.
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Part 101, Subparts D and E-- Unfair Labor Practice and Representation
Cases Under Secs. 8(b)(7) and 9(c) of the Act and Referendum Cases
Under Sec. 9(e)(1) and (2) of the Act
In the NPRM, the Board also proposed to eliminate its statement of
procedures contained in Subparts D and E of part 101. The Board
received no significant comments regarding the proposal. Upon
reflection, however, a unanimous Board has decided to reject the
proposal to eliminate Subparts D and E of part 101. Unlike prior
Subpart C of part 101, Subpart D of part 101 does not merely address
representation case procedures. Rather, it also addresses unfair labor
practice charges and procedures. Thus, Subpart D is entitled ``Unfair
Labor Practice and Representation Cases Under Sections 8(b)(7) and 9(c)
of the Act.'' (Emphasis added.) Although Subpart D of part 102 likewise
discusses procedures for unfair labor practice and representation cases
under Sections 8(b)(7) and 9(c) of the Act, the NPRM did not propose
eliminating other subparts of part 101 setting forth statements of
procedures for unfair labor practice cases, even though certain other
subparts of part 102 address the same matters.\504\ Thus, the NPRM
proposed amendments dealing with, and invited comment about,
representation case procedures. The Board concludes that it would be
more appropriate to consider eliminating Subpart D of part 101 at such
time as the Board may consider eliminating any redundancies in those
other subparts of part 101 and part 102 that address unfair labor
practice matters. Accordingly, the Board has concluded that it should
not eliminate Subpart D of part 101 at this time.
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\504\ For example, while Subpart B of part 101 describes
procedures for unfair labor practice cases under Section 10(a) to
(i) of the Act, Subpart B of part 102 also addresses procedures
under Section 10(a) to (i) of the Act for the prevention of unfair
labor practices.
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The Board has likewise unanimously decided not to eliminate Subpart
E of part 101. Subpart C of part 101 chiefly deals with the Board
procedures that govern the filing and processing of petitions to
determine whether employees wish to become or remain represented for
purposes of collective bargaining with their employer. Unlike Subpart C
of part 101, Subpart E deals with a highly specialized type of case--
arising under Section 9(e)(1) and (2) of the Act--addressing the issue
of whether the Board should conduct an election to determine whether
the employees in a bargaining unit covered by an agreement between
their employer and a labor organization that requires membership in the
labor organization as a condition of employment, desire that such
authority be rescinded. Regardless of the outcome of the election
conducted pursuant to Subpart E, the unit employees remain represented
vis-[agrave]-vis their employer. During fiscal years 2010-2013, parties
filed fewer than 80 petitions per year of the type addressed in Subpart
E of Part 101 and 102. Although Subpart E of part 102 likewise
discusses procedures for referendum under Section 9(e) of the Act, the
NPRM did not propose eliminating other subparts of part 101 setting
forth statements of procedures for other specialized sets of cases that
do not deal with ordinary representation case issues, even though other
subparts of part 102 address the same matters.\505\ The Board has
concluded that it would be more appropriate to consider eliminating
Subpart E of part 101 at such time as the Board may consider
[[Page 74422]]
eliminating other redundancies in those other subparts of parts 101 and
102 that address highly specialized sets of cases. Accordingly, the
Board has concluded that it should not eliminate Subpart E of part 101
at this time.
---------------------------------------------------------------------------
\505\ For example, the NPRM did not propose to eliminate Subpart
F, which sets forth statements of procedures for jurisdictional
dispute cases under Section 10(k) of the Act, even though Subpart F
of part 102 also addresses procedures to hear and determine disputes
under Section 10(k) of the Act.
---------------------------------------------------------------------------
The final rule conforms representation and referendum procedures in
these two subparts as described therein to amendments set forth
below.\506\
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\506\ The final rule's amendments to these two subparts differ
in some respects from the amendments made by the December 22, 2011
final rule. In some instances, this is because the 2011 final rule
deferred other proposals which the final rule now adopts. For
example, the 2011 final rule deferred the proposal to eliminate the
transfer procedure. Accordingly, the 2011 final rule did not amend
Sec. 101.30(c) to delete the references to the transfer procedure.
76 FR 80182. Now that the Board has decided to eliminate the
transfer procedure, the final rule deletes the references to the
transfer procedure in Sec. 101.30(c). In other instances, the Board
has concluded that certain amendments to Subpart D were not
necessary. For example, the 2011 final rule amended Sec. 101.23(b)
to provide that if the regional director directed an election
without first conducting a hearing, an aggrieved party should file a
request for review of that action after the election. 76 FR 80181.
However, the NPRM did not propose to amend, and the 2011 final rule
did not amend, Sec. 102.80(c), which provides that if the regional
director directs an election without first conducting a hearing in a
proceeding arising under Subpart D, a party may file a request for
special permission to appeal. Accordingly, the final rule preserves
the ``special permission to appeal'' language in Sec. 101.23(b)
from the pre-NPRM version of that section. The final rule also
preserves the pre-existing language to the effect that the regional
director's rulings on election objections and challenged ballots are
final and binding unless the Board grants a party special permission
to appeal from the regional director's rulings. The 2011 final rule
provided in Sec. 101.30(c) that in cases arising under Subpart E of
Part 101, post-hearing briefs could be filed only upon special
permission of the hearing officer. 76 FR 80182. However, as
discussed below in connection with Sec. 102.66, the Board has
decided that the regional director, not the hearing officer, should
be the one to decide whether parties may file posthearing briefs.
Accordingly, the final rule amends Sec. 101.30(c) to so provide.
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VI. Response to the Dissent
In August 2013, for the first time in over 10 years, a full
complement of five confirmed members of the National Labor Relations
Board was sworn in to office. Soon afterward, the Board took up the
long-delayed project of examining and revising its procedural rules for
representation cases. With the issuance of this final rule, the project
has been completed. At every stage, from establishing the framework for
review of existing procedures, to structuring the public comment
periods and the full-Board public hearing, to deliberations and voting
on specific provisions and issues, to the exchange of drafts of the
various parts of the final rule, the Board's work has been marked by
the full and earnest engagement of each of the Board's members, and the
frank and open exchange of ideas among all of the members. Combined
with the extraordinary outpouring of detailed and insightful commentary
from the public, during both the most recent comment period and the
2011 period, in written comments and at the full-Board public hearings,
the Board members' painstaking efforts have resulted in a remarkably
thorough and thoughtful consideration of the proposed amendments. The
care with which the issues have been considered is evident throughout
the final rule, from the preamble, to the dissent, to the regulatory
text itself.
We wish that the Board could have been unanimous as to every
amendment contained in the final rule. Perhaps it was inevitable, given
the broad range of differing experiences and viewpoints represented on
the Board that a full consensus as to every issue would not be reached.
However, as to many of the features of the rule, listed below, there is
no substantive disagreement among the Board members. Even more
importantly, the deliberations, discussions and exchanges of ideas
among Board members have proved the value of having a diversity of
perspectives and backgrounds on the Board. The final rule differs from
the proposed rule in many ways, both large and small, and in virtually
every key aspect of the rule. Most of these departures from the
original proposal, which are summarized below, were prompted by
criticisms and concerns raised by our dissenting colleagues, as well as
the public comments. The rule has been greatly improved as a result.
Before we address the specific differences that remain among the
Board members, we offer a general observation: The most significant
remaining differences among the Board members stem from a difference in
approach. The approach of the majority, as explained in the preamble
and below, has been to address discrete problems with targeted
solutions, while maintaining the essential elements of the existing
process. These solutions variously advance the goals of efficiency,
fair and accurate voting, transparency, uniformity, and adapting to new
technology, totally apart from, or in addition to, fulfilling the Act's
mandate of expeditious resolution of questions of representation. Much
of the dissent, by contrast, focuses single-mindedly on one issue: the
timeline from petition to election. The possible effect of each
amendment on this timeline is the main concern of the dissent, to the
virtual exclusion of the problem sought to be addressed. Indeed, the
dissent proposes the creation of a mandatory timeline for the
scheduling of elections. That is something that, over the nearly 80
years of the Act's existence, both Congress and the Board have declined
to do. We decline to do so as well. In just the past several years, the
Board has conducted elections in units smaller than 5 employees and
units of nearly 50,000 employees, in a vast multitude of different
industries and geographic locations. To us, the imposition of a one-
size-fits-all timeline on our elections makes no sense. Instead, we
think that the regional directors should continue to hold elections as
soon as practicable in the circumstances of each case. Where there is
no need to wait, the election should proceed; where there is a need to
wait, the election should not proceed.
This view, that elections should be scheduled for the ``earliest
date practicable,'' \507\ reflects the settled view of the Board over
the course of its history. The current Casehandling Manual states (at
11302.1) that ``election[s] should be held as early as is practical,''
and the same statement is found in similar manuals dating back at least
to the 1970s. And while the Act does not include that language, its
very structure and relevant provisions demonstrate consistent and
repeated support for that goal. Its terse and nontechnical description
of procedures,\508\ its broad delegation of discretion regarding the
``appropriate hearing,'' \509\ its prohibition of any court
interference with or direct court review of election procedures,\510\
its purpose in authorizing the delegation of decision-making authority
to regional directors,\511\ and its specific and unique exemption from
APA adjudication procedures \512\ all manifest a consistent and
powerful concern with the expeditious resolution of questions
concerning representation, as has been recognized in Supreme Court
opinions and in the relevant legislative history.\513\
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\507\ Section 102.67(b).
\508\ See Section 9(c) of the Act (29 U.S.C. 159(c)).
\509\ See Id.; Inland Empire Council v. Millis, 325 U.S. 697,
706-710 (1945).
\510\ See Section 9(d) of the Act (29 U.S.C. 159(d)); Boire v.
Greyhound Corp., 376 U.S. 473, 476-480 (1964).
\511\ See Section 3(b) of the Act (29 U.S.C. 153(b)); Magnesium
Casting Co. v. NLRB, 401 U.S. 137, 138, 141-142 (1971).
\512\ See Section 5(6) of the APA (5 U.S.C. 554(a)(6)); S. Rep.
No. 752, 79th Cong., 1st Sess. 16 (1945); Senate Committee on the
Judiciary Comparative Print on Revision of S. 7, 79th Cong., 1st
Sess. 7 (1945).
\513\ Our colleagues note, as they did in their dissent to the
NPRM (79 FR at 7341 n.92) that other Board doctrines impose lengthy
delays before the Board permits employees to vote on questions of
representation, and they contend that the Board is irrationally
reformulating its representation case processing procedures for
greater expedition in the initial election context only. However, in
the circumstances identified by our colleagues, employees have
already had at least one opportunity to choose whether they wish to
be represented, and the delay in affording them another opportunity
advances the interest in industrial peace and stability. See UGL-
UNICCO Service Co., 357 NLRB No. 76 (2011) (successor bar doctrine
``clearly promotes collective bargaining'' and preserves
``stability''); Lamons Gasket Co., 357 NLRB No. 72 (2011) voluntary
recognition bar ``advance[s] the statutory purposes of preventing
`industrial strife or unrest' and `encouraging the practice and
procedure of collective bargaining' ''); Brooks v. NLRB, 348 U.S.
96, 100-101 n.8 (1954) (Section 9(c)(3) provides that after a valid
election has been conducted, the Board may not hold a second
election in the same unit for 1 year ``in order to impress upon
employees the solemnity of their choice . . . . ''); Auciello Iron
Works, Inc. v. NLRB, 517 U.S. 781, 786-87 (1996) (``need for
repose'' and ``industrial peace'' underly the presumption that a
union is entitled to a conclusive presumption of majority status
during the term of a collective-bargaining agreement of 3 years or
less); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38-
39 (1987) (``develop[ing] stable bargaining relationships'' will
``further industrial peace,'' considerations which underlie
presumptions of majority support ``particularly * * * in the
successorship situation''); Terrace Gardens Plaza, Inc. v. NLRB, 91
F.3d 222, 227 (D.C. Cir. 1996) (contract-bar doctrine designed ``to
stabilize existing employer-union relationships''). By contrast, in
an initial organizing situation the interest of industrial peace is
furthered by expedition rather than repose, and thus the Board's
approach is rational and accords with statutory policy. Certainly,
there is no support for our colleagues' implicit suggestion that the
waiting periods were designed to afford employers an opportunity to
campaign against union representation, and that the Board should
therefore impose a waiting period in the initial election context as
well.
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[[Page 74423]]
A. Building on a Sound Foundation
The final rule does not change the essentials of the representation
case process. As before, a petition starts the process; it must be
supported by a sufficient showing of interest. Upon service of the
petition by the regional office, employers are asked to post a notice
of employee rights and to provide information in response to the
petition. In the event the parties do not enter into an election
agreement, there is a pre-election hearing. The hearing enables the
regional director to determine whether there is a question of
representation and, if so, determine the appropriate voting unit. The
parties may seek Board review of the regional director's decision.
Prior to the election, the employer provides the voters' contact
information to the other parties and posts a notice of the election.
The notice permits employees to know the unit in which the election
will be conducted and when, where, and how they may vote. There is a
secret-ballot election. There is a tally. Any determinative challenges
or objections are litigated and resolved. The results are certified and
Board review may be sought.
Contrary to our dissenting colleagues, the final rule does not
disturb these fundamental elements. Rather, the final rule is a
collection of discrete, targeted changes to the technical details. Each
of these changes serves a distinct set of purposes, including
minimizing unnecessary barriers to the fair and expeditious resolution
of questions concerning representation, eliminating unnecessary and
duplicative litigation, simplifying representation case procedures and
rendering them more transparent and uniform across regions, reducing
the cost of such proceedings to the public and the agency, and
modernizing the Board's processes, with a particular emphasis on the
effective use of new technology. The Board has carefully examined and
addressed a number of needed changes in a single rulemaking process in
an effort to advance these various goals while preserving the essential
steps of the representation case process.
B. Protecting Free Speech and Debate
The final rule does not change any rules regarding speech. And just
as existing procedures have never been criticized for limiting speech,
we do not think this final rule will create any new free speech issues.
Yet the dissent argues that speech, specifically employer speech, will
be limited because the final rule will not give the employer enough
time to mount an election campaign. But whenever a date for an election
is fixed, a limit is necessarily placed on campaign speech. Bearing
this fact in mind, the relevant question is whether the procedures will
provide a meaningful opportunity for employer, employee and union
speech. The preamble includes a far-ranging, thoughtful, and careful
consideration of this question, and concludes that the rule provides a
meaningful opportunity for campaign speech before the election.
Advances in communications technology have made the dissemination of
information not only faster, but also more effective and efficient.
Also, the scope of the campaigns is often limited, as elections
frequently involve small bargaining units of no more than a couple
dozen employees. There are also pre-petition opportunities to speak,
which the final rule does not affect at all; the parties often know of
the campaign in advance.
Regarding employer speech in particular: employers have near-
complete and continuous access to employees to engage in various forms
of communications, including electronic, print, and in-person--in large
and small groups and individually--and may require attention to such
communications as a condition of employment.\514\ Finally, the regional
director will retain discretion to consider these matters in selecting
an election date.
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\514\ The Board considered similar factors when it established
the Excelsior rule, which requires that the employer provide the
names and addresses of voters to the petitioning union at least 10
days prior to the election. 156 NLRB 1236, 1239-41 (1966); see Mod
Interiors, 324 NLRB 164, 164 (1997); Casehandling Manual Section
11302.1. The Board considered this an adequate time period for
previously unreachable voters to be exposed to the nonemployer party
arguments concerning representation. That analysis remains relevant
in considering employers' opportunity to campaign.
The dissent is also mistaken in its claim that the rule does not
consider employee opportunities to speak. The dissent overlooks the
final rule's discussion of employee speech and debate. In any event,
to the extent the preamble focuses on employer speech, such
discussion is for the purpose of responding to relevant comments.
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We agree with the dissent that these opportunities for free speech
and debate ``are part and parcel of every employment relationship.'' So
much the better. Such structural opportunities for free speech and
debate by employees and their employer--which are unique to the
workplace environment--are especially persuasive evidence in support of
our view that the final rule will not have the effect of creating
``undue restrictions on protected speech'' in Board elections.\515\
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\515\ The dissent cites our discussion of whether there is a
``meaningful opportunity for speech'' to argue that our approach is
tantamount to ``the government simply determin[ing that more] speech
is not necessary,'' which the dissent finds ``the most objectionable
aspect of the Rule as it relates to protected speech.'' The
dissent's argument proves too much. The selection of an election
date necessarily imposes a limit on campaign speech. The dissent's
own time targets would cap speech at 60 days, and in many cases
would limit it to as few as 30 days. Some comments argue that this
is inadequate time for speech. In response, the dissent would be
forced to consider whether more than 30 to 60 days are needed for
pre-election speech--the very analysis which the dissent calls
``most objectionable.'' Indeed, any election date selected, under
any set of rules, would suffer from the same supposed problems
identified by the dissent.
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Finally, the dissent claims that the rule is ultimately based on an
`` `anti-distortion' theory''--i.e., that it will disadvantage anti-
union speech. The dissent notes that some comments expressed a desire
to silence employers, and attempt to paint the final rule with the same
brush. We do not see why it should matter that someone, somewhere has
expressed inappropriate or irrelevant reasons for wanting the Board to
issue a sound rule. We do not impute to the dissent the motives or
reasoning of all those commenters who opposed the NPRM, and it is
equally fallacious to impute the motives or reasoning of other
commenters to us.
[[Page 74424]]
In the end, the dissent acknowledges--as it must--that the final
rule expressly disclaims any such purpose. The final rule consistently
and repeatedly recognizes the employer's valid right to speak and the
statutory policy in favor of free debate. The final rule does not rest
on any judgment or evaluation for or against any party's speech. Like
the Excelsior rule, this rule ``is not intended to * * * `level the
playing field' between petitioners and employers, but to achieve
important statutory goals by ensuring that all employees are fully
informed about the arguments concerning representation and can freely
and fully exercise their Section 7 rights.'' Mod Interiors, Inc., 324
NLRB 164 (1997). The Board is not trying to limit speech.
To the contrary, the final rule includes affirmative provisions to
expand and encourage discourse in advance of the election. As an
initial matter, it requires that an official Notice of Petition for
Election be posted at the workplace so that all employees are timely
notified of the initiation of the election process and advised of its
procedures and their rights. In the past, posting such a notice was
recommended, but not required. As a result, not all employees were
equally advised about the filing of the petition and its meaning, and
there was no ready access to NLRB-provided information about their
rights. The Notice of Election has also been revised to provide
employees more information about the election process prior to voting.
These efforts are designed to facilitate more, not less, information
and debate by and among employees, as well as the parties to the
proceeding.
C. The Rule Follows the Same ``Hearing First, Election Thereafter''
Process as Before
The pre-election hearing remains an important part of the Board's
representation procedures under the final rule. The dissent's criticism
of the changes to the pre-election hearing depend largely on
misstatement or misunderstanding of both the prior rules and the new
rules.
1. The Hearing Date
Prior caselaw imposed a minimum of 5 working days from notice of
the hearing. Croft Metals, Inc., 337 NLRB 688, 688 (2002). The final
rule sets a hearing date of 8 days from notice of the hearing.\516\ The
dissent concedes, as it must, that hearings are currently being
scheduled to open in 7 to 12 days.\517\ And contrary to the dissent,
the final rule gives regional directors flexibility to depart from the
normal hearing time frame in appropriate cases. Indeed, the final rule
provides that a regional director should, on the director's own
initiative, schedule the pre-election hearing to open in more than 8
days when the petition raises unusually complex issues. The final rule
also permits the director to grant postponements of up to 2 business
days upon request of a party showing special circumstances and for more
than 2 business days upon request of a party showing extraordinary
circumstances. Nothing in the final rule deprives regional directors of
the discretion they currently exercise to postpone hearings when they
conclude that it is highly probable that the parties will be able to
enter into an election agreement.
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\516\ The dissenters claim that the new statement-of-position
and notice requirements are so burdensome that additional time must
be given in every case. As noted below, however, the form requires
identifying matters that parties generally would have had to review
and consider in preparing for a hearing or an election agreement
under the current rules. The added burden is merely one of
transcription and disclosure. The requirement to post the Notice of
Petition for Election does not impose a substantial burden on
employers either. Indeed, the regional director will supply the
employer with the notice to be posted and with explicit instructions
on how to post it.
\517\ In practice, in 2013, regional directors scheduled the
pre-election hearing to open in 7 to 10 days in 76% of cases. In the
small minority of cases that actually went to hearing, short
extensions were often granted. Still, 25% opened in 7 to 10 days,
and 71% of cases that went to a hearing opened within 14 days. Only
39 total cases opened the hearing after the 15th day.
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2. The Statement of Position
Our colleagues object to the final rule's requiring nonpetitioning
parties to complete written Statements of Position, but the essential
new requirement is to write the position down.
The course of the hearing used to be guided by a written petition,
an oral statement of other parties' positions at the hearing, and the
petitioner's oral response. It will now be guided by a written
petition, written statements of the other parties' positions that are
filed and served the day before the hearing, and the petitioner's oral
response at the hearing. Both the written statements of position and
the oral response may be amended for good cause.
The dissent concedes that the information solicited by the form
``routinely'' has been requested from employers by regional personnel
under the Board's current practice. The form largely asks parties to
take positions on matters that must be addressed by them, one way or
another, under both the old rules and the new. The only new burden is
to commit the positions to paper and furnish it to the regional
director and the parties before the hearing. Nonetheless, the dissent
claims that (a) there is no rational basis for requiring nonpetitioning
parties to complete a Statement of Position or face being precluded
from litigating certain matters, and (b) the requirement imposes one-
sided burdens on employers.
We find no merit to our colleagues' objections. The form allows
both the Board and all the parties to understand what issues are in
dispute and which employees are impacted by these issues, thus
facilitating election agreements and making hearings more focused.
Preclusion assures that the form is uniformly completed, and done so in
good faith.\518\ By precluding the parties from raising new issues
later without good cause, the rule merely requires the parties to take
the matter as seriously as they would an election agreement, which also
precludes the raising of new issues afterward. These are plainly
rational considerations. And the final rule provides for changes to the
Statement of Position upon good cause shown.
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\518\ Although regions routinely ask parties to voluntarily
provide this information before the hearing, parties sometimes do
not provide the information, let alone permit the regions to share
it with the petitioners. Preclusion provides an incentive for
parties to complete the form and serve it on the parties, and
assures good faith in completing the form.
---------------------------------------------------------------------------
As to the latter point, our colleagues are wrong in contending that
the final rule's statement-of-position provisions impose one-sided
burdens on employers. The representation process in an RC case is
initiated by a written petition for election, filed by employees or a
labor organization on their behalf. The petition requires the filer to
state a position on the appropriate unit, identifying both inclusions
and exclusions, and other relevant matters, including recognition and
contract bar, election details, possible intervenors, the number of
employees, the locations of the facilities involved, and the identities
of the petition filer and the employer. All of this information is
provided before the employer is required to respond in its Statement of
Position. The statement-of-position form seeks essentially the same
information from the employer's point of view.
Where the statement-of-position form seeks different or additional
information, it is generally because the employer has exclusive access
to it. For example, the questions relating to jurisdiction concern the
employer's dealings in interstate commerce. The names and job titles of
an employer's
[[Page 74425]]
own employees are typically known only by the employer, and payroll
details, including the length of the payroll period and the most recent
payroll period ending date, are those established by the employer.\519\
---------------------------------------------------------------------------
\519\ Labor organizations must complete Statements of Position
in RM and RD cases when an employer or individual decertification
petitioner files a petition. The Statements of Position to be
completed by labor organizations in RM and RD cases are similar to
the Statements of Position that employers must complete in RC cases.
Our colleagues admit that the rule is ``facially neutral,'' but
nonetheless insist that because there are more RC petitions filed
than RM or RD petitions, the requirement will ``usually'' fall on
employers. Notwithstanding the number of petitions of each type
filed each year, which is entirely beyond the Board's control, the
important point is that the final rule treats nonpetitioning
employers the same as nonpetitioning labor organizations.
---------------------------------------------------------------------------
Our colleagues also object that the petition is not constrained by
the preclusion and amendment provisions that apply to the statement of
position. The final rule makes no change to the well-developed caselaw
governing amendments to a petition, because no such change is
necessary. Preclusion regarding the statement of position is justified
by the rulemaking record and the Board's experience demonstrating that
non-petitioning parties sometimes do not share the information
solicited by the statement of position form prior to the hearing, or
they take shifting positions on the issues at the hearing. Such conduct
impedes efforts to reach election agreements or hold orderly hearings.
No such problems have been identified with petitions, and so no such
change is needed. Moreover, as discussed above in connection with Sec.
102.63, a party will typically have good cause to timely amend its
Statement of Position to raise an issue that is presented by virtue of
a petitioner amending its petition.
Second, the rules provide that if a petitioner does not respond to
a position taken in the statement of position--in most cases the day
after the statement of position is filed--the petitioner generally may
not present evidence regarding that issue. This limitation is directly
parallel to preclusion by the statement of position. See amended Sec.
102.66(d). Similarly, just as a nonpetitioning party must establish
good cause if it wishes to amend its Statement of Position, so too must
a petitioner establish good cause if it wishes to amend its response to
the nonpetitioning party's Statement of Position. See amended Sec.
102.66(b). \520\
---------------------------------------------------------------------------
\520\ Our colleagues complain, however, that the petitioner is
merely required to respond orally at the hearing to the positions
taken the day before the hearing by the nonpetitioning party in its
written position statement. But there is no unequal treatment here:
The nonpetitioning parties' pre-hearing, written Statement of
Position is a response to the positions taken in writing 1 week
earlier by the petitioner in its petition. And just as petitioners
may respond orally on the record to positions taken by the
nonpetitioning parties, so too can the nonpetitioning parties orally
move on the record to amend their Statements of Position.
---------------------------------------------------------------------------
It makes more sense to apply preclusion after a party has learned
the position of the other party. As noted, non-petitioners learn the
petitioner's positions on the relevant issues from the petition, and so
preclusion attaches to the Statement of Position in response.
Similarly, the petitioner first learns non-petitioner's position from
the Statement itself, and so preclusion attaches in replying to the
Statement.\521\
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\521\ We also disagree with our colleagues' complaint that
employers will not understand the issues to be addressed by the
Statement of Position. The statement-of-position form itself will
help guide parties' prehearing preparation because it identifies
relevant issues that they may wish to raise. Should parties have
questions, they may contact the regional office for assistance.
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3. Issues Decided Before the Election
If the parties do not enter into an election agreement and a
hearing is conducted, the regional director decides the appropriate
unit, but has discretion to defer deciding discrete voter eligibility
and inclusion questions. This is unchanged from prior rules, except
that the rules now provide more guidance for making deferral decisions.
The dissent acknowledges that the Board has never required that all
individual voter eligibility disputes be resolved before the election
and that, under current practice, stipulated elections routinely defer
up to 10% of the unit to the challenge process. The dissent
nevertheless complains that the Board is changing the former 10%
standard to 20%, and that this expansion of the practice is a bad idea.
The dissent is correct that non-binding guidance issued by the NLRB
General Counsel (but not contained in a Board rule) articulated a 10%
standard. But Board caselaw allows eligibility and inclusion issues
affecting more than 10% of the unit to be deferred.\522\ And contrary
to the assertions of our dissenting colleagues, the 20% figure is not
in the final rule; the Board expressly decided not to adopt the bright-
line 20% rule that was proposed in the NPRM. Rather, regional directors
have discretion to defer (or not) a different percentage, based on
their best judgment as to what would be most administratively
efficient.\523\
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\522\ This caselaw is discussed in the preamble section on
102.66.
\523\ As the rule does not implement a mandatory 20% figure, the
dissent's criticism of the deferral provision as ``arbitrary'' is
unconvincing. To be sure, as the dissent points out, in the preamble
the Board carefully analyzes its statistics and the comments on this
point, and concludes in a footnote that 20% may often serve as a
sensible benchmark. As shown, deferral of issues affecting such a
comparatively small percentage of the electorate will very often
avoid unnecessary litigation, a consideration that regional
directors can and should take into account in administering cases.
But this is very different from mandating 20% as the rule in
every case. The dissent's analysis is predicated on an assumption
that 20% of all voters are deferred in every case. In reality the
vast majority of cases will involve far fewer such disputes, either
because they are resolved by stipulation or because they are never
contested at the pre-election hearing.
---------------------------------------------------------------------------
The dissent engages in a lengthy discussion of legislative history
about the pre-election hearing. But the conclusion it reaches--that the
Act requires a pre-election hearing absent stipulation--is set forth in
the plain text of the Act itself. Nothing in the final rule is
inconsistent with this history.
In the 1940s, the Supreme Court decided two relevant cases
interpreting Section 9. First, in Inland Empire, the Court held that
the statute allowed for an ``appropriate'' hearing to come after the
election. The Court noted that Congress specifically chose that
essential word--``appropriate''--in order to give wide latitude to the
Board. The Court also noted that the statute did not expressly resolve
the question of when the hearing was to take place, and so the Board
was free to make that choice for itself.
Second, in A.J. Tower, the Court considered a variety of arguments
against the Board's practice of litigating and resolving voter
eligibility via the election-day challenged-ballot procedure. The Court
upheld this procedure. Again, the Court pointed to the wide latitude
given to the Board to ensure ``that employees' votes may be recorded
accurately, efficiently and speedily.'' A.J. Tower Co., 329 U.S. at
331.
In 1947, Congress decided to revise representation case procedures.
Congress could have deleted that essential word--``appropriate''--in
order to take discretion away from the Board. It could have required
the Board to follow the same APA adjudication processes that all other
agencies followed. It could have eliminated the challenged-ballot
procedure, and required all voter-eligibility questions to be decided
before the election.
It did none of those things. Instead, Congress made one very
limited, very specific change to the hearing process: the statute was
amended to state that the hearing was to take place before the
election.
Congress chose to retain the term ``appropriate''--knowing full
well the
[[Page 74426]]
breadth of discretion that the Supreme Court understood this word to
convey to the Board. Congress also preserved the Board's APA exemption.
Congress did not touch the challenged-ballot procedure, and the statute
continued to allow the Board to defer decisions on voter eligibility
until after the election. Thus, the statute's essential view of the
purpose of the hearing and the latitude given to the Board was
unchanged from 1935--except for the particular fact that the hearing
must now precede the election.\524\
---------------------------------------------------------------------------
\524\ At various times, including in 1959, at the time of the
Landrum-Griffin amendments to the Act, Congress has considered
undoing the 1947 change to allow hearings to come after the
election, but to date it has not done so. As such, it is still the
intent of the 1935 Congress, as modified by the very limited changes
in 1947, which controls the analysis here.
---------------------------------------------------------------------------
The final rule is consistent with this history. It involves no
qualitative changes regarding the issues to be decided before the
election. Under the final rule, just as before, the regional director
will determine both the appropriate unit and the payroll period for
voter eligibility (or eligibility formula) before conducting the
election. In addition, and without change from the current procedure,
the regional director provides a written unit description to the
parties and to employees before the election. The notice of election,
which the employer is required to post 3 days before the election, will
advise employees of the appropriate unit and the voter eligibility
period--just as occurs under the current procedures. And under the
final rule, regional directors may continue to utilize the challenged
ballot procedure to address unresolved questions of voter eligibility
and inclusion.
4. Issues Litigated Before the Election
If it is known in advance that a matter will not be decided in the
direction of election, there is no reason to permit evidence to be
introduced on the matter. This is the very definition of irrelevant and
unnecessary litigation. And yet the former rules required the hearing
officer to allow evidence even on voter eligibility issues that the
regional director would defer deciding. Under the final rule, by
contrast, if a decision on individual eligibility is going to be
deferred, the regional director has discretion to direct the hearing
officer to decline to take evidence on that question.
The crux is in the qualification: How can the regional director
know in advance whether it would be appropriate to defer resolution of
the issue? The answer given in the final rule is a procedural one.
First, the petition and statement of position will allow the
regional director to know which issues parties seek to litigate and
which potential voters those disputes affect. This will allow an
initial assessment of the need to resolve any particular issue when
judged in light of the purpose of the pre-election hearing and sound
administrative practice. At the hearing, the petitioner and other
parties will respond to the issues raised, further illuminating their
differences and narrowing the scope of the disputed matters.
Next, the hearing officer may take an on-the-record offer of proof
which provides a detailed description of the evidence that would be
introduced by the party proffering it. On the basis of these proffers,
the regional director will know the quantity and (to some extent)
quality of evidence that would be introduced. This will further inform
the decision of whether the issue should be litigated or deferred until
after the election.
The dissent opines that regional directors will be unable to make
reasonable decisions whether to defer voter eligibility disputes
without full litigation of each. But under the final rule, if the
regional director concludes that is so in a particular instance,
evidence can be introduced and the issue can be decided or deferred on
the basis of that evidence.
This process is consistent with that routinely used by courts,
administrative law judges and hearing officers to make decisions about
the order, timing and even permissibility of litigation based on only a
description of the issues and evidence.
The dissent argues that such offers of proof have been infrequently
utilized and are a poor substitute for oral and written evidence. Yet
both the Casehandling Manual and the Hearing Officer's Guide have long
encouraged offers of proof as a best practice due to their utility in
promoting efficient hearings. The final rule codifies and encourages
this best practice because if an offer of proof--where evidence may be
characterized in its most advantageous light--cannot establish the
underlying evidence's value, then there can be little doubt that party
and agency resources would be wasted by taking the evidence at that
particular time.\525\
---------------------------------------------------------------------------
\525\ It should also be noted that parties are also free to
submit affidavits supporting their proffers.
---------------------------------------------------------------------------
Offers of proof are adequate here--as the everyday experience of
trial courts attests. There is no need to clutter the record with
irrelevant evidence.\526\ It is the dissent's proposed model of
mandatory litigation concerning issues that need not and will not be
decided that lacks an analogue in other judicial or administrative
settings. Neither the Board nor the parties should be saddled with
these litigation inefficiencies.
---------------------------------------------------------------------------
\526\ Contrary to the dissent, the rules do not treat offers of
proof as ``evidence'' in decisions ``on the merits.'' Offers of
proof are used only to determine whether the evidence they describe
is relevant, or whether the benefit of admitting it outweighs the
burden.
We also disagree with Member Miscimarra's claim that the final
rule conflicts with the Act by allowing off-the-record
communications between hearing officers and regional directors in
order for hearing officers to report--and regional directors to rule
on--offers of proof. As shown in the commentary (and as more fully
discussed in connection with Sec. 102.66), this aspect of the final
rule codifies a best practice that has been in place for decades.
The practice does not run afoul of the statute's requirement that
hearing officers not make recommendations as to how the regional
director should rule. Contrary to Member Miscimarra, we see no
similarity between a hearing officer seeking a regional director's
ruling on an offer of proof, and the practice--prohibited in 1947--
of trial examiners attending executive sessions of the Board to
defend the trial examiner's findings against party exceptions. See
S. Rep. No. 80-105, at 10.
In any event, parties retain the right to present their
arguments directly to the regional director through a request for
special permission to appeal. Amended 102.65(c); see Laurel Assoc.
Inc., 325 NLRB at 603 & n. 13 (regional director rules on party's
request for special permission to appeal a hearing officer's
rejection of its offer of proof).
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5. Post-Hearing Briefing
Our colleagues freely acknowledge that briefs are not necessary in
every case. Our colleagues also do not dispute that although
adjudication under the APA requires briefing, 5 U.S.C. 557(c), Congress
specifically exempted Board representation cases from these provisions
because of the ``simplicity of the issues, the great number of cases,
and the exceptional need for expedition.'' Senate Committee on the
Judiciary, comparative print on revision of S. 7, 79th Cong., 1st Sess.
7 (1945) (discussing 5 U.S.C. 554(a)(6)).\527\ Furthermore, they do
not, and cannot, contest that in several other representation case
contexts, including--most notably--post-election hearings on election
objections and voter challenges, the Board long ago established that
discretionary briefing is the better practice. Discretionary briefing
accords with the Supreme
[[Page 74427]]
Court's decisions permitting administrative agencies the flexibility to
choose between oral argument and written briefing. Compare Mathews v.
Eldridge, 424 U.S. 319, 345 (1976) (written submission without oral
hearing), with Goss v. Lopez, 419 U.S. 565, 581-82 (1974) (oral hearing
without written submission). The final rule allows regional directors
to decide whether to allow the filing of post-hearing briefs.
---------------------------------------------------------------------------
\527\ We disagree with the dissent's claim that ``some measure
of complexity is the norm, not the exception'' with respect to
representation cases. In the vast majority of cases, the parties
resolve all of their issues without resort to a hearing. As for the
relatively few cases that do go to hearing, the issues are typically
so straightforward that most hearings last less than 1 day. And in
those relatively few cases where parties request review of the
regional director's decision, the Board usually denies the request
in an unpublished decision.
---------------------------------------------------------------------------
The Board clearly has the authority to make the change in question
and has a valid reason to do so. Our colleagues argue for a different
choice because, in their view, regional directors' decisions will be
better reasoned and representation cases processed more expeditiously
if briefing is permitted. This is undoubtedly true in some cases, and
undoubtedly false in others; we think regional directors can judge
whether briefing would be helpful on a case-by-case basis, and so that
is what the rule provides. The Casehandling Manual already instructs
hearing officers in pre-election proceedings to ``encourage the parties
to argue orally on the record rather than to file briefs.'' Section
11242. Indeed, our colleagues' own reference to the drafting guide
demonstrates that briefs are often of so little help that the drafters
are instructed to begin before the briefs arrive.\528\ The dissent
claims that the record does not show that this change will speed the
process, but in cases where briefs would be unhelpful that is reason
enough to dispense with them.\529\ Just as in the post-election
context, the rule eliminates the one-size-fits-all approach in favor of
flexibility to tailor the briefing to the case.
---------------------------------------------------------------------------
\528\ We note that the 1997 Report of Best Practices Committee--
Representation Cases, prepared by a committee of primarily NLRB
regional directors, deemed it a ``best practice that the hearing
officer should solicit oral argument in lieu of briefs in
appropriate cases since in some cases briefs are little, if any,
assistance to the Regions and may delay issuance of the decision.''
It also urged hearing officers to: ``ensure that the parties state
on the record the issues and their position on each issue at the end
of the hearing. Such statements will assist the Region in preparing
the decision more quickly.'' p. 10. We agree with this advice of
NLRB regional directors from almost 17 years ago which is only now
being codified.
\529\ In any event, we think it abundantly clear that the
current right to a 7-day briefing period with permissive hearing
officer extensions of up to 14 additional days adds some measure of
unnecessary delay to case processing. In sufficiently
straightforward cases, therefore, a collateral benefit of this
change in the rule is that decisions will issue more promptly.
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D. Post-Election Board Review
The dissent argues that post-election disputes should be subject to
mandatory Board review. Yet Section 3(b) of the Act expressly permits
the Board to delegate to its regional directors the power to direct
elections and to certify the results, subject to a party's right to
request Board review. And in Magnesium Casting, the Supreme Court held
that the Board may engage in discretionary review of regional
directors' decisions. It is rational and appropriate for the Board to
continue that practice by making Board review of regional director
post-election decisions discretionary.
The Board should not devote more of its resources to processes
that--as our colleagues concede--have little discernible effect on case
outcomes. Discretionary review is sufficient to allow the parties to
bring to the Board's attention those cases which merit review.
The dissent argues that by applying discretionary review to post-
election decisions, we are ``improperly diminishing the Board's role''
in a manner inconsistent with Section 9(b)'s admonition for the Board
to determine the appropriate unit in each case ``in order to assure to
employees the fullest freedom in exercising the rights guaranteed by
this Act[.]'' Yet, the Board already exercises only discretionary
review of unit appropriateness questions. This is unquestionably
consistent with the Act, as the Supreme Court has already held.
And in this context, there have been no problems of the sort
predicted by the dissent: No dearth of opportunities for clarification
or dissent, no breakdown in uniformity of law and policy, no
development of ``regional'' precedent, and no increase in test-of-
certification cases. The final rule merely applies precisely the same
standard to post-election review. The dissent does not explain why its
concerns have any greater salience in the post-election context than
they have pre-election, where they have proved to be unfounded.
The dissent also argues that the stipulation rate may fall if
parties cannot preserve nondiscretionary review of post-election issues
under a stipulated election agreement. Their argument supposes that a
party enters an agreement it would otherwise not make--thereby waiving
the right to contest any and all appropriate unit issues (as well as
most voter eligibility issues)--because the party is concerned about
the off-chance that outcome-determinative challenges or objections that
might arise later would ultimately be resolved against them by the
regional director, and that, even though the issue would not be
sufficient to merit discretionary Board review, it nonetheless would be
sufficient to justify reversing the regional director's decision if
only that party could insist on mandatory Board review. Simply stating
the chain of logic here demonstrates its attenuation. In our
experience, the possibility that mandatory post-election review will
make a difference for a particular party in a particular case is so
remote that it would matter little to a party compared to the issues
being resolved in the election agreement itself. For this reason we
find it extraordinarily unlikely that election agreements are being
signed by parties in order to secure post-election Board review.\530\
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\530\ Most parties prefer stipulated election agreements to
consent agreements for that reason, but that preference has nothing
to do with the choice between stipulation and litigation.
---------------------------------------------------------------------------
Under the final rule, the Board will apply the same discretionary
standard to review of regional directors' post-election determinations,
whether the election was directed by a regional director or agreed to
by the parties. And so, again, the choice between stipulation and
litigation remains unrelated to the availability of post-election
review, as both lead to the same result.
E. Voter List
We are not far apart from our dissenting colleagues as to the
content of the voter list, but we disagree on certain significant
details. We all agree that the voter list should be expanded. Our
colleagues raise no objection to the inclusion of employee work
locations, shifts and job classifications; they agree not to mandate
the inclusion of employees' work email and phone numbers; they agree
that the agency should not further explore hosting a protected
communications portal to facilitate nonemployer party-employee
communication; and they would conditionally support employee's personal
email address and phone numbers as valuable additions to the voter
list. Unfortunately, the condition of their support for adding personal
email addresses and phone numbers is to add opt-out procedures, a
condition that we cannot agree to.
The nub of our disagreement over the need for opt-out procedures
may be our differing views of the value of employees' receipt of
communications from all parties to the election, as balanced against
any risk of harm to those employees. Our colleagues fault us for not
taking account of ``statistically proven probabilities'' concerning,
presumably, the likelihood of such harm. Yet, our colleagues give no
weight to the nearly 50-year absence of
[[Page 74428]]
evidence of voter lists being misused by the nonemployer parties. Given
that the rulemaking record shows not a single instance of voter list
misuse dating back to the 1960s, their concerns appear to be entirely
speculative.
Against any such risk we must weigh the drawbacks and limits of an
opt-out procedure. Excelsior held explicitly that even unsolicited
communication from nonemployer parties remains an important part of the
election process, and this would be severely abrogated by an opt-out
procedure. Although our colleagues state that they favor a ``wide open
debate,'' they are unwilling to mandate the disclosure of the contact
information that would ensure that employees hear from a party other
than the employer. A wide open debate cannot take place unless
employees are able to hear all parties' views concerning an organizing
campaign, including views to which they may not be predisposed at the
campaign's inception. The Excelsior doctrine has long sought to ensure
that a two-sided debate is possible by maximizing the likelihood that
all the voters will be exposed to nonemployer-party messages concerning
representation. If employees are allowed to opt out of nonemployer
communication altogether, or even just from the forms of communication
that have become most widely used and commonplace, then this interest
is severely undercut. Opening channels of communication allows a more
informed exchange of ideas and permits all employees to knowledgeably
evaluate the claims and counter-claims being made by the parties.\531\
---------------------------------------------------------------------------
\531\ The dissent argues that the final rule is somehow
inconsistent with the Board's recent decision in Purple
Communications, 361 NLRB No. 126 (2014). In Purple Communications,
the Board addressed the right of employees under Section 7 of the
National Labor Relations Act to effectively communicate with one
another at work regarding self-organization and other terms and
conditions of employment. The Board held that employers that have
chosen to give their employees access to their email systems must
ordinarily permit employee use of email for statutorily-protected
communications on nonworking time. The dissent quotes a single
phrase from the decision, omitting its explanatory context, which
follows: ``[S]ocial media, texting, and personal email accounts,
however commonly they may be used for communications unrelated to
the workplace, simply do not serve to facilitate communication among
members of a particular workforce [, as employees may have] no
practical way to obtain each others' email addresses, social media
account information, or other information necessary to reach each
other individually or as a discrete group (as distinct from the
general public) by social media, texting, or personal email.'' The
differences between the final rule and Purple Communications are
obvious. The rule addresses campaign communications between the
union (or other non-employer parties) and employees, while Purple
Communications addresses only employee communications among
themselves, not necessarily during an election campaign. And it is
precisely the problem identified in the quotation from Purple
Communications that the rule seeks to solve by requiring inclusion
of personal email addresses and phone numbers. Indeed, it is the
dissent which is inconsistent on this point, suggesting on the one
hand that this material is so extremely private an opt-out is
necessary, and on the other that this information is so widely
available that there is no need to provide it in the first place.
---------------------------------------------------------------------------
In addition, by offering an opt-out possibility to employees, the
agency would be implicitly suggesting to employees that they have
something to fear from the nonemployer party's possessing their contact
information. Moreover, an opt-out would inappropriately inject the
agency into the employees' evaluation of the source of campaign speech
by implicitly devaluing nonemployer speech. Our colleagues make little
attempt to explain why these fundamental inconsistencies between an
opt-out policy and the purposes underlying Excelsior should not control
the analysis.\532\ We think that a free and fair exchange of ideas is
much more likely to take place if nonemployer parties have access to
modern methods of communication, and are not restricted to door-to-door
solicitation and the U.S. mail, as under the Excelsior policy dating
back to the 1960s.
---------------------------------------------------------------------------
\532\ Indeed, the dissent's presumed disagreement with these
conclusions is only implicitly addressed through their view that an
opt-out requirement would not disrupt the balance struck in
Excelsior because an opt-out would be unnecessary for employee home
addresses--information that is arguably more private, and whose
disclosure is potentially more intrusive, than phone numbers or
email addresses. In contrast, we are skeptical that an opt-out could
rationally be applied to only employee phone and email without also
reaching home addresses, and thus clearly disturbing the balance
struck in Excelsior.
---------------------------------------------------------------------------
Our colleagues point to several other concerns discussed in the
final rule regarding opt-out procedures generally (delay, increased
litigation, and further unavoidable invasions of employee privacy), and
assert that those concerns would be irrelevant to their specific opt-
out proposal. We disagree. First, our colleagues' proposal can only be
said to avoid delay by adhering to the 7-day status quo for production
of the voter list--a timeframe that the final rule shows to be
unnecessary based on technological developments since the 1960s--and
accordingly reduces to 2 business days. Second, their proposal creates
the same risks of litigation about employer coercion discussed in the
preamble above. Third, and perhaps most notably, the proposal still
forces unwilling employees to reveal something about their
preferences--undermining the fundamental purpose of the secret ballot
in Board elections. Anyone who sees the list--necessarily including a
petitioning union to whom it may be addressed--will know which
employees opted out.\533\
---------------------------------------------------------------------------
\533\ We note our colleagues' agreement that the unsubscribe
option that they also advocate--when employed on its own--would do
nothing to allay privacy concerns having to do with the disclosure
of contact information in the first place. The uncertain benefit
attendant to an unsubscribe option cannot counterbalance the costs,
not the least of which is an inconsistency with the Excelsior
doctrine similar to the one from which the opt-out proposal suffers.
---------------------------------------------------------------------------
As to the dissent's position that the time allowed for producing
the voter list should remain the same 7 days first announced in the
1960s, when parties most often relied on paper records for assembly and
U.S. mail for delivery, we think that the final rule merely recognizes
that times have changed, and that the typical employer will easily be
able to comply with a 2-business-day timeframe for production of the
list using electronic records and email delivery. Of course, an
employer may begin the task earlier. Indeed the final rule's statement-
of-position requirement will provide employers at least 7 days to
produce an initial list of employee names and work locations, shifts,
and job classifications; contact information may be compiled at this
time in anticipation of the second list. We also note that the rule
provides an exception to the usual deadline for extraordinary
circumstances, which should mitigate the dissent's concern.
F. Blocking Charges
We disagree with the dissent's concluding assessment that the final
rule's changes to the blocking charge policy are not valuable. Our
colleagues concede that the final rule's requirement of simultaneous
offers of proof and prompt witness availability to speed regional
directors' investigation of blocking charges' merits are an improvement
over the status quo. In this regard, they share the opinion of comments
from both labor organizations and employer associations, as noted in
the discussion of Sec. 103.20 above. Our colleagues' real complaint
appears to be that the final rule does not go as far as they would
like. In our view, our colleagues' suggested changes--even if only for
a ``3-year trial period''--would abandon key aspects of a longstanding
policy which serves a very important function in protecting employee
free choice.
The basic blocking-charge policy that we endorse today has been
applied by the Board to protect employee free choice from the early
days of the Act to the present. See U.S. Coal & Coke, 3 NLRB 398
(1937); Southern Bakeries, 26-RD-081637 (March 31, 2014). As the Fifth
Circuit explained in 1974:
[[Page 74429]]
If the employer has in fact committed unfair labor practices and
has thereby succeeded in undermining union sentiment, it would
surely controvert the spirit of the Act to allow the employer to
profit by his own wrongdoing. In the absence of the `blocking
charge' rule, many of the NLRB's sanctions against employers who are
guilty of misconduct would lose all meaning. Nothing would be more
pitiful than a bargaining order where there is no longer a union
with which to bargain.
Bishop v. NLRB, 502 F.2d 1024, 1029 (1974). We see no reason to
forebear codifying a policy applied so consistently and for such a
rational purpose. Neither the commenters nor the dissent have
identified any change in circumstances that would justify changing the
policy, let alone identified any compelling reason to abandon a policy
continuously applied since 1937.
The dissenters object that codification would make future changes
``more difficult'' by requiring new notice-and-comment rulemaking. In
our view, if codification means that any future change in the policy
would involve notice and comment rulemaking, so much the better. We
think it makes good sense, before changing a policy of this vintage, to
fully air the matter in public and establish good reason for the
change. We do not believe that obtaining the comments of the public is
a difficulty to be avoided.
In criticizing the final rule's refusal to cut back on the blocking
charge's application, the dissent accuses us of paying more attention
to the delay caused by permitting litigation of individual eligibility
or inclusion issues than to the delay caused by the blocking charge
policy. If all we were concerned about was reducing delay between the
filing of a petition and the holding of an election, the dissent would
have a fair point. But to repeat once again, not only is delay not our
only concern, but it is not even a primary concern for many of the
amendments; indeed, for certain changes, it is not a consideration at
all. Unfair labor practice charges that warrant blocking an election
involve conduct that is inconsistent with a free and fair election: It
advances no policy of the Act for the agency to conduct an election
unless employees can vote without unlawful interference. There is no
inconsistency between the final rule's preservation of that basic
policy and the other changes made by the final rule. Both actions are
taken consistent with the Act's purposes, seeking an appropriate
balance of efficiency, expedition and fairness in resolving questions
of representation.\534\
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\534\ The dissent finds it ``paradoxical'' that a union filing a
blocking charge may affect the timing of an election by filing a
request to proceed. The true paradox, in our view, would be the
converse: Allowing an employer to delay an election over the
objections of a union and thereby doubly benefit from its unlawful
conduct. In any event, the dissent ignores the fact that an
employer, too, may affect the timing of an election through
settlement of unfair labor practice allegations.
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G. Changes From the NPRM
The final rule embodies numerous and significant modifications to
virtually every key aspect of the NPRM, as well as to the limited
amendments adopted by the Board in December 2011. These modifications
include, for example:
Notice of Petition for Election: The final rule rejects
the NPRM proposal that an employer's failure to ``immediately post'' an
initial notice about the petition would constitute per se objectionable
conduct and provides that the Notice of Petition for Election will make
clear that no final decisions have been made yet regarding the
appropriateness of the petitioned-for bargaining unit or whether an
election will be conducted.
Statement of Position: The final rule rejects the NPRM's
requirement that if an employer disagrees that the petitioned-for unit
is appropriate, it must describe in its position statement the most
similar unit that it concedes is appropriate; clarifies that an
employer does not have to supply any employee contact information to
the regional director (or nonemployer parties) as part of its Statement
of Position; requires that parties will always have no less than 7 days
notice of the due date for completion of the Statement of Position
form; provides that the Statement of Position ordinarily will be due at
noon on the business day before the hearing; and establishes standards
for granting requests to postpone the due date for the Statement of
Position.
Scheduling the pre-election hearing: Pre-election hearings
ordinarily will be set to open 8 days, not 7 days, from service of the
notice of hearing by the Regional Director; standards are established
for granting requests to postpone the pre-election hearing.
Conduct of the pre-election hearing: The final rule
rejects the NPRM's mandatory 20% rule, whereby hearing officers
generally would have barred litigation of individual eligibility or
inclusion issues involving less than 20% of the unit; rejects the
proposed summary judgment standard and mandatory offer-of-proof
procedure, whereby hearing officers would only receive evidence if the
parties' offers of proof raised genuine disputes as to material facts;
and clarifies that the regional director, not the hearing officer, will
decide in each case the issues to be litigated, whether petitions may
be amended, whether parties may intervene, and whether hearings will
continue day to day.
Post-hearing briefs: The final rule rejects the proposal
to vest hearing officers with the authority to determine whether
parties may file post-hearing briefs, and instead vests that authority
with the regional director.
Decision and direction of election: The final rule rejects
the portion of the proposed mandatory 20% rule whereby regional
directors generally would have deferred deciding individual eligibility
or inclusion issues involving less than 20% of the unit; rejects the
proposal that would have permitted regional directors to direct
elections without simultaneously providing a statement of reasons; and
provides, unlike the NPRM, that the direction of election need not
specify the election details if the regional director concludes it is
appropriate to consult with the parties yet again regarding those
details, notwithstanding that the parties' positions will have already
been solicited at the hearing.
Review of a direction of election prior to the election:
The final rule rejects the proposal to eliminate the pre-election
request-for-review procedure, and instead allows parties to choose
whether to file their requests for review either before the election or
after the election; creates explicit procedures for requesting stays of
the election and impoundment and/or segregation of ballots; and rejects
the proposal that the Board grant requests for special permission to
appeal from regional director rulings only in extraordinary
circumstances where it appears that the issue would otherwise evade
review.
Notice of Election: The final rule rejects the proposal to
reduce the period for posting the notice of election from 3 working
days to 2, and likewise rejects the proposal that the regional director
transmit election notices directly to employees, if practicable, such
as by work email or phone.
Voter list: The final rule clarifies that employers are
not required to provide the work email addresses or work phone numbers
of its employees as part of a voter list to either the nonemployer
parties or the regional director; explains that employers have 2
business days, rather than 2 calendar days, to provide the voter list,
unless a longer time is specified in the direction of election or is
agreed to by all parties; and clarifies restriction language regarding
use of the voter list.
Offers of proof in support of election objections: Unlike
the NPRM,
[[Page 74430]]
the final rule provides that regional directors may extend the time for
filing offers of proof in support of election objections upon request
of a party showing good cause.
Post-election hearing: The final rule provides an
additional 1-week period between the tally of ballots and the opening
of post-election hearing.
H. Features of the Final Rule as to Which There Is No Substantive
Disagreement
Petition filing: Permitting electronic filing of
petitions;
Showing of Interest: Requiring the petitioner to
simultaneously file its showing of interest with its petition;
Notice of Petition for Election:
[cir] Requiring the employer to post a more informative notice upon
the filing of a petition;
[cir] triggering the posting requirement by the regional director's
service of the notice of hearing;
[cir] requiring the employer to also electronically distribute the
Notice of the Petition for Election if it customarily communicates with
its employees electronically;
Conduct of the pre-election hearing:
[cir] Rejecting the proposed summary judgment standard and
mandatory offer-of-proof procedure, whereby hearing officers would only
receive evidence if the parties' offers of proof raised genuine
disputes as to material facts;
[cir] making offers-of-proof at the pre-election hearing part of
the record in Sec. 102.68 (while omitting any reference in Sec.
102.68 to the record in post-election proceedings);
Transfer Procedure: Eliminating the transfer procedure;
Requests for Review:
[cir] Eliminating the requirement that parties file a request for
review of a decision and direction of election prior to election or be
deemed to have waived the right to contest the decision thereafter;
[cir] providing that requests for review shall not stay regional
director actions unless specifically ordered by the Board;
[cir] providing a procedure for requesting stays of elections and
impoundment and/or segregation of ballots;
Scheduling of Election: Eliminating the 25-day waiting
period after issuance of the direction of election in contested cases;
Decision and Direction of Election: Rejecting the proposal
to permit regional directors to direct elections without simultaneously
providing a statement of reasons;
Transmittal of Decision and Direction of Election:
Permitting regional directors to transmit the decision and direction of
the election and the election notice together and by email, fax or
overnight mail;
Notice of Election:
[cir] Requiring the employer to electronically distribute the
Notice of Election if the employer customarily communicates with
employees in the unit electronically;
[cir] rejecting the proposal to reduce the period to post paper
copies of the notice from 3 to 2 working days;
[cir] rejecting the proposal that regional directors transmit
election notices directly to employees if practicable, such as by work
email or phone;
Voter List:
[cir] Requiring the employer to include not just employee names and
home addresses, but also employee work locations, shifts, and job
classifications on the voter list;
[cir] requiring the employer to produce the voter list in an
electronic format approved by the General Counsel unless the employer
certifies it does not possess the capacity to do so;
[cir] rejecting a proposal for the agency to host sealed-off
communication portals;
Election Objections:
[cir] Requiring parties to simultaneously file with their election
objections a supporting offer-of-proof
[cir] providing that regional directors have discretion to grant
more time for the filing of offers of proof upon request of a party
showing good cause;
Post-election Hearings: Providing that the post-election
hearing open 21 days, not 14 days, from the tally of ballots or as soon
as practicable thereafter, unless the parties agree to an earlier date;
Service: permitting the Board to serve papers on parties
electronically;
Streamlining the Rules and Regulations:
[cir] Eliminating subpart C of Part 101; and
[cir] rejecting the proposal to eliminate subparts D & E of Part
101.
VII. Dissenting Views of Members Philip A. Miscimarra and Harry I.
Johnson III
Members Philip A. Miscimarra and Harry I. Johnson III, dissenting.
We dissent from this Final Rule, and we have great regret that the
Board has not chosen one of the available paths that would have
permitted an assessment and resolution of these issues with unanimous
support among all Board members and broad-based support among
practitioners, scholars and advocates for employees, unions and
employers. Much of the problem, but certainly not the main problem,
involves the immense scope and highly technical nature of the Final
Rule.
The Final Rule has become the Mount Everest of regulations: Massive
in scale and unforgiving in its effect. Very few people will have the
endurance to read the Final Rule in its entirety. Recognizing that few
will survive the climb, we offer the following selective observations
at the outset:
Rule's Primary Purpose and Effect: Union Elections As
Quickly As Possible. The Final Rule adopts almost all of what was set
forth in the February 2014 Proposed Rule, which in turn was nearly
identical to what the Board originally proposed in 2011.\535\ There are
minor changes, but the Rule's primary purpose and effect remain the
same: Initial union representation elections must occur as soon as
possible. The Rule's defects also remain the same, uncured by the
majority's lengthy discussion, which reflects an awareness of
criticisms that are far too often summarily rejected.
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\535\ In these dissenting views, we refer to the current Final
Rule as ``Final Rule'' or ``Rule,'' to the February 2014 Proposed
Rule as the ``Proposed Rule'' or ``NPRM,'' to the nearly identical
June 2011 proposed rule as the 2011 Proposed Rule, and to the more
limited December 2011 final rule adopting elements of the 2011
Proposed Rule as the 2011 Final Rule. The 2011 Final Rule was
invalidated by the United States District Court for the District of
Columbia, Chamber of Commerce of the United States v. NLRB, 879 F.
Supp. 2d 18, 21, 25, 30 (D.D.C. 2012), appeal dismissed 2013 WL
6801164 (D.C. Cir. 2013), and was subsequently vacated by the Board.
---------------------------------------------------------------------------
Election Now, Hearing Later. The Rule would impermissibly
conduct expedited representation elections before any hearing addresses
fundamental questions like who is eligible to vote, thereby resulting
in an ``election now, hearing later.'' This ``election now, hearing
later'' approach was twice rejected by Congress, in amending the
National Labor Relations Act (NLRA or Act) in 1947 and 1959, and is
contrary to the statute's requirement--twice affirmed by Congress--
mandating an ``appropriate hearing'' prior to any representation
election.
Vote Now, Understand Later. The Rule improperly shortens
the time needed for employees to understand relevant issues, compelling
them to ``vote now, understand later.'' Regarding these issues, the
Rule takes self-contradictory positions that are contrary to common
sense, contrary to the Act and its legislative history, and contrary to
other legal requirements directed to the preservation of employee free
choice, all of which focus on guaranteeing enough time for making
[[Page 74431]]
important decisions. The Rule operates in reverse, making the available
time as short as possible.
Infringing on Protected Speech. By requiring elections to
occur as quickly as possible, the Rule curtails the right of employers,
unions and employees to engage in protected speech. We believe this
infringement on protected speech is impermissible, but even if it is
within the Board's authority, it is ill-advised and poorly serves the
Act's purposes and policies.
Lack of Need for the Rule. The Rule leaves unanswered the
most fundamental question regarding any agency rulemaking, which is
whether and why rulemaking is necessary. Objective evidence
demonstrates that the overwhelming majority of existing elections occur
without any unreasonable delay (substantially more than 90 percent of
elections occur within 56 days after petition-filing). Although a small
number of elections involve more time, this is not a rational basis for
rewriting the procedures governing all elections. The Final Rule does
not even identify, much less eliminate, the reasons responsible for
those few cases that have excessive delays.
Due Process. The Rule greatly accelerates all deadlines
associated with representation elections; it selectively imposes on
employers the duty to submit a comprehensive written position statement
7 days after notice of a petition-filing by a union; it permits post-
submission ``amendments'' only in narrow circumstances; the new
``pleading'' requirements, while facially neutral, will in practice
weigh far more heavily on employers than on unions attempting to
organize nonunion employees; the Rule directs the exclusion of evidence
regarding important election issues; and it directs hearing officers in
most instances not to permit post-hearing briefs (which, currently,
adds a mere 7 days to the pre-election timetable); and it codifies and
places increased reliance on private consultation and decisionmaking
between hearing officers and regional directors, conducted off the
record (and thus precluding review by the Board, especially regarding
matters that are deferred or excluded from the hearing). In our view,
these changes are fundamentally unfair and will predictably deny
parties due process by unreasonably altering long established Board
norms for adequate notice and opportunity to introduce relevant
evidence and address election-related issues.
Improperly Diminishing the Board's Role. The majority not
only rewrites nearly all procedures governing elections, it eliminates
any mandatory role for Board members in resolving post-election
questions that arise from the Rule (relegating this to regional
directors and to the courts, with only discretionary and post-election
review by the Board). The Final Rule articulates no necessity for a
``hands-off'' policy of Board non-involvement in post-election cases,
which we believe is irreconcilable with the statute's requirement that
the Board ``in each case * * * assure to employees the fullest freedom
in exercising the rights guaranteed by this Act.'' \536\
---------------------------------------------------------------------------
\536\ Section 9(b) (emphasis added).
---------------------------------------------------------------------------
Disclosures and Employee Privacy. The Rule imposes new
mandatory disclosure requirements obligating employers to disclose
personal contact information of unit employees, including all personal
email addresses and cell phone numbers in the employer's possession.
However, the Final Rule's justification for these expanded disclosure
requirements (the importance of personal email and cell phones to
protected concerted activity in the workplace, given the ``prevalence''
at ``work'' of ``cell phones,'' which have become ``the preferred mode
of communication for many young people'') is irreconcilable with Purple
Communications, 361 NLRB No. 126 (2014), where the Board majority
insists that ``social media, texting, and personal email accounts'' are
not even ``germane'' because they ``simply do not serve to facilitate
communication among members of a particular workforce'' (emphasis
added). Moreover, the Final Rule adopts the expanded disclosure
requirements without any employee ``opt-out'' right regarding such
information. The Rule even rejects privacy-enhancement measures as
simple as requiring an ``unsubscribe'' link in election-related texts
and emails, notwithstanding the current widespread use of such measures
in other third-party communications.
The Consensus Path Not Taken. Most disappointing is the
Rule's failure to incorporate reforms that could have had unanimous
Board member support, and substantial support among practitioners,
scholars, and advocates for employees, unions and employers. We favor
(i) making representation procedures more effective; (ii) having most
representation elections occur at least within 30 to 35 days after
petition-filing; (iii) changing the Board's internal procedures so
virtually all elections--disputed or not--would occur within 60 days
after petition-filing; and (iv) adopting stricter, more expansive
remedies for unlawful election conduct.
As made clear in our dissent to the Proposed Rule,\537\ we believe
the Board should do everything within its power to ensure that
representation elections give effect to employee free choice consistent
with the Act. We are not irrevocably committed to the status quo, nor
do we criticize our colleagues for their desire to more effectively
protect and enforce the rights and obligations of parties subject to
the Act. We share the same desire and remain committed to work as a
full Board to further our responsibilities to everyone covered by the
Act.
---------------------------------------------------------------------------
\537\ This dissent incorporates passages, often verbatim, from
our NPRM dissent, because the Final Rule to a substantial degree
reflects the wholesale adoption of many provisions in the Proposed
Rule, without regard to our earlier views. Many of our earlier
views, therefore, apply with equal force to the Final Rule. We note
that the majority likewise repeats many passages from the prior
NPRMs and the vacated 2011 Final Rule. Where still appropriate, we
also quote from the dissenting opinion of former Member Hayes to the
vacated rule. Again, the fact that we do so reflects the
circumstance that although the Final Rule varies in certain respects
from the NPRM first published in June 2011 and republished in
February of this year, far too much remains the same.
---------------------------------------------------------------------------
Although we might have agreed with certain changes in a different,
more limited and focused rulemaking process, we unfortunately must
dissent from the Final Rule including all its parts. Its unwholesome
ingredients are too numerous and inseparable from the whole, in our
view, for any slice to be fit for consumption.
A. The Final Rule's Procedures Contradict Requirements in the Act and
Are Otherwise Impermissibly Arbitrary
1. Background: What the Final Rule Would Change. It is difficult to
summarize the changes reflected in the Final Rule because they are so
numerous and implicate so many disparate aspects of the Board's
longstanding election procedures. However, the principal thrust of the
proposed changes is to greatly reduce the time between a representation
petition's filing and the election in all cases. Indeed, the prime
objective of the Final Rule is to conduct elections ``sooner'' than
under current practices. How much sooner is not disclosed. There is no
minimum time period for the pre-election campaign. Regional directors
are to schedule the election ``at the earliest date practicable.''
Several features of the Final Rule manifest a relentless zeal for
slashing time from every stage of current pre-election procedure in
fulfillment of the requirement that an election be scheduled ``at the
earliest date
[[Page 74432]]
practicable,'' \538\ but the Final Rule's keystone device to achieve
this objective is to have elections occur before addressing important
election-related issues. The Final Rule would relegate these issues to
a post-election hearing, or later.
---------------------------------------------------------------------------
\538\ Each of these amendments is designed to abbreviate the
pre-election time period: (i) petitioners will now be required to
provide the requisite showing of interest with the petition, rather
than within 48 hours after filing the petition; (ii) any pre-
election hearing must now generally be scheduled to open 8 days from
the region's notice of petition; (iii) the right to file a post-
hearing brief within 7 days of the close of hearing has been
eliminated; (iv) regional directors must ordinarily schedule the
election in a decision directing one, rather than leaving the date
of the election and other details for further consultation with the
parties; (v) the 25-day automatic waiting period after a regional
director's decision and direction of election has been eliminated;
and (vi) employers have only 2 days after the decision and
direction, rather than the current 7 days, to produce the expanded
list of employees and contact information.
---------------------------------------------------------------------------
Ironically, this ``election now, hearing later'' approach involves
the deferral of questions about voter eligibility and unit inclusion.
Yes, this means the election would take place first, and only later, if
at all, would there be a hearing regarding issues as fundamental as (i)
who can actually vote, (ii) which employees who cast votes would, in
the end, be excluded from the bargaining unit and would not even have
their votes counted, (iii) whether people who represent themselves as
employee-voters during the campaign may actually be supervisors (i.e.,
representatives of one of the campaigning parties), (iv) whether other
people who appear to be supervisors may actually be employee-voters,
and (v) whether the union-represented workforce, if the union prevails,
will ultimately exclude important employee groups whose absence would
adversely affect the outcome of resulting negotiations.
These are indisputably important issues. Not only are they relevant
to the election campaign, they can profoundly affect what type of
bargaining relationship would exist after the election if the union
prevails, and the inclusion or exclusion of certain groups may
positively or negatively affect employee bargaining leverage. For
employees, the ``election now, hearing later'' approach would create a
new norm where essential issues do not even receive potential pre-
election consideration by a regional director, much less by the Board.
This is in addition to the Final Rule's shortening of the period
between petition-filing and election, which creates a situation where
employees will be forced to ``vote now, understand later.''
The Final Rule makes other equally dramatic changes in other
election procedures. It incorporates in our Rules and significantly
expands Excelsior list disclosure requirements with more severe time
limitations and without adequate protection of legitimate privacy
concerns, eliminates the overwhelmingly favored practice of permitting
stipulation agreements providing for the automatic right of Board
review of post-election issues, and incorporates into our Rules without
meaningful change the current blocking charge policy, which impedes the
expeditious resolution of questions concerning representation more than
any of the processes substantially altered by the Final Rule.
2. The NLRA's Requirements. In contrast to the complicated array of
changes in the Final Rule, the Act is straightforward: Its fundamental
purpose is to guarantee employee free choice when employees vote in
elections regarding union representation. Sections 1 and 7 refer to
``the exercise by workers of full freedom of association'' encompassing
the right of employees to have ``representatives of their own
choosing.'' \539\ Section 7 protects the right of employees to ``engage
in'' protected activities and ``to refrain from any or all of such
activities.'' \540\ Sections 8(a) and 8(b) prohibit actions by
employers and unions that ``restrain'' or ``coerce'' employees in the
exercise of protected rights.\541\ Section 8(c) and other provisions of
the Act protect the free speech rights of employees, employers and
unions, consistent with similar guarantees against state-action
infringement of free speech afforded by the First Amendment.\542\
Section 9(a) provides for unions to represent employees in an
appropriate unit to the extent they are ``designated or selected* * *
by the majority of the employees in [the] unit.'' \543\ And Section
9(b)--specifically pertaining to elections--refers to the Board's
obligation ``in each case'' to ``assure to employees the fullest
freedom in exercising the rights guaranteed by [the] Act.'' \544\
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\539\ NLRA Sec. 1, 7, 29 U.S.C. 151, 157 (emphasis added).
\540\ Id. Sec. 7, 29 U.S.C. 157 (emphasis added).
\541\ 29 U.S.C. 158(a)(1), 158(b)(1)(A).
\542\ Section 8(c) of the Act reads: ``The expressing of any
views, argument, or opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no threat of
reprisal or force or promise of benefit.'' Although Section 8(c)
does not directly address representation elections, it has long been
recognized by the Board and the courts as protecting speech
generally, consistent with the First Amendment. See NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969) (``[A]n employer's free speech
right to communicate his views to his employees is firmly
established and cannot be infringed by a union or the National Labor
Relations Board.''); see also Chamber of Commerce v. Brown, 554 U.S.
60, 67-68 (2008) (Section 8(c) reflects a ``policy judgment, which
suffuses the NLRA as a whole, as favoring uninhibited, robust, and
wide-open debate in labor disputes.'') (internal quotation omitted);
Healthcare Ass'n of N.Y. State v. Pataki, 471 F.3d 87, 98-99 (2d
Cir. 2006) (Section 8(c) ``serves a labor law function of allowing
employers to present an alternative view and information that a
union would not present.''); United Rentals, Inc., 349 NLRB 190, 191
(2007) (``[T]ruthful statements that identify for employees the
changes unionization will bring inform employee free choice which is
protected by Section 7 and the statements themselves are protected
by Section 8(c).''). Section 7 of the Act has been interpreted as
broadly protecting the right of employees to engage in speech
regarding election issues. Letter Carriers v. Austin, 418 U.S. 264,
277 (1974) (``The primary source of protection for union freedom of
speech under the NLRA, however, particularly in an organizational
context, is the guarantee in Sec. 7 of the Act of the employees'
rights `to form, join, or assist labor organizations.''').
The First Amendment is clearly implicated in Board regulations
that impermissibly curtail free speech guarantees since Federal
regulation constitutes quintessential state action for purposes of
the United States Constitution. See Chamber of Commerce v. Brown,
supra at 68 (noting that the Court recognized ``the First Amendment
right of employers to engage in noncoercive speech about
unionization'' even before Section 8(c) was enacted).
\543\ Id. Sec. 159(a) (emphasis added).
\544\ Id. Sec. 159(b) (emphasis added).
---------------------------------------------------------------------------
Significantly, nowhere does the Act contain an express statement
that elections should be held at the earliest date practicable. Rather,
when it comes to preserving the ``fullest freedom'' of employees to
exercise their protected rights in an NLRB-conducted election, the Act
makes other considerations more important than speed:
(a) Neutrality. Congress has mandated that the Board remain neutral
while preserving employee choice, which is consistent with the Act's
protection of employee rights to ``engage in'' concerted activities and
to ``refrain from any or all of such activities.'' \545\
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\545\ NLRA Sec. 7, 29 U.S.C. 157. The Board must be as neutral
in its procedures as in its case adjudications. Concern that the
Board's procedures detracted from the agency's neutrality was among
the reasons Congress adopted the Taft-Hartley amendments in 1947.
See S. Rep. 80-105, 80th Cong., at 3, reprinted in 1 NLRB,
Legislative History Of The Labor Management Relations Act, 1947
(hereinafter ``LMRA Hist.''), at 407 (Senate report stating that
``as a result of certain administrative practices which developed in
the early period of the act, the Board has acquired a reputation for
partisanship, which the committee seeks to overcome, by insisting on
certain procedural reforms''). The ``procedural reforms'' insisted
upon by Congress in 1947, and reaffirmed in 1959, included a
repudiation of precisely the type of arrangement incorporated into
the Final Rule.
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(b) Knowledge of Representation, Bargaining and NLRA Rights. In
2011, the Board stated that the great majority
[[Page 74433]]
of employees in the United States lack familiarity with important NLRA
principles and many complex principles that govern union representation
and collective bargaining.\546\ It found that ``nonunion employees are
especially unlikely to be aware of their NLRA rights'' \547\ and
acknowledged that ``to the extent that lack of contact with unions
contributed to lack of knowledge of NLRA rights 20 years ago, it
probably is even more of a factor today.'' \548\ The Board has also
found that many employers--and even some union officials--lack
familiarity with important NLRA principles and many complex principles
that govern union representation and collective bargaining.\549\
---------------------------------------------------------------------------
\546\ The Board based this finding on ``several factors,''
including ``the comparatively small percentage of private sector
employees who are represented by unions and thus have ready access
to information about the NLRA; the high percentage of immigrants in
the labor force, who are likely to be unfamiliar with workplace
rights in the United States; studies indicating that employees and
high school students about to enter the work force are generally
uninformed about labor law; and the absence of a requirement that,
except in very limited circumstances, employers or anyone else
inform employees about their NLRA rights.'' 76 FR 54006, 54014-15
(2011). As a result, the Board has attempted to expand its outreach
efforts, including distribution of a mobile app regarding the NLRB
and the Act, which we fully support. See ``National Labor Relations
Board Launches Mobile App,'' Aug. 30, 2013 (http://www.nlrb.gov/news-outreach/news-story/national-labor-relations-board-launches-mobile-app). 76 FR at 54014-15. In fact, we favor having Agency
resources directed to a higher profile public relations campaign
regarding the NLRB mobile app and other outreach efforts.
In 2011, the Board attempted to increase familiarity with the
Act's requirements by adopting a rule requiring employers to post
notices advising employees about the Act (id.), but this rule has
been permanently suspended after appellate courts ruled that it
exceeded the Board's authority. Chamber of Commerce of the United
States v. NLRB, 721 F.3d 152 (4th Cir. 2013); National Ass'n of
Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013).
\547\ 76 FR at 54016 (emphasis added).
\548\ Id. (emphasis added).
\549\ Id. at 54017 (emphasis added). In the words of a union
official cited by the Board with approval in 2011: ``Having been
active in labor relations for 30 years I can assure you that both
employees and employers are confused about their respective rights
under the NLRA. Even union officers often do not understand their
rights. Members and non-members rarely understand their rights.
Often labor management disputes arise because one or both sides are
misinformed about their rights.'' Id. at 54017 n.88 (emphasis
added).
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(c) Free Speech. Finally, employers and unions have protected
rights to engage in protected speech prior to an election. As noted,
the Supreme Court has characterized Section 8(c) as reflecting a
``policy judgment, which suffuses the NLRA as a whole, as `favoring
uninhibited, robust, and wide-open debate in labor disputes,' stressing
that `freewheeling use of the written and spoken word * * * has been
expressly fostered by Congress and approved by the NLRB.''' \550\
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\550\ Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008)
(quoting Letter Carriers v. Austin, 418 U.S. 264, 272-73 (1974)).
See also Thomas v. Collins, 323 U.S. 516, 532 (1945) (``The right *
* * to discuss, and inform people concerning, the advantages and
disadvantages of unions and joining them is protected not only as
part of free speech, but as part of free assembly.''); Thornhill v.
Alabama, 310 U.S. 88, 102-103 (1940) (``[I]n the circumstances of
our times the dissemination of information concerning the facts of a
labor dispute must be regarded as within that area of free
discussion that is guaranteed by the Constitution.'').
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3. The Legal Standards for Administrative Agency Action. Our
colleagues state that their views will be given deference to a degree
that must result in the Final Rule's approval.\551\ We respectfully
disagree. ``Reviewing courts are not obliged to stand aside and
rubberstamp their affirmance of administrative decisions that they deem
inconsistent with a statutory mandate or that frustrate the
congressional policy underlying a statute.'' \552\
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\551\ The court's ruling clearly indicated that it was deferring
any consideration of the rule's other potential infirmities. Chamber
of Commerce of the United States v. NLRB, supra, 879 F. Supp. 2d at
18, 21, 25, 30 (``Regardless of whether the final rule otherwise
complies with the Constitution and the governing statute--let alone
whether the amendments it contains are desirable from a policy
perspective--the Board lacked the authority to issue it, and,
therefore, it cannot stand. * * * Because the final rule was
promulgated without the requisite quorum, the Court must set it
aside on that ground and does not reach Plaintiffs' remaining
arguments. * * * The Court does not reach--and expresses no opinion
on--Plaintiffs' other procedural and substantive challenges to the
rule.'') (emphasis added).
\552\ NLRB v. Brown, 380 U.S. 278, 291 (1965).
---------------------------------------------------------------------------
The standard for review of agency rulemaking is principally
governed by the Supreme Court's Chevron decision \553\ and by the
Administrative Procedures Act (APA).\554\ In Chevron, the Court
articulated a two-step analysis:
---------------------------------------------------------------------------
\553\ Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).
\554\ 5 U.S.C. 551 et seq.
When a court reviews an agency's construction of the statute
which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress. If,
however, the court determines Congress has not directly addressed
the precise question at issue, the court does not simply impose its
own construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the statute
is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a
permissible construction of the statute.\555\
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\555\ Chevron at 842-43 (footnotes omitted). In determining
whether an agency rule is invalid under step one of the Chevron
test, the Court indicated that reviewing courts should use
``traditional tools of statutory construction.'' Id. at 843 n.9.
``For most judges, these tools include examination of the text of
the statute, dictionary definitions, canons of construction,
statutory structure, legislative purpose, and legislative history.''
Section of Administrative Law and Regulatory Practice, American Bar
Association, A Blackletter Statement of Federal Administrative Law,
54 Admn. L. Rev. 1, 44 (2002).
Step two of the Chevron test of an agency's statutory construction
somewhat overlaps with the APA, which generally governs the quasi-
legislative rulemaking function of administrative agencies and related
judicial review. The APA provides that a reviewing court shall ``hold
unlawful and set aside agency action, findings, and conclusions found
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.'' \556\ Under this standard, an agency
``must examine the relevant data and articulate a satisfactory
explanation for its action including a `rational connection between the
facts found and the choice made.''' Motor Vehicle Mfrs. Ass'n of the
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S.
29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371
U.S. 156, 168 (1962)). ``Normally, an agency rule would be arbitrary
and capricious if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important
aspect of the problem, [or] offered an explanation for its decision
that runs counter to the evidence before the agency * * * .'' Id.
Courts enforce this ``hard look'' principle with regularity when they
set aside agency regulations that, though well within the agencies'
scope of rulemaking authority, are not supported by the reasons that
the agencies adduce.\557\
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\556\ 5 U.S.C. 706 (2)(A).
\557\ The Supreme Court has applied the State Farm articulation
of the APA's ``arbitrary and capricious'' standard to judicial
review of both Board adjudicatory and rulemaking proceedings. See
Allentown Mack Sales and Service, Inc. v. NLRB, 522 U.S. 359, 374
(1998) (adjudicatory), and American Hosp. Assn. v. NLRB, 499 U.S.
606, 618-20 (rulemaking).
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In our view, the Final Rule's primary purpose and consequence--
shortening the time from the filing of a petition to the conduct of an
election--is contrary to clear Congressional intent, which renders it
invalid under Chevron step one. Moreover, even if one were to find that
Congress has not directly addressed issues in a manner contrary to the
Final Rule's electoral revisions, we believe the
[[Page 74434]]
Final Rule is ``arbitrary or capricious,'' which means it does not
warrant deference under the APA.\558\ Our colleagues have demonstrated
a remarkable indifference to the lack of relevant data in support of
the Final Rule's extensive revisions. They have failed to address
important aspects of the real problems of unacceptable delay in the
Board's election process. And, in our view, they have not articulated a
rational connection between the facts found and the choices they have
made.
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\558\ As the D.C. Circuit has observed, inquiry at the second
step of Chevron, i.e., whether an agency has made a permissible
statutory interpretation, overlaps with the APA's ``arbitrary and
capricious standard.'' See Shays v. FEC, 414 F.3d 76, 96-97 (D.C.
Cir. 2005), and cases cited there. However, the same court has
explained that meaningful differences exist between the two
standards. Chevron II looks to whether the agency has made a
reasonable interpretation of an ambiguous provision of its governing
statute. The APA ``arbitrary and capricious'' standard looks to
whether the agency's exercise of rulemaking authority delegated to
it in that statute by Congress is invalid because it is ``arbitrary
and capricious.'' See e.g., Continental Airlines, Inc. v Department
of Transportation, 843 F.2d 1444, 1452 (D.C. Cir. 1988). Thus, most
of the Final Rule's provisions will be reviewed and found wanting
under the APA standard.
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4. General Problems and Deficiencies in the Final Rule.
(a) The Final Rule does not articulate a rational reason for
substantially rewriting all representation election procedures. We
still do not understand the reason for embarking on the path our
colleagues have taken. As described in our Proposed Rule dissent, the
Board has a very successful track record of conducting timely
elections. See 79 FR at 7320. Casehandling statistics since 2011
indicate no significant variation from those described in the 2011
proposed election rule. See 76 FR at 36813-14. In 1960, the median time
from petition to a direction of election was 82 days, with more time
obviously elapsing before the elections occurred (id. at 36814 n.16).
By 1975, only 20.1 percent of all elections occurred more than 60 days
after the filing of a petition, and this percentage decreased to 16.5
percent by 1985 (id. at 36814 n.19). Since at least 2001, the Board has
applied a well-known target to have elections conducted within a median
of 42 days after the petition-filing.\559\ Over the past decade,
elections have actually occurred within a median of approximately 38
days after the filing of a petition, and in fiscal 2010, the average
time from petition to an election was 31 days.\560\ Another significant
Board target is to hold 90% of all elections within 56 days of the
filing of the petition. The Board has consistently done better than
that standard.\561\ In fact, in 2013, 94.3% of elections were held
within that 56-day period.\562\ Thus, it is fair to conclude that in
2013, by the Board's own measures, less than 6% of elections were
unduly ``delayed.'' Some elections take too long to resolve, but in
recent years these cases have been few in number.
---------------------------------------------------------------------------
\559\ NLRB's 2004 Performance and Accountability Report:
Protecting Workplace Democracy, 15-17 and 67 (undated),
www.nlrb.gov/reports-guidance/reports/performance-and-accountability. In the early 1990s, the Agency's articulated goal
was to hold elections within a median of 50 days after the filing of
the petition. See General Counsel's Memorandum, GC 93-16, ``Major
Accomplishments of the Office of the General Counsel for Fiscal
Years (1990-1993),'' 3 (Nov. 24, 1993), www.nlrb.gov/reports-guidance/general-counsel-memos.
\560\ General Counsel's Memorandum, GC-11-09, ``Report on
Midwinter ABA PP Committee,'' 19 (March 16, 2011), www.nlrb.gov/reports-guidance/general-counsel-memos.
\561\ NLRB Summaries of Operations, fiscal years 2007-2012, and
Performance Accountability Reports, 2004-2013, www.nlrb.gov/reports-guidance/reports. See GC-11-09, supra note 25, at 18-19.
\562\ NLRB Performance Accountability Report, fiscal year 2013,
www.nlrb.gov/reports-guidance/reports.
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The Final Rule's focus on limiting the use of pre-election hearings
by substantially narrowing their scope, limiting the evidence accepted,
and eliminating the rights of parties to submit written legal arguments
is predicated on the false assumption that providing parties with an
opportunity to be heard and to develop a full factual record at the
pre-election hearing is an impediment to efficient, prompt election
case processing. This presumption is directly contrary to the foregoing
facts showing that all but a very small percentage of Board cases are
not unduly delayed.
The facts further show that the pre-election hearing itself
accounts for very little of the overall time it takes to process
representation cases. When hearings are required, regions hold pre-
election hearings promptly, the hearing rarely lasts more than 1 day,
and regional directors thereafter issue decisions with impressive
celerity, perhaps facilitated by, but certainly not shown to be impeded
by, the filing of post-hearing briefs. In FY 2013, regional directors
issued 159 pre-election decisions in contested cases in a median of 32
days following the filing of the petition,\563\ well below their target
of 45 days. Similarly, in FY 2012, regional directors issued 169 pre-
election decisions in contested representation cases after hearing in a
median of 34 days, and in FY 2011 regional directors issued 203 pre-
election decisions in a median time of 33 days.\564\
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\563\ Reported by NLRB Division of Operations Management, August
8, 2014.
\564\ FY 2012 Summary of Operations, General Counsel's Memo 13-
01 (January 11, 2013), at http://www.nlrb.gov/reports-guidance/general-counsel-memos.
---------------------------------------------------------------------------
These figures show that regional directors consistently issue
decisions in contested cases with great efficiency. Contrary to the
extended explanation offered by our colleagues--in the interest of
justifying severe limits on the timing and scope of pre-election
hearings, increased evidentiary and procedural burdens on employers,
and extremely limited, discretionary Board review of regional
directors' decisions--the facts show that pre-election hearings and
regional directors' decisions are simply not a cause of significant
administrative delay or other identifiable deficiencies.
We do not suggest the Board's work here is necessarily done.
However, the available data do not provide a rational basis for the
Final Rule's wholesale reformulation of election procedures.
The majority also continues to dismiss the utility of agency time
targets and performance standards as measures of case processing
efficiency, claiming that those standards evolve and only present a
measure of what can be accomplished under the existing procedural
regime. Yet, they do not even offer an alternative standard, under the
Final Rule, regarding what should be accomplished within what period of
time. Our colleagues find it sufficient to brand certain current
practices as primary sources of delay. They are because the majority
says they are, and the elimination or amendment of these practices will
eradicate delay. The objective facts refute this ipse dixit
justification.
Further, there are several important rational inconsistencies in
the Final Rule's justification for expediting the conduct of elections:
(i) A need ostensibly exists for elections to occur more quickly, yet
other Board doctrines delay or defer elections for up to several years;
\565\ (ii) the Final Rule makes elections occur more quickly--by
eliminating time for reasonable preparation, by adopting new,
[[Page 74435]]
accelerated pleading requirements applicable only to employers, by
dispensing with post-hearing briefs, and by deferring until following
the election evidence regarding issues as fundamental as who can vote,
for example--but our colleagues do not adequately address the
likelihood that the overall time needed to resolve post-election issues
will increase, as will the number of rerun elections; (iii) most
importantly, the Act's purposes and objectives are vitally affected by
the amount of time between petition-filing and any election (indeed,
this is the near-exclusive justification offered for rewriting nearly
all election procedures), but our colleagues affirmatively disclaim any
need to indicate how much time should or will elapse under the Final
Rule between petition-filing and election; and (iv) our colleagues
adamantly refuse to acknowledge what has been universally understood by
Congress when evaluating the NLRA and virtually every other context
when parties make important decisions: Some reasonable minimum time is
necessary for protected speech and so parties can be familiar with
relevant issues. In all of these respects, among others, we believe the
reasoning underlying the Final Rule is insufficient to establish a
``rational connection between the facts found and the choice made.''
Burlington Truck Lines, supra, 371 U.S. at 168.
---------------------------------------------------------------------------
\565\ For example, as we discuss later in this opinion, the
current blocking charge policy, which the Final Rule incorporates
without meaningful change, is an identified cause of substantial
delay in representation cases. In addition, recent Board decisions
also routinely impose delays of 6 months to a year in successorship
situations, and as much as 4 years in initial card-based voluntary
recognition situations, before a change in employee sentiment
regarding union representation may be tested in an election. See
UGL-UNICCO Service Co., 357 NLRB No. 76 (2011) (successorship), and
Lamons Gasket Co., 355 NLRB 763 (2010) (voluntary recognition).
---------------------------------------------------------------------------
(b) The Final Rule improperly places speed over all other
considerations. We agree that it is desirable to eliminate systemic
inefficiency and protracted delays in the election process. However, as
discussed below, the Act's detailed provisions require Board
proceedings and the consideration of evidence regarding important
issues. Indeed, in addition to at least twice rejecting the ``election
now, hearing later'' and ``vote now, understand later'' approaches
reflected in the Final Rule, Congress enacted other amendments
requiring the Board to abandon procedures--ostensibly justified by
administrative efficiency--because Congress placed primary importance
on having issues resolved without administrative shortcuts, so that
Board members would do the ``deciding'' to ensure that all decisions
would reflect ``the considered opinions of the Board members.'' \566\
---------------------------------------------------------------------------
\566\ H.R. Rep. No. 80-245, at 25 (1947), reprinted in 1 LMRA
Hist. 316; S. Rep. 80-105, 80th Cong., at 8-9, 1 LMRA Hist. 415.
After the Wagner Act's adoption, the Board created a ``Review
Section'' of attorneys to review transcripts and draft decisions,
which a Senate report characterized as disposing of cases ``in an
institutional fashion.'' Id. Congress amended the Act to prohibit
the Board even from employing attorneys for the purpose of reviewing
transcripts, apart from each Board member's own legal assistants.
Id. Thus, NLRA Section 4, 29 U.S.C. 154, added to the Act in 1947,
states: ``The Board may not employ any attorneys for the purpose of
reviewing transcripts of hearings or preparing drafts of opinions
except that any attorney employed for assignment as a legal
assistant to any Board member may for such Board member review such
transcripts and prepare such drafts.'' Congress also amended Section
9(c)(1) by adding language prohibiting hearing officers from even
formulating ``recommendations.'' See note 622 infra, and
accompanying text. In 1959, Congress permitted the Board to delegate
responsibility to regional directors regarding representation-
election issues, but the Act explicitly conditioned this delegation
on each party's right to have the Board review ``any action'' by
regional directors. Id. This delegation did not expand or modify the
authority of hearing officers.
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Our colleagues declare that ``speed is not the sole or principal
purpose'' of the Final Rule, but that their amendments address
``efficiency, fair and accurate voting, transparency, uniformity, and
adapting to new technology.'' We do not dispute that these other
factors can be legitimate considerations in rulemaking. However, speed
is the obvious dominant justification for most of the Final Rule's
changes, and the Final Rule accelerates virtually every deadline
applicable even when doing so is not required by these other
factors.\567\ The majority states that ``eliminating unnecessary delay
is therefore unquestionably a valid reason to amend these
regulations.'' One can hardly argue against eliminating unnecessary
``delay'' in the abstract. As noted below, we advocate aggressive
measures by the Board to identify and eliminate those cases (involving
less than ten percent of elections) where more than 60 days passes
between petition-filing and the election. Yet, here again, there must
be a ``rational connection between the facts found and the choice
made.'' Burlington Truck Lines, supra, 371 U.S. at 168. The majority
invokes the language of ``eliminating delay'' as if cases involving
undue delays are caused by widespread ``dilatory tactics'' (which is
contrary to the available evidence).\568\ Moreover, in our view, too
many of the Final Rule's changes contradict ``the procedure and
safeguards necessary to insure the fair and free choice of bargaining
representatives by employees.'' NLRB v. A.J. Tower Co., 329 U.S. 324,
330 (1946). The Act imposes statutory requirements on the Board,
including an ``appropriate'' pre-election hearing (Section 9(c) of the
Act), and the Board is charged with assuring employees the ``fullest
freedom'' in their exercise of protected rights in Board-conducted
elections (Section 9(b) of the Act). This plain statutory language, and
its legislative history, preclude any suggestion that Congress intended
for the Board to emphasize ``speedy representation procedures'' over
election-related requirements that the statute expressly imposes on the
Board.
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\567\ For example, the Final Rule argues that ``uniformity''
favors having all pre-election hearings take place 8 days after
petition-filing, but this aspect of the Final Rule contrasts with
some Regions that currently allow up to 14 days before conducting
the pre-election hearing. The Final Rule invokes ``technology'' to
expand the disclosure requirements applicable to the voter
eligibility (Excelsior) list--thereby requiring employers to
disclose available personal employee email addresses and phone
numbers, for example--while requiring the submission of the
Excelsior list 2 business days after the regional director directs
an election, which contrasts with the current 7 days.
\568\ We disagree with our colleagues' interpretation of a
statement by the Supreme Court in Boire v. Greyhound Corp., 376 U.S.
473, 478 (1964), and a comment by Senator Taft during debates on the
1947 Taft-Hartley amendments adopted as part of the Labor Management
Relations Act (LMRA). According to our colleagues, the Supreme Court
noted that ``the policy in favor of speedy representation procedures
`was reaffirmed in 1947, at the time that the Taft-Hartley
amendments were under consideration.' '' (Final Rule, supra
(emphasis added), quoting Boire, 376 U.S. at 478). The Supreme Court
in Boire addressed the limited question of whether a Federal court
injunction could be obtained, in order to block a Board-scheduled
election, based on a challenge to an election-related ruling by the
NLRB (in Boire, the party seeking the court injunction claimed that
the Board erroneously found that it was a joint employer). Id. at
476-77. Solely addressing whether Board-ordered elections could be
enjoined by a pre-election Federal court proceeding, the Supreme
Court stated ``Congressional determination to restrict judicial
review in such situations was reaffirmed in 1947, at the time that
the Taft-Hartley amendments were under consideration, when a
conference committee rejected a House amendment which would have
permitted any interested person to obtain review immediately after a
certification because, as Senator Taft noted, `such provision would
permit dilatory tactics in representation proceedings.' '' Id. at
478-79 (emphasis added; footnotes omitted). Nothing in Boire states
that Congress in 1947 reaffirmed a generalized ``policy in favor of
speedy representation procedures.'' Further, it is even more
apparent that Senator Taft did not support a generalized ``policy in
favor of speedy representation procedures.'' To the contrary, as
noted elsewhere in the text, the amendments sponsored by Senator
Taft--which were adopted as part of the LMRA--reaffirmed and
expanded the ``appropriate hearing'' requirement, contrary to the
Board's pre-1947 practice and contrary to the changes adopted in the
Final Rule. See text accompanying notes 572-581, infra.
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Understandably, Board and court cases speak favorably about having
``employees' votes * * * recorded accurately, efficiently and
speedily.'' Id.; see also AFL v. NLRB, 308 U.S. 401, 409 (1940) (the
Wagner Act was designed in part to avoid ``long delays in the procedure
* * * for review of orders for elections''); Northeastern Univ., 261
NLRB 1001, 1002 (1982) (referring to ``expeditiously resolving
questions concerning representation''); Tropicana Prods., Inc., 122
NLRB 121, 123 (1958) (``[T]ime is of the essence if Board processes are
to be effective.''). Yet, nothing in these cases suggests speed or
efficiency should be pursued at
[[Page 74436]]
the expense of the Act's express principal purpose, which is to
safeguard the ``fullest freedom'' of employees to vote in elections
that determine whether or not they will be union-represented. NLRA Sec.
9(b), 29 U.S.C. 159(b). Indeed, the Court's statement in A.J. Tower
that ``Congress has entrusted the Board with a wide degree of
discretion in establishing the procedure and safeguards necessary to
insure the fair and free choice of bargaining representatives by
employees'' is entirely consistent with this statutory directive. 329
U.S. at 330.
Further, regarding the timing of elections, the Supreme Court
precedent cited in the Final Rule deals with entirely different causes
of delay than the processes that are amended or eliminated here. A.J.
Tower was limited to endorsing the Board policy of not permitting post-
election challenges to ballots, which would obviously and inevitably
delay finality and accuracy in the ballot count. As indicated
previously (see note 568, supra), the Supreme Court decision in Boire
v. Greyhound involved an employer's attempt to enjoin election
proceedings and gain immediate judicial review of a Board determination
that it was an employer under the Act. The Court's rejection of pre-
election court review had nothing whatsoever to do with delays
attributable to the Board's handling of pre-election issues. To the
contrary, as further discussed below, there is extensive legislative
history demonstrating that Congress opposed ``quickie elections,''
which was a central focus when Congress adopted the Taft-Hartley and
Landrum-Griffin amendments in 1947 and 1959, respectively.
The Final Rule's emphasis on speed stands in marked contrast to all
of the other contexts in which Congress, courts, and Federal agencies
have emphasized the need to guarantee more time, not less, when
individuals are expected to exercise free choice about representation
and other significant matters in a group setting. A substantial
universe of laws, regulations, and legal decisions specifically address
the time needed for people to review and understand important issues
before casting a vote or signing on the dotted line.\569\ All of these
have one thing in common: They require more time, not less. Against the
backdrop of these examples, we have difficulty believing that Federal
labor law works in reverse. The thrust of the Final Rule--unintended or
not--is that employees make better choices when they vote first, and
understand later. Congress and other state and Federal regulators have
rejected such reasoning. Given that the Board's primary responsibility
is to safeguard employee free choice, especially in elections, the
Final Rule in this fundamental respect is deficient.
---------------------------------------------------------------------------
\569\ Examples include 60 days required when employees are
affected by mass layoffs or plant closings that trigger notice
requirements under the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. 2101 et seq. (WARN); the 45 days required when a
group of employees are offered benefits in exchange for signing a
waiver of age discrimination claims, based on the Older Workers
Benefit Protection Act (``OWBPA''), 104 Stat. 978 (1990), which
added Section 7(f) to the Federal Age Discrimination in Employment
Act (ADEA), 29 U.S.C. 626(f); the recommended period of 60-90 days,
with a minimum of 30 days, when plaintiffs decide whether to opt-out
of a Rule 23 class action, see Federal Judicial Center, Judges'
Class Action Notice and Claims Process Checklist and Plain Language
Guide, 4 (2010), http://www.fjc.gov/public/pdf.nsf/lookup/
NotCheck.pdf/$file/NotCheck.pdf; and the 4-6 week period between the
nomination of candidates to be local union officials and subsequent
elections. See Office of Labor-Management Standards, Conducting
Local Union Officer Elections: A Guide for Election Officials, 4
(2010), http://www.dol.gov/olms/regs/compliance/localelec/localelec.pdf. See generally our dissenting views in the 2014 NPRM,
79 FR 7344-7345 (Feb. 6, 2014) (dissenting views of Members
Miscimarra and Johnson).
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Finally, it is important to note that the Final Rule reflects a
preoccupation with speed between petition-filing and the election,
while improperly disregarding the increased delays it may cause in the
Board's overall representation process: The period between petition-
filing and the exhaustion of post-election proceedings and appeals.
Postponing many employee eligibility and unit placement issues until
the post-election period is likely to require more time from petition-
filing to the final certification of election results, particularly
since the Final Rule provides that parties will not even have a right
to obtain any Board member decision regarding pre- and post-election
determinations. This means the only guaranteed review of regional
director decisions will occur if employers refuse to comply with post-
election Board certification, which then provides the opportunity for
court review. In this regard, limitations imposed on the creation of a
full evidentiary record are likely to cause even more substantial
delays because the majority directs the exclusion of evidence that is
likely to be indispensable to any meaningful review by regional
directors, the Board and the courts of appeals. The Final Rule's
changes, which create a greatly accelerated pre-election timetable,
impose inflexible new ``pleading'' requirements applicable primarily to
the employer, largely eliminate post-hearing briefing, and truncate the
record, are likely to produce an entirely new class of procedural and
due process challenges--with many more remands from courts of appeals
to the Board or from the Board to regional directors (in those
relatively rare cases where the Board chooses to exercise its
discretion to review a particular case). Only in the second stage of
Board litigation will parties have the opportunity to present and
respond to evidence, arguments and briefing that could not fully and
fairly be litigated earlier. This will result in greater delays between
petition-filing and any bargaining between employers and unions, which
is the most important end result of representation elections in which
the union prevails.
(c) The Final Rule's limits on pre-election litigation--creating an
``election now, hearing later'' and ``vote now, understand later''
election process--contravene clear Congressional intent. The Final Rule
defines the Board's statutory obligation to conduct an ``appropriate''
pre-election hearing as limited to the presentation of evidence
necessary to determine whether a question concerning representation
exists. This eliminates the parties' right to present evidence
concerning properly contested individual eligibility and inclusion
issues.\570\ As previously stated, this restrictive definition, and the
conferral of authority on regional directors and hearing officers to
limit
[[Page 74437]]
the presentation of evidence on these issues, is a keystone device in
the Final Rule's acceleration of the pre-election timeline.\571\
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\570\ It is true that the Final Rule does not completely
eliminate the pre-election hearing, nor does the Final Rule totally
preclude the possibility that a particular hearing officer might
permit the introduction of evidence regarding voter eligibility or
supervisory status, for example. However, the Final Rule expressly
states that it dramatically narrows the scope and duration of pre-
election hearings, and it relegates all but the most basic issues to
post-election proceedings. Therefore the Final Rule clearly will not
result in pre-election hearings where voter eligibility and
inclusion issues are regularly addressed. The Final Rule explicitly
states otherwise. Further, the inclusion or exclusion of such
evidence would be determined by hearing officers, who, under Sec.
9(c)(1), are not even permitted to make ``recommendations'' about
relevant issues.
We also recognize that, under existing Board procedures,
elections may take place while some questions remain unresolved, and
some employees may cast votes that, if challenged, are ruled upon in
post-election proceedings. In all such cases, however, the Act gives
parties the right to present evidence regarding these issues at a
pre-election hearing. And based upon such evidence, the Act requires
that the regional director and the Board consider requests to stay
the election until such issues are resolved. See text accompanying
note 627, infra. In addition to dramatically shortening the time
period between petition-filing and the election, the Final Rule
would impermissibly curtail the right to present any evidence at the
pre-election hearing regarding many fundamental issues, which in
turn would prevent the regional director and the Board even from
considering whether the resolution of such issues is important
enough to warrant staying the election. Id.
\571\ Other amendments in the Final Rule that impermissibly
implement this definition by limiting the presentation of evidence
in a pre-election hearing--including the new preclusion standard,
permitting offers of proof to substitute for testimonial evidence,
and the discretionary 20 percent standard for the exclusion of
evidence relating to eligibility and inclusion issues--are discussed
in a subsequent section of this opinion.
---------------------------------------------------------------------------
This leads inevitably to a conclusion--relevant when conducting an
inquiry under Chevron step one--that the Final Rule's exclusion of
eligibility and unit-inclusion issues from the ``appropriate hearing''
requirement of Section 9(c)(1) of the Act directly and substantially
contravenes Congress's clearly expressed intent in enacting and
reenacting that requirement.\572\
---------------------------------------------------------------------------
\572\ See also former Member Hayes' discussion of this point in
his dissent to the vacated December 2011 rule at 77 FR 25560.
---------------------------------------------------------------------------
Section 9(c)(1) states that, whenever a representation petition is
filed, the Board ``shall investigate'' and, if there is ``reasonable
cause'' to believe there is a ``question of representation,'' the Board
``shall provide for an appropriate hearing upon due notice.'' Section
9(c)(1) further states that the hearing ``may be conducted by an
officer or employee of the regional office, who shall not make any
recommendations with respect thereto,'' and if the Board finds ``based
on the record of such hearing'' that a question of representation
exists, the Board ``shall direct an election by secret ballot and shall
certify the results thereof.''
Contrary to our colleagues' discussion of this issue, Congress has
directly addressed the scope of the requisite ``appropriate hearing,''
and has at least twice rejected the ``election now, hearing later'' and
``vote now, understand later'' approaches reflected in the Final Rule.
In particular, Congress has clearly repudiated the notion that the
Board may conduct so-called ``quickie elections'' before important
issues such as eligibility and inclusion are the subject of an
``appropriate hearing.''
Based on the original Wagner Act (which did not require elections
but provided for an ``appropriate hearing'' if an election was
conducted), the Supreme Court decided in 1945 that the ``appropriate
hearing'' requirement could be satisfied by a post-election hearing.
Inland Empire Dist. Council v. Millis, 325 U.S. 697, 707 (1945). For
about 19 months thereafter, the Board conducted a number of prehearing
elections and relegated important election-related issues to a post-
election hearing. In 1947, Congress explicitly prohibited this practice
by adding the aforementioned language in Sections 9(c)(1) and (4) of
the Act requiring the Board to conduct an ``appropriate hearing''
before any election, and permitting ``the waiving of hearings'' only
``by stipulation'' of all parties.\573\ Thus, when the Taft-Hartley
amendments explicitly prohibited elections without an ``appropriate
hearing'' before the election, this not only repudiated a practice that
had been adopted by the Board, it repudiated the Supreme Court's Inland
Empire decision.\574\
---------------------------------------------------------------------------
\573\ 29 U.S.C. 159(c)(1), (4); 61 Stat. 136 (1947), 29 U.S.C.
141 et seq., reprinted in 1 LMRA Hist. 1 et seq. (1974); NLRB v. SW.
Evans & Son, 181 F.2d 427, 429-30 (3d Cir. 1950); H.R. Rep. 86-741,
at 24 (1959), reprinted in 1 NLRB, Legislative History Of The Labor-
Management Reporting And Disclosure Act, 1959, 782 (1974)
(hereinafter ``LMRDA Hist.'') (``During the last 19 months of the
Wagner Act * * * a form of prehearing election was used by the
NLRB.''); S. Rep. 86-187, at 30 (1959), reprinted in 1 LMRDA Hist.
426 (the practice of holding prehearing elections ``was tried in the
last year and a half prior to passage of the Taft-Hartley Act, but
it was eliminated in that [A]ct'').
\574\ In light of this and other clear expressions of Congress's
intent on the precise question of the scope of the statutory term
``appropriate hearing'' after the Court's Inland Empire decision, we
accord less weight to the Court's interpretation of that term in
Inland Empire than do our colleagues.
---------------------------------------------------------------------------
In 1959, the resurrected concept of having expedited elections
followed by the consideration of important issues in post-election
hearings was part of President Eisenhower's original ``20-point
program'' that prompted Congress to adopt the Landrum-Griffin Act. See
S. Rep. 86-10, at 3 (1959), reprinted in 1 LMRDA Hist. 82 (``In order
to speed up the orderly processes of election procedures, to permit the
Board under proper safeguards to conduct representation elections
without holding a prior hearing where no substantial objection to an
election is made.''). Not only was this ``election first, hearing
later'' concept considered throughout the 1959 legislative debates, it
was adopted in the Senate version of the Landrum-Griffin
amendments.\575\ Significantly, though authorizing the Board to conduct
elections on an expedited basis while deferring important issues to a
post-election hearing, the Senate-passed bill explicitly prohibited
elections from occurring fewer than 30 days after the filing of a
petition. Then-Senator John F. Kennedy--who chaired the Conference
Committee and was a proponent of the pre-hearing election concept--
repeatedly stated that at least 30 days were required between the
petition's filing and the election to ``safeguard against rushing
employees into an election where they are unfamiliar with the issues.''
\576\
---------------------------------------------------------------------------
\575\ See S. 1555, 86th Cong. Section 705 (as passed by the
Senate on April 25, 1959), reprinted in 1 LMRDA Hist. 581.
\576\ 105 Cong. Rec. 5361 (1959), reprinted in 2 LMRDA Hist.
1024 (emphasis added). To the same effect, Senator Kennedy stated
``there should be at least a 30-day interval between the request for
an election and the holding of the election,'' and he opposed
proposals that, in his words, failed to provide ``at least 30 days
in which both parties can present their viewpoints.'' 105 Cong. Rec.
5770 (1959), reprinted in 2 LMRDA Hist. 1085 (statement of Sen.
Kennedy); see also H.R. Rep. 86-741, at 25 (1959), reprinted in 1
LMRDA Hist. 783 (minimum 30-day pre-election period was designed to
``guard[] against `quickie' elections''). To repeat, Senator Kennedy
was a principal proponent of pre-hearing elections. Contrary to our
colleagues, we find that his remarks as to what would be required if
pre-hearing elections were permitted are germane to the analysis of
whether the changes they make to shorten the time from petition to
election in all representation cases are rational or arbitrary.
---------------------------------------------------------------------------
Ultimately, Congress still refused to adopt the Senate-passed
arrangement because elections would take place too quickly. Congress
instead reaffirmed the requirement that the Board conduct an
``appropriate hearing'' before any contested election, and it precluded
the Board from deferring litigation of voter eligibility and other
issues to post-election hearings. Representative Graham Barden, when
describing the Senate-passed bill's abandonment, explained that pre-
election ``hearings have not been dispensed with. There is not any such
thing as reinstating authority or procedure for a quicky election. Some
were disturbed over that and the possibility of that is out. The right
to a formal hearing before an election can be directed is preserved
without limitation or qualification.'' \577\
---------------------------------------------------------------------------
\577\ 105 Cong. Rec. 16629 (1959), reprinted in 2 LMRDA Hist.
1714. Cf. H.R. Rep. 86-741, at 76 (1959), reprinted in 1 LMRDA Hist.
834 (indicating that Representative Barden was Chairman of the House
Committee on Education and Labor); H.R. Rep. 86-1147, at 42 (1959),
reprinted in 1 LMRDA Hist. 946 (indicating that Representative
Barden was the ranking House Conference Committee Manager). See also
105 Cong. Rec. A8062 (1959), reprinted in 2 LMRDA Hist. 1813
(opposing ``pre-hearing or so-called quickie election'' and
affirming that the ``right to a hearing is a sacred right''); H.R.
Rep. 86-741, at 24-25 (1959), reprinted in 1 LMRDA Hist. 782-83
(mandatory period between petition-filing and election ``guards
against `quickie' elections''); 105 Cong. Rec. A8522 (1959),
reprinted in 2 LMRDA Hist. 1856 (referencing opposition to pre-
hearing election proposal).
---------------------------------------------------------------------------
As is obvious from the legislative record, the core concepts
underlying the current Rule (``election now, hearing later'' and ``vote
now, understand later'') were not simply matters of peripheral concern
when Congress--in 1947 and again in 1959--rejected the notion of having
expedited elections without a hearing regarding fundamental election
issues like voter eligibility and supervisory status. Thus, from 1947
[[Page 74438]]
until today, the Board's long-established practice has been to conduct
a full evidentiary hearing on contested issues prior to conducting an
election and to permit the introduction of evidence on unit eligibility
and inclusion issues in those hearings as a matter of statutory right.
This is consistent with Congressional intent in the Taft-Hartley
amendments in 1947. It is also consistent with the ultimate knowing
determination by Congress not to alter that practice when enacting the
Landrum-Griffin amendments in 1959. As to the latter legislative event,
the Supreme Court has stated that in reviewing the Board's
interpretation of the Act, ``a court may accord great weight to the
longstanding interpretation placed on a statute by an agency charged
with its administration. This is especially so where Congress has re-
enacted the statute without pertinent change. In these circumstances,
congressional failure to revise or repeal the agency's interpretation
in 1959 is strongly supportive of our view that the longstanding
interpretation is the one intended by Congress.'' \578\ By this
standard, it could not be clearer that the Final Rule's interpretation
of ``appropriate hearing'' contravenes Congressional intent.\579\
---------------------------------------------------------------------------
\578\ NLRB v. Bell Aerospace Company, Division of Textron, Inc.,
416 U.S. 267, 274-75 (1974).
\579\ Congress's failure to pass electoral initiatives in the
Labor Law Reform Act of 1977-78 represented yet another rejection of
the ``vote now, understand later'' approach. See Cong. Res. Serv.,
Digest of Public General Bills and Resolutions, Final Issue, Part 1,
501-02 (95th Cong. 2d Sess. 1979) (recounting passage of bill in
House on Oct. 6, 1977; failure of four cloture motions in Senate
from June 13-22, 1978; closest votes 58-41 on June 14 and 58-39 on
June 15).
---------------------------------------------------------------------------
Furthermore, not only is the Final Rule's interpretation of the
scope of an ``appropriate hearing'' clearly contrary to Congress'
expressed intent, it is especially objectionable from a policy
standpoint to exclude from pre-election hearings evidence regarding who
is eligible to vote. \580\ To state the obvious, when people
participate in an election, it is significant whether they actually
have a right to vote, whether their vote will be counted, and whether
the election's outcome will even affect them.\581\ In this respect, the
Final Rule's approach would be intolerable in every other voting
context, whether it involved a national political election or high
school class president. Thus, for good reason, the ``appropriate
hearing'' requirement has consistently been deemed to require that pre-
election hearings encompass evidence regarding voter eligibility and
inclusion issues. The Board's recent decisions have highlighted the
importance of determining what employees may be excluded from
petitioned-for bargaining units, which prompted a Board majority in
Specialty Healthcare to change the legal standard governing such
determinations.\582\
---------------------------------------------------------------------------
\580\ Regarding the Final Rule's provisions for Board-conducted
elections without even permitting a pre-election hearing about who
is eligible to vote, the Rule is on the wrong side of history and
common sense. See NLRA Sec. 9(c)(1), (4) (requiring an ``appropriate
hearing upon due notice'' before an election, unless there is a
``waiver * * * for the purpose of a consent election''). Addressing
the Taft-Hartley Act's rejection of the ``election first, hearing
later'' concept, Senator Taft--cosponsor of the legislation--stated,
``It is the function of hearings in representation cases to
determine whether an election may properly be held at the time; and
if so, to decide questions of unit and eligibility to vote.'' 93
Cong. Rec. 7002 (1947), reprinted in 2 LMRA Hist. 1625 (supplemental
analysis of LMRA by Senator Taft) (emphasis added). Addressing the
Landrum-Griffin amendments adopted in 1959, Representative Graham
Barden--Chairman of the House Committee on Education and Labor, and
the ranking House conferee--stated that ``[t]he right to a formal
hearing before an election can be directed is preserved without
limitation or qualification.'' 105 Cong. Rec. 16629 (1959),
reprinted in 2 LMRDA Hist. 1714 (emphasis added), describing H.R.
Rep. 86-1147, at 1 (1959), reprinted in 1 LMRDA Hist. 934
(conference report). Chairman Barden stated: ``The right to a
hearing is a sacred right.'' 105 Cong. Rec. A8062 (1959), reprinted
in 2 LMRDA Hist. 1813 (emphasis added). Consistent with these
requirements, the Board itself has repeatedly held that Section
9(c)(1) requires that pre-election hearings provide the opportunity
to present evidence regarding who is eligible to vote and questions
regarding supervisory status, among other things. See, e.g., Barre-
National, Inc., 316 NLRB 877 (1995) (finding that hearing officer's
refusal to permit evidence regarding supervisory status ``did not
meet the requirements of the Act'' even though the hearing officer--
like the Final Rule--would have permitted the individual to vote
under challenge, subject to post-election proceedings to determine
supervisory status). Because, contrary to our colleagues' position,
this requirement stems from the Act and not from our decisions, it
cannot be evaded by overruling Barre-National and related cases. See
also Angelica Healthcare Services Group, 315 NLRB 1320 (1995); North
Manchester Foundry, Inc., 328 NLRB 372 (1999); Avon Prods., Inc.,
262 NLRB 46, 48-49 (1982).
\581\ An array of problems and incongruities stem from the broad
exclusion of eligibility and inclusion issues from pre-election
hearings. Because the Final Rule directs the exclusion of evidence
regarding such issues, there will be more situations where many
employees cast votes in NLRB-conducted elections where, based on the
post-election resolution of eligibility issues, the employees learn
their votes were not even counted and, even if the union prevailed,
the ineligible employees are excluded from any bargaining. Without a
pre-election hearing regarding whether certain individuals are
eligible voters versus statutory supervisors, many employees will
not know there is even a question about whether fellow voters--with
whom they may have discussed many issues--will later be declared
supervisor-agents of the employer. Many employers will be placed in
an untenable situation regarding such individuals based on
uncertainty about whether they could speak as agents of the employer
or whether their individual actions--though not directed by the
employer--could later become grounds for overturning the election.
Also, employees ultimately included in the bargaining unit will not
know--at the time they voted--whether they will have the support of
other employees who, after the election, end up being excluded from
the bargaining unit. Congress clearly intended that parties would
have the right to present evidence regarding such issues in the
``appropriate hearing'' required before any non-stipulated election.
As indicated previously (see note 570, supra), the point here
is not that such issues require resolution before every election;
the Final Rule adopts the broad-based position that evidence as to
these issues should be excluded and in many instances will be
excluded from the pre-election hearing. This is all the more
perplexing given that Congress repeatedly reaffirmed the need for a
pre-election hearing to permit evidence regarding such important
issues and, in every case, potential pre-election Board review of
``any action'' by regional directors. NLRA Sec. 3(b), 29 U.S.C.
153(b). This deficiency in the Final Rule is not cured by the
possibility that hearing officers may, as a discretionary matter,
permit evidence regarding some voter eligibility issues in isolated
cases. The Final Rule redefines the limited purpose of the pre-
election hearing to a determination of whether a ``question of
representation'' exists, thereby providing for the deferral of voter
eligibility issues until after the election. One cannot reasonably
presume that hearing officers and regional directors will exercise
``discretion'' to act at variance with what the Final Rule requires.
\582\ Specialty Healthcare and Rehabilitation Center of Mobile,
Inc., 357 NLRB No. 83 (2011), affd. sub nom. Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).
---------------------------------------------------------------------------
(d) The Final Rule curtails protected speech during representation
election campaigns. Section 8(c) and other provisions of the Act
protect the free speech rights of employees, employers, and unions,
consistent with similar guarantees afforded by the First Amendment. The
Supreme Court has long recognized an employer's right to engage in free
speech in the labor relations context. See NLRB v. Virginia Electric &
Power Co., 314 U.S. 469, 477-79 (1941) (nothing in the Act prohibits
employers from expressing their views about unions). The Court has also
characterized Section 8(c) as reflecting a ``policy judgment, which
suffuses the NLRA as a whole, as `favoring uninhibited, robust, and
wide-open debate in labor disputes,' stressing that `freewheeling use
of the written and spoken word * * * has been expressly fostered by
Congress and approved by the NLRB.' '' \583\ Employers and unions have
protected rights to engage in protected speech prior to an election.
This right only has meaning if there is sufficient time for the parties
to communicate with employees about the choice of representation.
Employees should have enough time to listen to both sides of the debate
about unionization, to inform their colleagues of their views on the
subject, and to consider their options before voting on an issue that
could impact their working lives for years to come.
---------------------------------------------------------------------------
\583\ Chamber of Commerce v. Brown, 554 U.S. at 68 (quoting
Letter Carriers v. Austin, 418 U.S. 264, 272-73 (1974)).
---------------------------------------------------------------------------
[[Page 74439]]
The Final Rule is intended to, and inevitably will, substantially
shorten the time in all initial organizing representation elections
from the filing of a petition, when support for unionization is often
at its peak, to the day of the election.\584\ The Final Rule will
therefore necessarily curtail the ability of parties to exercise their
rights to engage in protected speech during the critical pre-election
campaign period. Particularly because the consequences of an election
can be long-lasting--regardless of whether employees vote for or
against union representation--the Final Rule limits the right of all
parties to engage in protected speech at precisely the time when their
free speech rights are most important. Thus, in most cases, parties and
employees will have less time to share their respective views and
engage in robust, lawful debate regarding the positive and negative
aspects of union representation. This consequence alone is a matter of
constitutional concern. That concern is magnified by the mandate that
regional directors schedule an election ``at the earliest date
practicable,'' which creates an unacceptably heightened risk parties
and employees will have too little time at least in some cases, as
measured by any reasonable standard, to engage in protected debate.
---------------------------------------------------------------------------
\584\ The majority argues that the Final Rule does not
necessarily shorten the time between the petition and the election
because it does not set any rigid timelines for the conduct of the
election. If that were the case, then there is no point at all to
the pre-election elements of the rule that abbreviate the timetable
for conducting an election. Further, we have little doubt how
regional directors--members of the career Senior Executive Service
whose eligibility for annual performance awards depends in
substantial part on how their regional office meets time targets--
will construe the overriding imperative in the Final Rule that
elections be scheduled ``at the earliest date practicable.''
---------------------------------------------------------------------------
The majority makes much of the statement, in our dissent to the
Proposed Rule, that we did not know the precise point in time when
shortening the election timetable would impermissibly deny employers,
unions, and employees the right to engage in speech protected by the
Act and the First Amendment. The Final Rule dispels any question about
this: it does effectively and impermissibly curtail the protected
speech rights guaranteed to employers, unions and employees under the
Act and the First Amendment. The Final Rule substantially abbreviates
the time from petition to election in all representation cases; as
previously stated,\585\ the Board has determined that most
unrepresented employees--and many employers and union officials--lack
familiarity with important NLRA principles and the many complex
principles that govern union representation and collective bargaining;
the Final Rule explicitly adopts the requirement that elections take
place as quickly as ``practicable''; the Rule squarely rejects any
reasonable minimum time between petition-filing and election; and our
colleagues explicitly disclaim responsibility even to identify an
appropriate target time frame that should--or will--result from the
Rule.
---------------------------------------------------------------------------
\585\ See discussion in text and accompanying footnotes in Sec.
A.2, supra.
---------------------------------------------------------------------------
In short, in respect to free speech concerns, the Final Rule has
two infirmities. First, the Rule single-mindedly accelerates the time
from the filing of the petition to the date when employees must vote in
representation elections (indeed, the Rule overtly requires election
voting as soon as ``practicable'' after a petition is filed).\586\
Second, the Rule irrationally ignores the self-evident proposition
that, when one eliminates a reasonable opportunity for speech to occur,
parties cannot engage in protected speech. In combination, these
problems inescapably reflect the same uniform purpose and effect: To
limit pre-election campaigning and curtail protected speech, contrary
to the First Amendment, the Act and decades of case law establishing
that all parties--and the Board--regard pre-election campaigns as
vitally important.
---------------------------------------------------------------------------
\586\ To the extent that the majority relates its First
Amendment argument to its claim that ``as soon as practicable'' is
the Board's historical standard, we counter that the Rule radically
revises what the Board has historically viewed as practicable and,
by doing so, greatly increases the risk of free speech infringement.
---------------------------------------------------------------------------
The substantial body of judicial precedent that governs campaigning
in political elections is also relevant here.\587\ Numerous courts have
ruled that all but the most narrowly drawn durational limitations on
political electioneering are impermissible government restrictions of
free speech.\588\ Further, the Supreme Court has declared: ``It is
simply not the function of government to select which issues are worth
discussing or debating in the course of a political campaign.'' \589\
Neither should it be the Board's function to curtail opportunities for
the identification and discussion of issues in a representation
election.
---------------------------------------------------------------------------
\587\ The majority rejects the analogy between Board elections
and political elections. Their view cannot be reconciled with
judicial precedent that has long recognized this analogy as apt. See
Wirtz v. Hotel, Motel & Club Emp. Union, Local 6, 391 U.S. 492, 504
(1968) (when creating representation elections, ``Congress' model of
democratic elections was political elections in this country'');
NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 733 (9th Cir.
1985) (``Congress intended representation elections to follow the
model of elections for political office.''). See also NLRB v. A.J.
Tower Co., supra at 332 (rationale for opposing post-election
challenges in political elections also applies to representation
elections). Therefore, the courts' regulation of conduct in
political elections may be particularly instructive in the Board's
regulation of representation elections and provide support for the
assertion that individual free choice in representation elections
requires more time and information, not less.
\588\ See, e.g., Mills v. Alabama, 384 U.S. 214 (1966)
(invalidating state ban on election-day newspaper editorials);
Emineth v. Jaeger, 901 F. Supp. 2d 1138 (D.N.D. 2012) (enjoining
state ban on all electioneering on election day); Curry v. Prince
George's Cnty., Md., 33 F. Supp. 2d 447, 454-455 (D. Md. 1999)
(invalidating county ban on display of political signage for all but
45 days before and 10 days after a political election).
\589\ Republican Party of Minnesota v. White, 536 U.S. 765, 782
(2002) (citing Brown v. Hartlage, 456 U.S. 46, 60 (1982)).
---------------------------------------------------------------------------
Our colleagues assert that the Final Rule is permissible because it
does not completely eliminate the opportunity for employees, employers
and unions to communicate about unionization. They argue, for example,
that some nonunion employers learn about union organizing before
representation petitions are filed.\590\ However, our colleagues'
reliance on possible union-related discussions before petition-filing
is misdirected because, first, the Final Rule's deleterious impact on
speech obviously occurs after petition-filing (by dramatically
shortening the window between petition-filing and the election), and
second, the filing of the petition initiates what the Board and the
courts consider the ``critical period'' prior to the election, a period
during which the representation choice is imminent and speech bearing
on that
[[Page 74440]]
choice takes on heightened importance.\591\ Indeed, our colleagues'
argument reflects the hallmark characteristic associated with every
infringement on free speech: the government simply determines the
speech is not necessary. Rather than saving the Rule, this constitutes
the most objectionable aspect of the Rule as it relates to protected
speech.
---------------------------------------------------------------------------
\590\ The Final Rule relies in large part on written comments
and testimony submitted by Professor Kate Bronfenbrenner that
purport to show that employers generally have knowledge of
organizing campaigns before a petition is filed. However, the
reliance on this research would be misplaced even if the research
were objectively accurate. As the Final Rule emphasizes, ``[m]ost
elections involve a small number of employees,'' with a quarter of
elections held in units with 10 or fewer employees, half of
elections held in units smaller than 25, and three-quarters of all
Board elections held in units of 60 or fewer employees. However, the
Bronfenbrenner study is based on a specialized sample of cases
involving only large bargaining units containing at least 50
employees. If for no other reason than that the study is based on a
population of statistical outliers, this study cannot legitimately
support the Final Rule's claim that ``employers are very often aware
of the organizing campaign before the petition is filed.'' See
August 22, 2011 correspondence from Bronfenbrenner and Warren to the
Board, enclosing Empirical Case for Streamlining the NLRB
Certification Process. In addition, as has been noted elsewhere,
there are far too many flaws in the current and past Bronfenbrenner
studies to justify the Board's reliance on them for any purpose
related to this rulemaking. See, e.g., Chamber of Commerce,
Responding to Union Rhetoric: The Reality of the American
Workplace--Union Studies on Employer Coercion Lack Credibility and
Integrity (U.S. Chamber of Commerce White Paper 2009).
\591\ The Board held in Ideal Electric & Mfg. Co., 134 NLRB
1275, 1277-78 (1961), that ``the date of filing of the petition * *
* should be the cutoff time in considering alleged objectionable
conduct,'' because that marks the time ``when the Board's processses
have been invoked'' and an election ``may be anticipated pursuant to
present procedures.'' This period between petition-filing and the
election--during which objectionable conduct is deemed sufficient to
invalidate the election--is called the ``critical period.'' Goodyear
Tire & Rubber Co., 138 NLRB 453 (1962); E.L.C. Electric, Inc., 344
NLRB 1200, 1201 n.6 (2005); NLRB v. Arkema, Inc., 710 F.3d 308, 323
n.16 (5th Cir. 2013); Ashland Facility Operations, LLC v. NLRB, 701
F.3d 983, 987 (4th Cir. 2012); NLRB v. Curwood Inc., 397 F.3d 548,
553 (7th Cir. 2005).
---------------------------------------------------------------------------
It is not enough that employers and employees may communicate
general observations regarding unions before the filing of an election
petition, any more than it would be deemed permissible to limit
political campaigning to generalized statements about a particular
political party before actual candidates are selected. Again, the Board
and the courts (for more than 50 years) have recognized that election
petitions mark the commencement of a new ``critical'' phase in
representation campaigns.\592\ Only the filing of a petition means
``the Board's processes have been invoked,'' resulting in an election
that can be ``anticipated pursuant to [the Board's] procedures.'' \593\
Objectionable activity by employers or unions after petition-filing,
because it occurs during this ``critical period,'' is deemed sufficient
to invalidate the results of the election.\594\ This belies the Final
Rule's premise that eliminating post-petition opportunities for speech
has no material adverse impact on elections and must be considered
inconsequential.
---------------------------------------------------------------------------
\592\ Supra note 591.
\593\ See Ideal Electric & Mfg. Co., 134 NLRB at 1278.
\594\ Supra note 591.
---------------------------------------------------------------------------
Regarding the Final Rule's curtailment of opportunities for speech,
the majority specifically disclaims being motivated by a desire to
counter what they view as an employer's undue influence during
representation campaigns. However, numerous union-side commenters rely
on this justification in advocating the Rule's adoption. They contend
that, under current representation procedures, employers have the upper
hand in campaign communications. Further, as noted previously, our
colleagues or commenters have observed that some employers may be well
informed about union election procedures before a petition is filed;
all employers have unlimited access to employees during the workday and
can hold unlimited captive audience speeches in the workplace until 24
hours before the election; and they may still thereafter have the
``last word'' on election day in individual conversation with
employees.
In our view, reliance on these factors is fundamentally flawed.
First, it reflects a view that the Rule only adversely affects
protected speech undertaken by employers. To the contrary, the Act and
the First Amendment afford employees and unions, as well as employers,
rights to engage in protected speech that the Rule impermissibly
restricts or threatens.
Second, some of these factors (for example, the fact that employers
have unique access to employees) are part and parcel of every
employment relationship, and other factors (for example, limits on
union access to the employer's property) arise from well-established
prior decisions by the Board, the courts of appeals, and the Supreme
Court, which impose different types of limitations on unions and
employers, respectively.\595\ But none of these factors and prior
decisions authorizes the Board to disregard or adopt rules that impose
undue restrictions on protected speech.
---------------------------------------------------------------------------
\595\ See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)
(addressing limitations on union access rights to private property).
---------------------------------------------------------------------------
Third, although our colleagues disclaim the intent to redress an
unfair balance of power between unions and employers by limiting
employer speech, the Rule's provisions predictably and inescapably will
have that effect. It is therefore contrary to the Supreme Court's
holding that the Board is not vested with ``general authority to define
national labor policy by balancing the competing interests of labor and
management.'' American Ship Building Co. v. NLRB, 380 U.S. 300, 316
(1965).
Finally, even if not intended, the Final Rule essentially embraces
an ``anti-distortion'' theory--justifying speech restrictions to
prevent an ``unfair advantage'' in campaigning based on ``resources''
that are too favorable to one side. This theory has been squarely
rejected by the Supreme Court in the political election context,\596\
and the Final Rule has the same impermissible ``anti-distortion''
effect applied to the ``uninhibited, robust and wide-open debate in
labor disputes'' that is fundamental to Federal labor policy.\597\ By
reducing the time for employer speech, the Rule enhances the relative
voice of a union and its advocates. This restriction of speech far
exceeds the ``narrow zone'' deemed permissible by the Brown Court.\598\
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\596\ Citizens United v. Federal Election Commission, 130 S. Ct.
876 (2010). See also 77 FR 25574 (Member Hayes, dissenting). In
Citizens United, the Supreme Court overruled Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990), and rejected the Austin
``anti-distortion theory,'' pursuant to which limitations on speech
were ostensibly justified as preventing ``an unfair advantage in the
political marketplace'' based on ``resources amassed in the economic
marketplace.'' Citizens United, 130 S. Ct. at 904 (citations
omitted). In Citizens United, the Court held that Austin
``interferes with the `open marketplace' of ideas protected by the
First Amendment.'' Id. at 907 (citing New York State Bd. of
Elections v. Lopez Torres, 552 U.S. 196, 208 (2008)). And the Court
concluded that `` `the concept that government may restrict the
speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment.'
'' Id. at 904 (emphasis added) (quoting Buckley v. Valeo, 424 U.S.
1, 48-49 (1976)).
\597\ See Chamber of Commerce v. Brown, supra at 68. See 77 FR
25574 (Member Hayes, dissenting).
\598\ ``The NLRB has policed a narrow zone of speech to ensure
free and fair elections under the aegis of Sec. 9 of the NLRA, 29
U.S.C. 159. Whatever the NLRB's regulatory authority within special
settings such as imminent elections, however, Congress has clearly
denied it the authority to regulate the broader category of
noncoercive speech * * * .'' Chamber of Commerce v. Brown, supra at
74.
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Our colleagues have made a policy choice to abbreviate the
``critical period'' deemed most important by the Board to the exercise
of employee free choice.\599\ The unavoidable consequence of this
choice is the limiting of opportunities for speech and debate during
that period. It is apparent from the statements of numerous commenters
supporting the Rule that in this respect the Final Rule will
specifically disadvantage anti-union speech more than pro-union speech,
and will correspondingly enhance a petitioning union's chances of
electoral success. This does not concern the majority. In the context
of union speech, however, the Board has taken great care to avoid
interpreting and applying the Act in a manner that raises serious
constitutional concerns regarding free speech infringement. See
Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797,
807-11 (2010) (canon of constitutional avoidance requires Board to
construe the Act's provisions in order to avoid serious constitutional
questions arising from an otherwise acceptable construction of the
statute, if an alternative interpretation is possible and not contrary
to the intent of Congress). The Board has the same
[[Page 74441]]
interpretive obligation here. In our view, the Final Rule fails the
test. It poses an unacceptable risk of infringing free speech rights
guaranteed by Section 8(c) of the Act and the First Amendment.
---------------------------------------------------------------------------
\599\ Supra note 591.
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(e) Summary: the Final Rule's General Problems. These general
overarching problems with the Final Rule are reason enough to find that
overall it contradicts the clear intent of Congress as to the Act's
purpose, is ``arbitrary and capricious'' in failing to rationally
relate to the Board's experience in administration of the Act and to
facts adduced in rulemaking, and infringes or poses an impermissible
risk of infringing free speech rights.\600\ Inasmuch as these problems
infect the Final Rule as a whole and all its parts, we do not approve
of any aspect of the Rule, even if we fail to discuss some specific
changes in these dissenting views. As we state at the outset, a
fundamental problem with this rulemaking is its immense scope and
highly technical nature. The majority has consciously adopted all of
these changes simultaneously with the intention that they would
function in conjunction with one another, which makes it unreasonable
to suggest that any piece can be viewed in isolation. The manifold
problems that we have identified throughout this dissent, in turn, mean
the entirety of the new election process is beset with fatal infirmity.
Our colleagues are therefore mistaken in suggesting that there exists a
Board consensus on any specific provisions.
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\600\ Many commenters opposing the NPRM have contended that its
provisions violate procedural due process rights. Necessarily, those
Final Rule amendments that contravene Congressional guarantees of
pre-election process or constitutional and Congressional guarantees
of free speech rights are also invalid because they deprive affected
persons of protected liberty interests without providing the
mandatory due process.
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5. The Final Rule's Additional Specific Problems and Deficiencies
Even putting aside the above deficiencies, significant other
detailed--and, in some respects, highly technical--provisions in the
Final Rule are equally problematic, as fully discussed below.\601\
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\601\ We note that the Final Rule does not include a provision
permitting petitioning parties to use electronic signatures in
support of a showing of interest. Although certain Federal statutes,
including the Government Paperwork Elimination Act (GPEA), 44 U.S.C.
3504 (note), Pub. L. 105-277, Div. C, Title XVII, 112 Stat. 2681
(1998), and the Electronic Signatures in Global and National
Commerce Act (E-SIGN), 15 U.S.C. 7001 et seq. ``evidence Congress's
intent that Federal agencies, including the Board, accept and use
electronic forms and signatures, when practicable,'' the General
Counsel--as suggested by our colleagues--should perform an analysis
similar to that outlined in the Office of Management and Budget's
guidance for implementing the GPEA, OMB Procedures and Guidance;
Implementation of the Government Paperwork Elimination Act, 65 FR
25508 (May 2, 2000), which describes a specific, detailed framework
for agencies to follow ``for deciding whether to use electronic
signature technology for a particular application.'' Id. at 25514
(emphasis added). Absent the results of such an analysis, we cannot
share our colleagues' confidence that a practicable way exists for
the Board to accept electronic signatures to support a showing of
interest while adequately safeguarding the important public
interests involved. Inasmuch as the Final Rule itself contains no
provision relating to electronic signatures, we do not further
address the matter here.
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(a) Accelerating Elections While Imposing New Inflexible
``Pleading'' Requirements--The Final Rule impermissibly shortens the
time from petition to hearing while simultaneously imposing substantial
new mandatory notice and pleading obligations. Under current
longstanding practice, an employer has no mandatory pre-hearing
procedural obligations, although regions routinely request the
voluntary submission of a written commerce questionnaire and oral
communication of unit information to facilitate the negotiation of
election agreements or to define issues to be contested at a hearing.
In addition, if a hearing is necessary, regional directors possess and
have exercised discretion in scheduling its starting date, generally
scheduling hearings to begin from 7 to 12 days from notice of the
petition, with postponements granted upon a showing of good cause.
Although the Final Rule delays the consideration of many
fundamental eligibility and inclusion issues until after the election,
it imposes significant new mandatory pre-hearing requirements.
Specifically, the Final Rule now mandates that, in the absence of an
election agreement, a non-petitioning party, usually the employer, must
within 7 days of the Board's notice of petition file with the Region a
written Statement of Position that must (1) include a list of the full
names, work locations, shifts, and job classifications of all
individuals in the proposed unit, and if the employer contends that the
proposed unit is inappropriate, a separate list of the full names, work
locations, shifts, and job classifications of all individuals that the
employer contends must be added to the proposed unit to make it an
appropriate unit; (2) address any matter it wishes to litigate before
the election; (3) state preferences as to the details of conducting the
election; and (4) indicate those individuals, if any, whom it believes
must be excluded from the proposed unit to make it an appropriate unit.
Furthermore, a hearing must be scheduled to start the day after the
statement's filing, 8 days from Board service of the notice of
petition, absent undefined special or exceptional circumstances
justifying extensions amounting to no more than 4 additional days.
As discussed hereafter, the new requirement to produce this written
information prior to the hearing is unfairly placed only on non-
petitioning parties, usually the employer, and the preclusive effect
given to the statements is too broad. As an initial matter, we question
the rational basis for imposing a uniform shorter timeline from
petition to hearing date while at the same time demanding much more
information from the employer.\602\ The majority claims in the Final
Rule that it merely codifies a best practice here. (Actually, the claim
is that 7 days would be the best practice, but they are willing to
extend the time period to 8 days.)
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\602\ The requirement also applies to non-petitioning unions in
RM and RD elections, but the range of potential contested issues in
those elections is much narrower. In any event, the RC election
petition is by far the petition filed most frequently. Thus, it is
not accurate to state that in practice the burden imposed by the
Final Rule's new Statement of Position requirements will fall
equally on all non-petitioning parties.
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Assuming that there is any basis other than the need for speed for
declaring 8 days to be a best practice or to limit a party's
opportunity adequately to prepare for a hearing, that rationale would
seem to apply only to a timeline in which employers had no more than
the primarily informal, voluntary, and verbal pre-hearing tasks to
attend to under the Board's longstanding pre-hearing practice.\603\ In
sharp contrast, under the Final Rule, employers now must post and
distribute an initial election notice, more often than not obtain
counsel,\604\ interview managers
[[Page 74442]]
and others,\605\ fill out a new mandatory Statement of Position form
within 7 days, prepare for a hearing on issues that it may still
contest, and negotiate the possibility of a stipulated election
agreement. This timing might work out in some instances, but it is
predictable that employers in other circumstances--not falling within
the Final Rule's ambiguous category of ``special'' or ``exceptional''--
will legitimately require more time. For example, concepts of
appropriate unit or statutory supervisory status are not readily
understood by laypersons and in any event may require significant
factual investigation before the required position can be taken. In
such situations, the majority is wrong to assert that employers
``already know[] all those things.'' So even if an 8-day deadline would
be a best practice for uniform application under current pre-hearing
procedures, there is no basis for declaring it in advance to be a best
practice under the amended procedures.
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\603\ Croft Metals, Inc., 337 NLRB 688 (2002), does not support
the Final Rule's requirement that a hearing be held 8 days after the
notice of petition. In Croft, the Board held that a party must
receive at least 5 working days' notice of hearing. The hearing in
Croft was, in fact, scheduled 10 days after the petition filing, but
the employer did not receive the required notice until just 3 days
before that hearing date. The Board was not required to consider and
did not consider how soon a hearing should be scheduled after a
petition is filed. Moreover, for reasons we state here, we believe
Croft's minimum notice of hearing requirement would have to be
adjusted to provide a reasonable minimum time for an employer to
meet the additional pre-hearing burden imposed by the Final Rule.
\604\ As many comments to the Final Rule state, for small
employers without experienced labor counsel in house or on retainer,
these time periods make it difficult to find competent counsel. See,
e.g., SHRM; Chamber II; AHA II; COLLE II.
\605\ Preparation of the mandatory written Statement of Position
obviously does not relieve an employer of the need to prepare
witnesses to testify on issues that it seeks to contest at a
hearing. Indeed, in light of the Final Rule's encouragement of
offers of proof preliminary to or as a substitute for testimony, an
employer may have to take the further substantial pre-hearing step
of taking sworn witness affidavits for submission in support of
potential offers relative to any unit eligibility and inclusion
issues that it can anticipate.
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An even greater shortcoming of the Final Rule in this respect,
however, is its failure to recognize that the practice of regional
flexibility is the best practice, far preferable to a uniform
restrictive standard in the timing of a hearing. There is no evidence
in the considerable record before us that the Board's extremely
competent regional personnel are manipulated and conned by employers
into postponing hearings for unsound reasons. Regions currently have
the flexibility to vary the starting time of a hearing on a case-by-
case basis for good cause shown and often in pursuit of the desired
outcome of concluding an election agreement before parties and
witnesses are required to go through the expense and time of attending
a hearing. Parties and witnesses will almost invariably have to do so
under the Final Rule, unless such an agreement can be reached in 8
days. Inasmuch as the Final Rule relies so heavily in other respects on
the expertise of regional personnel, it is inconsistent and arbitrary
that the same confidence is not accorded to regions in the setting of
hearing dates and the corollary adjustment of the date for submission
of the Statement of Position.
(b) Further Limitations on the Litigation of Pre-Election Issues--
The Final Rule exacerbates inappropriate limitations on the scope of
pre-election hearings by precluding the introduction of evidence on
issues not initially raised in a Statement of Position, by permitting
the exclusion of evidence pertaining to as much as 20 percent of a
bargaining unit, and by encouraging the substitution of offers of proof
for testimony. As noted above, we believe the Final Rule contravenes
the clear intent of Congress by eliminating the statutory requirement
of an evidentiary hearing regarding contested voter eligibility and
inclusion issues, among other things. These problems are compounded by
the Final Rule's arbitrary limit on the introduction of testimony on
those eligibility and inclusion issues as well as its imposition of
formalistic barriers to the litigation even of those issues which the
Final Rule recognizes as mandatory subjects for pre-election hearing.
Statements of Position. The Rule requires all non-
petitioning parties to arrange for preparation and submission of a
comprehensive written Statement of Position no later than 7 days after
the notice of petition absent ill-defined ``special circumstances.''
While this requirement applies to all representation-case proceedings,
the problems it presents arise most frequently in the context of
initial representation (RC) elections, where only the employer (as the
non-petitioning party) bears the burden to identify issues it wishes to
contest in a written statement of position.\606\
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\606\ It is true that, under the Final Rule, the Statement of
Position requirement will apply to unions in those cases when an
employer files an RM election petition or when an individual
employee files a petition seeking to decertify an incumbent union.
The primary impact of the Final Rule, however, relates to initial
representation elections where the union is the petitioning party,
and in such cases, absent another union's intervention, the employer
is the only party required to submit a comprehensive pre-election
Statement of Position, and the employer is foreclosed from later
raising any contentions or introducing evidence regarding mandatory
pre-election issues not identified in the Statement of Position.
---------------------------------------------------------------------------
Thus, the Final Rule states that, when ``the petition is filed by a
labor organization in an initial organizing context,'' the ``employer's
Statement of Position'' must address all of the following items, among
other things: (a) ``whether the employer agrees that the Board has
jurisdiction over it'' (and ``commerce information'' must be provided);
(b) ``whether the employer agrees that the proposed unit is
appropriate,'' and ``if the employer does not so agree,'' what is ``the
basis for its contention that the proposed unit is inappropriate''; (c)
``the classifications, locations, or other employee groupings that must
be added to, or excluded from, the proposed unit to make it an
appropriate unit''; (d) ``any individuals whose eligibility to vote the
employer intends to contest at the pre-election hearing and the basis
of each such contention''; (e) ``any election bar'' (referring to
complex Board doctrines that preclude the processing of representation
petitions in various circumstances); (f) ``the eligibility period''
(referring to the time frame in which bargaining unit members may be
employed in order to be eligible voters); (g) ``the type, dates, times,
and location of the election''; (h) ``an alphabetized list of the full
names, work locations, shifts, and job classifications of all
individuals in the proposed unit'' (emphasis added); (i) ``an
alphabetized list'' of the ``full names, work locations, shifts, and
job classifications'' for ``all individuals that the employer contends
must be added to the proposed unit to make it an appropriate unit'' (if
the employer contends the proposed unit is not appropriate) (emphasis
added); (j) ``those individuals, if any, whom it believes must be
excluded from the proposed unit to make it an appropriate unit''
(emphasis added); and ``any other issues it intends to raise at
hearing.'' Final Rule, Part VI B, supra.
It is worth pausing to appreciate just what the foregoing means in
practice. Under the Final Rule, the employer Statement of Position must
address all questions of statutory and discretionary jurisdiction,
labor organization status,\607\ contract bar and other election bars,
appropriate unit, multi-facility and multi-employer unit scope, the
statutory employee status of individuals constituting more than 20
percent of the petitioned-for unit, the use of eligibility standards
other than the normal standard, whether the employer's business is
about to close or whether it is expanding and does not yet have a
substantial and representative employee complement, whether the
employer is a seasonal operation, and whether there are any
professional employees in the unit who must be accorded their statutory
electoral option.\608\ The Final Rule also requires an employer to
include in the Statement of Position its position on eligibility and
inclusion issues it wishes to contest at the pre-election stage, the
newly required initial employees lists, and its preferences on election
details. An employer's failure to timely file a statement will preclude
it from litigating any issue that must be
[[Page 74443]]
contested at the pre-election stage. Even if a statement properly
raising some litigable issues is timely filed, an employer cannot raise
any additional issue in the hearing unless permitted to do so by the
regional director for good cause.
---------------------------------------------------------------------------
\607\ This would include Section 9(b)(3) guard/nonguard labor
organization issues.
\608\ See Sonotone Corp., 90 NLRB 1236 (1950).
---------------------------------------------------------------------------
By contrast, the Final Rule requires only that a petitioner provide
some minimal information in the initial election petition and make an
oral response at the hearing to the issues properly raised in a written
Statement of Position from non-petitioning parties. The petitioner
would be precluded from introducing evidence by failing to make a
response to an issue, but it need not respond in writing or in advance
of the hearing. The Final Rule also permits a petitioner to sua sponte
amend its petition during the hearing.
We recognize that the information required by the Final Rule has
routinely been sought in conversations between regional personnel and
parties after a petition has been filed, and that the exchange of
information has the salutary purpose of encouraging election agreements
in lieu of a hearing or to refine and limit the areas of dispute to be
explored in a hearing. However, parties have not previously been
required to raise issues prior to the beginning of a hearing, there has
been no forfeiture of the right to litigate based on the failure to do
so, and the extremely onerous pleading-type standard governing
amendments--applied only to the employer, and permitting amendments
only for good cause--is completely foreign to Board litigation. Indeed,
in this regard, we believe the Rule's demanding standard is
substantially more restrictive than the pleading requirements applied
in formal adversarial unfair labor practice proceedings, in which the
Board freely permits amendments to the complaint through the conclusion
of the hearing. Further, an administrative law judge may even permit
the litigation of issues--nowhere mentioned in the pleadings--if the
issue is closely connected to complaint allegations, and the Board will
decide that issue if it agrees that it is closely connected and has
been fully litigated. Pergament United Sales, 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990).
The mandatory written statement requirement, coupled with the
preclusion of litigation on issues that are not raised in the statement
(which must be filed just 7 days from the notice of a petition) are
quantitatively and qualitatively different from the current
longstanding practices. The Final Rule treats the employer Statement of
Position like a formal pleading, binding on the employer as both
admission and limitation and virtually precluding subsequent changes in
position, and subject to restrictive standards regarding amendment. The
Final Rule provides no rational basis for the imposition of such one-
sided and onerous requirements with such severe consequences attendant
on any failure to meet them.
Consider again the above litany of issues that must be raised in a
timely written statement or the employer will be precluded from raising
them. Many employers would have little knowledge of these issues and
how they may apply to business operations. Employers will have little
choice but to secure assistance from labor counsel or other consultants
who, even with specialized expertise, may not be able to identify
relevant issues without a reasonable period to review the employer's
business operations. Putting aside the difficulty of preparing for a
hearing, it is clearly unrealistic and unfair to impose an inflexible
7-day deadline for the start-to-finish preparation and submission of a
comprehensive legal document, to which the Board will apply a rigorous
``pleading'' standard that will not permit later amendment, except in
narrow circumstances, even as to concededly relevant issues that were
fully and fairly litigated at the hearing. Meanwhile, the employer must
also busy itself preparing the required employee lists and a written
statement of preferences on election details that may be difficult to
define in advance of resolving any appropriate unit or unit scope
issues.
What does the petitioning union have to do during this period?
Other than filing the petition with minimum details and simultaneously
serving the petition and accompanying documents on the employer,\609\
the union has no mandatory pleading obligation, nor are any selective
``amendment'' standards applicable to the union. The union's views on
potential issues and preferences on election details may be orally
solicited, but it does not have to provide them. Even if the union does
not orally state at the hearing a position responding to issues raised
by the employer in its written statement, the Final Rule does not
preclude it from introducing evidence in response to evidence presented
by the employer as to those issues, and it permits the union to amend
the petition during the hearing sua sponte, even as to an issue not
raised by the the employer. In other words, while the existing
voluntary and informal regional practices in obtaining pre-hearing
information from the petitioning union remain essentially the same,
those practices are transformed into binding legalistic requirements
for the employer, with significant adverse consequences for any failure
to comply by the time the hearing opens.
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\609\ One of the documents is the current Form 4812, a single
page document that summarily notifies parties of certain election
procedures. This document will have to be revised to reflect the
Final Rule's amendments, and, as a matter of fundamental fairness,
it must be expanded to include sufficient explanation of the issues
that must be raised in a Statement of Position.
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Under the Final Rule, there is no question about the preclusive
effect of omitting from the Statement of Position anything that must
still be addressed in a pre-election hearing.\610\ Here, the Final Rule
provides:
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\610\ As noted previously, the Act and its legislative history
indicate that Congress clearly intended that the pre-election
hearing would include evidence regarding voter eligibility and unit
inclusion issues, which is the only means by which these issues can
be afforded meaningful review by the regional director and, in the
event of a pre-election request for review, by Board members.
Because the Final Rule provides that evidence regarding such issues
should be excluded until after the election, the Rule provides that
there would not be a waiver of post-election review at least as to
these issues based on the failure to include them in the pre-hearing
Statement of Position. See Final Rule, part VI. D, supra
(notwithstanding failure to submit Statement of Position, ``no party
is precluded from contesting or presenting evidence relevant to the
Board's statutory jurisdiction'' and ``no party is precluded from
challenging the eligibility of any voter during the election on the
ground that the voter's eligibility or inclusion was not contested
at the pre-election hearing'').
A party generally may not raise any issue, present
evidence relating to any issue, cross-examine any witness concerning
any issue, and present argument concerning any issue that the party
failed to raise in its timely Statement of Position or failed to
place in dispute in response to another party's Statement of
Position or response.
If a party contends that the proposed unit is not
appropriate in its Statement of Position but fails to specify the
classifications, locations or other employee groupings that must be
added to, or excluded from, the proposed unit to make it an
appropriate unit, the party may not raise any issue or present
evidence or argument about the appropriateness of the unit.
[I]f the employer fails to timely furnish the lists of
employees required to be included as part of the Statement of
Position, the employer also may not contest the appropriateness of
the proposed unit at any time and may not contest the eligibility or
inclusion of any individuals at the pre-election hearing.
The Final Rule plainly intends to strictly apply these waiver
provisions, to the detriment of any employer whose Statement of
Position fails to describe specific issues and contentions with
sufficient particularity. For this reason, the Final Rule provides
little comfort--and no adequate degree of fairness--when it states that
``the regional director
[[Page 74444]]
has discretion to direct the receipt of evidence concerning any issue,
such as the appropriateness of the proposed unit, as to which the
director determines that record evidence is necessary.'' If anything,
this amplifies that the Rule's most onerous requirements are only
applied to employers, in contrast to the ability of regional directors
and other parties to address whatever election issues they deem
relevant. Although the Rule also gives regional directors the
``discretion'' to permit parties to ``amend'' the Statement of
Position, the Rule permits such requests only if made ``in a timely
manner,'' such amendments will be granted only ``for good cause,'' and
if an amendment is permitted, then all ``other parties'' are then given
the opportunity to ``respond to each amended position.'' Here as well,
the employer is the only party constrained by these onerous
requirements, which, as noted above, are more restrictive than the
liberal pleading requirements applicable to the Board's General Counsel
in formal unfair labor practice proceedings. Such formal and
restrictive pleading requirements are not only unprecedented in Board
proceedings, they are especially unwarranted in representation cases,
which have always been regarded as nonadversarial in nature.\611\
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\611\ See, e.g., Solar International Shipping Agency, Inc., 327
NLRB 369, 370 n.2 (1998) (``[A] hearing in a representation
proceeding `is nonadversary in character [and] is part of the
investigation in which the primary interest of the Board's agents is
to insure that the record contains as full a statement of the
pertinent facts as may be necessary for determination of the case.'
Sec. 101.20(c) of the Board's Statements of Procedure.'').
---------------------------------------------------------------------------
The Final Rule fails to provide any reasonable justification for
its failure to require the same or similar written Statement of
Position from the petitioning union in advance of the hearing. In the
response to our dissent, the majority states that the position
statement does not unfairly burden employers because petitioners are
already required to state their position in the petition itself. But
they draw a false equivalency. For example, the petition must only
describe a unit, state that the unit is appropriate, provide some
preferred election details, and identify perfunctory address and agent
information. In contrast with what the employer is required to submit
in the Statement of Position, a petitioning union is not required to
state ``the basis for its contention that the proposed unit'' is
appropriate; the union is not required to state any position regarding
other matters likely to be in dispute--regardless of how foreseeable
they may be--relating to included or excluded ``classifications,
locations, or other employee groupings,'' ``individuals whose
eligibility to vote'' may reasonably be in question, or the ``basis for
each such contention''; nor is the union required to describe ``any
other issues it intends to raise at hearing.'' As to these and other
matters, no preclusion attaches to the information the union provides
or does not provide in advance of the pre-election hearing. Further,
the petitioner is permitted to amend the petition during the hearing
without any showing of good cause. Moreover, although the Final Rule
provides that a petitioner may not litigate any issue that it failed to
``place in dispute'' in response to a Statement of Position, the burden
of placing an issue in dispute for the petitioner is satisfied by an
oral statement or description at the hearing, and not before. This is
obviously far less onerous than the burden placed primarily on
employers to contest issues in a formal written statement of position
submitted prior to the hearing. This inequality of treatment is yet an
additional fundamental deficiency that makes the Final Rule
impermissibly arbitrary. Moreover, it is a denial of due process to
selectively make such requirements applicable only to one party in the
proceedings and not to other parties.
We believe the Statement of Position and its preclusive effects
should at least be no more onerous than the standards applied by the
Board to the amendment of unfair labor practice complaint allegations
during a more formal adversarial hearing,\612\ and to the amendment of
the petition itself in the pre-election hearing, so that a party
retains the right to address issues not specifically identified in the
Statement of Position that are responsive to another party's
contentions and presentation of evidence. The absence of such
provisions strongly undermines any suggestion that the Final Rule
treats parties and important election issues in an even-handed manner.
---------------------------------------------------------------------------
\612\ See Pergament United Sales, supra, 296 NLRB at 334.
---------------------------------------------------------------------------
Limiting ``Voter Eligibility'' and Unit Inclusion
Evidence. The Final Rule provides for hearing officers to exclude
evidence regarding eligibility and inclusion issues involving up to 20
percent of the employees in a petitioned-for unit, absent a direction
to the contrary from the regional director, which would normally defer
any evidence regarding such voter eligibility issues until following
the election.
There is no judicial or Board precedent for this exclusionary
practice. All cases cited by the majority voice general approval of the
Board's discretion to defer deciding eligibility and inclusion issues
for a certain percentage of the unit. It has never been the Board's
practice to defer the taking of evidence regarding such issues, if
validly introduced in a pre-election hearing, which then permits a
determination (by regional directors and the Board) of whether they
must be resolved prior to the election. The majority reasons that if an
issue's resolution is potentially going to be deferred, it is
``administratively irrational'' and a waste of time and expense to
permit a party to litigate it. Further, they mistakenly declare that
the 20 percent exclusionary rule is the applicable historical norm in
Board practice and strikes an administratively appropriate balance
between the public interest in prompt resolution of questions
concerning representation (in other words, the majority's interest in
holding an election ``as soon as practicable'') and employees'
interests in knowing who would be in the unit should they choose
representation.\613\ As asserted proof of the reasonableness of this
standard, our colleagues rely on the fact that ``more than 70% of
elections in FY 2013 were decided by a margin greater than 20% of all
unit employees, suggesting that deferral of up to 20% of potential
voters in those cases (and thus allowing up to 20% of the potential
bargaining unit to vote via challenged ballots, segregated from their
coworkers' ballots) would not have compromised the Board's ability to
immediately determine election results in the vast majority of cases.''
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\613\ Notably, this articulation of a balancing test excludes
any consideration of employer interests. That is consistent with the
views expressed by some academicians and union advocates who
maintain that--contrary to statutory language, clear Congressional
intent, and well-established precedent and practice--employers
should not have the status of a party in a representation election
proceeding. See generally Craig Becker, Democracy in the Workplace:
Union Representation Elections and Federal Labor Law, 77 Minn. L.
Rev. 495 (1992-93).
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The majority has at least modified the NPRM proposal that the 20
percent exclusionary rule be mandatory. Regional directors will have
the discretion to defer eligibility and inclusion issues for up to 20
percent of a unit, but they are not obligated to do so. We credit our
colleagues for this modification, but any flexibility is clearly
undermined by our colleagues' additional statement that they ``strongly
believe that regional directors' discretion would be exercised wisely
if
[[Page 74445]]
regional directors typically chose not to expend resources on pre-
election eligibility and inclusion issues amounting to less than 20% of
the proposed unit.'' It seems likely, then, that there may be no
practical difference between the NPRM's ``hard'' 20 percent rule and
the Final Rule's nominally discretionary standard.
In our view, the majority's rationale for excluding and deferring
evidence regarding voter eligibility until after the election--which
would effectively ignore the interests of up to 20 percent of voters--
is beset with irremediable problems.
First, it is unreasonable to conclude that hearing officers or
regional directors should exclude evidence regarding who can vote or be
part of a bargaining unit--affecting up to 20 percent of the unit--when
nobody can determine prospectively how the exclusion may affect the
future election. The Third Circuit long ago cogently observed that
``the problem of substantiality, in our view, is one to be determined
prospectively'' because evidentiary rulings are not made from the
``vantage point of hindsight.'' \614\ At the pre-election hearing
stage, a regional director will not, absent mystical powers of
clairvoyance, have any idea what the final vote margin will be in an
election and whether particular eligibility and inclusion issues would
not have an effect on the outcome. Indeed, under the Final Rule, the
regional director will now necessarily be making the exclusionary
ruling on a purely speculative basis, without the benefit of any actual
evidence by which to judge the importance of contested issues.
---------------------------------------------------------------------------
\614\ NLRB v. S.W. Evans & Son, 181 F.2d 427, 431 (3d Cir.
1950).
---------------------------------------------------------------------------
Second, the majority's 20 percent standard is hopelessly arbitrary.
The majority maintains it is acceptable to disregard and exclude
evidence from the pre-election hearing regarding up to 20 percent of
unit employees because--based on 2013 statistics--this would adversely
affect only three of every 10 elections conducted. Even if one could
accept the accuracy of this figure as a recurring annual norm,\615\ it
is not rational to conclude that adversely affecting 30 percent of
elections is acceptable or reasonable, particularly since the Act
requires the Board ``in each case'' to decide unit issues in order to
``assure to employees the fullest freedom in exercising the rights
guaranteed by [the] Act.'' \616\ The majority's analysis also likely
understates the scale of potential risk because it fails to consider
the very real possibility that statutory eligibility issues will
frequently relate as well to election objections, particularly when the
alleged supervisory status of an individual or group of individuals is
at issue. Consequently, the mere fact that an election vote margin
exceeds 20 percent is no guarantee that the eligibility or inclusion
issue will not have to be litigated and decided at the post-election
stage.
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\615\ The 30 percent figure the majority cites is for all
elections held in FY 2013. We do not know what the percentage was
for the relevant subset of cases in which there were contested pre-
election issues. Our colleagues further confound with their
statistical analysis by contending that, because a party favoring
the electoral result by any vote margin will not pursue litigation
of nondeterminative challenges, this will eliminate ``about half of
the remaining litigation, even in those cases where the vote margin
is narrow. Thus, at most, only 15% of deferred issues will ever have
to be addressed.'' Valid bases for this statistical assumption elude
us. We do not know what percentage of elections involve
nondeterminative challenges filed by a party favoring the election
result. We do know that petitioning unions annually prevail in far
more than 50 percent of initial organizing elections, so there is no
basis for assuming an equal 50-50 mooting of challenges based on
election results.
\616\ Section 9(b) (emphasis added).
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Third, the 20 percent rule has not been the Board's historical
standard for deferring resolution of pre-hearing eligibility and
inclusion issues to the post-election stage of proceedings. In a
handful of cases, the Board has held that it did not need to set aside
an election based on post-election determinations resulting in as much
as a 20 percent variation in unit size from that which was contemplated
by the pre-election litigation and resolution of issues. However,
several courts of appeals have invalidated elections based on these
types of variations in unit size based on post-election Board
rulings.\617\
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\617\ These courts have reasoned that a difference of this
magnitude impermissibly interferes with employee free choice because
those who vote in the election do not have an accurate understanding
of the bargaining relationship they must approve or reject. See NLRB
v. Beverly Health & Rehab. Servs., Inc., 120 F.3d 262 (4th Cir.
1997) (unpub., per curiam), NLRB v. Parsons School of Design, 793
F.2d 503 (2d Cir. 1986), NLRB v. Lorimar Productions, Inc., 771 F.2d
1294 (9th Cir.1985), and Hamilton Test Systems, New York, Inc. v.
NLRB, 743 F.2d 136 (2d Cir. 1984). As will be discussed later, we
agree that the courts' reasoning presents a compelling rational
argument against the 20 percent pre-election exclusionary rule as
well, but the point we make here is that the cited Board precedent
is inapposite to the issue of an historical practice.
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The Board's actual historical standard has been not to defer
decision on eligibility and inclusion issues if they potentially
involve more than approximately 10 percent of a unit. Even this more
limited deferral standard has not been applied as a general or per se
rule. Moreover, although the Board has sometimes deferred making a
decision on certain eligibility and inclusion issues that involve no
more than 10 percent of a unit, such a practice has never been
inflexibly applied, and--when the Board has deferred rendering a
decision resolving such issues--it has always been with the benefit of
a pre-hearing evidentiary record that includes evidence regarding these
issues. Only with such an evidentiary record can regional directors and
the Board determine whether and when these issues warrant resolution
prior to the election and, if so, whether to stay the election until
those issues have been resolved. See also notes 570 and 581, supra.
Fourth, we believe our colleagues clearly exaggerate the
``specter'' that employers may use the potential delay associated with
a pre-election hearing to force unions to enter into stipulated
election agreements. Here, our colleagues rely on anecdotal claims by
some commenters that employers generally contest pre-election issues as
a matter of gamesmanship and for the sole purpose of delay, rather than
out of any genuine concern that the unit status of an individual or
group of individuals be resolved at this early stage. However, the
majority ignores the fact that the Board itself encourages all parties
to enter into stipulated election agreements, and the Board has
received comments from all sides that favor the high number of
stipulated elections that have resulted from the Board's current
procedures.
It cannot be the prospect of delay from a pre-election hearing
itself that so compels unions to accept unwanted terms in an election
agreement. A hearing conducted under current full litigation practices
most often lasts only 1 day, and very rarely exceeds 3 days. Further,
with the Final Rule's elimination of both the 7-day period for filing
post-hearing briefs and the automatic 25-day waiting period to permit
pre-election requests for review, the prospect of that cumulative delay
will no longer ``loom'' over the negotiation of a pre-hearing election
agreement in all cases, if it ever did. In any event, the deterrent
effect of a 20 percent exclusionary rule is illusory. Employers and
their legal counsel (or unions and theirs) who wish to ``extort''
concessions in an election agreement and/or to delay the election date
can continue to do so simply by contesting issues on questions
concerning representation that must still be litigated at a pre-
election hearing.
We can readily agree that employers should not raise the
possibility of frivolous pre-election litigation to
[[Page 74446]]
leverage their position in bargaining for an election agreement, but
the majority has failed utterly to show by objective evidence that this
conduct routinely takes place.\618\ Further, we have great confidence
that regional personnel currently take an active role in post-petition
negotiations and are fully capable of advising employers that frivolous
issues will be swiftly dealt with as such. Election agreements are,
after all, absolutely essential to the achievement of regional success
in expeditiously processing petitions.
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\618\ We note that the reply comment of former Region 7 Field
Examiner Michael D. Pearson describes a ``not uncommon'' scenario of
employer tactics that allegedly force a petitioning union to concede
to ``a significantly delayed election date in order to secure an
election agreement.'' Pearson reply statement pp. 1-3. At several
points in the Final Rule, our colleagues extrapolate from Mr.
Pearson's multiple statements and testimony as to his regional
experience, which ended in 2005, to generalize about representation
casehandling practices nationwide. We do not believe this evidence
is entitled to such weight. Among other things, it is difficult to
reconcile with the facts concerning the Board's success rate in
conducting elections in a median of 38 days.
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Fifth, the majority improperly disregards the fact that the early
resolution of certain eligibility and inclusion issues is highly
desirable and often extremely important. In this regard, our
colleagues' view is contrary to common sense and it conflicts with
longstanding Board and judicial precedent. The establishment of the
Excelsior list requirement, which the Final Rule expands, is based on
the fundamental proposition that the early identification of ``bona
fide disputes between employer and union over voting eligibility'' may
avoid resorting to ``the formal and time-consuming challenge
procedures.'' \619\ Further, as stated by the Ninth Circuit, while the
need to avoid unnecessary delay in the electoral process is
undisputedly important, ``it is at least of equal importance that
employees be afforded the opportunity to cast informed votes on the
unit certified.'' \620\ It is plainly unreasonable to require employees
to vote in an election, conducted on an extremely accelerated
timetable, before the Board even considers evidence regarding (i) who
is eligible to vote; (ii) whose votes will be counted, and whose will
not; and (iii) what employees will be part of the unit--and thereby
affected by the election--and what employees will not. In this regard,
our colleagues also fail to appreciate that uncertainty as to these
fundamental issues also adversely affects employees' informed choice in
the election, and will unnecessarily create greater confusion and a
potential need to set aside the election because parties will not know
(i) what employees are non-unit supervisors who can act as agents of
the employer and who cannot lawfully take certain actions for or
against union representation; and (ii) what individuals are unit
employees who, as eligible voters, can freely participate in
campaigning without being subject to restrictions applicable to
supervisors. Our colleagues' position on this point is no different
from that of the Board majority that voted for the vacated December
2011 rule, as to which dissenting Member Hayes correctly observed:
---------------------------------------------------------------------------
\619\ Excelsior Underwear, supra, 156 NLRB at 1243.
\620\ NLRB v. Lorimar Productions, supra, 771 F.2d at 1302. Our
colleagues are simply wrong in contending that the court's view in
this case, and in cases cited above at note 83, represent a minority
view among the courts of appeals. The decisions cited by the
majority decline to set aside elections based on the facts of a
particular case, but none of them disavow the fundamental principle
that information regarding unit scope and composition--i.e.,
understanding what other employees will be included or excluded--is
fundamentally important when employees decide what vote to cast in a
representation election.
My colleagues may not think so, but there are employees,
employers, and unions who believe that there is value in the early
resolution of individual issues that do not bear on whether an
election should be held at all. In particular, employees quite
reasonably would like to know if they are eligible to vote and will
be part of a bargaining unit that the union seeks to represent.
Telling them they can cast a challenged ballot, with their
eligibility possibly to be resolved later, is hardly an inducement
to participate in the electoral process. Further, individuals whose
status as supervisors is disputed would reasonably like to have that
issue resolved before an election, as would their employer and the
participating union. It is unbecomingly blas[eacute] of my
colleagues to state that, because resolution of this issue would in
any event not undo the effect of antecedent actions taken in the
election campaign, there is no problem with postponing such
resolution until after the election, if then.\621\
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\621\ 77 FR at 25566.
Offers of Proof. The Final Rule gives hearing officers the
discretion to require offers of proof on any issue, including those
that must still be litigated under the majority's impermissibly
restrictive interpretation of the scope of a pre-election hearing. The
record fails to show that hearing officers have often required offers
of proof under existing practices, and there is good reason for that.
We begin with the language of the Act. Section 9(c)(1) requires the
Board to conduct an ``appropriate hearing'' before any election, and it
is well established that one of the primary purposes of the hearing is
to create a record--consisting of evidence (i.e., oral testimony under
oath and documents admitted into the record)--which provides the basis
for decisions by regional directors, the Board, and possibly courts of
appeals. See North Manchester Foundry, Inc., 328 NLRB 372 (1999).
An ``offer of proof'' is not evidence.\622\ Rather, when an
advocate (usually an attorney) makes an ``offer of proof,'' this is an
informal short-form description of potential evidence. For example, an
``offer of proof'' can be requested by a judge or hearing officer who
believes the potential evidence will be irrelevant or cumulative--i.e.,
not logically related to a contested material issue or clearly
duplicative of evidence already in the record--and if the ``offer of
proof'' reveals that the potential evidence would be irrelevant or
cumulative, the potential ``evidence'' is not permitted.\623\ When
evidence is ruled inadmissible, a party can also make an ``offer of
proof,'' which permits the evidentiary ruling to be reviewed on
appeal.\624\ In all cases, the ``offer of proof'' describes evidence
that is not part of the ``record,'' which means the described matters--
since they have been excluded from the record--cannot be
[[Page 74447]]
the basis for any decision or appeal on the merits.\625\
---------------------------------------------------------------------------
\622\ 75 Am. Jur. 2d Trial Section 353 (2014) (``A proffer is
not evidence, ipso facto.'') (citing Crawley v. Ford, 43 Va. App.
308, 316 (2004)); United States v. Reed, 114 F.3d 1067, 1070 (10th
Cir.1997) (same). See also cases cited in note 625, infra.
\623\ The Federal Rules of Evidence (FRE) provide for the
admission of all ``relevant'' evidence, FRE 402, and evidence is
relevant whenever it ``has any tendency to make a fact more or less
probable than it would be without the evidence'' and ``the fact is
of consequence in determining the action.'' However, relevant
evidence can be excluded, based on an offer of proof, if it would be
cumulative. Cedar Hill Hardware and Construction Supply, Inc. v.
Insurance Corp. of Hanover, 563 F.3d 329, 353 (8th Cir. 2009)
(``Cedar Hill's offer of proof, if anything, showed that the court
needed to impose limits to curtail the presentation of cumulative
evidence.''); United States v. Stokes, 506 F.2d 771, 777 (5th Cir.
1975) (exclusion of testimony not prejudicial where the offer of
proof showed the evidence would have been cumulative).
\624\ FRE 103(a)(2) (a party may claim error based on the
exclusion of evidence, in part, if the party ``informs the court of
its substance by an offer of proof, unless the substance was
apparent from the context''). See also Kline v. City of Kansas City,
Fire Department, 175 F.3d 660, 665 (8th Cir. 1999) (``An offer of
proof serves dual purposes,'' including ``to inform the trial court
* * * of the substance of the excluded evidence'' and ``to provide
an appellate court with a record allowing it to determine whether
the exclusion was erroneous.'') (citation and internal quotation
marks omitted); Polys v. Trans-Colorado Airlines, Inc., 941 F.2d
1404, 1406-07 (10th Cir. 1991) (offers of proof are designed ``to
allow the trial judge to make an informed evidentiary ruling'' and
``to create a clear record that an appellate court can review to
`determine whether there was reversible error in excluding the
[testimony]' '') (citation omitted).
\625\ Libertarian Party of Ohio v. Husted, 751 F.3d 403, 416
(6th Cir. 2014) (``proffer'' by party's attorney ``is not
evidence''); United States v. Wade, 120 Fed. Appx. 638, 640-41 (7th
Cir. 2005) (``counsel's proffer was not evidence''); Campania Mgmt.
Co. v. Rooks, Pitts, & Poust, 290 F.3d 843, 853 (7th Cir. 2002)
(``[I]t is universally known that statements of attorneys are not
evidence.''); United States v. Reed, 114 F.3d 1067 (10th Cir. 1997)
(reversing district court ruling that was based on party's ``proffer
of its evidence,'' where the ``proffer was merely that, and in
summary form as well,'' resulting in remand because court's decision
``should be based only on the facts as they emerge at trial'');
Fulton v. L&N Consultants, Inc., 715 F.2d 1413, 1416-21 (10th Cir.
1982) (remand required to admit relevant evidence where party's
offer of proof revealed that the evidence was improperly excluded).
Cf. Luce v. United States, 469 U.S. 38 (1984), where the Supreme
Court stated that appellate review is ``handicapped''--even when an
appeal involves evidentiary rulings--without a ``factual context,''
which requires the court to know ``the precise nature of the
defendant's testimony, which is unknowable when * * * the defendant
does not testify.'' Id. at 41 (footnote omitted). The Court
differentiated between admitted evidence and a ``a proffer of
testimony'' because ``trial testimony could, for any number of
reasons, differ from the proffer.'' Id. at 41 n.5.
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Under the Final Rule, offers of proof are made part of the record
and treated as a substitute for record evidence.\626\ While the Final
Rule nominally gives hearing officers discretion to require offers of
proof, it is patently clear that they are expected to do so more
frequently, particularly on appropriate unit issues. This will preclude
the existence of evidence needed to permit what the Act requires:
Decisions by regional directors, the Board, and possibly the courts,
based on a record developed in an ``appropriate hearing'' held before
the election.\627\
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\626\ Respectfully, we must point out that our colleagues are
simply wrong when they state, in response to our dissent, that the
Final Rule does ``not treat offers of proof as `evidence' in
decisions `on the merits.' '' The Final Rule explicitly makes offers
of proof the sole basis for deciding whether many issues have merit,
whether the facts warrant pre-election litigation, and whether the
evidence if admitted might warrant pre-election resolution. See,
e.g., Final Rule Sec. 102.66(c) (``If the regional director
determines that the evidence described in an offer of proof is
insufficient to sustain the proponent's position, the evidence shall
not be received.'') (emphasis added); Sec. 102.69(c)(1)(ii) (the
regional director shall deny post-hearing objections without a
hearing if ``the evidence described in the accompanying offer of
proof would not constitute grounds for setting aside the election'')
(emphasis added).
As President Lincoln is reputed to have said, ``How many legs
does a dog have if you call the tail a leg? Four. Calling a tail a
leg doesn't make it a leg.'' Calling an offer of proof part of the
``record'' does not make it record evidence. And when an offer of
proof is made the sole basis for deciding the merits (or deciding
whether there will even be litigation), the offer of proof is being
treated as a substitute for evidence. This infirmity is not cured by
the possibility that, infrequently, a regional director or the Board
might consider an offer of proof for the limited, proper purpose of
determining whether evidence has wrongly been excluded, which can
result in a remand and reopening of the record. Indeed, the fact
that the Rule predictably will also cause an increase the number of
remands and resulting delays, based on the improper exclusion of
relevant evidence, is another reason the Final Rule should not be
adopted.
\627\ Section 9(c)(1). There is little question that the Final
Rule contemplates hearing officers will substitute ``offers of
proof'' for record evidence. How else is one to read the footnote
comment that ``we would expect hearing officers to typically require
an offer of proof from an employer arguing against the
appropriateness of a unit considered presumptively appropriate under
Board caselaw. If the employer's proffered evidence would be
insufficient to rebut the presumption, then it would be appropriate
for the regional director to foreclose receipt of the evidence
without regard to the proposed 20% rule.''
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Consider the requirement of an offer of proof under the Specialty
Healthcare standard.\628\ Almost any petitioned-for unit conforming to
classification, department, craft, or group function may be viewed as
presumptively appropriate under that standard. Thus, a hearing officer
will likely fulfill the Final Rule's stated expectation by requiring an
offer of proof on the issue. Having nominally preserved the right to
contest the appropriateness of a petitioned-for unit in the prehearing
Statement of Position, an employer will really have done no more than
to preserve the right to make an offer of proof attempting to show an
overwhelming community of interest between petitioned-for
classifications and excluded classifications. It is unclear what offer
would suffice for a regional director to permit the introduction of
oral evidence. It is clear that the requirement of an offer would make
an already difficult burden almost impossible to meet. If not met, then
not only would the employer be precluded from further contesting the
issue, but employees in excluded classifications would generally not
even be permitted to cast challenged ballots.
---------------------------------------------------------------------------
\628\ Specialty Healthcare and Rehabilitation Center of Mobile,
Inc., 357 NLRB No. 174 (2011), enfd. sub nom. Kindred Nursing
Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).
---------------------------------------------------------------------------
Section 9(c)(1) also provides that pre-election hearings ``may be
conducted by an officer or employee of the regional office, who shall
not make any recommendations'' and ``[i]f the Board finds upon the
record of such hearing that such a question of representation exists,
it shall direct an election by secret ballot'' (emphasis added). As the
statutory language makes clear, the hearing officer may conduct the
pre-election hearing, but the evidentiary record constitutes the sole
basis for the ultimate decisions made by the regional director and the
Board. Again, an offer of proof is an informal summary, provided by a
party's attorney or representative, which is most often used to prevent
the introduction of irrelevant evidence. In contrast, the statute's
``appropriate hearing'' requirement--combined with the Act's careful
delineation of responsibilities between and among the hearing officer,
the regional director, and the Board--requires that decisions be based
on an appropriate ``record'' consisting of evidence.
The majority's analogy of the Rule's pre-election offer of proof
process to the use of that process by courts, administrative law
judges, magistrate judges, and hearing officers fails for one
fundamental reason. In these other contexts, offers of proof are
elicited by a presiding official who has the authority to make
evidentiary rulings and decide substantive issues. By contrast, as
previously stated, the hearing officer in a pre-election Board hearing
has no authority to make recommendations, much less factual findings or
legal conclusions. See Section 9(c)(1).
(c) Off-the-Record Consultation and Decisionmaking Between Hearing
Officers and Regional Directors. In an attempt to avoid conflict with
express statutory language (id.), the Final Rule purports to vest
regional directors, not hearing officers, with the exclusive authority
to make substantive rulings and decisions. However, the Final Rule in
this respect remains objectionable. Under the Act, although hearing
officers may preside over the ``appropriate hearing'' (Section
9(c)(1)), Congress clearly intended that all decisions would be based
on the hearing record. Here, the Final Rule departs from the statutory
scheme by codifying and dramatically increasing reliance on private
consultations between hearing officers and regional directors, in the
absence of a record, with ``real time'' decisionmaking by regional
directors while the hearing remains incomplete.
There are numerous deficiencies in this process, especially in
relation to issue-determinative rulings and when combined with the
Final Rule's other changes. First, the Rule relies on this process to
resolve important election-related issues, including whether to exclude
or defer evidence regarding voter eligibility and other matters.
Second, decisions are made by an absentee regional director, who is not
presiding over the hearing, and who is completely dependent on second-
hand information conveyed by the hearing officer. Third, during these
off-the-record consultations, the hearing officer has a near-impossible
task, which is to refrain from making ``recommendations'' (based on the
prohibition set forth in Section 9(c)(1)); to describe complex facts,
some based
[[Page 74448]]
on admitted evidence, and others based on offers of proof; and to
summarize the parties' competing arguments outside of the parties'
presence. This makes hearing officers the agency equivalent of a one-
man band: he or she makes all of the arguments for everyone and
describes all of the evidence (real and potential), with all decisions
ostensibly being made by someone else (who has observed nothing and
cannot lawfully even receive recommendations from the hearing officer).
And this entire process occurs without the parties' participation or
presence, with no verbatim record being made of the consultation.
Regional directors have no appropriate basis for making such decisions
because they are absent from the hearing, and the Act's ``appropriate
hearing'' requirement reflects Congress' intention to have disputed
issues resolved based on the evidentiary record, not second-hand off-
the-record descriptions provided outside of the parties' presence while
the hearing remains incomplete. Conversely, hearing officers, though
ostensibly without decisionmaking authority, have exclusive control
over what is and is not conveyed to regional directors, and the absence
of any record regarding these consultations precludes meaningful review
by the parties or the Board.\629\
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\629\ In Member Miscimarra's view, the Final Rule's reliance on
private off-the-record consultation and decisionmaking between
hearing officers and regional directors--especially in conjunction
with the Rule's other changes--is precluded under the Act. This does
not involve any doubt about the integrity and competence of the
Board's hard-working regional directors and hearing officers.
Rather, in representation cases, Section 9(c)(1) permits regional
hearing officers to preside over a representation hearing, but
states they ``shall not make any recommendations with respect
thereto'' (emphasis added). In unfair labor practice (ULP) cases,
Section 10(c) provides for administrative law judges (originally
called ``trial examiners'') to preside over the hearing, but Section
4(a) states ``no administrative law judge shall advise or consult
with the Board with respect to exceptions taken to his findings,
rulings, or recommendations'' (emphasis added). Member Miscimarra
believes these restrictions, both part of the 1947 Taft-Hartley
amendments, were designed to guarantee, first, that the Board would
maintain a bright-line separation between decisionmakers, on the one
hand, and the actions of hearing officers (in representation cases)
and administrative law judges (in ULP cases) that are subject to
review; and second, that hearing officers and judges would
absolutely refrain from attempting to influence, by informal means,
either the Board or regional directors (the latter inherited the
Board's authority to decide representation cases pursuant to a
delegation authorized by Sec. 3(b) of the Act). Both restrictions
were explained in detail by Senator Taft--principal sponsor of the
Taft-Hartley amendments in the Senate--when these amendments were
adopted. See 93 Cong. Rec. 3953 (April 23, 1947), reprinted in 2
LMRA Hist. 1011 (statement of Sen. Taft) (stating, among other
things, that the amendments preclude ``private'' or ``secret
meetings'' between trial examiners and the Board, and provide that
questions concerning representation are to be decided by the Board
``on the basis of the facts that are shown in the hearing'' to avoid
decisions ``almost completely free from any review by the courts'').
See also S. Rep. No. 80-105, at 25, reprinted in 1 LMRA Hist. 431
(``Regional office personnel now sit as hearing officers in
representation cases and make a comprehensive report and
recommendation to the Board at the close of such hearing. By the
amendment, such hearing officer's duties are confined to presiding
at the hearing.''). In Member Miscimarra's view, the Final Rule
contemplates what the Act prohibits: the Rule improperly blurs the
role of the hearing officer (whose duties, under the Act, should be
``confined to presiding at the hearing'') with the decisionmaking of
the regional director (who, under the Act, should decide issues
solely ``on the basis of the facts that are shown in the hearing'').
Id. Although due process requires that disputed matters be addressed
in open hearings, the Final Rule essentially provides for a
``private'' or ``secret meeting'' (id.), with increased reliance on
off-the-record consultation between hearing officers and regional
directors, outside the parties' presence, in which the hearing
officer, rather than the parties, makes all relevant arguments and
presents all relevant facts; and the lack of any verbatim record
effectively means this off-the-record decisionmaking is ``almost
completely free from any review'' by the Board or ``the courts.''
Id.
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(d) No Post-Hearing Briefs--The Final Rule impermissibly eliminates
the right to file post-hearing briefs. Reflecting longstanding
practice, Sec. 102.67(a) of the current Rules gives parties the right
to submit post-hearing written briefs within 7 days of the hearing's
conclusion, and parties nearly always do so. The Final Rule takes this
right away. Instead, ``[t]he hearing will conclude with oral argument,
and no written briefing will be permitted unless the regional director
grants a motion to file such a brief.'' Although the majority does not
define the range of discretion vested in the regional director to deny
a motion, it clearly anticipates that briefing will not be necessary
``[i]n the majority of representation cases.''
Under the Final Rule, the stated justification for eliminating the
right to file post-hearing briefs is twofold: (1) ``given the often
recurring and uncomplicated legal and factual issues arising in pre-
election hearings, briefs are not necessary in every case to permit the
parties to fully and fairly present their positions or to facilitate
prompt and accurate decisions;'' (2) ``[b]y exercising [the] right [to
file] or even by simply declining to expressly waive that right until
after the running of the 7-day period, parties could potentially delay
the issuance of a decision and direction of election and the conduct of
an election unnecessarily.'' \630\
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\630\ We note that the majority also relies on the inapposite
fact that the APA exempts the Board's representation case
proceedings from its requirements for formal adjudication, including
any requirement of the right to file a brief. Of course, the APA
does not proscribe the Board from permitting post-hearing briefs as
a matter of right in its own rules for representation proceedings,
which is what the Board has done for many years. Moreover, we cannot
help but note the majority's reliance on the APA's exemption, which
is founded on the premise that our pre-election hearings are
nonadversarial investigative proceedings, in a Final Rule that
imposes unprecedented formal adversarial pleading requirements.
---------------------------------------------------------------------------
Current practice nearly always involves post-hearing briefs
submitted by the parties, and these briefs--along with record
evidence--are then the central focus when relevant issues are decided
by regional directors, a practice which contradicts the Final Rule's
suggestion that such briefs are unnecessary and unimportant. Even
though there may be some cases--few in number--when parties may
dispense with post-hearing briefing, this certainly does not justify a
rule finding that briefs will presumptively not be permitted in ``the
majority of cases.'' \631\
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\631\ The majority suggests that parties retain the right to
file one post-hearing brief in every case because, even if denied
permission to file an immediate post-hearing brief, they can still
file a brief in support of a request for review of the regional
director's subsequent decision. The right to file a brief directly
with the regional director prior to his de novo review of the
evidence and issues is fundamentally different from the right to
file a brief seeking to persuade that there are ``compelling
circumstances'' for Board review of an adverse regional director's
determination. In the latter instance, the horse has most often left
the barn.
---------------------------------------------------------------------------
The procedural context for this briefing issue is the same as for
offers of proof. The regional director is the only person who, under
the statute, is permitted to decide relevant election issues, subject
to potential Board review. However, neither the Board nor regional
directors even preside over the hearing. Rather, the only Board
representative who conducts the actual hearing is a ``hearing officer''
and hearing officers, under Section 9(c)(1) of the Act, are prohibited
even from making any ``recommendations'' with respect to election-
related issues which, of course, must be resolved based on the record
evidence combined with the parties' arguments and positions.
Here, the Final Rule operates in a world devoid of common sense. In
comparison to current practice, eliminating post-hearing briefs will
pare 7 days, at most, from the period between petition-filing and the
election. Yet, on top of the Final Rule's other changes, eliminating
post-hearing briefs will necessarily cause unfairness and confusion
regarding (i) what arguments parties have made concerning what issues
and based on what evidence; (ii) what arguments and issues can fairly
be raised by the employer--and which ones have been waived--based on
the pre-hearing Statement of Position. Moreover, the absence of post-
hearing briefs will give parties an enormous incentive to file pre-
election requests for Board review, including requests to stay
[[Page 74449]]
the election, because this will provide the only opportunity for
parties to file any briefs. In such circumstances, the Board will
undoubtedly be confronted with an array of arguments that regional
directors--without the benefit post-hearing briefs--never considered.
Alternatively, the Board may conclude that many meritorious arguments
have been waived by employers because the positions were not identified
with sufficient particularity in the pre-hearing Statement of Position,
or in the employer's end-of-hearing oral argument.
We have no lack of confidence in the ability of management- and
union-side labor law practitioners to make effective closing arguments.
However, with due respect for our colleagues, the Final Rule identifies
nothing that justifies depriving those practitioners of a longstanding
right to file briefs, adversely affecting their ability to frame
parties' positions in light of the record evidence. Further, our
decided cases over nearly 80 years demonstrate that some measure of
factual and/or legal complexity is the norm, and not the exception, for
issues contested in pre-election hearings. In this context, we have
difficulty understanding why a regional director--even with the
expertise, experience, and acumen of persons who typically occupy that
office--would not benefit from the written definition of issues and
supporting evidence in a brief in more than a few complex cases. The
alternative of reviewing and deciding issues based on a cold transcript
and ad hoc oral argument is far less likely to lead to the expeditious
and reasoned resolution of those issues.
Take just one example of a recurring pre-election issue: a
petitioner seeks to represent as an appropriate bargaining unit a group
of workers whom the employer contends are independent contractors
excluded from coverage. The employer bears the heavy burden of proving
its contention. As recently described by the majority in FedEx Home
Delivery, 361 NLRB No. 55 (2014), resolution of the issue whether the
workers are independent contractors or statutory employees requires an
analysis of evidence relevant to a nonexhaustive list of 11 factors. In
FedEx, which involved a petitioned-for unit of approximately 20 truck
drivers, the majority opinion consumed over 4 two-columned pages (3,732
words) describing the facts of the case, and another 3-plus pages
(2,736 words) analyzing the facts under its multifactor test. With the
elimination of post-hearing briefs, an employer's sole opportunity to
persuade a regional director that it has met its burden under the FedEx
test will be to accurately summarize all the relevant facts and their
application to at least 11 factors of the legal test in semi-
spontaneous oral argument at the conclusion of a hearing, usually
without the benefit of a transcript; i.e., the employer must accomplish
in oral argument what the FedEx majority needed 6,468 written words to
accomplish.\632\ We fail to see how this approach facilitates the fair
and accurate resolution of a question concerning representation.
---------------------------------------------------------------------------
\632\ Assuming a person speaks 2.5 words per second, it would
take approximately 45 minutes just to read aloud the relevant
sections of the FedEx majority opinion.
---------------------------------------------------------------------------
If the Board's experience under its longstanding practice of
generally permitting written briefs contradicted this supposition, then
there might be a factual basis for amending the current rule. The Final
Rule cites no such evidence, however. It acknowledges that a procedure
already exists under the current practice for hearing officers to
encourage the voluntary use of oral argument in lieu of a written
brief, and that the General Counsel's 1998 best practices memo endorsed
this voluntary approach as appropriate ``in some cases.'' \633\
---------------------------------------------------------------------------
\633\ See Representation Casehandling Manual Sec.11242 and G.C.
Memo. 98-1, ``Report of Best Practices Committee--Representation
Cases December 1997,'' at 10, 28.
---------------------------------------------------------------------------
The Final Rule's other rationale sounds a very familiar refrain,
i.e., speculation that a party could use the right to file a brief as
an instrument of delay. Has that been shown to have happened with any
frequency over decades of experience under the current Rules? No it has
not, at least not based on the considerable record before us, which on
this point is factually no different than in 2012 when dissenting
Member Hayes cogently observed: ``In practical terms, the majority
points to no evidence that the 7 days currently afforded parties to
file briefs following pre-election hearings actually causes delay in
the issuance of Regional directors' decisions. In real terms, this is
already an extraordinarily short period of time. Our colleagues have
presented no evidence that parties routinely file briefs in those cases
in which the issues are so simple that a Regional director could
routinely issue a decision in less than 7 days, and certainly no
evidence that briefs in general have no utility. There is no reason why
a Regional director or his decision writer cannot begin preparing a
decision before the briefs arrive and, if the briefs raise no issues
the Regional director has not considered, simply issue the decision
immediately. In fact, the Agency's internal training program expressly
instructs decision writers to begin drafting pre-election Regional
directors' decisions before the briefs arrive. See `NLRB Professional
Development Program Module 5: Drafting Regional director Pre-Election
Decisions, last updated May 23, 2004, Participants Guide and
Instructors Guide.' '' \634\
---------------------------------------------------------------------------
\634\ See 77 FR 25567.
---------------------------------------------------------------------------
In short, there is no valid justification for the briefing rule
change. It is a solution in search of a problem. Properly managed under
the existing regional practice, which represents the best practice,
briefing should improve and expedite representation case decisions.
Getting rid of briefs, on the other hand, is as likely to delay final
resolution of representation issues as it is to facilitate it.
(e) Eliminating Board Review--There is no rational reason to
eliminate the right of Board member review regarding post-election
issues.\635\ The Final Rule eliminates mandatory Board review of post-
election disputes under a stipulated election agreement. It provides
that post-election Board review--currently a guaranteed option--would
become discretionary in all cases. Thus, the Final Rule contemplates
that the Board may never review post-election reports of the hearing
officer or decisions of the regional director. As set forth below, we
find the elimination of mandatory Board review of post-election
disputes to be arbitrary and capricious.
---------------------------------------------------------------------------
\635\ Much of the analysis in this section is drawn from former
Member Hayes' dissent to the vacated December 2011 rule. See 77 FR
25566. In our view, the majority has yet to provide sufficient
answers to the criticisms originally voiced there.
---------------------------------------------------------------------------
In recent years, about 90% or more of representation elections were
promptly held pursuant to election agreements. Our statistics show
that, under current regulations, parties are far more likely to enter
into a stipulated election agreement than a consent election agreement,
under which post-election issues are decided by the regional
director.\636\ Under the stipulated agreement, the parties negotiate
resolution of all pre-election issues but preserve the automatic right
to Board review of a regional director or hearing officer's resolution
of post-election disputes. The Final Rule now eliminates that right,
replacing mandatory review with a discretionary system of review that
currently exists for the disposition
[[Page 74450]]
of pre-election disputes in the absence of any election agreement.\637\
---------------------------------------------------------------------------
\636\ According to the Office of Executive Secretary, in 2012,
1,401 elections were held pursuant to stipulation, while only 48
consent elections were held. In 2013, 1,411 elections were held
pursuant to stipulation, while only 39 consent elections were held.
\637\ Even in the absence of an election agreement, the Final
Rule also eliminates a regional director's choice of issuing a
report and recommendations on post-election issues, to which there
would be an automatic right to secure Board review by filing
exceptions.
---------------------------------------------------------------------------
Without any empirical support, our colleagues assert that
eliminating automatic Board review will not result in fewer pre-
election agreements. It seems obvious to us that parties would resolve
known pre-election issues for the guarantee that the Board will be the
final arbiter of any unforeseen election conduct and eligibility issues
that occur during the critical election period. It also seems natural
that the elimination of the right to agree to mandatory post-election
Board review will adversely affect the parties' willingness to
compromise on pre-election issues. Thus, making Board review of post-
election disputes discretionary is likely to discourage parties from
entering into stipulated election agreements, the principal mechanism
for shortening the pre-election timeline, thereby resulting in an
increase in pre- and post-election litigation.
Our colleagues disagree. They contend that the parties will take
what little we give them, preferring an agreement that permits
discretionary Board review over one that provides for final disposition
of post-election disputes at the regional level. They maintain that the
parties will continue to look at the same factors previously considered
when deciding whether to enter into any pre-election agreement. Yet,
our colleagues could be wrong, and it was their duty to give more than
passing thought to this potential adverse consequence for a process
utilized in 1,401 elections, comprising 97 percent of all election
agreements executed, in FY 2013. The guarantee of mandatory, as opposed
to discretionary, Board review of post-election disputes could be the
main reason some employers give up the right to litigate pre-election
issues. Even if the percentage of election agreements decreases by a
few points, the resulting increase in pre- and post-election litigation
will likely negate any reduction of purported delay due to the Final
Rule's implementation. Our colleagues' willingness to make this change
without considering the possible negative impact is attributable in
significant part to their apparent agreement with comments that argue
that employers use the election agreement procedure to extort
unwarranted concessions from unions, who capitulate in order to prevent
the delay due to litigation of pre-election disputes. This view stems
from their belief that employers could not really have legitimate
issues to raise in litigation. But we believe there are legitimate
disputes, and thus, the process of negotiating an election agreement in
which an employer foregoes its litigation rights in exchange for
concessions on unit scope, unit placement, or election details seems to
fairly mirror the give-and-take bargaining that takes place after a
petitioning union wins an election and is certified.
In justifying the elimination of the automatic right of Board
review of post-election challenge and objections issues, our colleagues
also contend that ``the final rule will enable the Board to devote its
limited time to cases of particular significance.'' Regardless of how
insignificant the issues may seem to be in most post-election cases, it
is our duty to give those cases the same consideration as in ``cases of
particular significance.'' Moreover, we disagree with our colleagues
that the Board does not have enough time to provide full consideration
of post-election decisions. This is not 1959, when Congress adopted
Section 3(b) to remedy the Board's undisputed inability to manage its
pending caseload. At that time, there were 9,347 representation case
filings, 8,840 case closings, and 2,230 cases pending at the end of the
year. The Board itself decided 1,880 cases.\638\
---------------------------------------------------------------------------
\638\ Twenty-Fourth Annual Report of the National Labor
Relations Board for Fiscal Year Ended June 30, 1959, Appendix A--
Tables 1 and 3.
---------------------------------------------------------------------------
In Fiscal Year 2013, 1,986 representation case petitions were filed
in the regions, almost the same number as FY 2012, when 1,974 petitions
were filed.\639\ In other words, petition filings are down 80 percent
from 1959. Moreover, the Board's pending caseload is near to
historically low levels. Based on statistics prepared by the Board's
Executive Secretary, as of October 1, 2014, there were 338 pending
unfair labor practice cases and 48 pending representation cases.\640\
Given the decline in case filings, this caseload is unlikely to
increase. Thus, with five times fewer representation cases entering the
system at the regional level, and a tiny fraction of all cases reaching
the Board on exceptions, we clearly have the time to timely resolve all
pending cases without abandoning stipulated election agreements for
review of post-election decisions on a mandatory basis.
---------------------------------------------------------------------------
\639\ Representation Petitions, National Labor Relations Board,
available at http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/representation-petitions-rc.
\640\ The pending caseload statistics would be even less were it
not for a temporary'' bubble'' created by the need to decide anew
cases in which prior decisions have been invalidated by the Supreme
Court's decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
---------------------------------------------------------------------------
There is yet another problem with the new request for review
standard for all post-election decisions. Under the existing rule, the
Board engages in a de novo review of the entire record with respect to
factual findings, other than credibility findings, of the decision
maker below. Under the Final Rule's discretionary review standard, the
Board will only grant review of regional factual findings where it is
established that the finding is clearly erroneous and prejudicial.
Based on statistics for cases covered by the current request-for-review
practice,\641\ this standard will predictably rarely be met.
---------------------------------------------------------------------------
\641\ According the Board's internal casehandling statistics,
the Board granted review, for any of four compelling circumstances
defined in the Rules, on only 9 of 77 requests for review of
regional directors' decisions and directions of election filed in
FY2012, 7 of 57 filed in FY 2013, and 9 of 65 filed in FY 2014.
---------------------------------------------------------------------------
Our colleagues contend that mandatory Board review is unnecessary
because under the current de novo review standard the Board affirms the
majority of post-election decisions made at the regional level. While
this may be true as to decisional outcome, there have been many Board
decisions reversing the hearing officer's or regional director's
findings in post-election cases.\642\ Also, in numerous cases, even if
the Board has affirmed the decision below, it has modified or clarified
the supporting factual findings.\643\ There also have been several
cases where a Board member or members dissent to the findings
below.\644\ The new Rule provides significantly less opportunity for
reversal, clarification, or dissent with respect to such findings and
their application to the controlling legal principles.\645\ This is
counter to the
[[Page 74451]]
Final Rule's assertion that it intends to improve transparency in
decision making. The Board decisions addressed above may not ultimately
be of precedential value, but because they involve a de novo review by
the Board, they play an important role in assuring the public and
reviewing courts that there is a uniform and consistent application of
the law.
---------------------------------------------------------------------------
\642\ See, e.g., Labriola Baking Co., 361 NLRB No. 41(2014);
Sweetwater Paperboard and United, 357 NLRB No. 142 (2011); Go Ahead
North America, LLC, 357 NLRB No. 18 (2011); Rivers Casino, 356 NLRB
No. 142. (2011); Trustees of Columbia University, 350 NLRB 574
(2007); Madison Square Garden CT, LLC, 350 NLRB 117 (2007); In re
Woods Quality Cabinetry Co. 340 NLRB 1355 (2003); Manhattan Crowne
Plaza, 341 NLRB 619 (2004).
\643\ See, e.g., Automatic Fire Systems, 357 NLRB No. 190
(2012); Enterprise Leasing Company-Southeast, LLC, 357 NLRB No. 159
(2011).
\644\ See, e.g., Tekweld Solutions, Inc., 361 NLRB No. 18
(2014); UniFirst Corp., 361 NLRB No. 1 (2014); FJ Foodservice, Case
21-RC-21310, 2011 WL 6936395 (December 30, 2011); Mastec Direct TV,
356 NLRB No. 110 (2011); American Medical Response, 356 NLRB No. 42
(2010).
\645\ The majority cites Mental Health Association, Inc., 356
NLRB No. 151 (2011), as an example of a case which did not require
Board review because it involved the application of settled
precedent. However, the Board modified the hearing officer's
findings because it disagreed with part of the hearing officer's
analysis and found it unnecessary to rely on another part. Id., slip
op. at 1 n.4.
---------------------------------------------------------------------------
It has been the Board's long-held practice to develop and establish
uniformity in representation case law. The Final Rule's discretionary
review standard for all cases greatly increases the possibility that
individual regions will reach different unreviewed results in factually
identical or similar circumstances.\646\ This presents an unacceptable
risk of uncertainty and balkanization of substantive representation
case law. It will likely lead to a system in which parties have to
litigate issues in light of regional precedent, despite the well-
settled Board principle that regional directors' decisions do not have
precedential value.\647\ There is a further risk that the ongoing
development and understanding of labor law will be stunted inasmuch as
the Board will be deciding few representation cases. It is particularly
troubling that the Board will now be reviewing few appeals concerning
election misconduct because the issues raised in these appeals go to
the heart of employee free choice, and narrow factual distinctions have
often determined whether specific conduct has had an objectionable
effect on that choice. These cases warrant de novo Board review. In
sum, the Final Rule will significantly impair the important central
oversight function of the Board in making representation case law.
---------------------------------------------------------------------------
\646\ We note that our critique of this aspect of the Final Rule
has nothing to do with the expertise and competence of regional
directors and hearing officers, for whom we have great respect.
However, like administrative law judges deciding unfair labor
practice cases, expert and accomplished persons reviewing the same
or similar sets of facts can reach different conclusions of law. It
is the Board's role to reconcile those differences.
\647\ E.g., Rental Uniform Service, Inc., 330 NLRB 334, 336 n.10
(1999) (citing S.H. Kress & Co., 212 NLRB 132 n.1 (1974)).
---------------------------------------------------------------------------
The elimination of mandatory post-election Board review is also
likely to cause an increase in ``test of certification'' cases where
employers engage in post-certification refusals to bargain as the only
means of obtaining review of the Board's certification.\648\ Whether or
not an employer would secure judicial reversal of a regional director's
decision is irrelevant. An employer will now be forced to litigate in
an unfair labor practice case, before the Board and in Federal court,
issues that are currently reviewed by the Board in a post-election
appeal as a matter of right. Given the process an employer must go
through to have a Federal court of appeals review any disputed issue
regarding an election, there is often substantial delay in the final
resolution of the representation case.
---------------------------------------------------------------------------
\648\ Id.
---------------------------------------------------------------------------
The collective effect of the Final Rule amendments, notably
including the elimination of stipulation agreements providing for the
automatic right to Board review of post-election issues, is the
creation of a system in which the Board is an absentee overseer of the
representation case process. This is taking our delegation authority
under Section 3(b) to the extreme. Absent the singular factual
circumstance that motivated Congress to create this authority--i.e.,
that the Board in 1959 was overwhelmed by the task of deciding all
contested representation case issues--or any other rational basis for
taking this step, what we are left with is best described as agency
``delegation running riot,'' \649\ an impermissibly overbroad and
arbitrary abdication of the Board's central role in the process.
---------------------------------------------------------------------------
\649\ The phrase is best known for its articulation in A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935)
(Cardozo, J., concurring).
---------------------------------------------------------------------------
(f) Due Process--Collectively, the Final Rule's revisions
constitute an impermissible deprivation of what has traditionally been
regarded as necessary procedural due process in representation case
proceedings. ``The Board's duty to ensure due process for the parties
in the conduct of the Board proceedings requires that the Board provide
parties with the opportunity to present evidence and advance arguments
concerning relevant issues.'' \650\ For decades, the due process
accorded parties to representation proceedings has included adequate
notice and time to prepare for a pre-election hearing, the opportunity
to present oral testimony and cross-examine witnesses on all validly
contested issues (including eligibility and inclusion issues), the
opportunity to file a post-hearing brief, and the opportunity and
incentive to enter into election agreements guaranteeing the automatic
right to secure Board review of a regional director or hearing
officer's findings on post-election objections and challenges. This is
how the Board has traditionally complied with the Supreme Court's
statement that `` `[t]he fundamental requisite of due process of law is
the opportunity to be heard' '' at `` `a meaningful time and in a
meaningful manner.' '' \651\
---------------------------------------------------------------------------
\650\ Bennett Industries, Inc., 313 NLRB 1363 (1994).
\651\ Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting
Grannis v. Ordean, 234 U.S. 385, 394 (1914), and Armstrong v. Manzo,
380 U.S. 545, 552 (1965)).
---------------------------------------------------------------------------
Now, in one fell swoop of agency policymaking, those procedural
rights are gone. In their place, the Final Rule (i) creates new
inflexible prehearing ``pleading'' requirements -primarily and most
severely affecting employers; (ii) greatly accelerates the timetable
for scheduling the hearing; (iii) eliminates the right to contest
eligibility and inclusion issues at a hearing; (iv) directs hearing
officers to limit the introduction of evidence regarding both these
issues as well as those that must still be litigated prior to an
election; (v) eliminates post-hearing briefs except in unusual
circumstances; and (vi) eliminates mandatory Board member review in all
post-election cases.
The private interests affected by this extraordinary government
action are substantial. They involve the potential deprivation in every
election proceeding of the statutorily assured right of parties to full
pre-hearing litigation, the paramount right of employee free choice,
and the fundamental right of an employer to pursue its interests in
maintaining autonomous control of a business operation in which it has
a substantial capital investment (rather than sharing control in
collective bargaining), and to ensure that a certified union truly
represents a majority of employees in an appropriate bargaining
unit.\652\ Against this array of protected private interests, the Final
Rule's primary asserted government interest is the need to conduct
elections as soon as possible, with the notable exception of cases
where a union's blocking charge allegedly justifies prolonged delay. In
the foregoing sections, we have detailed the glaring lack of objective
factual or policy grounds for the wholesale changes in representation
case procedure founded on a perceived need for speed. Under that
analysis, the Final Rule's revisions are shown to be collectively and
individually invalid as arbitrary under the State Farm ``hard look''
test. Necessarily then, the asserted government interest in speed is
inadequate to justify changes that deprive parties of previously
enjoyed procedural rights and impose new procedural burdens that will
inequitably
[[Page 74452]]
affect employers more than other parties to an election. Accordingly,
in our view, the Final Rule must be invalidated on procedural due
process grounds as well.
---------------------------------------------------------------------------
\652\ As we have noted elsewhere, the Final Rule also
contravenes due process by impermissibly infringing free speech and
privacy interests.
---------------------------------------------------------------------------
(g) Expanded Mandatory Disclosures--The Revised Excelsior list
requirements impose unreasonable compliance burdens and fail to
adequately address privacy concerns. In Excelsior Underwear, Inc., 156
NLRB 1236, 1239-40 (1966), the Board established the requirement that
an employer must file with the regional director an election
eligibility list--containing the names and home addresses of all
eligible voters--within 7 days after approval of an election agreement
or issuance of a decision and direction of election. The regional
director, in turn, makes the list available to all other parties to the
representation case. Failure to comply with this requirement
constitutes grounds for setting aside the election whenever proper
objections are filed.\653\ Id. at 1240.
---------------------------------------------------------------------------
\653\ The Supreme Court subsequently deferred to the Board's
judgment, permitting the Excelsior list requirement to stand. See
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969).
---------------------------------------------------------------------------
The Final Rule substantially modifies the current Excelsior list
requirements. It requires the employer to furnish to the regional
director and to other parties not only a list of the full names and
home addresses of eligible voters, but also their available \654\
personal email addresses, home and personal cell telephone numbers, as
well as their work locations, shifts, and job classifications.
Employees who are to vote subject to challenge--either by direction or
the agreement of the parties--must be enumerated with the same required
information in a separate section of the list. Further, the Final Rule
dramatically shortens the time for production of the Excelsior list
from the current 7 calendar days to 2 business days after an election
agreement or direction of election, absent agreement of the parties to
the contrary or extraordinary circumstances specified in the direction.
The employer must provide the voter list alphabetized (overall or by
department) in an electronic format generally approved by the Board's
General Counsel unless the employer certifies that it does not possess
the capacity to produce the list in the required form, and must serve
the voter list on the other parties electronically, when feasible, at
the same time the employer files the list with the regional director.
Failure to file or serve the list and related information within the
specified time and in the proper format will be grounds for setting
aside the election whenever proper and timely objections are filed.
Finally, the parties are restricted from using the voter list ``for
purposes other than the representation proceeding, Board proceedings
arising from it, and related matters.''
---------------------------------------------------------------------------
\654\ We take our colleagues at their word that ``available''
means an employer need only provide employee personal contact
information already in the employer's possession and ``do[es] not
require the employer to ask the employee for it.''
---------------------------------------------------------------------------
We do not quarrel with the idea that it would be convenient for
organizing unions to have some of the additional information that must
now be provided under the Final Rule. However, it has long been
established that the Excelsior requirements are satisfied based on the
disclosure of employee home addresses, and nothing more. For instance,
both the Board and the Supreme Court in Excelsior and Wyman-Gordon,
respectively, refrained even from requiring the disclosure of employee
home telephone numbers. Thus, the majority, by finding rights to
additional information beyond what Excelsior required, cannot then use
Excelsior as the ``policy bootstrap'' to justify the additional
information. Moreover, it is well established that the Act ``does not
command that labor organizations as a matter of law, under all
circumstances, be protected in the use of every possible means of
reaching the minds of individual workers, nor that they are entitled to
use a medium of communications simply because the Employer is using
it.'' NLRB v. Steelworkers (Nutone), 357 U.S. 357, 363-64 (1958). The
question is whether the majority has established, based on the record
in this proceeding or on our experience with the current Excelsior
list, that it is necessary for unions to have this information in the
absence of adequate protection of employees' legitimate privacy
concerns and with the expedited compliance burden imposed on employers.
We think that the majority has clearly failed to make such a showing,
and we explain each of our concerns in turn.
Absence of Rational Justification. The majority bears the
burden of showing that the Final Rule's Excelsior rule revisions are
rationally justified and consistent with the Act. In the Final Rule,
our colleagues maintain that personal cell phone communications and
texting are essential means by which employees engage in organizing and
concerted activity, which is the reason our colleagues expand the
Excelsior disclosure requirements to require employers to disseminate
available personal telephone numbers and email addresses. For example,
our colleagues call personal phones ``a universal point of contact
today'' and cite the ``prevalence of cell phones, which are typically
carried with adults on their person whether at home, at work or around
town,'' which ``now allows callers' messages to reliably reach their
recipients'' with ``shocking'' reliability and speed, ``enhanced
through text messaging, . . . the preferred mode of communication for
many young people.'' Yet our colleagues have taken precisely the
opposite view in Purple Communications, 361 NLRB No. 126 (2014), where
the majority insists that ``social media, texting, and personal email
accounts'' are not even ``germane'' because they ``simply do not serve
to facilitate communication among members of a particular workforce''
(emphasis added). Both justifications cannot be correct. Given the
Board majority's holding in Purple Communications, supra, the Final
Rule's justification for requiring the disclosure of personal employee
phone numbers and personal email addresses cannot be considered
rational.\655\
---------------------------------------------------------------------------
\655\ Our colleagues reason that no inconsistency exists between
the Final Rule and Purple Communications--regarding the role played
by social media in union organizing and related protected
activities--because the Rule (which emphasizes the importance of
smartphones and texting, for example) deals with communications
involving ``the union'' and ``other non-employer parties,'' whereas
Purple Communications (which states these modes of communication are
not even ``germane'') addresses ``employee communications among
themselves.'' We respectfully disagree with this distinction.
Electronic communications and social media function in the same
manner regardless of whether the user is an employee, a union
organizer, or someone else. These communications also facilitate
discourse to the same degree and with the same effectiveness, which
means they cannot be ``a universal point of contact'' (quote from
the Final Rule majority as justification for expanding mandatory
Excelsior disclosures) at the same time these communications
``simply do not serve to facilitate communication among members of a
particular workforce'' (quote from Purple Communications majority as
justification for giving employees a statutory right to use employer
email systems) (emphasis added). Although our colleagues justify the
Final Rule's expanded Excelsior disclosures on the basis that ``no
practical way'' may exist for unions or employees to obtain ``email
addresses, social media account information, or other information
necessary to reach each other'' (Final Rule, supra, quoting Purple
Communications), this has already been disproven by the widespread
use of social media, emails and texting, both in the workplace and
in shaping world events. See Purple Communications, supra (Member
Miscimarra, dissenting, at fn. 5).
Because the Final Rule's justification is irreconcilable with
the Board majority's holding in Purple Communications, supra (as
discussed in the text), and because we believe these revisions lack
adequate privacy safeguards and our colleagues have unreasonably
shortened the existing 7-day deadline for providing Excelsior list
disclosures (which, among other things, would provide adequate time
for the opt-out procedure described in the text below), it is
unnecessary to address whether the revisions otherwise have
sufficient support in the administrative record.
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[[Page 74453]]
Personal Email Addresses and Phone Numbers/Restriction on
Use. In sum, the majority's message to employees in a Board
representation election is that ``the government wants your personal
data--and we are going to compel it without your consent--and then we
are giving it to someone else, too.'' To say the least, that is not a
good message to give the citizenry in 2014.
The Final Rule fails to provide employees a reasonable opportunity
to opt out from the disclosure of their personal contact information to
other parties.\656\ It also fails to provide that any petitioner-
initiated electronic communications or phone calls would contain an
``unsubscribe'' feature that, if utilized, would prevent any further
communications or calls from the petitioner and its agents. Finally,
the Final Rule fails to provide, and cannot meaningfully provide, for
specific appropriate restrictions and remedies regarding the use and
misuse of voter list information. In declining to include these
safeguards, the majority relies on the rationale set forth in Excelsior
itself. There, the Board required the provision of employee names and
home addresses to ``all parties'' (1) to ``maximize the likelihood that
all the voters will be exposed to the arguments for, as well as
against, union representation'' so employees may make a ``free and
reasoned [electoral] choice,'' and (2) to ``further the public interest
in the speedy resolution of questions of representation'' by
``eliminat[ing] the necessity for challenges based solely on lack of
knowledge as to the voter's identity.'' Excelsior, 156 NLRB at 1240-43.
According to the majority, advances in communications technology
necessitate the provision of employees' available personal contact
information to serve and further these dual purposes. Thus, despite
``employees' acknowledged privacy interests in the information that
will be disclosed,'' \657\ our colleagues conclude that ``the public
interests in fair and free elections and in the prompt resolution of
questions of representation outweigh employee privacy interests'' and
that it would be inconsistent with Excelsior's concern for informed
electoral choice ``to begin allowing employees to opt in or opt out of
[the] disclosures.'' We disagree.
---------------------------------------------------------------------------
\656\ Several comments support the inclusion of an opt-out
procedure. See, e.g., Baker & McKenzie LLP; Council of Smaller
Enterprises (COSE); Anchor Planning Group; SHRM II.
\657\ The majority cites Electronic Frontier Foundation v.
Office of the Director of National Intelligence, 639 F.3d 876, 888
(9th Cir. 2010), for its characterization of lobbyists' privacy
interests in their email addresses as ``minor.'' However, the
majority fails to mention the court's conclusion that it could
``easily envision possible privacy invasions resulting from public
disclosure of the email addresses'' and that such email addresses
should only be disclosed under Freedom of Information Act (``FOIA'')
Exemption 6 when ``a particular email address is the only way to
identify the [lobbyist] at issue from the disputed records.'' Id.
(emphasis in original).
---------------------------------------------------------------------------
Our colleagues posit that any invasion of employees' privacy is
minimized because the required disclosures are limited in scope,
recipients, permissible usage, and duration of use. Thus, they conclude
that because the Final Rule does not ``reveal employees' personal
beliefs'' or require the disclosure of what they apparently regard as
more important private information, such as medical records or aptitude
test results, it is a permissible invasion of privacy. In these times,
when new reports of computer hacking, identity theft, and phishing
scams surface daily, we are astonished that the majority fails to
recognize that employees who may have provided their personal contact
information to their employer would otherwise not want to share that
information with anyone they do not know and trust. We seriously doubt
that their privacy concerns will be assuaged by our colleagues'
assurances that personal contact information will be disclosed to
representation case parties but not to the public at large. We note,
for instance, that in a decertification election the employer would
have to provide to the employee-petitioner the available personal
contact information of fellow employees.\658\ There are any number of
reasons totally unrelated to the election campaign why those employees
might be uncomfortable with this arrangement.\659\
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\658\ Inasmuch as our colleagues assume that ``a union seeking
to persuade employees to select it as a bargaining representative
would tend [not] to act coercively toward those employees,'' this
assumption--regardless of its merits--ignores the possibility that
employee-petitioners could act coercively.
\659\ For instance, the decertification petitioner may have had
conflicts with other unit employees inside or even outside of the
workplace (e.g., domestic disputes/violence (HCP), stalking
incidents, failed business dealings, etc.). Such other employees,
fearing harassment, may therefore not want the petitioner to have
their personal contact information. At least one commenter raised
the concern that unqualified disclosure carries a general risk of
employee harassment (IFA II). Another commenter expressed concern
that the disclosure itself could cause intra-office conflicts (AAE).
---------------------------------------------------------------------------
Once the contact information is provided to a party, it does not
disappear after election day. With respect to the limitations on its
further permissible use and duration, the majority assumes the efficacy
of its vague restriction limiting the use of disclosed personal contact
information to ``the representation proceeding, Board proceedings
arising from it, and related matters.'' Although we acknowledge our
colleagues' attempt to list particular types of Board proceedings
presumably covered by this language, we are nonetheless troubled by the
vagueness and potential breadth of ``related matters.'' Beyond that,
the Final Rule fails to specify any remedy for violating the
restriction, promising only an ``appropriate remedy'' to be determined
in case-specific adjudication ``if misconduct is proven and it is
within the Board's statutory power to do so.'' Proving such misconduct
may be difficult enough,\660\ but the greater problem is that an
effective remedy is probably not within the Board's statutory
authority. The majority fails to guarantee--because it can't--to
employees that the data won't be leaked or misused, whether
intentionally or by error. In fact, in some cases, we know it will be
leaked or misused, and the majority does not provide a serious sanction
for doing so. Consequently, the Final Rule's restriction is
meaningless. The opt-out and unsubscribe options we propose are
therefore essential safeguards.
---------------------------------------------------------------------------
\660\ For example, the Indiana Chamber of Commerce observed that
a party alleged to have misused a voter list may claim that it
obtained the misused information independently from another source,
and thus was not ``using'' the voter list at all, let alone for a
restricted purpose (IN Chamber). Our colleagues miss the point in
dismissing this concern as a ``question of fact for the factfinder''
in a particular case. The Indiana Chamber's valid concern is that an
employer would find it extremely difficult, if not impossible, to
prove misuse of a voter list to a fact finder.
---------------------------------------------------------------------------
The majority counters with the argument that there is no evidence
of voter lists being misused by non-employer parties in the nearly 50
years of the Excelsior requirement. Thus, they reason that our concerns
and the need for safeguards are ``entirely speculative.'' To the
contrary, it is apparent that requiring the provision of a new type of
information poses a new type of risk. The majority's rationale is
tantamount to arguing the low incidence of accidents involving horses
in the 19th century proved there would be a low incidence of accidents
involving cars in the 20th century. Their attitude is blas[eacute] at
best. As previously mentioned, the news is full of daily abuse stories
relating to, e.g., disclosure of personal email addresses.\661\
---------------------------------------------------------------------------
\661\ See, e.g., Shelly Banjo, Home Depot Hackers Exposed 53
Million Email Addresses, Wall Street Journal, Nov. 6, 2014, http://online.wsj.com/articles/home-depot-hackers-used-password-stolen-from-vendor-1415309282. As for the majority's suggestion that
employees' personal contact information is unlikely to be misused,
see Cedars-Sinai Medical Center, 342 NLRB 596 (2004) (setting aside
election based on telephonic threats of violence).
---------------------------------------------------------------------------
[[Page 74454]]
Our colleagues also assume that providing an opt-out procedure for
employees would be inconsistent with the Board's reasoning in Excelsior
that ``the access of all employees to [election-related] communications
can be insured only if all parties have the names and addresses of all
the voters.'' Excelsior, supra at 1241 (emphasis in original). Of
course, that basic assurance of communication access remains unchanged
today. Employees' names and addresses are required to be disclosed
without restriction, regardless of any privacy concerns that might
apply. Further, those privacy concerns are fundamentally different from
those attendant to email and phone contact information. A home is a
readily identifiable, fixed physical point of geography that people in
the public can typically visit, independent of the disclosure of
address. An email address is a thing entirely created by the employee
who thus has more of a privacy interest and it is typically not
identifiable at all without the consent of the employee; and a personal
phone number is also created, in part, by an employee, who gets to
determine whether or not it is publicly listed and thus identifiable at
all. Any limited and neutral opt-out provision for these additional
means of access cannot be deemed to disrupt the balance struck in
Excelsior.
Our colleagues' other objections to opt-out procedures are
similarly misplaced. Thus, the majority speculates that an opt-out
process would require too much ``extra time'' (a too-familiar refrain)
for employees to decide whether to disclose their personal contact
information and for employers to implement that decision, thereby
exacerbating election delay. They further speculate that an employer-
administered opt-out process would engender new areas of costly
litigation arising from ``accusations of improper employer coercion''
in influencing employees to opt out of disclosure. Finally, the
majority suggests that because an opt-out process ``could not be
administered in a blind fashion,'' the resulting employer knowledge of
who opted out would ``require the invasion of employee privacy in the
name of protecting employee privacy.''
In our view, none of the majority's criticisms would preclude the
administration of a workable opt-out procedure that we could support.
The employer could be directed to post and provide notices and opt-out
forms to all employees at the time initial and final election notices
are distributed (recipients of the forms accompanying the initial
election notice could be identified based on the preliminary voter
list). Employees who wished to opt out could be directed to submit
their completed forms to the Region prior to the existing 7-day
Excelsior list deadline, which, in our view, should be retained without
change. The Region could retain responsibility for distributing the
Excelsior list, from which the Region, before serving the list on the
petitioner and any intervenor, could easily redact personal contact
information relating to those employees who opted out. The Region could
administer the opt-out process in a simple, efficient manner that
minimizes administrative burdens without delaying the election. And the
employer would not know which employees, if any, had opted out. Federal
and state courts commonly use nearly identical opt-out procedures, for
example, to protect third parties' privacy interests in class action
cases. In our view, no pejorative message would be associated with this
type of procedure--administered by the neutral agency overseeing the
election--and we believe the majority's argument otherwise is plainly
without merit. Nor would such an opt-out procedure reveal either to the
employer or union an employee's sentiments regarding representation,
since the opt-out information would be available only to the Region,
and there is no necessary correlation between an employee's sentiments
regarding union representation and his or her individual preference
regarding dissemination of personal contact information.
The majority sees no need to permit employees to ``unsubscribe''
from petitioner-initiated electronic communications or phone calls.
They observe that such an option ``would do nothing to allay privacy
concerns'' occasioned by the employer's initial mandated disclosure of
employees' available personal contact information. This observation
would be accurate were the unsubscribe option to be the sole means for
protecting privacy interests. In our view, however, any such option
would at least have to work in tandem with a reasonable initial opt-out
procedure. Thus, employees who decided not to opt out of the initial
disclosure could later decide to stop receiving a petitioner's messages
by personal email or phone call. In any event, employees continue to
have a privacy interest in their personal contact information even
after the initial disclosure.
Our colleagues assure that an unsubscribe option is unnecessary
because ``some'' unions voluntarily provide this option anyway. If this
is the case, then we have before us proof that such a procedure is
reasonable and can be workable. And if, as our colleagues claim, the
Controlling the Assault of Non-Solicited Pornography and Marketing Act
of 2003 (``the CAN-SPAM Act'') \662\ and Federal Trade Commission's Do-
Not-Call Rule \663\ ``may already impose'' a similar requirement for an
unsubscribe option, we see no harm in making this requirement explicit
and clear as applied to voter lists under Board law. Indeed, the Final
Rule codifies the Excelsior rule's requirement that employers provide
voters' names and home addresses even though this rule has stood for
nearly 50 years without previously being codified.
---------------------------------------------------------------------------
\662\ 15 U.S.C. 7704.
\663\ 16 CFR part 310.
---------------------------------------------------------------------------
Timing. As stated above, the Final Rule dramatically
shortens the time for production of the voter list from the current 7
calendar days to 2 business days, absent agreement of the parties to
the contrary or extraordinary circumstances specified in the direction
of election. The 2-business-day maximum time limit, with the
possibility of setting aside an election for failing to comply, is far
too short a time period for a number of reasons. First, this timeframe
is insufficient given the significant variation that exists among
different potential bargaining units (e.g., large unit size,\664\
multi-site units \665\). Second, certain industries and job
classifications that have historically been recognized as involving
substantial complexity (e.g., construction,\666\ education,\667\
entertainment, and contingent or regular part-time or on-call employees
in, inter alia, the healthcare industry \668\) will routinely need more
than 2 business days to finalize a voter list. Third, the majority's
timeframe is unrealistic given the cumulative effect of the other
accelerated time frames included in the Final Rule.\669\ Fourth, the
rush to comply with the 2-day time limit for production of the
Excelsior list can reasonably be expected to produce more inaccuracies
in the substantially greater information that must now be provided.
[[Page 74455]]
Inasmuch as inaccuracies can be the basis for setting aside an election
upon the timely filing of an objection,\670\ the Final Rule will likely
make more rerun elections necessary when a union fails to secure a
majority vote in the first election.\671\
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\664\ See, e.g., Sheppard Mullin; AHCA; AHA.
\665\ Such units may commonly occur within employers with
decentralized operations. See, e.g., ACE; Con-Way.
\666\ See, e.g., ABC II; AGC II.
\667\ See ACE.
\668\ See, e.g., AHA II.
\669\ See, e.g., Bluegrass Institute; GAM; Sheppard Mullin; AHA.
\670\ See, e.g., Mod Interiors, Inc., 324 NLRB I64 (1997)
(setting aside election where Excelsior list contained a significant
number of inaccurate addresses).
\671\ As previously noted with respect to the required posting
of the initial election notice, our colleagues seem greatly
concerned with expediting the electoral process in general, but the
possibility of delay from this second-chance failsafe opportunity
apparently escapes such concern.
---------------------------------------------------------------------------
Our colleagues largely dismiss these concerns. Primarily, they
assume that advances in recordkeeping, retrieval, and record
transmission technology warrant the reduction in time for production to
2 business days for all employers in the interest of ``expeditiously
resolv[ing] questions of representation.'' We can readily concede that
some employers may be able to comply with the new 2-day deadline for
production of the expanded Excelsior list, but the record falls far
short of establishing that all, or even most, employers will be able to
do so, particularly those who lack modern technology or who operate in
industries with complex eligibility formulae.
Excelsior Disclosures--Summary. The majority relies on a
bundle of assumptions to justify its rejection of the need for any
privacy safeguards and its insistence that it is not onerous to require
all employers to provide the expanded list in just 2 days. None of
those assumptions bears a rational relation to the factual record
before us or to statistically proven probabilities.
What remains of the majority's rationale is quite familiar. With
respect to privacy concerns, they say that ``[w]ithout minimizing the
legitimacy of the concerns underlying these comments, we conclude for
the reasons that follow that the public interests in the fair and free
choice of bargaining representatives and in the expeditious resolution
of questions of representation outweigh the interests employees and
employers have in keeping the information private.'' With respect to
the 2-day deadline, they reason that ``[s]hortening the time period
from 7 calendar days to 2 business days will help the Board to
expeditiously resolve questions of representation, because the
election--which is designed to answer the question--cannot be held
until the voter list is provided.'' It is readily apparent that the
irrational need for speed in the pre-election period is the primary
motivation for rejecting any impediment to shortening that period, even
the allotment of a just a few extra days to allay significant privacy
concerns and to facilitate employers' accurate and timely compliance
with the new Excelsior list requirements.
(h) No Change in Blocking Charges and Resulting Delays--The failure
to change the Board's blocking charge policy perpetuates lengthy
delays, and making it part of the Rule will impede future changes. As
fully discussed in Section B below, the Final Rule fails to address the
statistical ``long tail'' of representation cases that have actually
been shown to account for a large portion of overall delay in
representation case processing. Cases involving application of the
current blocking charge policy are a major part of this ``long tail.''
\672\ Also, as indicated in the NPRM, the blocking charge doctrine has
not previously been codified in the Board's formal Rules. In the Final
Rule, however, the blocking charge policy is being retained--with the
most minimal modifications--and it is being embedded in the Final Rule
itself. This is retrenchment, not progress.
---------------------------------------------------------------------------
\672\ As noted by the majority, a study conducted by commenter
and Professor Samuel Estreicher of data pertaining to blocking
charges filed in 2008 determined that the filing of blocking charges
in a case increased the time to an election, on average, by 100
days. Samuel Estreicher, Improving the Administration of the
National Labor Relations Act Without Statutory Change, 25 ABA J.
Lab. & Emp. L. 1, 9-10 (2009).
---------------------------------------------------------------------------
As stated in Section 11730 of the Board's Casehandling Manual for
Representation Proceedings, ``[t]he Agency has a general policy of
holding in abeyance the processing of a petition where a concurrent
unfair labor practice charge is filed by a party to the petition and
the charge alleges conduct that, if proven, would interfere with
employee free choice in an election, were one to be conducted.''
However, the manual admonishes that ``the policy is not intended to be
misused by a party as a tactic to delay the resolution of a question
concerning representation raised by a petition. Rather, the blocking
charge policy is premised solely on the Agency's intention to protect
the free choice of employees in the election process.''
The sense that the Board's blocking charge policy causes problems
in case processing is hardly a new concept.\673\ The Board has
acknowledged the reality that its blocking charge policy can be
improperly overutilized. See Shaw's Supermarkets, 350 NLRB 585, 589
(2007) (noting with respect to decertification petitions that ``in many
cases, blocking charges are filed and delay the election until the
charges are resolved one way or another''). Indeed, multiple comments
describe experiences where unions filed unfair labor practice charges
to block an upcoming decertification election that such unions
concluded they were likely to lose.\674\ Our colleagues thus rightly
acknowledge that ``incumbent unions may abuse the policy by filing
meritless charges in order to delay decertification elections.'' We
would add that unions filing initial election (RC) petitions may
likewise file meritless blocking charges to delay an election and buy
additional time for campaigning and shoring up support where electoral
defeat appears likely. Of course, many unfair labor practice charges
that currently block an election may have merit, or at least warrant
litigation, just as many unit eligibility and inclusion issues raised
by employers may have merit or warrant litigation. We wish our
colleagues paid as much attention to the potential for unacceptable
election delay from the former as they do to the latter.
---------------------------------------------------------------------------
\673\ See, e.g., Subrin, The NLRB's Blocking Charge Policy:
Wisdom or Folly? Labor Law Journal, Vol. 39, No. 10 (October 1988).
The author was for many years director of the Board's Office of
Representation Appeals.
\674\ See, e.g., NRTWLDF; Chamber II; COLLE; CDW II.
---------------------------------------------------------------------------
The Final Rule adopts from the NPRM and codifies certain
evidentiary requirements applicable when a party requests than an
unfair labor practice charge block the processing of an election
petition. Specifically, the requesting party must ``simultaneously file
[with the Board], but not serve on any other party, a written offer of
proof in support of the charge * * * * provid[ing] the names of the
witnesses who will testify in support of the charge and a summary of
each witness's anticipated testimony.'' Further, the party must
``promptly make available to the regional director the witnesses
identified in its offer of proof.'' The Final Rule does not otherwise
modify the extant blocking charge policy. Our colleagues' stated
purpose in adopting these requirements is ``to protect against abuse of
the blocking charge policy by those who would use the unfair labor
practice procedures to unnecessarily delay the conduct of elections.''
Although the Final Rule's modest reforms to the blocking charge
policy are arguably improvements over the status quo in the pre-
complaint investigatory stage,\675\ they do not, standing alone,
adequately address the frequent substantial delay in processing
[[Page 74456]]
election petitions caused by blocking charges. In particular, we
believe that the overbreadth of the current policy causes unacceptable
delay in the conduct of elections even when the charge filing is not
itself abusive of process.
---------------------------------------------------------------------------
\675\ We say ``arguably'' because, as the majority notes, the
General Counsel already accords ``highest priority'' to
investigating blocking charges.
---------------------------------------------------------------------------
As indicated in Section 11730.1 of the Representation Casehandling
Manual, ``[b]locking charges fall into two broad categories. The first,
called Type I charges, encompasses charges that allege conduct that
only interferes with employee free choice. The second, called Type II
charges, encompasses charges that allege conduct that not only
interferes with employee free choice but also is inherently
inconsistent with the petition itself.'' \676\ In the Type I situation,
unless the filing party requests that the election proceed, a petition
is held in abeyance until the charge is dismissed or withdrawn, or if
found meritorious, until final resolution of the ensuing unfair labor
practice complaint litigation, which could take years. In the Type II
situation, a merit determination will ordinarily result in the
petition's dismissal.
---------------------------------------------------------------------------
\676\ Casehandling Manual Sec. 11730.1.
---------------------------------------------------------------------------
In our view, experience has shown the Board should refrain from
holding petitions in abeyance for Type I blocking charges. Current
policy represents an anomalous situation in which some conduct that
would not be found to interfere with employee free choice if alleged in
objections, because it occurs outside the critical election period,
would nevertheless be the basis for substantially delaying holding any
election at all.\677\ Further, we find it paradoxical that the filing
party, almost invariably a union in the blocking charge context, may
control the timing of an election by requesting that it proceed.
Objectively, if the Board's stated intention in the blocking charge
policy is ``to protect the free choice of employees in the election
process,'' \678\ it does not make sense for one party--in this case,
the union that chooses to file a charge--to control whether or when
employees exercise that choice by participating in the election.
---------------------------------------------------------------------------
\677\ Ideal Electric Mfg. Co., supra (to be found objectionable,
alleged conduct must occur in critical period between petition and
election dates).
\678\ Casehandling Manual Sec. 11730.
---------------------------------------------------------------------------
Even with the new pre-complaint evidentiary requirements, we also
oppose having the blocking charge policy codified in the Board's formal
Rules. In this regard, we do not believe the Final Rule articulates a
sufficient basis for incorporating the blocking charge doctrine,
particularly since the Final Rule does not otherwise adopt any of the
substantial potential changes referenced in the Proposed Rule, and
codifying the policy is likely to impede or preclude further changes or
improvements in this important area. At a minimum, we favor keeping the
blocking charge policy out of our formal Rules during a 3-year trial
period in which petitions will be routinely processed and elections
conducted in Type I blocking charge cases, with the votes thereafter
impounded, even in cases where a regional director finds that there is
probable cause to believe an unfair labor practice was committed that
would require the processing of the petition to be held in abeyance
under current policy. The Board would then have empirical evidence for
evaluation of the need for permanent amendment of the policy, weighing
any benefits in eliminating protracted delay in the conduct of
elections against possible risk to the exercise of employee free
choice.
Our colleagues decline to substantively modify the blocking charge
policy principally because, as they claim, ``holding a tainted election
results in damage beyond that caused by the employer's unfair labor
practices, which damage cannot be fully remedied simply by conducting a
rerun election.'' Again, speaking only in reference to Type I cases--
those not involving conduct that necessarily taints the petition
process--it remains possible, even if the election takes place, for the
union to file post-election objections and charges, causing the
election to be set aside, followed by a rerun election. This remains
the standard Board approach to election-related misconduct during the
critical period. Given our colleagues' relentless focus on conducting
elections as soon as possible--in literally every other context
addressed in the Final Rule--it is irrational and self-defeating to
retain the blocking charge doctrine, which prevents many elections from
taking place for years.
In sum, the Final Rule's incorporation of the current blocking
charge policy with minimal pre-complaint changes provides nothing of
meaningful value and leaves completely unaffected the enormous delays
caused by this policy. Codifying the policy, without meaningful change,
makes even more difficult the future prospect of giving this policy the
serious attention and substantial reforms that, in our view, are
warranted.
B. The Final Rule Still Fails To Target Election Cases That Involve Too
Much Delay
The NLRA involves more than procedures in representation cases. The
Act's substance consists of important election-related rights,
obligations, and constraints, including the prohibition against
restraint or coercion by employers or unions regarding any employee's
exercise of protected rights.\679\ In our NPRM dissent, we noted the
absence of proposals directly addressing the commission of unfair labor
practices during an election campaign. Still, the Final Rule makes no
overt changes regarding the Board's treatment of unlawful election
conduct by employers or unions. That is a matter for another day, say
our colleagues. However, it is well known that many union advocates
have argued for greatly expedited representation elections based on
alleged employer misconduct that, it is claimed, adversely affects the
outcome.\680\ They maintain that the longer the pre-election period is,
the greater is the potential for such misconduct to take place.
Notwithstanding the majority's disclaimers, the absence of a rational
justification for so many of the revisions discussed above that
concentrate on the acceleration of the pre-election stage of
representation case proceedings makes it difficult, if not impossible,
to avoid the conclusion that the majority accepts the unions' argument
and that the Final Rule's focus on the need for speed is compelled by
this argument.
---------------------------------------------------------------------------
\679\ See Sec. A.2., supra.
\680\ These arguments were referenced in the preamble
accompanying the now-vacated final election rule issued in December
2011. See 76 FR 80138 (2011) (prior final rule regarding
representation case procedures with explanatory preamble). The
preamble noted that many labor organizations cited research studies
indicating that shorter election periods would result in ``fewer
unfair labor practices,'' although the preamble also acknowledged
that various management-side organizations ``question[ed] the
validity of such studies.'' Id. at 80149 n.33.
---------------------------------------------------------------------------
Furthermore, to the extent that the Final Rule seeks to address
unacceptable election delay, the objective evidence shows such delay
occurs, at most, in only a very small percentage of Board-conducted
elections. These relatively few cases do not provide a rational basis
for rewriting the procedures governing all elections.
The graph below, based on a breakdown of all NLRB initial elections
conducted between 2008 and 2010, is republished from our Proposed Rule
dissent and still illustrates this point. In more than 90 percent of
those cases, elections occurred within 56 days after the filing of the
petitions (these cases
[[Page 74457]]
are reflected in the graph area appearing in white, marked ``A''). As
noted previously, this represents a dramatic improvement over the
Board's track record since the early 1960s. Conversely, less than 10
percent of the cases identified in the graph involved elections that
occurred more than 56 days after petition-filing (these delayed cases
are reflected in the graph area shaded in black, which is barely
visible, to the right of the 56-day line).
[GRAPHIC] [TIFF OMITTED] TR15DE14.003
The case distribution in the graph shows there is no evidence of
delay evenly apportioned across the universe of Board-conducted
elections, i.e., delay affecting a large group of cases to a
significant degree. In fact, the graph is far from a standard bell
curve; it does not show any kind of significant distribution of cases
greater than 56 days between petition-filing and election.\681\ We are
not the first to note this wildly uneven statistical distribution in
the context of an asserted ``systemwide delay'' problem. An earlier
study addressing the same distribution findings accurately described
the scattering of cases along the extended time continuum beyond 56
days as the ``long tail'' of election cases.\682\ In other words,
empirical data seem to disprove the existence of a systemwide delay
problem, and instead demonstrate that delay is only an issue confined
to a discrete minority of cases, possibly for issues unique to those
cases.
---------------------------------------------------------------------------
\681\ As noted previously, 56 days is the Board's own
traditional target for conducting at least 90 percent of elections,
a target that the Board has surpassed in recent years. See notes
560-562, supra, and accompanying text.
\682\ See John-Paul Ferguson, The Eyes of the Needles: A
Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. &
Lab. Rel. Rev.3, 10 n.9 (Oct. 2008).
---------------------------------------------------------------------------
The Final Rule contains many references to increased speed and
efficiency, but fails here by making no differentiation between the
overwhelming majority of elections that already take place quickly and
the relatively small number that do not. Instead, the Final Rule
rewrites the procedures that govern all cases, the overwhelming number
of which already take place quickly.
Suppose, for instance, that the U.S. Fish and Wildlife Service had
a mandate to stop the poaching of manatees, which reside almost
exclusively in Florida.\683\ It would defy logic and common sense to
deploy anti-poaching rangers in all 50 states, when most states do not
even have bodies of water where manatees live. This is precisely the
approach reflected in the Final Rule. It applies almost entirely to
elections that do not involve significant delay, while failing to
identify and target the specific causes of delay in those few cases
where employees are denied the opportunity to vote in a timely manner.
---------------------------------------------------------------------------
\683\ Manatees, sometimes known as ``sea cows,'' are large
aquatic marine mammals considered to be relatives of the elephant.
See http://en.wikipedia.org/wiki/Manatee; http://www.defenders.org/florida-manatee/basic-facts. The Florida manatee is Florida's state
marine mammal. Id.
---------------------------------------------------------------------------
As we have repeatedly stated in this opinion, every Federal agency
has a legally mandated responsibility to take action that bears a
rational relation to relevant facts and the matters being
addressed.\684\ In this respect, even putting aside the many ways in
which the Final Rule is contrary to statutory mandates (see Part A
above), it creates poor public policy and is not rationally related to
the genuine problems of delay in case processing. At a minimum, there
needs to be a better fit between rulemaking in this important area and
any problems that ostensibly warrant Agency action.
---------------------------------------------------------------------------
\684\ State Farm, supra, 463 U.S. at 43.
---------------------------------------------------------------------------
In Section D below, we suggest rulemaking changes that would
represent significant progress addressing the unacceptable delay in the
``long tail'' of representation cases. If our colleagues wish to
immediately reduce the number of overage representation cases, they
need look no further than the Board's own pending caseload. As of
October 1, 2014, the beginning of Fiscal Year 2015, there were 33 pre-
election representation cases pending before the Board for over a year,
4 of which have been pending for over 3 years. Nothing prevents the
Board from adjusting its own internal procedures--combined with due
diligence, effort, and commitment, rather than rulemaking--to resolve
all of these cases, and to ensure that every future representation case
is timely resolved. Indeed, the countless number of hours spent by
Board personnel in rulemaking might much better have served the purpose
of expeditiously processing representation cases by attending to this
problem. In Part D below we identify measures that, in our view, would
accomplish these objectives and otherwise improve representation
procedures consistent with the Board's responsibilities under the Act.
[[Page 74458]]
C. The Final Rule Still Does Not Reflect A Comprehensive De Novo
Examination of Important Election Issues
We credit our colleagues for affording the opportunity to have
renewed public comment on the republished NPRM. Further, we recognize
that they have made some changes in the Final Rule that we support. For
example, (1) the Final Rule abandons the proposal to eliminate pre-
election requests for review and pre-election requests to stay the
election, which the statute requires the Board to permit; (2) the Final
Rule recognizes to some degree that the Act does not permit hearing
officers even to make ``recommendations'' regarding election issues
(although we believe these changes do not adequately cure the improper
vesting of controlling authority in hearing officers); \685\ (3) some
restrictive provisions pertaining to the new Statement of Position and
issue preclusion requirements have been modified; \686\ (4) the 20
percent evidence-exclusion rule is no longer a mandatory standard; (5)
the proposal to state in the Rule that parties have a maximum of 5 days
to move to quash a subpoena has been abandoned; \687\ and (6) the
expanded Excelsior list disclosure requirements do not mandate
employers to furnish the work email addresses and work phone numbers of
eligible voters.\688\
---------------------------------------------------------------------------
\685\ Section 9(c)(1). For example, the Final Rule ostensibly
places authority in regional directors to exclude evidence (which
conclusively precludes review by the regional directors and the
Board regarding excluded matters), but it remains clear that hearing
officers--not regional directors--preside over the hearing; and we
believe the exclusion of evidence regarding issues like voter
eligibility will improperly limit the scope of the hearing, contrary
to Section 9(c)(1)'s ``appropriate hearing'' requirement. The Final
Rule, therefore, will predictably cause litigation over hearing
officer rulings that exceed what is permitted by Section 9(c)(1) and
Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994).
\686\ In the Final Rule, a non-petitioning party can now modify
a Statement of Position ``for good cause''; the inapposite use of
the term ``joinder'' is eliminated, as is inapposite reliance on
language drawn from the summary judgment standard in Federal Rule of
Civil Procedure 56; contested issue requirements are revised to
expressly exempt from preclusive effect a party's ability to
challenge the eligibility of any voter during the election; and the
mandate to require offers of proof on a potential issue prior to the
introduction of testimony is eliminated.
\687\ We nevertheless strongly disagree with the suggestion that
limited caselaw supports a Board practice permitting a region to
regire the filing of a motion to quash in less than 5 days. Such a
requirement would be in direct conflict with the express language of
Section 11(1) of the Act, which mandates a minimum of 5 days for a
motion to quash.
\688\ The significance of this revision is limited, due to our
colleagues' determination that employers must ordinarily allow their
employees access to work email systems to engage in organizational
activities. See Purple Communications, supra.
---------------------------------------------------------------------------
However, the Final Rule clearly retains essential elements from the
Proposed Rule that the Board issued in June 2011, which generated more
than 65,000 sets of written public comments, with a further 66
individuals representing nearly as many different organizations making
oral presentations to the Board. It is true that our colleagues
incorporated by reference the entire administrative record of the 2011
rulemaking, including ``numerous arguments both for and against the
proposals,'' \689\ rather than requiring the public to resubmit the
same comments. And the Proposed Rule stated ``[a]ll of this material
will be fully considered by the Board in deciding whether to issue any
final rule'' (emphasis added).\690\ However, we believe the Board
should have considered this voluminous material before determining the
contours of the 2014 Proposed Rule. Having reviewed the earlier
material and more recent additional comments and oral presentations, we
believe the Board should have published an amended Proposed Rule for
further comment. Even putting aside our disagreements with the Final
Rule, the scope of the proposed changes combined with the voluminous,
diverse comments received by the Board make it advisable, at the least,
to do now what we believe our colleagues should have done when, in
February 2014, they republished the 2011 NPRM.
---------------------------------------------------------------------------
\689\ 79 FR at 7318.
\690\ Id.
---------------------------------------------------------------------------
The Board is an independent agency, first and foremost. We would
serve the public better by ``listening first, formulating later''
instead of ``formulating first, listening later.'' Once the NPRM issued
anew, it necessarily reflected a conscious set of public policy choices
or preferences. Just as the exchange of views during bargaining leads
to improved outcomes and furthers industrial peace, so does engagement
with the public in rulemaking. The Act itself disfavors the assumption
that there is a ``perfect initial offer'' leaving nothing to discuss.
See General Electric, 150 NLRB 192 (1964), enfd. 418 F.2d 736 (2d Cir.
1969), cert. denied 397 U.S. 965 (1970).
From the beginning of this particular era of a confirmed five-
Member Board in August 2013, we already had before us an enormous
record in this rulemaking proceeding. Further, there was an apparent
commitment to proceed with rulemaking. Why, then, would it not have
been preferable to review what was not definitively reviewed until
later? In the 6 months before republication of the original NRPM in
February 2014, there was ample opportunity to consider and include the
revisions discussed above in a new, modified Proposed Rule. The
modified NPRM would have represented an appreciable midpoint for
further comment in this proceeding, a far preferable alternative to the
first disclosure of revisions in the Final Rule without further
opportunity for public comment. The republication of the original NPRM
could not help but convey the impression that the Board majority was
set on an intractable course. The issuance of this Final Rule,
presenting no opportunity for revisions of the NPRM's proposals, does
not alter that impression.
The conduct of elections lies at the heart of the Board's statutory
responsibilities, and the rulemaking path taken by the current Board to
this point is far too suggestive of a fait accompli. Inasmuch as there
will be no opportunity for public comment on the Final Rule, it falls
to us to discuss its provisions in the foregoing sections of this
opinion and, in the next section, to explain why it would be far better
to take a different approach.
D. The Path Not Taken
We support rulemaking if it is necessary to address relevant issues
consistent with the Board's authority and the Act's requirements. We
join our colleagues in their overall desire to more effectively protect
and enforce the rights and obligations of parties subject to the Act.
We fully agree that the Board should do everything within its power to
conduct representation elections in a way that gives effect to employee
free choice. And we agree that the Board should work aggressively in
carrying out its statutory responsibilities to everyone covered by the
Act.
Our opposition to the Final Rule stems from its variance from
choices already made by Congress, in addition to provisions that
predictably will cause unfairness and adverse consequences for many
parties. The most important threshold question to answer--still not
adequately explained in the Final Rule--is whether and why such
expansive rulemaking is necessary at all. As the Supreme Court has
stated, a ``settled course of behavior embodies the agency's informed
judgment that, by pursuing that course, it will carry out the policies
committed to it by Congress. There is, then, at least a presumption
that those policies will be carried out best if the settled rule is
adhered to.''\691\
---------------------------------------------------------------------------
\691\ Atchison, T. & S. FR Co. v. Wichita Bd. of Trade, 412 U.S.
800, 807-08 (1973).
---------------------------------------------------------------------------
[[Page 74459]]
Regarding the substance of the Final Rule, we believe there would
be broader support, substantially less opposition, and greatly enhanced
prospects for judicial enforcement if the Final Rule took a more
limited, better defined, and less potentially disruptive form that had
unanimous support among Board members. We believe reasonable changes
incorporating the following elements, had they been accepted by our
colleagues, would also have broad-based support among scholars,
practitioners, and advocates for employees, unions and employers.
1. Address the ``Speed'' Issue. For the reasons stated in our
dissent to the Proposed Rule,\692\ we believe it is important that the
Board provide guidelines regarding reasonable minimum and maximum times
between the filing of a representation petition and the holding of the
election. The majority continues to reject this suggestion, focusing
almost exclusively on their objection to the setting of a minimum time.
In their view, such an action is not necessary to accord with
Congressional intent or to assure against infringement of free speech
rights. As we have discussed at length, we disagree with the majority
on these critical points.
---------------------------------------------------------------------------
\692\ 79 FR 7340, 7344, 7347.
---------------------------------------------------------------------------
We believe it would be reasonable to have a minimum guideline time
period between 30 and 35 days from petition-filing to election. This
would be consistent with the indications that Congress intended that
employees should have no fewer than 30 days between petition-filing and
an election to become familiar with relevant issues.\693\ This standard
would also permit other reasonable efforts to streamline election
procedures, while retaining the 7-day period for having post-hearing
briefs and a reasonable time for parties to file pre-election requests
for Board review of regional director decisions and actions.
---------------------------------------------------------------------------
\693\ See note 576, supra, and accompanying text.
---------------------------------------------------------------------------
We also believe to the Board should establish a maximum guideline
period of 60 days from petition to election, unless the Board or the
regional director (subject to Board review) determines that unusual
circumstances preclude holding the election within this 60-day
timeframe. As previously discussed, 90 percent of Board elections are
already held within 56 days or less after a petition is filed. With few
exceptions, we believe a 60-day maximum represents a rational and
attainable standard for all elections.
2. Address the Specific Issues Responsible for Delayed Elections.
As noted above, there have been particular cases--few in number--where
elections and related issues have taken too long to resolve. Rather
than engaging in a wholesale revision of the procedures applicable to
all elections, the Final Rule should directly address the particular
reasons that have contributed to those relatively few elections that
have involved unacceptable delay (depicted as the statistical long
``tail'' in the above graph).
Again, a prime candidate is the Board's ``blocking charge''
doctrine (which permits parties to indefinitely delay an election by
filing certain unfair labor practice charges, addressed in our
recommendation no. 3 below). More generally, there is no lack of data
regarding factors that may have contributed to the relatively small
number of cases involving too much time. This data should be carefully
examined, with a view towards targeting the problem cases, rather than
reformulating the procedures governing all elections.
3. Reform the Board's Internal Procedures So Election Issues Are
Addressed More Quickly, and Eliminate Blocking Charge Deferrals for a
Three-Year Trial Period. One of the biggest contributors to the delays
associated with resolving election-related issues is the time that
particular cases are pending before the Board, rather than in regional
offices. The Final Rule does not foreclose changes in the Board's
internal election case-handling procedures, but the Final Rule's
expansive rewriting of the rules govering all elections--before the
Board explores improvement in its own election case-handling--obviously
undermines any argument that the Final Rule's changes are necessary.
The far better approach, in our view, would be for the Board to
exhaust--or at least attempt--reasonable improvements in its own
election casehandling practices, possibly combined with targeted
changes, such as the 3-year trial period for ``blocking charge'' reform
that we advocate. This change and similar targeted improvements could
result in having nearly all elections occur between 30 and 60 days
after petition-filing, while obviating the need to change other
election procedures that are well known and have well served parties
and the Board for many decades.
4. Aggressively Pursue Measures to Prevent and Remedy Unlawful
Election Conduct. To the extent that unlawful employer or union conduct
occurs during any election, this is already prohibited by the Act, and
we continue to support aggressive Board enforcement and the formulation
of effective remedies, including the pursuit of civil and criminal
contempt sanctions to the extent available under the Act and Federal
law. We continue to believe one of the greatest deficiencies in the
Final Rule is its failure to address these substantive issues in any
meaningful way. The Act deserves to be enforced by the Board, and to be
respected by the parties, as much as any other Federal or state legal
requirements. See, e.g., HTH Corp. d/b/a Pacific Beach Corp., 361 NLRB
No. 65 (2014) (addressing enhanced remedies and various Board member
views regarding recurring unfair labor practices). Of course, the Board
may not presume the existence of unlawful conduct, and much of the
Board's statutory responsibility involves the adjudication of unfair
labor practices if they are alleged. However, when violations of the
Act occur, including instances where they affect elections, they should
be dealt with promptly and aggressively by the Board, and we support
further consideration of ways in which employer or union violations can
be more effectively remedied.
5. Deal with the Need to Preserve and Enhance Privacy. Although the
Proposed Rule solicited public input concerning the safeguarding of
privacy interests regarding personal information, and the possibility
of giving employees the opportunity to choose whether and how any
personal information might be disclosed, the Final Rule dispenses with
any meaningful effort to address these concerns.
6. Summary. Under the State Farm ``arbitrary and capricious''
standard, an agency engaged in policymaking has ``a duty to consider
responsible alternatives to its chosen policy and to give a reasoned
explanation for its rejection of such alternatives.'' \694\ This is
particularly so where, as here, ``the choice embraced suffers from
noteworthy flaws.'' \695\ To that end, we regret that our colleagues
would not consider enacting a limited final rule and implement other
procedural changes outside the rules.
---------------------------------------------------------------------------
\694\ Farmers Union Central Exchange, Inc. v. FERC, 734 F.2d
1486, 1511 (D.C. Cir. 1984).
\695\ City of Brookings Municipal Telephone Co. v. FCC, 822 F.2d
1153, 1169 (D.C. Cir. 1987).
---------------------------------------------------------------------------
Conclusion
The Final Rule represents the culmination of a rulemaking process
characterized by discontinuity, a near-complete change in the Board's
composition, an unprecedented number of comments espousing widely
divergent views, and the rewriting of
[[Page 74460]]
virtually all procedures governing Board-conducted representation
elections. The end result has been predictable only in its nearly
complete conformity to what the Board originally proposed. In this
regard, we believe the Final Rule is inconsistent with the Act and
Congressional intent. It fails to provide adequate protection of
employee rights of free choice and privacy and of all employees' and
parties' rights of free speech and procedural due process. Although our
colleagues go to great lengths to suggest the Final Rule's amendments
do nothing more than reflect best practices and respond to changing
times, we are not convinced. ``Any procedure requiring a `fair'
election must honor the right of those who oppose a union as well as
those who favor it. The Act is wholly neutral when it comes to that
basic choice.'' \696\ Necessarily, the Board itself has a statutory
obligation to ``remain `wholly neutral' as between the contending
parties in representation elections.'' \697\ Unfortunately, the
inescapable impression created by the Final Rule's overriding emphasis
on speed is to require employees to vote as quickly as possible--at the
time determined exclusively by the petitioning union--at the expense of
employees and employers who predictably will have insufficient time to
understand and address relevant issues.
---------------------------------------------------------------------------
\696\ NLRB v. Savair Mfg. Co., 414 U.S. 270, 278 (1973).
\697\ NLRB v. Action Automotive, 469 U.S. 490, 498 (1985).
---------------------------------------------------------------------------
The Board would better serve employees, unions and employers--and
the public interest in general--by undertaking a more neutral, limited
and even-handed approach, which would focus on specific problems in our
representation procedures and formulate targeted solutions. Under our
existing procedures, the Board has been extremely successful, with very
few exceptions, in conducting elections and resolving all election
issues without significant delay. We support reasonable efforts to make
the Board's representation procedures as fair and effective as
possible. However, we believe this is not accomplished by the Final
Rule. Accordingly, for the reasons stated above, we respectfully
dissent.
VIII. Comments on Other Statutory Requirements
The Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et
seq., requires agencies to prepare a regulatory flexibility analysis if
the regulations will have a significant economic impact on a
substantial number of small entities. The purpose of the RFA is to
ensure that agencies ``review rules to assess and take appropriate
account of the potential impact on small businesses, small governmental
jurisdictions, and small organizations, as provided by the [RFA].''
E.O. 13272, 67 FR 53461 (``Proper Consideration of Small Entities in
Agency Rulemaking'').
The RFA only requires analysis of a rule, however, where notice and
comment rulemaking is required. 5 U.S.C. 604(a). The provisions of this
final rule are generally procedural and could have been promulgated
without notice and comment under the APA, 5 U.S.C. 553(b)(3)(A) (``this
subsection does not apply * * * to interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice) (emphasis added).\698\ These procedural provisions change the
manner in which parties present themselves or their viewpoints to the
Board in one category of cases, but do not alter the rights or
interests of the parties. Batterton v. Marshall, 648 F.2d 694, 707
(D.C. Cir. 1980) (``A useful articulation of the [APA's] exemption's
critical feature is that it covers agency actions that do not
themselves alter the rights or interests of parties, although it may
alter the manner in which the parties present themselves or their
viewpoints to the agency.''). Despite its use of notice-and-comment
procedures, and RFA certification, to promulgate and amend the rules
here, the Board has not waived the exemption, because voluntary
compliance with procedures will not operate as a waiver of the
exemptions. Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1059 n.12
(5th Cir. 1985); Malek-Marzban v. Immigration & Naturalization Serv.,
653 F.2d 113, 116 (4th Cir. 1981); Washington Hosp. Ctr. v. Heckler,
581 F. Supp. 195, 199 (D.D.C. 1984).\699\ Nevertheless, in the
interests of providing the public with additional information regarding
the rule's effects, as a matter of discretion, the Board is providing
the analysis contemplated by Section 605 of the RFA for the entire
rule.
---------------------------------------------------------------------------
\698\ In the Board's judgment, only the changes pertaining to
contact information provided in the voter list may arguably be
considered substantive. Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759
(1969) (assuming arguendo that the Excelsior list requirement is a
substantive rule). As discussed below, the cost of including
additional information in the voter list is not significant under
the RFA. The codification of extant blocking charge policy in the
regulations may also be considered substantive, but mere
codification imposes no costs on small business, and the only
changes to blocking charge policy are clearly procedural.
\699\ This conclusion is in contrast to those cases in which
courts have found that agencies have expressly waived an APA
exemption by publishing a rule or regulation stating that it will
only use notice-and-comment procedures to promulgate or amend its
regulations regardless of whether an APA exemption is applicable.
See, e.g., Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442,
447-448 (9th Cir. 1994) (Department of Housing and Urban Development
adopted requirements for notice and comment rulemaking in 24 CFR
10.1 and expressly waived APA exemption); Humana of South Carolina,
Inc. v. Califano, 590 F.2d 1070, 1084 nn.103 & 104 (D.C. Cir. 1978)
(Department of Health, Education and Welfare expressly waived APA
exemption in 36 FR 2532 adopting notice-and-comment procedures);
Rodway v. Dep't of Agriculture, 514 F.2d 809, 814 (D.C. Cir.1975)
(express waiver of APA exemption by Department of Agriculture at 36
FR 13804). The Board has published no such rule or regulation
requiring such procedures for amendment of its rules.
---------------------------------------------------------------------------
Under Section 605, an agency is not required to prepare a
regulatory flexibility analysis if the agency head certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. 5 U.S.C. 605(b). To so certify, the agency
must publish the certification in the Federal Register and include ``a
statement providing the factual basis for such certification.'' Id.
In its Notice of Proposed Rulemaking, the Board determined that the
proposed rule would not have a significant economic impact on a
substantial number of small entities within the meaning of 5 U.S.C.
605(b). 79 FR 7349-7350. There, the Board invited comments from the
public regarding the entire rule, including this certification. Id. at
7318. The Board has reviewed those comments and has concluded that
certification remains appropriate. Accordingly, the Board's Chairman
hereby certifies to the Chief Counsel for Advocacy of the Small
Business Administration (``SBA'') that the amendments will not have a
significant economic impact on a substantial number of small entities.
The Chamber asks the Board to provide more detailed calculations
and cost estimates for its certification. Similarly, other comments
including those from NAM, CNLP, COLLE, COSE, NFIB, AEM, and NRF
expressed concern that the Board underestimated the economic impact of
the rule in its certification. The Board believes that the NPRM's
certification was adequate, but seeks to be responsive to comments
received. To that end, the Board will provide the more detailed
analysis of the economic impact of the regulation below.
The analysis supports the Board's conclusion. As the analysis will
show, the provisions of the final rule will cause less than one small
entity per year to incur a significant economic impact.
[[Page 74461]]
This is not a substantial number of small entities.
We start with a few key definitions. The RFA does not define either
``significant economic impact'' or ``substantial number of small
entities.'' 5 U.S.C. 601. In the absence of specific definitions,
``what is `significant' or `substantial' will vary depending on the
problem that needs to be addressed, the rule's requirements, and the
preliminary assessment of the rule's economic impact. The agency is in
the best position to gauge the small entity impacts of its
regulation.'' SBA Office of Advocacy, ``A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act'' (``SBA
Guide'') at 18, http://www.sba.gov/sites/default/files /
rfaguide_0512_0.pdf.
The Board has assessed ``significant economic impact'' upon a small
entity by examining whether increased costs under the rule exceed 1% of
that entity's estimated gross annual receipts. This determination is
consistent with guidance from the SBA's Office of Advocacy, which
indicates that a cost might be significant if ``the costs of the
proposed regulation * * * exceeds 1 percent of the gross revenues of
the entities in a particular sector.'' SBA Guide at 19.
The Board has determined that a rule impacts a substantial number
of small entities when the total number of small entities impacted by
the rule is equal to or exceeds 10 percent of the relevant universe of
small entities. This determination is equal to assessments in
regulations promulgated from the Department of Labor, see, e.g.,
Temporary Non-Agricultural Employment of H-2B Aliens in the United
States, 77 FR 10038, 10144 (2012).
The Board has used the definitions of small entities promulgated by
the United States SBA. See U.S. Small Business Administration, ``Small
Business Size Standards,'' http://www.sba.gov/content/small-business-size-regulations. For this analysis, the Board applied information from
the North American Industry Classification System (NAIC) to its most
recent data on representation petitions.\700\
---------------------------------------------------------------------------
\700\ In this analysis, the Board has relied on publically
available data, particularly data from the United States Census
Bureau's Survey of United States Businesses, as well as agency data
and expertise to provide reasonable estimates. This agency data is
included in the administrative record of this proceeding.
---------------------------------------------------------------------------
With these definitions in mind, we first consider the costs that
entities that are not party to a representation case proceeding may
choose to voluntarily incur. Second, we consider the changes generally
relating to filing or responding to a petition, and the new costs
associated with these changes. Third, we consider the costs impacting
only a small number of proceedings. Finally, we summarize changes which
impose no new costs. In each of these groups, the Board has reviewed
the estimated costs and determined that the rule does not impose a
significant economic impact on a substantial number of small entities.
Some background on the Board's representation case docket is in
order. In FY2013, a total of 2,507 RC, RD, and RM representation
proceedings were initiated.\701\ A total of 205 pre-election hearings
were held. Post-election litigation in some form also took place
following the election in 216 cases, hearings were held in 54 cases,
and exceptions were filed in 32 cases. Blocking charges were filed in
223 cases. We expect this data to be similar in future years.\702\
---------------------------------------------------------------------------
\701\ There were 1986 RC, 472 RD, and 49 RM petitions. An
additional 145 other petitions were filed (UD, UC, AC) but these
matters are generally not impacted by the final rule and will not be
included in this analysis. See NLRB Graphs & Data, Petitions and
Elections, http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/ (last visited July 15, 2014).
\702\ NAM claims that the rule will cause an increase in
representation petitions. The Board considers that prediction to be
speculative. Even if the number of representation petitions goes up,
for the reasons discussed below, the Board reaffirms its
certification, because only a very small percentage of regulated
small entities are significantly affected by the costs of the final
rule.
Table 1--Frequency of the Use of Particular Procedures During Election
Cases
------------------------------------------------------------------------
Percent
Total ``R''
cases
------------------------------------------------------------------------
Petitions....................................... 2507 n/a
Pre-election hearings........................... 205 8.2
Challenges or objections........................ 216 8.6
Post-election hearing........................... 54 2.1
Post-election exceptions........................ 32 1.3
Blocking charges................................ 223 8.9
------------------------------------------------------------------------
Certain changes to Board procedure instituted in the final rule
will apply to all or most representation cases. Those provisions,
however, are unlikely to impose a significant economic impact upon any
regulated small entity. To the extent that the changes in the final
rule have the potential to significantly increase costs for any small
entities, those costs primarily occur in cases where post-election
hearings are held, and parties appeal the hearing officer's report.
Such cases are a small minority of all representation cases, and as we
demonstrate below, the costs associated with those cases significantly
affect less than 10% of the relevant small entities.
A. Entities That Are Not Party to a Representation Case Proceeding
In response to the Board's proposed rule, some of the comments
assert that the rule would impose costs upon all employers subject to
the jurisdiction of the Board, because each must, for example, read and
understand the rule, train human resources and management staff
concerning the rule, educate their employees about the rule, and find
or hire labor counsel to provide advice concerning the rule. Comments
of this type were submitted by the Chamber, NAM, NRF, and NFIB, among
others. NRF, the Chamber, and COLLE posited that the rule would change
employers' typical reactive approach to election petitions to proactive
employee education about unionization and/or require employers to
maintain a constant state of alert for union organization and create HR
protocols to deal with potential future elections.
The Board disagrees that any of those costs are compelled by the
rule where there is no representation case proceeding. The RFA does not
require an agency to consider wholly discretionary employer
expenditures. Rather, the RFA requires an agency to consider the direct
burden that compliance with a new regulation will likely impose on
small entities. See Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342
(D.C. Cir. 1985) (``[I]t is clear that Congress envisioned that the
relevant `economic impact' as the impact of compliance with the
proposed rule on regulated small entities.''); accord White Eagle Co-
op. Ass'n v. Conner, 553 F.3d 467, 478 (7th Cir. 2009); Colo. State
Banking Bd. v. Resolution Trust Corp., 926 F.2d 931, 948 (10th Cir.
1991). This construction of the RFA is supported by Sections 603 and
604 of the RFA, which list the items to be included in a regulatory
flexibility analysis (if one is required). In describing the impact,
agency analysis must contain ``a description of the projected
reporting, recordkeeping and other compliance requirements of the
proposed rule, including an estimate of the classes of small entities
which will be subject to the requirement and the type of professional
skills necessary for preparation of the report or record[.]'' E.g., 5
U.S.C. 604(a)(4) (emphasis added). Guidance from the SBA also supports
this construction of the RFA because it cites only direct, compliance-
[[Page 74462]]
based costs as examples of financial burdens that agencies must
consider:
(a) Capital costs for equipment needed to meet the regulatory
requirements; (b) costs of modifying existing processes and
procedures to comply with the proposed rule; (c) lost sales and
profits resulting from the proposed rule; (d) changes in market
competition as a result of the proposed rule and its impact on small
entities or specific submarkets of small entities; (e) extra costs
associated with the payment of taxes or fees associated with the
proposed rule; and (f) hiring employees dedicated to compliance with
regulatory requirements.
SBA Guide at 37.\703\
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\703\ The same guidance requires agencies to consider the cost
of professional expertise, including lawyers, as needed to comply
with any recordkeeping requirements imposed by the regulation.
Because this rule imposes no recordkeeping requirement, small
entities need not retain such professional expertise to comply with
this rule. SBA Guidance at 36.
Thus, nothing in the RFA, its prior construction, or SBA guidance
suggests that the Board must consider the wholly discretionary
expenditures that an employer which is not party to a representation
proceeding may choose to incur. Instead, the ``impact'' analysis
required under the RFA focuses on direct compliance costs. The final
rule imposes no such costs on small entities not party to a
representation proceeding. There will be no ``reporting, recordkeeping
and other compliance requirements'' for these small entities. See 5
U.S.C. 603(b)(4), 604(a)(4). And the final rule imposes on them no
mandatory capital costs, no mandatory costs of modifying existing
processes, no costs of lost sales or profits, and no costs of changed
market competition. See SBA Guide at 37. For small entities not party
to representation proceedings, there are no costs associated with taxes
or fees and no costs for additional employees dedicated to compliance,
as no compliance requirements exist. See id. Finally, there is no
reason why a small entity not party to a representation proceeding
would hire or otherwise retain employees dedicated to compliance with
the final rule any more than it would have under the current rules. Of
course, employers may train their managerial and supervisory staff and
educate their employees as they wish, but compliance with the final
rule does not require such action.\704\
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\704\ The rules do not assume pre-petition familiarity. Indeed,
as discussed above, helping small businesses familiarize themselves
with Board procedures is one of the important functions of the
enhanced instructions and notice provided when the petition is
served under the new rules. No monetary penalties or fines are
assessed against employers who fail (for whatever reason) to comply
with the rule, and the instructions given to the employer note that
the Board agent at the regional office can provide assistance with a
number of aspects of Board procedure. The cost estimates set forth
below assume that an employer has not undertaken any preparation
prior to receiving an election petition.
Nonetheless, the Board agrees that an employer who has not
received a petition may voluntarily choose to read the rule. A labor
compliance employee at a small employer who voluntarily undertook to
generally familiarize him- or herself with the changes in this final
rule may take at most 2 hours to read FAQ's and other explanatory
documents published by the Board, and perhaps the summary of the
rule in the introductory section of the preamble. It is also
possible that a small employer might wish to consult with an
attorney (est. 1 hour). Combined, this would cost [2 hr x $37.58 + 1
hr x 78.58] $153.71. See infra, discussing wage statistics. This
would not be a significant impact on a substantial number of small
entities.
---------------------------------------------------------------------------
Similarly, the rule does not require employers that do not receive
an election petition to educate their employees or conduct anti-union
campaigns.\705\ Under both existing regulations and the new final rule,
employers have the right to non-coercively state their views (whether
positive or negative) about unionization generally or about particular
unions, at any time, whether or not an election petition has been
filed. Employers also have the right to refrain from expressing any
such views. This rule does not change any of that. Costs incurred in
conducting such campaigns are discretionary and beyond the scope of RFA
analysis. Thus, there is no direct economic impact within the meaning
of the RFA to small entities not receiving an election petition in a
given year.
---------------------------------------------------------------------------
\705\ The Chamber states that it does ``not know how many
employers would undertake such [education] efforts.'' Other similar
comments also lack factual support or are conclusory, including
NRF's assertion that this rule will require employers to
preemptively educate their employees, COLLE's assertion that the
NPRM's RFA certification was a ``fait accompli,'' and NAM's comment
that the sheer number of comments indicates that small businesses
dispute the Board's conclusion that they will not be significantly
impacted by the rule. COLLE's suggestion that the Board must prove
that employers will not engage in additional training in response to
the final rule, is similarly not required by the RFA.
---------------------------------------------------------------------------
B. Changes Relating To Filing or Responding to a Petition
1. Service of the Petition
We now analyze the final rule's economic impact on the parties to
representation proceedings. We first consider petitioners. Each of the
three kinds of ``R'' petitions is typically filed by a different kind
of entity: RC petitions (1,986) are filed by unions, RM petitions (49)
are filed by employers, and RD petitions (472) are filed by
individuals. Unions \706\ and employers are covered by the RFA, but
individuals are not, thus, only RC and RM petitioners are considered.
In assessing labor costs for compliance with the final rule, we have
used the Bureau of Labor Statistics' estimated wage and benefit costs
for certain classifications of workers, as shown in the following
table:
---------------------------------------------------------------------------
\706\ The vast majority of all labor unions are small entities
as defined by the SBA. The SBA's ``small business'' standard for
``Labor Unions and Similar Labor Organizations'' is $7.5 million
dollars in annual revenue. 13 CFR 121.201. In 2007, the most recent
year for which data on annual receipts are available, 322 out of
15,006 labor unions had receipts equal to or greater than $7.5
million. See http://www2.census.gov/econ/susb/data/2007/us_6digitnaics_receipt_2007.xls, NAICS classification #81393.
Table 2--Labor Costs as per the Bureau of Labor Statistics
------------------------------------------------------------------------
Plus
Employee Wages Benefits
------------------------------------------------------------------------
Labor Relations Specialist 13-1075................ $26.27 $37.57
Gen'l & Op Mgr. 11-1021........................... 46.36 66.29
Lawyer 23-1011.................................... 54.95 78.58
------------------------------------------------------------------------
The final rule amends Sec. 102.60 to require that petitioners
serve all interested parties a copy of the petition, a form describing
representation case procedures, and a blank Statement of Position form.
Based on the Board's experience with the way petitions and other
documents are filed with the Board in representation cases currently,
we estimate that electronic service will be used in 1,670 RC and 41 RM
cases; mail in 231 RC and 6 RM; fax in 46 RC and 1 RM; and in person in
31 RC and 1 RM.\707\
---------------------------------------------------------------------------
\707\ We do not have information directly applicable to the
method of service of the petition, but, by analogy to the electronic
filing of briefs and other documents, we estimate that this
procedure will be used approximately 84% of the time. In addition,
data relating to the method of filing of the petition (where
hitherto electronic filing has not been permitted) suggests that, in
situations where electronic service will not be used, express mail
will be used 73% of the time, fax 15%, and personal service 12%.
This is the basis for the estimates above.
---------------------------------------------------------------------------
In most RC and RM cases, only one party must be served. Email, fax,
phone and physical addresses for unions and employers are generally
publically available. We estimate that electronic or fax service will
take approximately 10 minutes. For unions, the task will likely be
performed by an organizer or business agent costing $37.57 per
hour.\708\ Ten minutes at this rate is
[[Page 74463]]
$6.26. For an express mailing, the cost is ten minutes to prepare the
mailing plus postage of $19.99, for a total of [$6.26 + $19.99]
$26.25.\709\ For in person service, we estimate an average of 20 miles
round trip, requiring 2 hours. Using GSA's privately owned vehicle
reimbursement rate for 2014 of $0.56 per mile as a benchmark for
estimating fuel and other costs, we reach a total cost of [2 hr x
$37.57 + 20 mi x $0.56] $86.33.\710\
---------------------------------------------------------------------------
\708\ ``Organizer'' and ``business agent'' job titles are not
analyzed by the Bureau of Labor Statistics May 2013 Occupational
Employment Survey; however, there is a listing for ``Labor Relations
Specialist'' (13-1075), and the median hourly wage for such an
employee is $26.27. Base wages, however, are only 69.9% of a private
employer's costs according to June 2014 data from BLS Employer Costs
for Employee Compensation. Thus, to account for the cost of
benefits, the wage must be multiplied by 1.43. This results rate of
$37.57 per hour.
\709\ According to published USPS rates, this is the price of
flat-rate envelope USPS Priority Mail Express, which is a common
choice.
\710\ In addition to requiring service, the final rule also
amends Sec. 102.61 to file the showing of interest at the same time
as the petition, rather than thereafter. There is no cost associated
with this change. Also, the rule amends Sec. 102.114 to permit
parties to file petitions (and certificates of service)
electronically. This change is optional, and likely to save costs.
Because these changes impose no new costs on the parties, they are
not included in this analysis.
---------------------------------------------------------------------------
2. Posting and Distributing the Notice
The final rule amends Sec. 102.63 to require that the employer
post a notice when an RC, RD, or RM petition is filed. In addition to
posting paper copies of the notice, employers who customarily
communicate with their employees electronically will be required to
distribute the notice electronically. The notice and instructions will
be served on the employer. We estimate that this will require at most
30 minutes of time for reading and understanding the instructions,
followed by at most 60 minutes of time for posting paper copies of the
notice and (if necessary) electronic posting. The cost is therefore
[1.5 hr x $37.57] $56.35.
3. Completing the Statement of Position Form
In Sec. 102.63, the final rule requires non-petitioners to
complete a Statement of Position form. For RC petitions the employer
will complete the form, and for RM and RD petitions both the union and
employer will complete the form.\711\ The form will be similar to the
current form for filing a petition, and asks for a summary statement of
what issues the employer does and does not contest. The task of
investigating the issues and arriving at a position is a necessary
predicate for either entering into an election agreement or litigating.
Accordingly, reading the petition, gathering information, and
formulating a legal position are not costs that flow from the Statement
of Position requirement. The cost of completing the form is the
primarily administrative one of committing the position to paper. This
can be accomplished in approximately 1.5 hours of lawyer time. Using
May 2013 BLS OES statistics, the median hourly wage for a lawyer (23-
1011) is $54.95 per hour, which equals [$54.95 x 1.43 x 1.5] $117.87 in
compensation including benefits.
---------------------------------------------------------------------------
\711\ We note that this cost will generally only be incurred in
the subset of cases that do not reach an election agreement on or
before the 7th day after the petition is filed. In FY13, 21% of
petitions reach a stipulation on or before the 7th day. However, for
the purposes of this analysis, the cost is being assessed to all
petitions.
---------------------------------------------------------------------------
The Chamber II commented that the requirement to file a Statement
of Position will require employers to expend significantly more
resources than under current regulations, particularly where preclusion
would result.\712\ We disagree. Under current rules, the parties must
either enter a binding election agreement or must be prepared to
litigate these very issues. Whichever choice is made, the results will
bind the employer. In this context, a simple statement of position
should not prove an onerous addition, as specifically discussed in
connection with Sec. 102.63 above.\713\ (To the extent these arguments
relate to the voter list or the timing of the statement of position,
these matters are discussed separately below.)
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\712\ See also National Meat Association; COSE; ALG; Bluegrass
Institute.
\713\ Other comments, like those from the Independent Electrical
Contractors, and a form letter submitted by the NFIB, among others,
specified that the Statement of Position requirement will
significantly increase costs because it will cause small businesses
to hire outside counsel. We disagree. There is no basis to conclude
that parties which felt comfortable entering a binding election
agreement or litigating these very matters without the advice of
counsel will feel any differently under the new rules. And the
instructions, like the current petition instructions, will state
that the party can call the Board Agent in the Regional Office with
questions or to obtain assistance in completing the form.
---------------------------------------------------------------------------
4. Changes Related to the Timing of the Position Statement and Pre-
election Hearing
Section 102.63 of the final rule provides that the statement of
position will be due in most cases on the seventh day after notice of
the hearing issues, and so the necessary investigation must take place
in that time. In one sense, this not a significant change in the law in
that the Board's decision in Croft Metals already requires that a party
must receive notice of a hearing not less than 5 days prior to the
hearing, excluding intervening weekends and holidays. Nonetheless,
certain commenters have argued that this is faster than actual current
practice, and will therefore result in increased costs to the parties.
Several comments, including from the NFIB, the Chamber and ABC contend
that this time compression will increase costs because legal work is
more expensive when it must be done in a shorter period of time.\714\
However, none of the comments which raised this issue provided any
basis for an increased cost, or any source of information by which this
cost could be estimated.
---------------------------------------------------------------------------
\714\ One comment suggested that an effect of the final rule
will be to increase the percentage of cases which go to pre-election
hearings. Testimony of Jonathan Fritts on behalf of CDW II. The
Board has already considered and rejected this view in detail,
supra, and has concluded that the long term impact of the rules,
taken as a whole, will be to slightly increase the rate at which
election agreements are reached. In any event, any such change in
agreement rates would be the result of the individual choices of
litigants, and would thus be an indirect effect exempt from RFA
analysis, as discussed above.
The same commenter argued that shortened time frames may impede
discussions to reach election agreements because one or more parties
will lack sufficient time to formulate a position. Testimony of
Fritts on behalf of CDW II. As discussed in detail supra, the time
frames are within the range of current practice, and the uniformity
provided will likely encourage parties to expect more focused
agreement discussions. The increased disclosures of the statement of
position will also promote agreements. See Testimony of Caren Sencer
on behalf of Weinberg, Roger & Rosenfeld II.
---------------------------------------------------------------------------
The comments overstate the argument; in fact, the timeline for
stipulating or preparing to litigate is not meaningfully changed in the
majority of Board cases. More than 75% of hearings were scheduled to
open in 7 to 10 days in FY13, and 52% of stipulated election agreements
were also reached in fewer than 10 days.\715\ In addition, we note that
the hearing can be postponed, and that, for example, a joint motion of
the parties to postpone a hearing to permit them to continue productive
discussions on an election agreement would be relevant in considering
whether to do so. For this reason, and for those discussed in greater
detail in connection with Sec. 102.63 above, the Board concludes that
costs of preparing for a pre-election hearing are unlikely to increase
because of a compressed time frame.
---------------------------------------------------------------------------
\715\ If the 11th and 12th days are considered, the scheduled
hearing date within that time rises to more than 95% of cases.
Meanwhile, 81% of stipulations are reached in 14 or fewer days.
---------------------------------------------------------------------------
Nonetheless, in the interest of providing a conservative estimate
of the economic impact of this rule, we will assume that the cost of
stipulating or preparing to litigate is increased in every case as a
result of this change. One reasonable method for estimating the order
of magnitude would be to assume that this additional time pressure
would result, by analogy to overtime for hourly employees, in an
increase in the base hourly rate (exclusive of fringe benefits) by 50%.
[[Page 74464]]
We estimate that the task of preparing for either stipulation or
litigation requires an attorney to spend, in the average case, a total
of 8 hours, and a general and operations manager to provide 4 hours of
support and consultation. In other words, overtime would add a cost of
[$54.95 x \1/2\] $27.48 per hour for the attorney and [$46.36 x \1/2\]
$23.18 for the manager, for a total of [8 x $27.48 + 4 x $23.18]
$312.52 increase for the hearing preparation.\716\
---------------------------------------------------------------------------
\716\ The entities impacted by this change will vary depending
on the type of petition filed. Logically, by completing the petition
form itself, some of the petitioner's preparation will be done in
advance, and as the petitioner is not typically required to file a
statement of position, the petitioner will not incur increased costs
as a result of the changes related to the timeline for the statement
of position or the hearing.
Finally, we note that Stanley J. Penkala, president and part-
owner of a small business, expressed concern that the shortened time
frames could be problematic if a petition is filed when an owner is
on vacation. But many types of unexpected events may occur when an
owner is on vacation and businesses already make reasonable
contingency plans to accommodate such possibilities.
---------------------------------------------------------------------------
5. Employee Lists
We next consider the lists of employees required by the rule. Two
lists are required: the initial employee list, filed with the statement
of position, requires only names and job information; the voter list,
due 2 business days after an election agreement or direction of
election, additionally requires available contact information such as
home addresses, personal phone numbers and email addresses. Current law
also requires a voter list, which is due 7 days after an election
agreement or direction and includes employee names and home addresses.
Nonetheless, for the purposes of this cost analysis, we will
conservatively estimate the cost of the lists as if the entire employee
list requirement was wholly new, and applied to employers in all RC,
RM, and RD cases (rather than only those which go to an election).\717\
---------------------------------------------------------------------------
\717\ We note that the voter list will not be necessary where
the petition is withdrawn or dismissed, and that no initial employee
list will be necessary where the parties stipulate before the
statement of position is due. However, for the purposes of this
analysis, the cost is being assessed to all petitions.
---------------------------------------------------------------------------
Compilation of the lists required under the rule is an
administrative task. The lists can be compiled by utilizing various
already-existing resources. Small entities are already required to
maintain employee records under other Federal employment laws,
including the Fair Labor Standards Act, which mandates that employers
keep records of various job information and wage and hour data for each
employee, and the Immigration Reform Control Act, which mandates
employers maintain I-9 records which include optional emails and
personal phone numbers. We estimate that, even using paper records, and
absent special circumstances, a labor relations specialist needs
approximately 5 minutes per employee to compile all the information
required for both the initial employee list and the voter list, and to
place them in the required formats.\718\ A total of 25% of elections
have 11 or fewer names on the list, 50% of cases have 26 or fewer, and
75% of cases have 65 or fewer. We further estimate that an additional
one minute per employee will be required at the time that the voter
list is created, to recheck employer records to ensure that changes
(such as departures or new hires) have not occurred between the date
upon which that list was filed and the voter eligibility date. Thus,
this task will take between 60 minutes and 6 hours to complete in most
cases.\719\
---------------------------------------------------------------------------
\718\ This estimate recognizes that the employer's files are not
``in the format required by the Board right now [and t]here's not a
button they can push where the [voter] list just comes out.'' See
Testimony of Elizabeth Milito on behalf of NFIB II.
\719\ Some comments stated the time reduction is onerous because
small employers often do not have a designated human resources
employee to handle such issues, or readily available job
descriptions or classifications, possibly necessitating expensive
technological solutions. We note, however, that the format
requirements of the rule need not be followed where the burden would
be unreasonable. NFIB commented that only 12% of small employers
have an employee dedicated to HR or personnel. Of course, this
comment would not apply to employers with many employees because
they, in light of other recordkeeping requirements, must keep
sophisticated electronic records and dedicated human resources staff
or contractors; meanwhile, the task of assembling a voter list with
only a few score employees should not prove unduly burdensome for
any size employer. See Testimony of Milito on behalf of NFIB II
(testimony that the voter list requirement is typically not onerous
where fewer than 50 employees are involved, and that employers with
more than 50 employees typically already have professional human
resources).
---------------------------------------------------------------------------
The Board received comments from, among others, ABC, ALFA, Klein,
NFIB, CNLP, COSE, stating that 2 days is insufficient to produce an
eligibility list. In this regard, ABC suggests that determining which
voters are eligible may be particularly difficult in the construction
industry because complicated issues such as the Steiny/Daniel formula,
disappearing units, multi-craft versus single craft unions, and
Sections 8(f) and 9(a) require counsel and time. Testimony of Maury
Baskin on behalf of ABC. The Board disagrees with these various
comments. We do not believe that the economic impact will vary
significantly across industries. And, due to the relatively short lists
applicable in most cases, requiring the lists be produced in 2 days
will not add to the cost. In addition, regional directors retain
discretion to expand this time period.
Nonetheless, similar to the analysis for the reduction in time
before hearings above, the Board will conservatively assume that, in
every case, the employer will incur costs at the overtime rate. The
cost will therefore be, in the median case, [25 (median employees) x
0.1 (hours required per employee) x $50.70] $126.75.\720\
---------------------------------------------------------------------------
\720\ This cost will be greater in units with more than 25
employees, but this does not change the result of the analysis here
because such employers also typically have much higher revenues. The
average employer with between 20 and 99 employees had revenues of
$6.9 million, and the cost of compiling the voter list--even when
added to all other costs which could be imposed by this rule--does
not come close to the 1% threshold for such businesses discussed
below. Furthermore, employers with greater than 25 employees are
much more likely to use electronic recordkeeping, permitting this
information to be compiled at a rate of less than 5 minutes per
employee.
---------------------------------------------------------------------------
6. Electronic Distribution of the Final Notice of Election
Under the current rules, the employer is required to post paper
copies of a Notice of Election no less than 3 full working days before
the opening of the election. This requirement is unchanged in the final
rule. However, the final rule amends Sec. 102.67(b) to provide that
the Notice of Election will be transmitted to the employer by
electronic mail rather than hard copy mail if the employer provided an
email address. The time spent opening the email and printing the notice
is likely to be approximately the same as time spent opening a physical
mailing and extracting the printed notice within. The final rule
additionally requires employers who customarily communicate
electronically with their employees to distribute the final election
notice electronically, which may require 15 minutes of a labor
relations specialist's time, or [15 minutes x $37.57] $9.39.\721\
---------------------------------------------------------------------------
\721\ CNLP commented that electronic filing and communication
can be difficult for small employers because many do not have access
to the Internet or use it in their business plan. We note that a
2010 survey by conducted by a contractor for the Office of Advocacy
of the SBA in the spring of 2010, on the use of Internet
connectivity by small businesses, called ``The Impact of Broadband
Speed and Price on Small Business'' (http://www.sba.gov/sites/default/files/rs373tot_0.pdf), suggests that, as of four years ago,
at least 90 percent of small businesses surveyed used the Internet
at their business. The data show that it is rare for a business, no
matter how small, to lack internet access. Nonetheless, to the
extent that an employer or union lacks internet access, the Board
has made the provisions relating to electronic filing and
communication either optional or required only if the employer
customarily communicates with employees electronically.
In addition, we note that this cost will generally only be
incurred in the subset of cases that go to an election. However, for
the purposes of this analysis, the cost is being assessed to all
petitions.
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[[Page 74465]]
7. The Significance of These Changes
We will now apply these cost estimates to parties in RC, RM, and RD
proceedings to identify whether the costs exceed 1 percent of gross
revenues for the small entities in any particular sector. The SBA
maintains a table of small business size standards matched to the North
American Industry Classification System (NAICS) for industries. The
standards are based either on annual revenues or number of employees.
SBA, Table of Small Business Size Standards, http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf (last visited July 24, 2014).
Using NAICS, the Board categorized each RC, RM and RD petition into its
proper industry.
The Board next reviewed election petitions to estimate the size of
the employers. The Board examined data on petitions filed in 2010, the
most recent year for which it has industry data matched to NAICS data
and the unit size. Using this data, for each petition, the Board
determined if the entity might qualify as small based on its estimated
number of employees or estimated revenues. The Board used the
petitioned-for unit size to estimate the number of employees,\722\ and
it estimated annual revenues based upon census data.\723\ The Census
Bureau classifies employers by number of employees in the following
categories: 0-4; 5-9; 10-19; 20-99; 100-499; and 500 or above. For
purposes of this analysis, the Board estimates that each business has
revenues equal to the average revenue for a business in the same size/
industry category. Thus, for example, where a petition is filed for a
unit of 16 employees at a construction firm (NAICS industry 23), this
analysis assumes that that employer has revenue equal to the average
revenue for a business with 10-19 employees in NAICS category 23.
---------------------------------------------------------------------------
\722\ The Board used petitioned-for unit size as an extremely
conservative estimate, since employers generally employ supervisors,
managers, and other individuals that are not part of the bargaining
unit. In addition, very few petitions are for ``wall-to-wall''
units, and in almost every case, the employer has many statutory
employees which are not in the unit.
\723\ The Census Bureau surveys businesses' receipts rather than
their revenues. Receipts are a subset of revenues. United States
Census, Statistics of U.S. Businesses, Definitions, https://www.census.gov//econ/susb/definitions.html. The Board conservatively
estimates that revenues are equal to receipts. Census Bureau data on
receipts are collected only every 5 years, and the most recent year
for which data are available is 2007.
---------------------------------------------------------------------------
Based upon this data, the Board estimates that in 2010,
approximately 2,480 petitions out of a total of 2,777, or 89.3%, were
filed concerning employees of small entity employers. Applying this
estimate to the Board's 2013 caseload, we estimate that approximately
2,239 petitions per year (89.3% of 2,507 petitions) going forward will
be filed concerning employees of small entity employers. The Board then
compared the size of the economic impacts in question to entity
receipts and determined whether any size/industry classification of
employers subject to a petition might be significantly impacted.
The Board does not possess comparable data by which to estimate the
size of unions participating in NLRB elections, and so we must rely on
reasonable assumptions. We will assume that the number of elections
involving a particular union is proportional to that union's total
receipts. We again refer to the same Census Bureau data described
above, focusing specifically on unions (NAICS # 81393). This data
shows, for example, that 9 percent of all labor union receipts in 2007
were received by labor unions with 0-4 employees, and so we are
estimating that 9 percent of representation cases involve labor unions
of this size (which have average receipts of $221,572). Using this
method, we estimate that approximately 63% of representation cases, or
about 1,559 cases, involve unions which are small entities as defined
by SBA.
The economic impact of the final rule's procedures upon each type
of entity is described in the following charts:
Table 3--Estimated Additional Costs in All Representation Cases Initiated by Unions
[RC Cases]
----------------------------------------------------------------------------------------------------------------
Union serving
RC Petitions Employer petition via Union serving by Union serving
email or fax mail personally
----------------------------------------------------------------------------------------------------------------
No. of Cases........................ 1986 1716 231 38
Service............................. ................. $6.26 $26.25 $86.33
Notice of Petition.................. $56.35 ................. ................. .................
Statement of Position............... $117.87 ................. ................. .................
Costs related to timeline........... $312.52 ................. ................. .................
Voter Lists......................... $126.75 ................. ................. .................
Notice of Election.................. $9.39 ................. ................. .................
---------------------------------------------------------------------------
Total additional cost........... $622.88 $6.26 $26.25 $86.33
----------------------------------------------------------------------------------------------------------------
Table 4--Estimated Additional Costs in All Representation Cases Initiated by Employers (RM Cases)
----------------------------------------------------------------------------------------------------------------
Employer
serving Employer Employer
RM Petitions Union petition via serving by serving
email or fax mail personally
----------------------------------------------------------------------------------------------------------------
No. of Cases.................................... 49 42 6 1
Service......................................... .............. $6.26 $26.25 $86.33
Notice of Petition.............................. .............. $56.35 $56.35 $56.35
Statement of Position........................... $117.87 $117.87 $117.87 $117.87
Costs related to timeline....................... $312.52 .............. .............. ..............
Voter Lists..................................... .............. $126.75 $126.75 $126.75
Notice of Election.............................. .............. $9.39 $9.39 $9.39
---------------------------------------------------------------
[[Page 74466]]
Total additional cost....................... $430.39 $316.62 $336.61 $396.69
----------------------------------------------------------------------------------------------------------------
Table 5--Estimated Additional Costs in All Representation Cases
Initiated by Individuals (RD Cases)
------------------------------------------------------------------------
RD Petitions Union Employer
------------------------------------------------------------------------
No. of Cases...................................... 472 472
Notice of Petition................................ ......... $56.35
Statement of Position............................. $117.87 $117.87
Costs related to timeline......................... $312.52 $312.52
Voter Lists....................................... ......... $126.75
Notice of Election................................ ......... $9.39
---------------------
Total additional cost......................... $430.39 $622.88
------------------------------------------------------------------------
The final rule will not impose a significant economic impact a
substantial number of small entities who receive a representation
petition but do not litigate post-election objections or ballot
challenges. The estimated cost of the final rule to such entities does
not exceed $622.88. The Census Bureau data referenced above show that
no size/industry classification has average annual receipts of less
than 100 times that number, or $62,288. Thus, few, if any, entities
participating in NLRB representation cases will incur costs of greater
than 1% of that entity's annual revenues due to the final rule.\724\
---------------------------------------------------------------------------
\724\ Indeed, $622.88 is only 0.32% of average annual receipts
for Educational Services (NAICS #61) employers with 0-4 employees,
the size/industry category with the lowest volume of receipts per
firm. Thus, even if the Board's estimate of final rule costs were
tripled, the total cost of a representation petition without post-
election litigation or blocking charges would less than 1% of
average revenues for any size/industry classification. This large
margin for error emphatically reinforces the Board's conclusion that
a substantial number of small entities will not incur significant
costs as a result of the rule.
---------------------------------------------------------------------------
C. Costs Impacting a Very Small Number of Cases: Blocking Charges,
Post-election Hearings, and Requests for Review of Decisions on
Objections and Challenges
The final rule also makes changes to blocking charge procedure,
post-election hearing timelines, and the steps necessary to obtain
Board review of a decision on objections and challenges. These changes
do not impact a substantial number of small employers. In FY13, parties
filed 223 blocking charges, 54 post-election hearings were held, and 32
exceptions regarding objections and challenges were filed. Thus, none
of these changes will impact more than a small percentage of small
entities involved in a representation proceeding. By definition, none
of these changes impact a substantial number of small entities, as none
will impact 10% or more of the relevant universe. Nonetheless, we will
briefly estimate the costs associated with these changes to come to a
more precise figure for the number of small entities significantly
impacted.
1. Blocking Charges
The final rule requires parties that file blocking charges to also
file an offer of proof and make witnesses available. The information
provided in the offer of proof must be collected regardless of the rule
in order to support the charge itself, and providing the information to
the Board in a written offer likely would require approximately an hour
and a half of a lawyer's time, for a cost of [1.5 x $78.58] $117.87.
Combining this cost with the maximum new costs a party might reasonably
be expected to incur under other changes in the rule,\725\ we reach the
following result:
---------------------------------------------------------------------------
\725\ This is the maximum additional cost that an employer
respondent in an RC or RD case might reasonably be expected to incur
under the final rule. Employers in other kinds of cases will incur
less cost but this does not change the final result here.
This cost does not include the other matters addressed in this
section, (i.e., post-election hearing costs or request for review
costs). This is because each occurs so infrequently that they are
unlikely to coincide in any particular case. For example, if the
distribution is random, the number of cases involving both blocking
and a post-election hearing would be [75 x 223/2507] 6 or 7 cases
per year.
In addition, the amounts involved are sufficiently small as to
make little difference in the final analysis. Even in the rare case
where blocking, post-election hearings, and a request for review of
a decision on objections and challenges all occurred in the same
case in the same year, the rule would impose additional costs of
[$740.75 + $117.87 + $312.52 + $1,257.26] $2,428.40.The only size/
industry categories for which this amount represents a significant
impact are the same four categories for which a request for review
without a blocking charge represents a significant impact.
\726\ The number of cases listed in the chart corresponds to the
number of representation cases that were listed as blocked for some
period of time by charges filed in FY 2013. The number does not
correspond to elections held during FY 2013 that had previously been
blocked for some period of time (including by charges filed in prior
fiscal years).
Table 6--Estimated Additional Costs to Parties Filing Blocking Charges
\726\
------------------------------------------------------------------------
------------------------------------------------------------------------
No. of Cases................................................. 223
Maximum cost of changes without post-election litigation or $622.88
blocking charges............................................
Blocking offer of proof...................................... $117.87
----------
Total additional cost.................................... $740.75
------------------------------------------------------------------------
Census Bureau data show that no size/industry classification has
average annual receipts of less than $74,075. Using the same
methodology discussed above for costs related to filing and receiving a
petition, we estimate that few, if any, entities that file blocking
charges will incur a cost of greater than 1% of their gross receipts as
a result of the final rule.
2. Timeline for Post-Election Hearings
Under current practice, parties have a median of 14.5 days to
prepare for the hearing once the notice of hearing is issued. Although
this time might decrease by a few days, we do not expect that the
change will be very large. Under the rule, the time for post-election
hearings will generally be 21 days from the tally, and the objections
and challenges are due in 7 days. The rule does not specify when the
notice of hearing will be issued, but regional directors will be
expected to assess the offer of proof and very promptly determine
whether to hold a hearing so that the parties have time to prepare.
Thus, we do not believe there will be any increased cost.
Nonetheless, using similar assumptions to those discussed above
regarding the pre-election hearing, we will conservatively assume that
costs for the 54 employers and unions subject to post election hearings
will increase by $312.52. Combining this cost with the maximum new
costs a party might reasonably be expected to incur under other changes
in the rule, we reach the following result:
Table 7--Estimated Additional Costs for Parties in Cases With Post-
Election Hearings
------------------------------------------------------------------------
------------------------------------------------------------------------
No. of Cases................................................. 54
[[Page 74467]]
Maximum cost of changes without post-election litigation or $622.88
blocking charges)...........................................
Post election hearing preparation timeline................... $312.52
----------
Total additional cost.................................... $935.40
------------------------------------------------------------------------
Census Bureau data show that no industry/size classification has
average annual receipts of less than $93,540. Thus, using the same
methodology discussed above for costs related to filing and receiving a
petition, we estimate that few, if any, entities that are involved in a
post-election hearing, but do not file a request for review of the
regional director's decision with the Board, will incur a cost of
greater than 1% of their gross receipts as a result of the final rule.
3. Requests for Review of Decisions on Objections and Challenges
Section 102.69 of the final rule--just as Sec. 102.69 of the
current rules--allows the regional director to resolve any objections
or challenges without conducting a post-election hearing. However, if a
post-election hearing is held concerning the objections or challenges,
Sec. 102.69(c) of the final rule requires the regional director to
issue a decision on any exceptions filed to the hearing officer's
report. It further provides that the Board will exercise only
discretionary review of regional directors' disposition of exceptions
to hearing officers' decisions. Previously, these exceptions were
decided directly by the Board in the vast majority of cases involving
objections or determinative challenges. Thus, if a party files
exceptions to the hearing officer's report, and the regional director
affirms the hearing officer, the new rule requires the party to file a
previously unnecessary request for review if the party desires review
by the Board. Although there is no change in cost for cases in which
the regional director disposes of objections or challenges without a
hearing, we will nevertheless conservatively estimate that requests for
Board review of a regional director's decision represent a new cost in
all cases. We estimate that it will require 16 lawyer hours to prepare
the request, for a cost of [16 x $78.58] $1,257.26. Combining this cost
with the maximum new costs a party might reasonably be expected to
incur under other changes in the rule, we reach the following result:
---------------------------------------------------------------------------
\727\ The 32 cases listed in the chart include cases from FY
2013 in which regional directors disposed of objections or
challenges without a hearing. As explained above, these cases would
not in fact result in additional costs if these circumstances were
repeated under the final rule.
Table 8--Estimated Additional Costs for Parties in Cases Where Parties
Request Board Review of Regional Directors' Post-Election Disposition of
Objections and Challenges \727\
------------------------------------------------------------------------
------------------------------------------------------------------------
No. of Cases................................................. 32
Maximum cost of changes without post-election litigation or $622.88
blocking charges............................................
Post election hearing preparation timeline................... $ 312.52
Request for review of post-election decision................. $1257.26
----------
Total additional cost.................................... $2192.66
------------------------------------------------------------------------
Only 32 exceptions were resolved in FY13. In all likelihood, a
sizeable number of these exceptions will be satisfactorily resolved by
regional directors with no further appeal. However, in the interest of
providing a conservative estimate, we will assume that this change will
impact litigants in 32 cases per year, or approximately 1.3% of all
NLRB representation cases. Assuming that small and large employers are
equally likely to litigate post-election exceptions, these changes are
projected to affect 29 small entity employers per year.
Four employer size/industry classifications have average annual
receipts of less than $216,266.\728\ Employers in those categories
could incur a significant adverse economic impact as a result of the
final rule if they litigate a representation petition through post-
election hearing and file a request for review of a regional director's
disposition of objections or challenges. However, only about 1.7% of
NLRB petitions (in 2010, 52 out of 2,974 petitions) are filed in
bargaining units with 2-4 employees in those industries. Thus, fewer
than one case a year \729\ will involve both a very small employer and
a post-election request for Board review of a regional director's
disposition of objections or challenges. The Board accordingly projects
that the final rule's changes to post-election exceptions procedure
will adversely affect less than one small entity employer per year.
Meanwhile, the average annual receipts for a union with zero to four
employees are $221,572, so the estimated cost of the rule is therefore
less than 1% of receipts even for unions with 0-4 employees.
---------------------------------------------------------------------------
\728\ These classifications are employers in the industries of
Administrative and Support and Waste Management (#56), Educational
Services (#61), Accommodation and Food Services (#72), and Other
Services (Except Public Administration) (#81), with 0-4 employees.
\729\ The Board determined this number by taking the estimated
number of cases with a small employer respondent that go to a post-
election hearing (29) and multiplying by the probability that the
case will involve a unit in one of the four classifications noted
above (0.017). This estimate conservatively assumes that small and
large parties are equally likely to fully litigate election
objections in any particular case.
---------------------------------------------------------------------------
Thus, the number of significantly impacted small entities falls
below the 10% threshold established by the Board. For these reasons we
conclude that the rule's changes to post-election exceptions procedure
will not impose a significant economic impact on a substantial number
of small entities.
D. Other Changes
The remainder of the changes will not result in any direct cost on
small entities, and will clearly not cause a substantial impact on a
significant number of small entities. We first consider the changes to
the litigation at the pre-election hearing. Ultimately, the statement
of position form will provide cost savings to the parties in cases
where hearings are held by preventing unnecessary litigation and
leading to a more orderly process. The same is true for those portions
of Sec. 102.66 of the final rule which provide for the parties to
begin the hearing by responding to the issues raised in the statement
of position, and taking discretionary offers of proof. So too, the
changes to Sec. 102.64, focusing the hearing on its statutory purpose,
and overruling Barre-National, will substantially reduce needless
testimony. New provision Sec. 102.64(c) provides that pre-election
hearings shall be continued day to day absent extraordinary
circumstances. Section 102.67 provides that summing up of pre-election
hearing testimony usually will be done by means of closing arguments,
rather than concluding written briefing. Section 102.67(b) specifies
that the date and time of the election ordinarily will be set forth in
the decision and direction of election. All of these changes will
uniformly lead to efficiencies and savings for the parties and the
Board, as discussed in detail in the relevant sections of this
preamble. Therefore, these changes will not impose any costs on any
small entities. In addition, such pre-election hearing procedures take
place in fewer than 10% of cases, and so cannot impact a substantial
number of small entities.
Second, Sec. 102.67 of the final rule revises the deadline for
seeking Board
[[Page 74468]]
review of a regional director's decision and direction of election at
any time up to 14 days after a final disposition of the proceeding by
the regional director. Existing law sets a shorter deadline, within 14
days of the decision and direction of election. This change in due date
will potentially create savings for parties, and will impose no costs.
Parties remain free to file their requests within the time frame
provided under the former rules if they prefer. Such requests are also
filed in fewer than 10% of cases.
Third, the final rule eliminates guidance which recommended waiting
25-30 days to hold the election after the direction of election. This
change imposes no direct costs upon parties, as nothing in the rule
requires any preparation for the election itself. The rule also
directly impacts the fewer than 10% of cases which are subject to a
direction of election. The final rule also eliminates automatic
impounding of ballots where a request for review is pending.
Impoundment only took place in a handful of cases each year, and the
change imposes no cost.
Fourth, Sec. 102.69(a) of the final rule requires parties to file
simultaneous offers of proof with any post-election objections, whereas
current rules give parties 7 additional days to file offers of proof.
However, as previously discussed, filing offers of proof involves
writing down the results of an investigation conducted before the
objection was filed. Compressing the time frame for this administrative
task will not impose increased costs. This change also impacts fewer
than 10% of cases.
Finally, the final rule eliminates a rarely used procedure,
formerly codified at Sec. 102.67(h)-(k), whereby a case could be
transferred from the region to the Board after the pre-election
hearing. This procedure has not been used in approximately 15 years.
E. Conclusion
As the foregoing discussion shows, the bulk of the changes to this
rule will impact less than 10% of the relevant universe of small
entities. In addition, most of the changes here will not impose any new
costs on the parties to representation cases. The few costs in the rule
are either modest, or impact only a handful of cases, or both. For
these reasons, the rule will not have a significant economic impact on
a substantial number of small entities.
Paperwork Reduction Act
In the NPRM, the Board explained that the ``proposed amendments
would not impose any information collection requirements'' and
accordingly, the proposed amendments ``are not subject to the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq.'' No substantive comments
were received relevant to the Board's analysis of its obligations under
the PRA.
The NLRB is an agency covered by the PRA. 44 U.S.C. 3502(1) and
(5). The PRA establishes rules for such agencies' ``collection of
information.'' 44 U.S.C. 3507.
The Board has considered whether any of the provisions of the final
rule provide for a ``collection of information'' covered by the PRA.
Specifically, the Board has considered the following provisions that
contain petition and response requirements, posting requirements, and
requirements that lists of employees, eligible voters or offers of
proof be filed:
(1) Under the final rule, as under the current rules, parties
seeking to initiate the Board's representation procedures are required
to file a petition with the Board containing specified information
relevant to the Board's adjudication of the specific question raised by
the filing of the petition. Under the final rule, non-petitioning
parties to such representation proceedings are required to file a
Statement of Position setting forth the parties' positions and
specified information relevant to the Board's adjudication of the
question raised by the petition. Employers are currently asked to
supply the portion of the information specified in the final rule
relating to their participation in interstate commerce, and are
typically asked to share their positions concerning many of the same
issues covered by the form prior to the hearing or at a prehearing
conference.
(2) Under the final rule, employers are required to post a notice
about the filing of the petition and a notice about the election. The
second posting requirement exists currently. Employers are currently
asked but not required to post the first notice (in a different form).
(3) Under the final rule, as under current case law, employers are
required to file a list of eligible voters prior to an election. Under
the final rule, an initial list of employees is required before the
pre-election hearing. Currently, employers are often asked but not
required to provide an employee list with job classifications prior to
the hearing or at a prehearing election conference. For the reasons
given below, the Board believes that none of these actions constitutes
a collection of information covered by the PRA.
(4) Under the final rule, a party filing an objection to the
conduct of an election or to conduct affecting the results of an
election is required to simultaneously file a written offer of proof
with the objection, absent a showing of good cause to extend the time
for filing an offer of proof. Currently, a party filing an objection is
required to simultaneously file a short statement of reasons with the
objection and file evidence in support of its objections within 7 days
after filing its objections.
(5) Under the final rule, a party filing an unfair labor practice
charge, together with a request that the charge block the processing of
a representation petition, is required to simultaneously file a written
offer of proof with the charge.
The PRA exempts from the definition of ``collection of
information'' ``a collection of information described under section
3518(c)(1)'' of the Act. 44 U.S.C. 3502(3)(B).
Section 3518(c) provides:
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). See also 5 CFR 1320.4(c) (OMB regulation
interpreting the PRA, providing that exemption applies ``after a case
file or equivalent is opened with respect to a particular party.'').
The Board believes that all of the above-described provisions of
the final rule fall within the exemption created by sections 3502(3)(B)
and 3518(c)(1)(B)(ii). A representation proceeding under Section 9 of
the NLRA is ``an administrative action or investigation involving an
agency.'' That is, the filing of a petition together with a showing of
interest triggers an administrative investigation into the sufficiency
of the petition. A regional Board agent is assigned to investigate the
petition and a case file is opened. A representation proceeding is also
``against specific individuals or entities'' within the meaning of
section 3518(c)(1)(B)(ii). The Board's decisions
[[Page 74469]]
in representation proceedings are binding on and thereby alter the
legal rights of the parties to the proceedings. For example, the
employer of any employees who are the subject of a petition is a party
to the resulting representation proceeding.\730\ If the Board finds in
a representation proceeding that a petition has been filed concerning
an appropriate unit and that employees in that unit have voted to be
represented, the Board will thereafter certify the petitioner as the
employees' representative for purposes of collective bargaining with
the employer. As a direct and automatic consequence of the Board's
certification, the employer is legally bound to recognize and bargain
with the certified representative. If the employer refuses to do so, it
commits an unfair labor practice.\731\ If such an employer is charged
with a refusal to bargain, it is precluded from relitigating in the
unfair labor practice proceeding any issues that were or could have
been raised in the representation proceeding.\732\ Finally, if such an
employer seeks review of the Board's order in the unfair labor practice
proceeding or the Board seeks to enforce its order in a court of
appeals, the record from the representation proceeding must be filed
with the court and ``the decree of the court enforcing, modifying, or
setting aside in whole or in part the order of the Board shall be made
and entered upon the pleadings, testimony, and proceedings set forth in
such transcript.'' 29 U.S.C. 159(d); see also Boire v. Greyhound Corp.
376 U.S. 473, 477-79 (1964).\733\
---------------------------------------------------------------------------
\730\ See, e.g., Pace University v. NLRB, 514 F.3d 19, 23 (D.C.
Cir. 2008); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 786-88
(7th Cir. 1953).
\731\ See, e.g., Country Ford Trucks, Inc. v. NLRB, 229 F.3d
1184, 1191 (D.C. Cir. 2000); C.J. Krehbiel Co. v. NLRB, 844 F.2d
880, 882, 886 (D.C. Cir. 1988).
\732\ See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941).
\733\ Similarly, a union that has been certified or recognized
as the representative of employees in an appropriate unit has a
legal right to continue to be recognized as the exclusive
representative of such employees. See Scepter, Inc. v. NLRB, 280
F.3d 1053, 1056 (D.C. Cir. 2002). However, if a petition is filed
under section 9 seeking to decertify such a union, which is a party
to the resulting representation proceeding, see Brom Mach. & Foundry
Co. v. NLRB, 569 F.2d 1042, 1044 (8th Cir. 1978), and at the
conclusion of the proceeding the Board certifies the results of an
election finding that less than a majority of the voters cast
ballots in favor of continued representation by the union, the union
loses its legal right to represent the employees. Retail Clerks
Int'l Ass'n v. Montgomery Ward & Co., 316 F.2d 754, 756-57 (7th Cir.
1963).
---------------------------------------------------------------------------
Three limitations on the filing and posting requirements in the
final rule lead to the conclusion that they fall within the statutory
exemption. First, the final rule imposes requirements only on parties
to the representation case proceeding, or in the case of blocking
charges, charging parties in the unfair labor practice proceeding, an
administrative action or investigation against specific individuals or
entities within the scope of section 3518(c)(1)(B)(ii). Second, any
adverse consequences for failing to provide the requested information
are imposed only on persons and entities that are party to the
administrative proceeding. Third, the possible adverse consequences
that may result from noncompliance do not reach beyond the
administrative case proceeding. The final rule imposes no consequences
on any party based on its failure to file or provide information
requested in a petition or statement of position form other than to
prevent the party from initiating a representation proceeding or to
restrict a party's rights to raise issues or participate in the
adjudication of issues in the specific representation proceeding and
any related unfair labor practice proceeding. Similarly, as is the case
currently,\734\ no consequences attach to a failure to post either
notice or to file the eligibility list beyond the overturning of an
election conducted as part of the specific proceeding. Finally, no
consequences attach to a failure to file an offer of proof
simultaneously with an election objection or a blocking charge beyond
the regional director's dismissal of the election objection, refusal to
block the election, or the possible dismissal of the charge.
---------------------------------------------------------------------------
\734\ See John E. Higgins, Jr., The Developing Labor Law 595,
607 (5th ed. 2006) (noting that failure to provide Excelsior list or
post notice of election constitutes grounds for setting aside
election).
---------------------------------------------------------------------------
Sections 102.62(e), 102.63(a) and 102.67(k) of the final rule
require that an employer which is party to a representation proceeding
post a Notice of Petition for Election subsequent to the filing of a
petition and, if an election is agreed to or directed, a Notice of
Election. The Board will make available both notices to the employer in
paper and electronic form, and employers will be permitted to post
exact duplicate copies of the notices. The Board does not believe these
posting requirements are subject to the PRA for the reasons explained
above. Moreover, the Board does not believe that the notice posting
requirements constitute a ``collection of information'' as defined in
section 3502(3) of the PRA for additional, independent reasons. The
notice posting requirements do not involve answers to questions or any
form of reporting. Nor do they involve a ``recordkeeping requirement''
as that term is defined in section 3502(13) of the PRA because the
notice posting requirements do not require any party to ``maintain
specified records.'' The Board notes that this construction is
consistent with the Office of Management and Budget's regulations
construing and implementing the PRA, which provide that ``[t]he public
disclosure of information originally supplied by the Federal government
to [a] recipient for the purpose of disclosure to the public'' is not
considered a ``collection of information'' under the Act. See 5 CFR
1320.3(c)(2). For all of these reasons, the Board concludes that the
posting requirements are not subject to the PRA.
Accordingly, the final rule does not contain information collection
requirements that require approval of the Office of Management and
Budget under the Paperwork Reduction Act.
Congressional Review Act
As explained in the discussion of the Regulatory Flexibility Act,
only the provisions of this rule relating to voter lists and possibly
blocking charges are substantive. Nevertheless, as a matter of its
discretion, the Board has chosen to submit the entire rule to the
process contained in the Small Business Regulatory Enforcement Fairness
Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808.
Under Section 804 of that Act, this rule is not a major rule
because it will not result in an annual effect on the economy of $100
million or more, a major increase in costs or prices, or significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets. The Board
has, in any event, determined that the effective date of the rule will
be 120 days after the rule is published in the Federal Register.
IX. Statement of the General Course of Proceedings Under Section 9(c)
of the Act
A. Representation Case Petitions
Petitions may be filed in representation cases to resolve questions
of representation in many different circumstances. For example, a union
may file a petition for certification because it seeks to become the
collective-bargaining representative of an employer's employees. An
employer may file a petition to determine the majority status of a
union demanding recognition as the representative of the employer's
employees. If there is already a certified or currently recognized
representative, an employee
[[Page 74470]]
may file a decertification petition to oust the incumbent
representative. Or, a party may file a petition for clarification of
the bargaining unit or for amendment to reflect changed circumstances,
such as changes in the incumbent representative's name or affiliation.
Petition forms are available on the Board's Web site and in the
Board's regional offices. The petition must be in writing and signed,
and must either be notarized or contain a declaration by the person
signing it, under the penalties of the Criminal Code, that its contents
are true and correct to the best of his or her knowledge and belief.
The petition is filed with the regional director for the regional
office in which the proposed or actual bargaining unit exists. Petition
forms provide, among other things, for a description of the
contemplated or existing appropriate bargaining unit, the approximate
number of employees involved, the names of all labor organizations that
claim to represent the employees, the type, date(s), time(s) and
location(s) of the election sought, and the name and contact
information of the individual who will serve as representative of the
petitioner and accept service of papers in the representation
proceeding. A petitioner seeking certification as the collective-
bargaining representative or seeking to decertify an incumbent
representative must supply, at the same time it files its petition,
evidence of employee interest in an election (``showing of interest'').
Such evidence is usually in the form of cards, which must be dated,
authorizing the labor organization to represent the employees or
providing that the employees no longer wish to be represented by the
incumbent union. If a petition is filed by an employer, the petitioner
must supply, at the same time it files its petition, proof of a demand
for recognition by the labor organization named in the petition and, in
the event the labor organization named is the incumbent representative
of the unit involved, a statement of the objective considerations
demonstrating reasonable grounds for believing that the labor
organization has lost its majority status.
The petitioner may file the petition electronically, by fax, by
mail or in person at one of the NLRB's regional offices. The petitioner
must serve a copy of its petition on other interested parties along
with a description of the Board's representation case procedures and
the Board's Statement of Position form, both of which are available on
the Board's Web site and in the Board's Regional Offices. However, the
petitioner need not serve a copy of its showing of interest on any
other party. If the petition and showing of interest are filed
electronically or by fax, and the showing of interest consists of
authorization cards with handwritten signatures, the petitioner must
provide to the regional director the documents containing the original
signatures constituting the showing of interest no later than 2 days
after the electronic or facsimile filing.
B. Pre-Hearing Withdrawals and Dismissals; Notice of Hearing; Posting
and Distribution of Notice of Petition for Election; Statement of
Position Form
Upon receipt of the petition in the Regional Office, it is docketed
and assigned to a Board agent to investigate (1) whether the employer's
operations affect commerce within the meaning of the Act, (2) the
existence of a bona fide question concerning representation in a unit
of employees appropriate for the purposes of collective bargaining
within the meaning of the Act, (3) whether the election would
effectuate the policies of the Act and reflect the free choice of
employees in the appropriate unit, and (4) whether, if the petitioner
is a labor organization seeking recognition or an employee seeking
decertification of an incumbent representative, there is sufficient
evidence of employee interest in an election. The evidence of interest
submitted by the petitioning labor organization or by the person
seeking decertification is ordinarily checked to determine the number
or proportion of employees who have demonstrated interest, it being the
Board's administrative experience that in the absence of special
factors the conduct of an election serves no purpose under the statute
unless the petitioner has demonstrated interest among at least 30
percent of the employees. However, in the case of a petition by an
employer, no proof of representation on the part of the labor
organization claiming a majority is required, and the regional director
proceeds with the case if other factors require it unless the labor
organization withdraws its claim to majority representation. The Board
agent attempts to ascertain from all interested parties whether the
grouping or unit of employees described in the petition constitutes an
appropriate bargaining unit. The petition may be amended at any time
prior to hearing and may be amended during the hearing upon such terms
as the regional director deems proper.
The petitioner may request to withdraw its petition if the
investigation discloses, for example, that the petitioner lacks an
adequate showing of interest. The regional director may request that
the petitioner withdraw the petition if further processing at that time
is inappropriate because, for example, a written contract covering the
petitioned-for unit is currently in effect. If, despite the regional
director's recommendations, the petitioner refuses to withdraw the
petition, the regional director may dismiss it. The petitioner may
within 14 days request review of the regional director's dismissal by
filing such request with the Board in Washington, DC; if it accepts
review, the Board may sustain the dismissal, stating the grounds of its
affirmance, or may direct the regional director to take further action.
If, however, the regional director determines that the petition and
supporting documentation establish reasonable cause to believe that a
question of representation affecting commerce exists and that the
policies of the Act will be effectuated, then the regional director
serves a notice of a pre-election hearing on the parties named in the
petition. Except in cases presenting unusually complex issues, the
regional director sets the hearing for a date 8 days from the date of
service of the notice excluding intervening Federal holidays. Along
with the notice of hearing, the regional director serves a copy of the
petition, a form describing representation case procedures, a ``Notice
of Petition for Election,'' and a Statement of Position form on the
unions and employer filing or named in the petition and on other known
persons or labor organizations claiming to have been designated by
employees involved in the proceeding. The director marks the
correspondence containing these materials as ``Urgent.'' The Notice of
Hearing also sets the due date for the parties to file and serve their
Statements of Position. Ordinarily, the Statement of Position must be
filed and served such that it is received by the regional director and
the other parties at noon on the business day before the opening of the
hearing.
The regional director may postpone the hearing for up to 2 business
days upon request of a party showing special circumstances and for more
than 2 business days upon request of a party showing extraordinary
circumstances. The regional director may also postpone the due date for
filing and serving the Statement of Position for up to 2 business days
upon request of a party showing special circumstances and for more than
2 business days upon request of a party showing extraordinary
circumstances. If the hearing is set to open more than 8 days from
service of the notice, the regional director may set the due date for
the Statement of Position earlier than at noon on the
[[Page 74471]]
business day before the hearing is set to open.
The Notice of Petition for Election states the name of the party
filing the petition, briefly describes the type of petition filed and
the proposed unit, lists employee rights, and sets forth in
understandable terms the central rules governing campaign conduct. This
notice also lists the Board's Web site address, through which the
employer's employees can obtain further information about the
processing of petitions. The notice indicates that no final decisions
have been made yet regarding the appropriate bargaining unit and
whether an election will be conducted. Within 2 business days after
service of the notice of hearing, the employer must post paper copies
of the Notice of Petition for Election in conspicuous places, including
all places where notices to employees are customarily posted, and it
must also distribute the notice electronically if it customarily
communicates with its employees electronically. The employer must
maintain the posting until the petition is dismissed or withdrawn, or
the notice is replaced by the Notice of Election, discussed below. The
employer's failure properly to post or distribute the Notice of
Petition for Election may be grounds for setting aside the election if
proper and timely objections are filed. However, a party may not object
to the nonposting or nondistribution of the notices if it is
responsible for the nonposting or nondistribution.
The Statement of Position form solicits information which will
facilitate entry into election agreements or streamline the pre-
election hearing in the event parties are unable to enter into an
election agreement. Where the petition is filed by a labor organization
in an initial organizing context, the employer's Statement of Position
states whether the employer agrees that the Board has jurisdiction over
it and provides the requested commerce information; states whether the
employer agrees that the proposed unit is appropriate, and if the
employer does not so agree, states the basis for its contention that
the proposed unit is inappropriate, and states the classifications,
locations, or other employee groupings that must be added to or
excluded from the proposed unit to make it an appropriate unit;
identifies any individuals whose eligibility to vote the employer
intends to contest at the pre-election hearing and the basis of each
such contention; raises any election bar; states the length of the
payroll period for employees in the proposed unit and the most recent
payroll period ending date; states its position concerning the type,
date(s), time(s), and location(s) of the election and the eligibility
period; and describes any other issues it intends to raise at hearing.
The employer also provides the name, title, and contact information of
the individual who will serve as its representative and accept service
of all papers for purposes of the representation proceeding.
As part of its Statement of Position, the employer also provides an
alphabetized list of the full names, work locations, shifts, and job
classifications of all individuals in the proposed unit. If the
employer contends that the proposed unit is not appropriate, the
employer must separately list the same information for all individuals
that the employer contends must be added to the proposed unit to make
it an appropriate unit, and must further indicate those individuals, if
any, whom it believes must be excluded from the proposed unit to make
it an appropriate unit. The list(s) of names must be in an electronic
format approved by the General Counsel unless the employer certifies
that it does not possess the capacity to produce the list(s) in the
required form.
In cases involving employer-filed petitions, each individual or
labor organization named in the petition states whether it agrees that
the Board has jurisdiction over the employer; states whether the
proposed unit is appropriate, and if it does not so agree, states the
basis for its contention that the proposed unit is inappropriate, and
states the classifications, locations, or other employee groupings that
must be added to or excluded from the proposed unit to make it an
appropriate unit; identifies any individuals whose eligibility to vote
it intends to contest at the pre-election hearing and the basis of each
such contention; raises any election bar; states its position
concerning the type, date(s), time(s), and location(s) of the election
and the eligibility period; and describes all other issues it intends
to raise at hearing. Each individual or labor organization also
provides the name, title, and contact information of the individual who
will serve as its representative and accept service of papers for
purposes of the representation proceeding. The employer's Statement of
Position states whether it agrees that the Board has jurisdiction over
it and provides the requested commerce information; identifies any
individuals whose eligibility to vote it intends to contest at the pre-
election hearing and the basis of each such contention; provides the
list(s) of employees; and states the length of the payroll period for
employees in the proposed unit and the most recent payroll period
ending date.
In cases involving decertification petitions, although the general
rule is that the bargaining unit in which the decertification election
is held must be coextensive with the certified or recognized bargaining
unit, the Statements of Position of both the certified or recognized
representative and the employer nevertheless must state whether each
agrees that the proposed unit is appropriate, and if not, state the
basis for the contention that the proposed unit is inappropriate, and
state the classifications, locations, or other employee groupings that
must be added to or excluded from the proposed unit to make it an
appropriate unit. The Statements of Position of both the certified or
recognized representative and the employer must also state whether each
agrees that the Board has jurisdiction over the employer; identify any
individuals whose eligibility to vote each party intends to contest at
the pre-election hearing and the basis of each such contention; raise
any election bar; and state each party's position concerning the type,
date(s), time(s), and location(s) of the election and the eligibility
period; describe all other issues each party intends to raise at
hearing; and state the name, title, and contact information of the
individual who will serve as each party's representative and accept
service of all papers for purposes of the representation proceeding.
The employer's Statement of Position must also state the length of the
payroll period for employees in the proposed unit and the most recent
payroll period ending date; and provide the requested commerce
information and the employee list(s).
C. Voluntary Election Agreements; Notice of Election; Voter List
1. Voluntary Election Agreements
Elections can occur either by agreement of the parties or by
direction of the regional director or the Board. In many cases, the
parties, with Board agent assistance, are able to reach agreement
regarding all election matters, thereby eliminating the need for the
regional director or the Board to issue a formal decision and direction
of election. By entering into an election agreement, the parties may,
depending upon when the agreement is reached, avoid the time and
expense of participating in a hearing (as well as having to complete
the Statement of Position form).
The Board has devised and makes available to the parties three
types of
[[Page 74472]]
informal voluntary procedures through which representation issues can
be resolved without recourse to formal procedures. Forms for use in
these informal procedures are available in the regional offices and on
the Board's Web site. One type of informal procedure is the consent
election agreement with final regional determination of post-election
disputes. Here, the parties agree with respect to the appropriate unit,
the payroll period to be used in determining which employees in the
appropriate unit are eligible to vote in the election, and the type,
place, date, and hours of balloting. The consent election is conducted
under the direction and supervision of the regional director. This form
of agreement provides that the rulings of the regional director on all
questions relating to the election, such as the validity of challenges
and objections, are final and binding. The regional director issues to
the parties a certification of the results of the election, including a
certification of representative where appropriate, with the same force
and effect as if issued by the Board.
A second type of informal procedure is commonly referred to as the
stipulated election agreement. Like the consent agreement above, the
parties agree on the unit, payroll period to be used in determining
voter eligibility, and election details, but provide that they may
request Board review of the regional director's resolution of post-
election disputes. The stipulated election is conducted under the
direction and supervision of the regional director.
The third type of informal procedure is referred to as the full
consent election agreement. Here, the parties agree that all pre-
election and post-election disputes will be resolved with finality by
the regional director. For example, the parties agree that if they are
unable to informally resolve disputes arising with respect to the
appropriate unit or other election details, those issues will be
presented to, and decided with finality by, the regional director after
a hearing. Upon the close of the hearing, the entire record in the case
is forwarded to the regional director. After review of the record, the
regional director issues a final decision, either dismissing the
petition or directing that an election be held. In the latter event,
the election is conducted under the supervision of the regional
director. Similarly, all matters arising after the election, including
determinative challenged ballots and objections to the conduct of the
election, are decided with finality by the regional director. The
regional director issues to the parties a certification of the results
of the election, including certifications of representative where
appropriate, with the same force and effect as if issued by the Board.
2. Notice of Election
Upon approval of the election agreement or issuance of the
direction of election pursuant to a full consent election agreement,
the regional director promptly transmits to the parties and their
designated representatives the Notice of Election, which publicizes the
holding of the election. This notice reproduces a sample ballot and
outlines such election details as the date(s) of the election,
location(s) of polls, time of voting, and the eligibility rules. If the
election agreement or direction of election provides for individuals to
vote subject to challenge, the Notice of Election so states, and
advises employees that such individuals are neither included in, nor
excluded from, the bargaining unit, inasmuch as the election agreement
or the direction of election has permitted them to vote subject to
challenge. The Notice of Election further advises employees that the
eligibility or inclusion of such individuals will be resolved, if
necessary, following the election. The employer must post paper copies
of the Notice of Election in conspicuous places, including all places
where notices to employees in the unit are customarily posted, at least
3 full working days prior to 12:01 a.m. of the date of the election.
The employer must also distribute the notice electronically if it
customarily communicates with employees in the unit electronically. The
employer's failure properly to post or distribute the Notice of
Election is grounds for setting aside the election whenever proper and
timely objections are filed. However, a party may not object to the
nonposting if it is responsible for the nonposting, and likewise may
not object to the nondistribution of the notices if it is responsible
for the nondistribution.
3. Voter List
Within 2 business days after the regional director's approval of
the election agreement or issuance of the direction of election
pursuant to a full consent election agreement, the employer must
provide the regional director and the parties with an alphabetized list
of the full names, work locations, shifts, job classifications, and
contact information (including home addresses, available personal email
addresses, and available home and personal cell telephone numbers) of
all eligible voters in order to allow the nonemployer parties to
communicate with eligible employees about the upcoming election and to
reduce the necessity for election-day challenges based solely on the
nonemployer parties' lack of knowledge of voters' identities. The
employer must also include in a separate section of that list the same
information for those individuals whom the parties have agreed should
be permitted to vote subject to challenge or those individuals who,
according to the direction of election, will be permitted to vote
subject to challenge, including, for example, individuals in the
classifications or other groupings that will be permitted to vote
subject to challenge. In order to be timely filed and served, the list
must be received by the regional director and the parties named in the
agreement or direction within 2 business days after approval of the
agreement or issuance of the direction of election unless a longer time
is specified in the agreement or direction. When feasible, the employer
must electronically file the list with the regional director and
electronically serve the list on the other parties. The list must be in
an approved electronic format, unless the employer certifies that it
does not have the capacity to produce the list in the required format.
The employer's failure to file or serve the list within the specified
time or in the proper format is grounds for setting aside the election
whenever proper and timely objections are filed. However, the employer
may not object to the failure to file or serve the list in the
specified time or in the proper format if it is responsible for the
failure. The parties may not use the list for purposes other than the
representation proceeding, Board proceedings arising from it, and
related matters.
D. Hearing
If the parties have not entered into a voluntary election
agreement, a hearing must be held to determine if a question of
representation affecting commerce exists before a regional director or
the Board may direct an election to resolve that question. The hearing
continues day to day until completed absent extraordinary
circumstances. The hearing, usually open to the public, is held before
a hearing officer who normally is an attorney or field examiner
attached to the regional office but may be another qualified agency
employee. The hearing, which is nonadversary in character, is part of
the investigation in which the primary interest of the hearing officer
is to ensure that the record contains as full a statement of the
pertinent facts as may
[[Page 74473]]
be necessary for determination of whether a question of representation
exists. A question of representation exists if a proper petition has
been filed concerning a unit appropriate for the purpose of collective
bargaining or concerning a unit in which an individual or labor
organization has been certified or is being currently recognized by the
employer as the bargaining representative. Disputes concerning
individuals' eligibility to vote or inclusion in an appropriate unit
ordinarily need not be litigated or resolved before an election is
conducted. Such matters can be resolved, if necessary, following the
election. Each party is afforded full opportunity to introduce evidence
of the significant facts that support its contentions and are relevant
to the existence of a question of representation. Witnesses are
examined orally under oath. The rules of evidence prevailing in courts
of law or equity are not controlling.
After the Statement of Position is received into evidence, the
other parties respond to each issue raised in the Statement. Thus, for
example, the petitioner may amend its petition to conform to an
alternative unit proposed by the non-petitioning party. The regional
director has discretion to permit parties to amend their Statements of
Position or their responses in a timely manner for good cause. If the
regional director permits a party to amend its Statement of Position,
the other parties respond to each amended position. A party generally
may not raise any issue, present evidence relating to any issue, cross-
examine any witness concerning any issue, and present argument
concerning any issue that the party failed to raise in its timely
Statement of Position or failed to place in dispute in response to
another party's Statement of Position or response. However, no party is
precluded from challenging the eligibility of any voter during the
election on the ground that the voter's eligibility or inclusion was
not contested at the pre-election hearing. In addition, no party is
precluded from contesting or presenting evidence relevant to the
Board's statutory jurisdiction, and the regional director has
discretion to direct the receipt of evidence concerning any issue, such
as the appropriateness of the proposed unit, as to which the director
determines that record evidence is necessary. If a party contends that
the proposed unit is not appropriate in its Statement of Position but
fails to specify the classifications, locations or other employee
groupings that must be added to or excluded from the proposed unit to
make it an appropriate unit, the party may not raise any issue or
present evidence or argument about the appropriateness of the unit. And
if the employer fails to timely furnish the lists of employees required
to be included as part of the Statement of Position, the employer also
may not contest the appropriateness of the proposed unit at any time
and may not contest the eligibility or inclusion of any individuals at
the pre-election hearing.
The regional director directs the hearing officer regarding the
issues to be litigated at the hearing. The hearing officer may require
parties to make offers of proof. If the regional director determines
that the evidence described in an offer of proof is insufficient to
sustain the proponent's position, the evidence is not received. In most
cases a substantial number of the relevant facts are undisputed and
stipulated.
Any objection with respect to the conduct of the hearing, including
any objection to the introduction of evidence, may be stated orally or
in writing, accompanied by a short statement of the grounds of such
objection, and included in the record. No such objection is waived by
further participation in the hearing. A party need not seek special
permission to appeal a hearing officer's ruling to preserve an issue
for review after the hearing.
Before the hearing closes, the hearing officer solicits the
parties' positions on the type, date(s), time(s), and location(s) of
the election, and the eligibility period, but does not permit
litigation of these issues. The hearing officer also advises the
parties what their obligations will be if an election is directed, and
solicits the name and contact information of the employer's on-site
representative to whom the regional director should transmit the Notice
of Election. At the close of the hearing, parties are permitted to make
oral arguments on the record. Parties are permitted to file post-
hearing briefs only with special permission of the regional director.
The regional director specifies the time for filing such briefs, and
may limit the subjects to be addressed in post-hearing briefs.
Upon the close of the hearing, the entire record in the case is
forwarded to the regional director for decision. The hearing officer
also transmits an analysis of the record, but makes no recommendations
in regard to resolution of the issues.
E. Regional Director Pre-Election Determinations; Directions of
Election; Notice of Election; Voter List; Requests for Review
1. Pre-Election Determinations; Direction of Election; Notice of
Election
After the pre-election hearing closes, the regional director
proceeds to review the record of the hearing and any post-hearing
briefs to determine whether a question of representation affecting
commerce exists concerning a unit appropriate for the purposes of
collective bargaining or, in the decertification context, concerning a
unit with an incumbent representative. The regional director may decide
either to direct an election, dismiss the petition, or reopen the
hearing.
The regional director's direction of election ordinarily specifies
the type, date(s), time(s), and location(s) of the election and the
eligibility period. The regional director sets the election for the
earliest date practicable consistent with the Board's rules. The
election is not scheduled for a date earlier than 10 days after the
date by which the voter list must be filed and served unless the
parties entitled to the list (for example, unions and decertification
petitioners) waive the right to use the list for some or all of the 10-
day period. The regional director directs (and conducts) the election
where appropriate notwithstanding the pendency of an unfair labor
practice charge covering the unit at issue and a request that the
charge block the election if the regional director determines that the
charging party's offer of proof in support of its charge does not
describe evidence that, if proven, would interfere with employee free
choice in an election or would be inherently inconsistent with the
petition itself.
The regional director promptly transmits the direction of election
to the parties and their designated representatives, and ordinarily
will simultaneously transmit the Board's Notice of Election, which
publicizes the holding of the election. This notice reproduces a sample
ballot and outlines such election details as the date(s) of the
election, location(s) of polls, time of voting, and the eligibility
rules. If the direction of election provides for individuals to vote
subject to challenge because their eligibility has not been determined,
the Notice of Election so states, and advises employees that such
individuals are neither included in, nor excluded from, the bargaining
unit, inasmuch as the regional director has permitted them to vote
subject to challenge. The election notice further advises employees
that the eligibility or
[[Page 74474]]
inclusion of such individuals will be resolved, if necessary, following
the election.
The employer must post paper copies of the Notice of Election in
conspicuous places, including all places where notices to employees in
the unit are customarily posted, at least 3 full working days prior to
12:01 a.m. of the date of the election. The employer must also
distribute the notice electronically if it customarily communicates
with employees in the unit electronically. The employer's failure
properly to post or distribute the Notice of Election is grounds for
setting aside the election whenever proper and timely objections are
filed. However, a party may not object to the nonposting if it is
responsible for the nonposting, and likewise may not object to the
nondistribution of the notices if it is responsible for the
nondistribution.
2. Voter List
Within 2 business days after issuance of the direction of election,
the employer must provide the regional director and the parties named
in the direction with an alphabetized list of the full names, work
locations, shifts, job classifications, and contact information
(including home addresses, available personal email addresses, and
available home and personal cell telephone numbers) of all eligible
voters in order to allow the nonemployer parties to communicate with
eligible employees about the upcoming election and to reduce the
necessity for election-day challenges based solely on the nonemployer
parties' lack of knowledge of voters' identities. The employer must
also include in a separate section of that list the same information
for those individuals who, according to the direction of election, will
be permitted to vote subject to challenge, including, for example,
individuals in the classifications or other groupings that will be
permitted to vote subject to challenge. In order to be timely filed and
served, the list must be received by the regional director and the
parties named in the direction of election within 2 business days after
issuance of the direction of election, unless the direction specified a
longer time for filing and service of the list. When feasible, the
employer must electronically file the list with the regional director
and electronically serve the list on the other parties. The list must
be in an approved electronic format, unless the employer certifies that
it does not have the capacity to produce the list in the required
format. The employer's failure to file or serve the list within the
specified time or in the proper format is grounds for setting aside the
election whenever proper and timely objections are filed. However, the
employer may not object to the failure to file or serve the list in the
specified time or in the proper format if it is responsible for the
failure. The parties may not use the list for purposes other than the
representation proceeding, Board proceedings arising from it, and
related matters.
3. Requests for Review
Any party may request that the Board review any action of a
regional director delegated to the director under Section 3(b) of the
Act unless the Board's rules provide otherwise. However, neither the
filing of such a request nor the grant of such a request will operate
as a stay of any action taken by the regional director, unless the
Board orders otherwise. Any party may file with the Board a statement
in opposition to the request for review. The Board will grant a request
for review only where there are compelling reasons to do so. The
regional director's actions are final unless the Board grants a request
for review. The parties may, at any time, waive their right to request
review. Failure to request review precludes such parties from
relitigating, in any related subsequent unfair labor practice
proceeding, any issue that was, or could have been, raised in the
representation proceeding. Denial of a request for review constitutes
an affirmance of the regional director's action, which also precludes
relitigating any such issues in any related subsequent unfair labor
practice proceeding. If the Board grants review, the Board shall make
such disposition of the matter as it deems appropriate.
A party requesting review may also request expedited consideration.
A party may also request that the Board stay some or all of its
proceedings, including the election, or segregate and/or impound some
or all of the ballots. Relief will be granted only upon a clear showing
that it is necessary under the particular circumstances of the case.
However, the pendency of a motion does not entitle a party to interim
relief, and an affirmative ruling by the Board granting relief is
required before the action of the regional director will be altered in
any fashion.
The request for review may be filed at any time following the
regional director's action until 14 days after a final disposition of
the proceeding by the regional director. Accordingly, a party need not
file a request for review of a decision and direction of election
before the election in order to preserve its right to contest that
decision after the election. Instead, a party can wait to see whether
the election results have mooted the basis of an appeal, and a party
may combine a request for review of the decision and direction of
election with a request for review of the regional director's
resolution of objections and challenged ballots, if the party has not
previously requested review of the direction of election.
F. Election Procedure; Challenges and Election Objections; Processing
of Challenges and Objections; Hearings; Regional Director Dispositions
of Challenges and Objections; Appeals
1. Election Procedure; Challenges
Unless otherwise directed by the Board, all elections are conducted
under the supervision of the regional director in whose region the
proceeding is pending. All elections shall be by secret ballot. A Board
agent usually arranges a pre-election conference at which the parties
check the list of voters and attempt to resolve any questions of
eligibility. When an election is conducted manually, any party may be
represented by observers of its own selection, subject to such
limitations as the regional director may prescribe, and the ballots are
marked in the secrecy of a voting booth. Ballots cast by individuals
whom the parties agree may vote subject to challenge, or whom the
decision and direction of election permits to vote subject to
challenge, are segregated and impounded. The parties' authorized
observers and Board agents may challenge, for good cause, the
eligibility of any person to participate in the election. For example,
the Board agent challenges anyone whose name is not on the list. If
such a person is permitted to vote, his or her ballot is segregated,
and, if the challenge is not resolved before the tally, impounded.
Board agents, in the presence and with the assistance of the parties'
authorized representatives, ordinarily count and tabulate the ballots
promptly after the closing of the polls. Elections are decided by a
majority of the valid votes cast. Voter challenges may be resolved by
agreement. A complete tally of the ballots is made available to the
parties upon the conclusion of the count. If the number of unresolved
challenged ballots is insufficient to affect the results of an election
in which an individual or labor organization is certified, the unit
placement of any such individuals may be resolved by the parties in the
course of collective bargaining or may be determined by the Board if a
timely unit clarification petition is filed.
[[Page 74475]]
2. Objections
Within 7 days after the tally of ballots has been prepared, a party
may file with the regional director objections to the conduct of the
election or to conduct affecting the results of the election, which
shall contain a short statement of the reasons therefor. The party
filing objections must simultaneously serve a copy of its objections,
including the short statement of the reasons therefor, on all other
parties to the representation case. The party filing objections must
also simultaneously file a written offer of proof in support of its
objections, but the offer of proof need not be served on the other
parties. A party must timely file objections and the offer of proof
even if there are determinative challenges. The regional director may
grant additional time to file the offer of proof in support of election
objections upon a showing of good cause.
3. Regional Director Action in Absence of Objections, Determinative
Challenges and Runoff Elections
If no timely objections are filed, if the challenged ballots are
insufficient in number to affect the results of the election, and if no
runoff election is to be held, the regional director issues to the
parties a certification of the results of the election, including
certification of representative where appropriate.
4. Processing and Disposition of Objections and Determinative
Challenges
The initial procedures for handling objections to the conduct of
the election or to conduct affecting the results of the election, as
well as determinative challenges, are the same regardless of whether
the election was directed by a regional director or held pursuant to
the parties' agreement. The regional director has discretion to conduct
an investigation or set the matters for a hearing without an
investigation.
If timely objections are filed and the regional director determines
that the evidence described in the party's offer of proof would not
constitute grounds for setting aside the election if introduced at a
hearing, and the regional director determines that any determinative
challenges do not raise substantial and material factual issues, the
regional director issues a decision disposing of the objections and
challenges and a certification of the results of the election,
including certification of representative where appropriate.
If timely objections are filed to the conduct of the election or to
conduct affecting the results of the election and the regional director
determines that the evidence described in the party's offer of proof
could be grounds for setting aside the election if introduced at a
hearing, or if the challenged ballots are sufficient in number to
affect the results of the election and raise substantial and material
factual issues, the regional director transmits to the parties' and
their designated representatives a notice of hearing before a hearing
officer, unless the regional director consolidates the hearing
concerning objections and determinative challenges with an unfair labor
practice proceeding before an administrative law judge.
If the regional director consolidates the hearing concerning
objections and determinative challenges with an unfair labor practice
proceeding before an administrative law judge and the election was
conducted pursuant to one of the two types of consent agreements, the
administrative law judge, upon issuing a decision, severs the
representation case and transfers it to the regional director for
further processing. If, however, the regional director consolidates the
hearing concerning objections and determinative challenges with an
unfair labor practice proceeding before an administrative law judge and
the election was conducted pursuant to a stipulated election agreement
or a decision and direction of election, the provisions of Sec. 102.46
of the Board's Rules and Regulations govern with respect to the filing
of exceptions or an answering brief to the exceptions to the
administrative law judge's decision, and a request for review of the
regional director's decision and direction of election shall be due at
the same time as the exceptions to the administrative law judge's
decision are due.
If, on the other hand, the regional director issues a notice of
hearing before a hearing officer, the hearing opens 21 days from the
tally of ballots or as soon as practicable thereafter, unless the
parties agree to an earlier date. The post-election hearing continues
day to day until completed absent extraordinary circumstances. The
hearing officer issues a report resolving questions of credibility and
containing findings of fact and recommendations as to the disposition
of the issues following the hearing. Within 14 days after issuance of
the hearing officer's report, any party may file exceptions to it with
the regional director. A party opposing the exceptions may file an
answering brief.
The regional director then decides the matter. The decision may
include a certification of the results of the election, including
certification of representatives where appropriate. The parties' appeal
rights with respect to the regional director's decision on challenged
ballots and/or objections depend upon whether the parties agreed to
waive any appeal prior to the election. In cases where the election was
conducted pursuant to either of the two types of consent election
agreements, the regional director's decision regarding the election
objections and determinative challenges is not subject to Board review.
If the election has been held pursuant to a stipulated election
agreement or a direction of election, a party may request Board review,
and may combine it with a request for review of the regional director's
decision to direct the election if the party has not previously
requested review of that decision. The request for review may be filed
at any time after the regional director's decision on challenged
ballots and/or objections until 14 days after a final disposition of
the proceeding by the regional director. Any party may file with the
Board a statement in opposition to the request for review. The Board
will grant a request for review only where there are compelling reasons
to do so. The regional director's actions are final unless the Board
grants a request for review. The parties may, at any time, waive their
right to request review. Failure to request review precludes such
parties from relitigating, in any related subsequent unfair labor
practice proceeding, any issue that was, or could have been, raised in
the representation proceeding. Denial of a request for review
constitutes an affirmance of the regional director's action, which also
precludes relitigating any such issues in any related subsequent unfair
labor practice proceeding. If the Board grants review, the Board shall
make such disposition of the matter as it deems appropriate.
G. Runoff Elections
If the election involves two or more labor organizations and if the
election results are inconclusive because no choice on the ballot
received the majority of valid votes cast, a runoff election is held as
provided in the Board's Rules and Regulations.
List of Subjects
29 CFR Part 101
Administrative practice and procedure, Labor management relations.
29 CFR Part 102
Administrative practice and procedure, Labor management relations.
29 CFR Part 103
Labor management relations.
[[Page 74476]]
In consideration of the foregoing, the National Labor Relations
Board amends Chapter I of title 29, Code of Federal Regulations, as
follows:
PART 101--STATEMENTS OF PROCEDURES
0
1. The authority citation for part 101 continues to read as follows:
Authority: Sec. 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 552(a) of the Administrative
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
Subpart C--[Removed and Reserved]
0
2. Remove and reserve subpart C, consisting of Sec. Sec. 101.17
through 101.21.
Subpart D--Unfair Labor Practice and Representation Cases Under
Sections 8(b)(7) and 9(c) of the Act
0
3. Revise Sec. 101.23 to read as follows:
Sec. 101.23 Initiation and investigation of a petition in connection
with a case under section 8(b)(7).
(a) A representation petition \1\ involving the employees of the
employer named in the charge is handled under an expedited procedure
when the investigation of the charge has revealed that:
---------------------------------------------------------------------------
\1\ The manner of filing of such petition and the contents
thereof are the same as described in 29 CFR 102.60 and 102.61 and
the statement of the general course of proceedings under Section
9(c) of the Act published in the Federal Register, insofar as they
are applicable, except that the petitioner is not required to allege
that a claim was made on the employer for recognition or that the
union represents a substantial number of employees.
---------------------------------------------------------------------------
(1) The employer's operations affect commerce within the meaning of
the Act;
(2) Picketing of the employer is being conducted for an object
proscribed by section 8(b)(7) of the Act;
(3) Subparagraph (C) of that section of the Act is applicable to
the picketing; and
(4) The petition has been filed within a reasonable period of time
not to exceed 30 days from the commencement of the picketing. In these
circumstances, the member of the regional director's staff to whom the
matter has been assigned investigates the petition to ascertain
further: the unit appropriate for collective bargaining; and whether an
election in that unit would effectuate the policies of the Act.
(b) If, based on such investigation, the regional director
determines that an election is warranted, the director may, without a
prior hearing, direct that an election be held in an appropriate unit
of employees. Any party aggrieved may file a request with the Board for
special permission to appeal that action to the Board, but such review,
if granted, will not, unless otherwise ordered by the Board, stay the
proceeding. If it is determined that an election is not warranted, the
director dismisses the petition or makes other disposition of the
matter. Should the regional director conclude that an election is
warranted, the director fixes the basis of eligibility of voters and
the place, date, and hours of balloting. The mechanics of arranging the
balloting, the other procedures for the conduct of the election, and
the postelection proceedings are the same, insofar as appropriate, as
those described in 29 CFR 102.69 and the statement of the general
course of proceedings under Section 9(c) of the Act published in the
Federal Register, except that the regional director's rulings on any
objections to the conduct of the election or challenged ballots are
final and binding unless the Board, on an application by one of the
parties, grants such party special permission to appeal from the
regional director's rulings. The party requesting such review by the
Board must do so promptly, in writing, and state briefly the grounds
relied on. Such party must also immediately serve a copy on the other
parties, including the regional director. Neither the request for
review by the Board nor the Board's grant of such review operates as a
stay of any action taken by the regional director, unless specifically
so ordered by the Board. If the Board grants permission to appeal, and
it appears to the Board that substantial and material factual issues
have been presented with respect to the objections to the conduct of
the election or challenged ballots, it may order that a hearing be held
on such issues or take other appropriate action.
(c) If the regional director believes, after preliminary
investigation of the petition, that there are substantial issues which
require determination before an election may be held, the director may
order a hearing on the issues. This hearing is followed by regional
director decision and direction of election, or other disposition. The
procedures to be used in connection with such hearing and posthearing
proceedings are the same, insofar as they are applicable, as those
described in 29 CFR 102.63, 102.64, 102.65, 102.66, 102.67, 102.68, and
102.69, and the statement of the general course.
(d) Should the parties so desire, they may, with the approval of
the regional director, resolve the issues as to the unit, the conduct
of the balloting, and related matters pursuant to informal consent
procedures, as described in 29 CFR 102.62(a) and the statement of the
general course.
(e) If a petition has been filed which does not meet the
requirements for processing under the expedited procedures, the
regional director may process it under the procedures set forth in
subpart C of 29 CFR part 102 and the statement of the general course.
0
4. Revise Sec. 101.25 to read as follows:
Sec. 101.25 Appeal from the dismissal of a petition, or from the
refusal to process it under the expedited procedure.
If it is determined after investigation of the representation
petition that further proceedings based thereon are not warranted, the
regional director, absent withdrawal of the petition, dismisses it,
stating the grounds therefor. If it is determined that the petition
does not meet the requirements for processing under the expedited
procedure, the regional director advises the petitioner of the
determination to process the petition under the procedures described in
subpart C of 29 CFR part 102 and the statement of the general course.
In either event, the regional director informs all the parties of such
action, and such action is final, although the Board may grant an
aggrieved party permission to appeal from the regional director's
action. Such party must request such review promptly, in writing, and
state briefly the grounds relied on. Such party must also immediately
serve a copy on the other parties, including the regional director.
Neither the request for review by the Board, nor the Board's grant of
such review, operates as a stay of the action taken by the regional
director, unless specifically so ordered by the Board.
Subpart E--Referendum Cases Under Section 9(e)(1) and (2) of the
Act
0
5. Revise Sec. 101.26 to read as follows:
Sec. 101.26 Initiation of rescission of authority cases.
The investigation of the question as to whether the authority of a
labor organization to make an agreement requiring membership in a labor
organization as a condition of employment is to be rescinded is
initiated by the filing of a petition by an employee or group of
employees on behalf of 30 percent or more of the employees in a
bargaining unit covered by an agreement between their employer and a
labor organization requiring membership in such labor organization. The
petition must be in writing and signed, and either must be notarized or
must contain a declaration by the
[[Page 74477]]
person signing it, under the penalties of the Criminal Code, that its
contents are true and correct to the best of his knowledge and belief.
It is filed with the regional director for the Region in which the
alleged appropriate bargaining unit exists or, if the bargaining unit
exists in two or more Regions, with the regional director for any of
such Regions. The blank form, which is supplied by the Regional Office
upon request or is available online, provides, among other things, for
a description of the bargaining unit covered by the agreement, the
approximate number of employees involved, the names of any other labor
organizations which claim to represent the employees, the petitioner's
position on the type, date(s), time(s), and location(s) of the election
sought, and the name of, and contact information for, the individual
who will serve as the petitioner's representative. The petition may be
filed by facsimile or electronically. The petitioner must supply with
the petition evidence of authorization from the employees.
0
6. Revise Sec. 101.28 to read as follows:
Sec. 101.28 Consent agreements providing for election.
(a) The Board makes available to the parties three types of
informal consent procedures through which authorization issues can be
resolved without resort to formal procedures. These informal agreements
are the consent election agreement with final regional director
determinations of post-election disputes, the stipulated election
agreement with discretionary Board review, and the full consent
election agreement with final regional director determinations of pre-
and post-election disputes. Forms for use in these informal procedures
are available in the Regional Offices.
(b) The procedures to be used in connection with a consent-election
agreement with final regional director determinations of post-election
disputes, a stipulated election agreement with discretionary Board
review, and a full consent-election agreement with final regional
director determinations of pre- and post-election disputes are the same
as those described in subpart C of 29 CFR part 102 and the statement of
the general course in connection with similar agreements in
representation cases under Section 9(c) of the Act, except that no
provision is made for runoff elections.
0
7. Revise Sec. 101.29 to read as follows:
Sec. 101.29 Procedure respecting election conducted without hearing.
If the regional director determines that the case is an appropriate
one for election without formal hearing, an election is conducted as
quickly as possible among the employees and upon the conclusion of the
election the regional director makes available to the parties a tally
of ballots. The parties, however, have an opportunity to make
appropriate challenges and objections to the conduct of the election
and they have the same rights, and the same procedure is followed, with
respect to objections to the conduct of the election and challenged
ballots, as is described in subpart C of 29 CFR part 102 and the
statement of the general course in connection with the postelection
procedures in representation cases under Section 9(c) of the Act,
except that no provision is made for a runoff election. If no such
objections are filed within 7 days and if the challenged ballots are
insufficient in number to affect the results of the election, the
regional director issues to the parties a certification of the results
of the election, with the same force and effect as if issued by the
Board.
0
8. Revise Sec. 101.30 to read as follows:
Sec. 101.30 Formal hearing and procedure respecting election
conducted after hearing.
(a) The procedures are the same as those described in subpart C of
29 CFR part 102 and the statement of the general course respecting
representation cases arising under Section 9(c) of the Act insofar as
applicable. If the preliminary investigation indicates that there are
substantial issues which require determination before an appropriate
election may be held, the regional director will institute formal
proceedings by issuance of a notice of hearing on the issues which,
after hearing, is followed by regional director decision and direction
of election or dismissal. The notice of hearing together with a copy of
the petition is served on the petitioner, the employer, and any other
known persons or labor organizations claiming to have been designated
by employees involved in the proceeding.
(b) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official.
The hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the Board's agents is to
insure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties
are afforded full opportunity to present their respective positions and
to produce the significant facts in support of their contentions that
are relevant to the issue of whether the Board should conduct an
election to determine whether the employees in a bargaining unit
covered by an agreement between their employer and a labor organization
made pursuant to section 8(a)(3) of the Act, desire that such authority
be rescinded. In most cases a substantial number of the relevant facts
are undisputed and stipulated. The parties are permitted to argue
orally on the record before the hearing officer.
(c) Upon the close of the hearing, the entire record in the case is
then forwarded to the regional director, together with an informal
analysis by the hearing officer of the issues and the evidence but
without recommendations. Post-hearing briefs are filed only upon
special permission of the regional director and within the time and
addressing the subjects permitted by the regional director.
(d) The parties have the same rights, and the same procedure is
followed, with respect to objections to the conduct of the election and
challenged ballots as is described in connection with the postelection
procedures in representation cases under Section 9(c) of the Act.
PART 102--RULES AND REGULATIONS, SERIES 8
0
9. The authority citation for part 102 continues to read as follows:
Authority: Sections. 1, 6, National Labor Relations Act (29
U.S.C. 151, 156). Section 102.117 also issued under section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)), and Section 102.117a also issued under section
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and
(k)). Sections 102.143 through 102.155 also issued under section
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C.
504(c)(1)).
Subpart C--Procedure Under Section 9(c) of the Act for the
Determination of Questions Concerning Representation of Employees
\2\ And for Clarification of Bargaining Units and for Amendment of
Certifications Under Section 9(b) of the Act
---------------------------------------------------------------------------
\2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the
Act is governed by subpart D of this part.
0
10. Revise Sec. 102.60 to read as follows:
Sec. 102.60 Petitions.
(a) Petition for certification or decertification. A petition for
[[Page 74478]]
investigation of a question concerning representation of employees
under paragraphs (1)(A)(i) and (1)(B) of Section 9(c) of the Act
(hereinafter called a petition for certification) may be filed by an
employee or group of employees or any individual or labor organization
acting in their behalf or by an employer. A petition under paragraph
(1)(A)(ii) of Section 9(c) of the Act, alleging that the individual or
labor organization which has been certified or is being currently
recognized as the bargaining representative is no longer such
representative (hereinafter called a petition for decertification), may
be filed by any employee or group of employees or any individual or
labor organization acting in their behalf. Petitions under this section
shall be in writing and signed, and either shall be sworn to before a
notary public, Board agent, or other person duly authorized by law to
administer oaths and take acknowledgments or shall contain a
declaration by the person signing it, under the penalty of perjury,
that its contents are true and correct (see 28 U.S.C. 1746). One
original of the petition shall be filed, and a copy served on all
parties named in the petition. A person filing a petition by facsimile
pursuant to Sec. 102.114(f) shall also file an original for the
Agency's records, but failure to do so shall not affect the validity of
the filing by facsimile, if otherwise proper. A person filing a
petition electronically pursuant to Sec. 102.114(i) need not file an
original. Except as provided in Sec. 102.72, such petitions shall be
filed with the regional director for the Region wherein the bargaining
unit exists, or, if the bargaining unit exists in two or more Regions,
with the regional director for any of such Regions. A certificate of
service on all parties named in the petition shall also be filed with
the regional director when the petition is filed. Along with the
petition, the petitioner shall serve the Agency's description of
procedures in representation cases and the Agency's Statement of
Position form on all parties named in the petition. Prior to the
transfer of the record to the Board, the petition may be withdrawn only
with the consent of the regional director with whom such petition was
filed. After the transfer of the record to the Board, the petition may
be withdrawn only with the consent of the Board. Whenever the regional
director or the Board, as the case may be, approves the withdrawal of
any petition, the case shall be closed.
(b) Petition for clarification of bargaining unit or petition for
amendment of certification. A petition for clarification of an existing
bargaining unit or a petition for amendment of certification, in the
absence of a question of representation, may be filed by a labor
organization or by an employer. Where applicable the same procedures
set forth in paragraph (a) of this section shall be followed.
0
11. Revise Sec. 102.61 to read as follows:
Sec. 102.61 Contents of petition for certification; contents of
petition for decertification; contents of petition for clarification of
bargaining unit; contents of petition for amendment of certification.
(a) RC Petitions. A petition for certification, when filed by an
employee or group of employees or an individual or labor organization
acting in their behalf, shall contain the following:
(1) The name of the employer.
(2) The address of the establishments involved.
(3) The general nature of the employer's business.
(4) A description of the bargaining unit which the petitioner
claims to be appropriate.
(5) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the alleged
appropriate unit, and brief descriptions of the contracts, if any,
covering the employees in such unit.
(6) The number of employees in the alleged appropriate unit.
(7) A statement that a substantial number of employees in the
described unit wish to be represented by the petitioner. Evidence
supporting the statement shall be filed with the petition in accordance
with paragraph (f) of this section, but shall not be served on any
party.
(8) A statement that the employer declines to recognize the
petitioner as the representative within the meaning of Section 9(a) of
the Act or that the labor organization is currently recognized but
desires certification under the Act.
(9) The name, affiliation, if any, and address of the petitioner,
and the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as the representative of
the petitioner and accept service of all papers for purposes of the
representation proceeding.
(10) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(11) Any other relevant facts.
(12) The type, date(s), time(s) and location(s) of the election
sought.
(b) RM Petitions. A petition for certification, when filed by an
employer, shall contain the following:
(1) The name and address of the petitioner, and the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the petitioner and
accept service of all papers for purposes of the representation
proceeding.
(2) The general nature of the petitioner's business.
(3) A brief statement setting forth that one or more individuals or
labor organizations have presented to the petitioner a claim to be
recognized as the exclusive representative of all employees in the unit
claimed to be appropriate; a description of such unit; and the number
of employees in the unit.
(4) The name or names, affiliation, if any, and addresses of the
individuals or labor organizations making such claim for recognition.
(5) A statement whether the petitioner has contracts with any labor
organization or other representatives of employees and, if so, their
expiration date(s).
(6) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(7) Any other relevant facts.
(8) Evidence supporting the statement that a labor organization has
made a demand for recognition on the employer or that the employer has
good faith uncertainty about majority support for an existing
representative. Such evidence shall be filed together with the
petition, but if the evidence reveals the names and/or number of
employees who no longer wish to be represented, the evidence shall not
be served on any party. However, no proof of representation on the part
of the labor organization claiming a majority is required and the
regional director shall proceed with the case if other factors require
it unless the labor organization withdraws its claim to majority
representation.
(9) The type, date(s), time(s) and location(s) of the election
sought.
(c) RD Petitions. Petitions for decertification shall contain the
following:
(1) The name of the employer.
(2) The address of the establishments and a description of the
bargaining unit involved.
(3) The general nature of the employer's business.
(4) The name and address of the petitioner and affiliation, if any,
and the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as the
[[Page 74479]]
representative of the petitioner and accept service of all papers for
purposes of the representation proceeding.
(5) The name or names and addresses of the individuals or labor
organizations who have been certified or are being currently recognized
by the employer and who claim to represent any employees in the unit
involved, and the expiration date of any contracts covering such
employees.
(6) An allegation that the individuals or labor organizations who
have been certified or are currently recognized by the employer are no
longer the representative in the appropriate unit as defined in Section
9(a) of the Act.
(7) The number of employees in the unit.
(8) A statement that a substantial number of employees in the
described unit no longer wish to be represented by the incumbent
representative. Evidence supporting the statement shall be filed with
the petition in accordance with paragraph (f) of this section, but
shall not be served on any party.
(9) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(10) Any other relevant facts.
(11) The type, date(s), time(s) and location(s) of the election
sought.
(d) UC Petitions. A petition for clarification shall contain the
following:
(1) The name of the employer and the name of the recognized or
certified bargaining representative.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) A description of the present bargaining unit, and, if the
bargaining unit is certified, an identification of the existing
certification.
(5) A description of the proposed clarification.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees affected by the
proposed clarifications, and brief descriptions of the contracts, if
any, covering any such employees.
(7) The number of employees in the present bargaining unit and in
the unit as proposed under the clarification.
(8) The job classifications of employees as to whom the issue is
raised, and the number of employees in each classification.
(9) A statement by petitioner setting forth reasons why petitioner
desires clarification of unit.
(10) The name, the affiliation, if any, and the address of the
petitioner, and the name, title, address, telephone number, facsimile
number, and email address of the individual who will serve as the
representative of the petitioner and accept service of all papers for
purposes of the representation proceeding.
(11) Any other relevant facts.
(e) AC Petitions. A petition for amendment of certification shall
contain the following:
(1) The name of the employer and the name of the certified union
involved.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) Identification and description of the existing certification.
(5) A statement by petitioner setting forth the details of the
desired amendment and reasons therefor.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the unit covered
by the certification and brief descriptions of the contracts, if any,
covering the employees in such unit.
(7) The name, the affiliation, if any, and the address of the
petitioner, and the name, title, address, telephone number, facsimile
number, and email address of the individual who will serve as the
representative of the petitioner and accept service of all papers for
purposes of the representation proceeding.
(8) Any other relevant facts.
(f) Provision of original signatures. Evidence filed pursuant to
paragraphs (a)(7), (b)(8), or (c)(8) of this section together with a
petition that is filed by facsimile or electronically, which includes
original signatures that cannot be transmitted in their original form
by the method of filing of the petition, may be filed by facsimile or
in electronic form provided that the original documents are received by
the regional director no later than 2 days after the facsimile or
electronic filing.
0
12. Revise Sec. 102.62 to read as follows:
Sec. 102.62 Election agreements; voter list; Notice of Election.
(a) Consent election agreements with final regional director
determinations of post-election disputes. Where a petition has been
duly filed, the employer and any individual or labor organizations
representing a substantial number of employees involved may, with the
approval of the regional director, enter into an agreement providing
for the waiver of a hearing and for an election and further providing
that post-election disputes will be resolved by the regional director.
Such agreement, referred to as a consent election agreement, shall
include a description of the appropriate unit, the time and place of
holding the election, and the payroll period to be used in determining
what employees within the appropriate unit shall be eligible to vote.
Such election shall be conducted under the direction and supervision of
the regional director. The method of conducting such election shall be
consistent with the method followed by the regional director in
conducting elections pursuant to Sec. Sec. 102.69 and 102.70 except
that the rulings and determinations by the regional director of the
results thereof shall be final, and the regional director shall issue
to the parties a certification of the results of the election,
including certifications of representative where appropriate, with the
same force and effect, in that case, as if issued by the Board, and
except that rulings or determinations by the regional director in
respect to any amendment of such certification shall also be final.
(b) Stipulated election agreements with discretionary Board review.
Where a petition has been duly filed, the employer and any individuals
or labor organizations representing a substantial number of the
employees involved may, with the approval of the regional director,
enter into an agreement providing for the waiver of a hearing and for
an election as described in paragraph (a) of this section and further
providing that the parties may request Board review of the regional
director's resolution of post-election disputes. Such agreement,
referred to as a stipulated election agreement, shall also include a
description of the appropriate bargaining unit, the time and place of
holding the election, and the payroll period to be used in determining
which employees within the appropriate unit shall be eligible to vote.
Such election shall be conducted under the direction and supervision of
the regional director. The method of conducting such election and the
post-election procedure shall be consistent with that followed by the
regional director in conducting elections pursuant to Sec. Sec. 102.69
and 102.70.
(c) Full consent election agreements with final regional director
determinations of pre- and post-election disputes. Where a petition has
been duly filed, the employer and any individual or labor organizations
representing a substantial number of the employees involved may, with
the approval of the regional director, enter into an agreement,
referred to as a full consent election agreement, providing that pre-
and post-election disputes will be resolved by the regional director.
Such agreement provides for a hearing pursuant to Sec. Sec. 102.63,
102.64, 102.65,
[[Page 74480]]
102.66 and 102.67 to determine if a question of representation exists.
Upon the conclusion of such a hearing, the regional director shall
issue a decision. The rulings and determinations by the regional
director thereunder shall be final, with the same force and effect, in
that case, as if issued by the Board. Any election ordered by the
regional director shall be conducted under the direction and
supervision of the regional director. The method of conducting such
election shall be consistent with the method followed by the regional
director in conducting elections pursuant to Sec. Sec. 102.69 and
102.70, except that the rulings and determinations by the regional
director of the results thereof shall be final, and the regional
director shall issue to the parties a certification of the results of
the election, including certifications of representative where
appropriate, with the same force and effect, in that case, as if issued
by the Board, and except that rulings or determinations by the regional
director in respect to any amendment of such certification shall also
be final.
(d) Voter list. Absent agreement of the parties to the contrary
specified in the election agreement or extraordinary circumstances
specified in the direction of election, within 2 business days after
the approval of an election agreement pursuant to paragraphs (a) or (b)
of this section, or issuance of a direction of election pursuant to
paragraph (c) of this section, the employer shall provide to the
regional director and the parties named in the agreement or direction a
list of the full names, work locations, shifts, job classifications,
and contact information (including home addresses, available personal
email addresses, and available home and personal cellular (``cell'')
telephone numbers) of all eligible voters. The employer shall also
include in a separate section of that list the same information for
those individuals whom the parties have agreed should be permitted to
vote subject to challenge or those individuals who, according to the
direction of election, will be permitted to vote subject to challenge,
including, for example, individuals in the classifications or other
groupings that will be permitted to vote subject to challenge. In order
to be timely filed and served, the list must be received by the
regional director and the parties named in the agreement or direction
respectively within 2 business days after the approval of the agreement
or issuance of the direction unless a longer time is specified in the
agreement or direction. The list of names shall be alphabetized
(overall or by department) and be in an electronic format approved by
the General Counsel unless the employer certifies that it does not
possess the capacity to produce the list in the required form. When
feasible, the list shall be filed electronically with the regional
director and served electronically on the other parties named in the
agreement or direction. A certificate of service on all parties shall
be filed with the regional director when the voter list is filed. The
employer's failure to file or serve the list within the specified time
or in proper format shall be grounds for setting aside the election
whenever proper and timely objections are filed under the provisions of
Sec. 102.69(a). The employer shall be estopped from objecting to the
failure to file or serve the list within the specified time or in the
proper format if it is responsible for the failure. The parties shall
not use the list for purposes other than the representation proceeding,
Board proceedings arising from it, and related matters.
(e) Notice of election. Upon approval of the election agreement
pursuant to paragraphs (a) or (b) of this section or with the direction
of election pursuant to paragraph (c) of this section, the regional
director shall promptly transmit the Board's Notice of Election to the
parties and their designated representatives by email, facsimile, or by
overnight mail (if neither an email address nor facsimile number was
provided). The employer shall post and distribute the Notice of
Election in accordance with Sec. 102.67(k). The employer's failure
properly to post or distribute the election notices as required herein
shall be grounds for setting aside the election whenever proper and
timely objections are filed under the provisions of Sec. 102.69(a). A
party shall be estopped from objecting to the nonposting of notices if
it is responsible for the nonposting, and likewise shall be estopped
from objecting to the nondistribution of notices if it is responsible
for the nondistribution.
0
13. Revise Sec. 102.63 to read as follows:
Sec. 102.63 Investigation of petition by regional director; notice of
hearing; service of notice; Notice of Petition for Election; Statement
of Position; withdrawal of notice of hearing.
(a) Investigation; notice of hearing; Notice of Petition for
Election. (1) After a petition has been filed under Sec. 102.61(a),
(b), or (c), if no agreement such as that provided in Sec. 102.62 is
entered into and if it appears to the regional director that there is
reasonable cause to believe that a question of representation affecting
commerce exists, that the policies of the Act will be effectuated, and
that an election will reflect the free choice of employees in an
appropriate unit, the regional director shall prepare and cause to be
served upon the parties and upon any known individuals or labor
organizations purporting to act as representatives of any employees
directly affected by such investigation, a notice of hearing before a
hearing officer at a time and place fixed therein. Except in cases
presenting unusually complex issues, the regional director shall set
the hearing for a date 8 days from the date of service of the notice
excluding intervening Federal holidays, but if the 8th day is a weekend
or Federal holiday, the regional director shall set the hearing for the
following business day. The regional director may postpone the hearing
for up to 2 business days upon request of a party showing special
circumstances. The regional director may postpone the opening of the
hearing for more than 2 business days upon request of a party showing
extraordinary circumstances. A copy of the petition, a description of
procedures in representation cases, a ``Notice of Petition for
Election'', and a Statement of Position form as described in paragraphs
(b)(1) through (3) of this section, shall be served with such notice of
hearing. Any such notice of hearing may be amended or withdrawn before
the close of the hearing by the regional director on the director's own
motion.
(2) Within 2 business days after service of the notice of hearing,
the employer shall post the Notice of Petition for Election in
conspicuous places, including all places where notices to employees are
customarily posted, and shall also distribute it electronically if the
employer customarily communicates with its employees electronically.
The Notice of Petition for Election shall indicate that no final
decisions have been made yet regarding the appropriateness of the
petitioned-for bargaining unit and whether an election shall be
conducted. The employer shall maintain the posting until the petition
is dismissed or withdrawn or the Notice of Petition for Election is
replaced by the Notice of Election. The employer's failure properly to
post or distribute the Notice of Petition for Election may be grounds
for setting aside the election whenever proper and timely objections
are filed under the provisions of Sec. 102.69(a). A party shall be
estopped from objecting to the nonposting of notices if it is
responsible for the nonposting, and likewise shall be estopped from
objecting to the nondistribution of
[[Page 74481]]
notices if it is responsible for the nondistribution.
(b)(1) Statement of Position in RC cases. If a petition has been
filed under Sec. 102.61(a) and the regional director has issued a
notice of hearing, the employer shall file with the regional director
and serve on the parties named in the petition its Statement of
Position such that it is received by the regional director and the
parties named in the petition by the date and time specified in the
notice of hearing, which shall be at noon on the business day before
the opening of the hearing if the hearing is set to open 8 days from
service of the notice. The regional director may set the date and time
for filing and serving the Statement of Position earlier than at noon
on the business day before the hearing in the event the hearing is set
to open more than 8 days from service of the notice. The regional
director may postpone the time for filing and serving the Statement of
Position for up to 2 business days upon request of a party showing
special circumstances. The regional director may postpone the time for
filing and serving the Statement of Position for more than 2 business
days upon request of a party showing extraordinary circumstances. The
regional director may permit the employer to amend its Statement of
Position in a timely manner for good cause.
(i) The employer's Statement of Position shall state whether the
employer agrees that the Board has jurisdiction over it and provide the
requested information concerning the employer's relation to interstate
commerce; state whether the employer agrees that the proposed unit is
appropriate, and, if the employer does not so agree, state the basis
for its contention that the proposed unit is inappropriate, and state
the classifications, locations, or other employee groupings that must
be added to or excluded from the proposed unit to make it an
appropriate unit; identify any individuals whose eligibility to vote
the employer intends to contest at the pre-election hearing and the
basis of each such contention; raise any election bar; state the length
of the payroll period for employees in the proposed unit and the most
recent payroll period ending date; state the employer's position
concerning the type, date(s), time(s), and location(s) of the election
and the eligibility period; and describe all other issues the employer
intends to raise at the hearing.
(ii) The Statement of Position shall also state the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the employer and
accept service of all papers for purposes of the representation
proceeding and be signed by a representative of the employer.
(iii) The Statement of Position shall include a list of the full
names, work locations, shifts, and job classifications of all
individuals in the proposed unit as of the payroll period preceding the
filing of the petition who remain employed at the time of filing, and
if the employer contends that the proposed unit is inappropriate, the
employer shall separately list the full names, work locations, shifts,
and job classifications of all individuals that the employer contends
must be added to the proposed unit to make it an appropriate unit. The
employer shall also indicate those individuals, if any, whom it
believes must be excluded from the proposed unit to make it an
appropriate unit. The list(s) of names shall be alphabetized (overall
or by department) and be in an electronic format approved by the
General Counsel unless the employer certifies that it does not possess
the capacity to produce the list in the required form.
(2) Statement of Position in RM cases. If a petition has been filed
under Sec. 102.61(b) and the regional director has issued a notice of
hearing, each individual or labor organization named in the petition
shall file with the regional director and serve on the other parties
named in the petition its Statement of Position such that it is
received by the regional director and the parties named in the petition
by the date and time specified in the notice of hearing, which shall be
at noon on the business day before the opening of the hearing if the
hearing is set to open 8 days from service of the notice. The regional
director may set the date and time for filing and serving the Statement
of Position earlier than at noon on the business day before the hearing
in the event the hearing is set to open more than 8 days from service
of the notice. The regional director may postpone the time for filing
and serving the Statement of Position for up to 2 business days upon
request of a party showing special circumstances. The regional director
may postpone the time for filing and serving the Statement of Position
for more than 2 business days upon request of a party showing
extraordinary circumstances. The regional director may permit each
individual or labor organization named in the petition to amend its
Statement of Position in a timely manner for good cause.
(i) Individual or labor organization's Statement of Position. Each
individual or labor organization's Statement of Position shall state
whether it agrees that the Board has jurisdiction over the employer;
state whether it agrees that the proposed unit is appropriate, and, if
it does not so agree, state the basis for its contention that the
proposed unit is inappropriate, and state the classifications,
locations, or other employee groupings that must be added to or
excluded from the proposed unit to make it an appropriate unit;
identify any individuals whose eligibility to vote the individual or
labor organization intends to contest at the pre-election hearing and
the basis of each such contention; raise any election bar; state its
position concerning the type, date(s), time(s), and location(s) of the
election and the eligibility period; and describe all other issues it
intends to raise at the hearing.
(ii) Identification of representative for service of papers. Each
individual or labor organization's Statement of Position shall also
state the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as its representative
and accept service of all papers for purposes of the representation
proceeding and be signed by the individual or a representative of the
individual or labor organization.
(iii) Employer's Statement of Position. Within the time permitted
for filing the Statement of Position, the employer shall file with the
regional director and serve on the parties named in the petition a list
of the full names, work locations, shifts, and job classifications of
all individuals in the proposed unit as of the payroll period preceding
the filing of the petition who remain employed at the time of filing.
The list(s) of names shall be alphabetized (overall or by department)
and be in an electronic format approved by the General Counsel unless
the employer certifies that it does not possess the capacity to produce
the list in the required form. The employer's Statement of Position
shall also state whether the employer agrees that the Board has
jurisdiction over it and provide the requested information concerning
the employer's relation to interstate commerce; identify any
individuals whose eligibility to vote the employer intends to contest
at the pre-election hearing and the basis of each such contention; and
state the length of the payroll period for employees in the proposed
unit and the most recent payroll period ending date. The regional
director may permit the employer to amend its Statement of Position in
a timely manner for good cause.
(3) Statement of Position in RD cases. If a petition has been filed
under
[[Page 74482]]
Sec. 102.61(c) and the regional director has issued a notice of
hearing, the employer and the certified or recognized representative of
employees shall file with the regional director and serve on the
parties named in the petition their respective Statements of Position
such that they are received by the regional director and the parties
named in the petition by the date and time specified in the notice of
hearing, which shall be at noon on the business day before the opening
of the hearing if the hearing is set to open 8 days from service of the
notice. The regional director may set the date and time for filing and
serving the Statement of Position earlier than at noon on the business
day before the hearing in the event the hearing is set to open more
than 8 days from service of the notice. The regional director may
postpone the time for filing and serving the Statement of Position for
up to 2 business days upon request of a party showing special
circumstances. The regional director may postpone the time for filing
and serving the Statement of Position for more than 2 business days
upon request of a party showing extraordinary circumstances. The
regional director may permit the employer and the certified or
recognized representative of employees to amend their respective
Statements of Position in a timely manner for good cause.
(i) The Statements of Position of the employer and the certified or
recognized representative shall state each party's position concerning
the Board's jurisdiction over the employer; state whether each agrees
that the proposed unit is appropriate, and, if not, state the basis for
the contention that the proposed unit is inappropriate, and state the
classifications, locations, or other employee groupings that must be
added to or excluded from the proposed unit to make it an appropriate
unit; identify any individuals whose eligibility to vote each party
intends to contest at the pre-election hearing and the basis of each
such contention; raise any election bar; and state each party's
respective positions concerning the type, date(s), time(s), and
location(s) of the election and the eligibility period; and describe
all other issues each party intends to raise at the hearing.
(ii) The Statements of Position shall also state the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the employer or the
certified or recognized representative of the employees and accept
service of all papers for purposes of the representation proceeding and
be signed by a representative of the employer or the certified or
recognized representative, respectively.
(iii) The employer's Statement of Position shall also include a
list of the full names, work locations, shifts, and job classifications
of all individuals in the proposed unit as of the payroll period
preceding the filing of the petition who remain employed at the time of
filing, and if the employer contends that the proposed unit is
inappropriate, the employer shall separately list the full names, work
locations, shifts, and job classifications of all individuals that the
employer contends must be added to the proposed unit to make it an
appropriate unit. The employer shall also indicate those individuals,
if any, whom it believes must be excluded from the proposed unit to
make it an appropriate unit. The list(s) of names shall be alphabetized
(overall or by department) and be in an electronic format approved by
the General Counsel unless the employer certifies that it does not
possess the capacity to produce the list in the required form. The
employer's Statement of Position shall also provide the requested
information concerning the employer's relation to interstate commerce
and state the length of the payroll period for employees in the
proposed unit and the most recent payroll period ending date.
(c) UC or AC cases. After a petition has been filed under Sec.
102.61(d) or (e), the regional director shall conduct an investigation
and, as appropriate, may issue a decision without a hearing; or prepare
and cause to be served upon the parties and upon any known individuals
or labor organizations purporting to act as representatives of any
employees directly affected by such investigation, a notice of hearing
before a hearing officer at a time and place fixed therein; or take
other appropriate action. If a notice of hearing is served, it shall be
accompanied by a copy of the petition. Any such notice of hearing may
be amended or withdrawn before the close of the hearing by the regional
director on the director's own motion. All hearing and posthearing
procedure under this paragraph (c) shall be in conformance with
Sec. Sec. 102.64 through 102.69 whenever applicable, except where the
unit or certification involved arises out of an agreement as provided
in Sec. 102.62(a), the regional director's action shall be final, and
the provisions for review of regional director's decisions by the Board
shall not apply. Dismissals of petitions without a hearing shall not be
governed by Sec. 102.71. The regional director's dismissal shall be by
decision, and a request for review therefrom may be obtained under
Sec. 102.67, except where an agreement under Sec. 102.62(a) is
involved.
0
14. Revise Sec. 102.64 to read as follows:
Sec. 102.64 Conduct of hearing.
(a) The purpose of a hearing conducted under Section 9(c) of the
Act is to determine if a question of representation exists. A question
of representation exists if a proper petition has been filed concerning
a unit appropriate for the purpose of collective bargaining or
concerning a unit in which an individual or labor organization has been
certified or is being currently recognized by the employer as the
bargaining representative. Disputes concerning individuals' eligibility
to vote or inclusion in an appropriate unit ordinarily need not be
litigated or resolved before an election is conducted. If, upon the
record of the hearing, the regional director finds that a question of
representation exists, the director shall direct an election to resolve
the question.
(b) Hearings shall be conducted by a hearing officer and shall be
open to the public unless otherwise ordered by the hearing officer. At
any time, a hearing officer may be substituted for the hearing officer
previously presiding. Subject to the provisions of Sec. 102.66, it
shall be the duty of the hearing officer to inquire fully into all
matters and issues necessary to obtain a full and complete record upon
which the Board or the regional director may discharge their duties
under Section 9(c) of the Act.
(c) The hearing shall continue from day to day until completed
unless the regional director concludes that extraordinary circumstances
warrant otherwise. The regional director may, in the director's
discretion, adjourn the hearing to a different place by announcement
thereof at the hearing or by other appropriate notice.
0
15. Revise Sec. 102.65 to read as follows:
Sec. 102.65 Motions; intervention; appeals of hearing officer's
rulings.
(a) All motions, including motions for intervention pursuant to
paragraphs (b) and (e) of this section, shall be in writing or, if made
at the hearing, may be stated orally on the record and shall briefly
state the order or relief sought and the grounds for such motion. An
original and two copies of written motions shall be filed and a copy
thereof immediately shall be served on the other parties to the
proceeding. Motions made prior to the transfer of the record to the
Board shall be filed with the regional director, except that
[[Page 74483]]
motions made during the hearing shall be filed with the hearing
officer. After the transfer of the record to the Board, all motions
shall be filed with the Board. Such motions shall be printed or
otherwise legibly duplicated. Eight copies of such motions shall be
filed with the Board. Extra copies of electronically-filed papers need
not be filed. The regional director may rule upon all motions filed
with him, causing a copy of the ruling to be served on the parties, or
may refer the motion to the hearing officer, except that if the
regional director prior to the close of the hearing grants a motion to
dismiss the petition, the petitioner may obtain a review of such ruling
in the manner prescribed in Sec. 102.71. The hearing officer shall
rule, either orally on the record or in writing, upon all motions filed
at the hearing or referred to the hearing officer as hereinabove
provided, except that the hearing officer shall rule on motions to
intervene and to amend the petition only as directed by the regional
director, and except that all motions to dismiss petitions shall be
referred for appropriate action at such time as the entire record is
considered by the regional director or the Board, as the case may be.
All motions, rulings, and orders shall become a part of the record,
except that rulings on motions to revoke subpoenas shall become a part
of the record only upon the request of the party aggrieved thereby as
provided in Sec. 102.66(f).
(b) Any person desiring to intervene in any proceeding shall make a
motion for intervention, stating the grounds upon which such person
claims to have an interest in the proceeding. The regional director, or
the hearing officer at the specific direction of the regional director,
may by order permit intervention in person or by counsel or other
representative to such extent and upon such terms as the regional
director may deem proper, and such intervenor shall thereupon become a
party to the proceeding.
(c) Rulings by the hearing officer shall not be appealed directly
to the regional director, except by special permission of the regional
director, but shall be considered by the regional director when the
director reviews the entire record. Requests to the regional director
for special permission to appeal from a ruling of the hearing officer,
together with the appeal from such ruling, shall be filed promptly, in
writing, and shall briefly state the reasons special permission should
be granted and the grounds relied on for the appeal. The moving party
shall immediately serve a copy of the request for special permission
and of the appeal on the other parties and on the regional director.
Any statement in opposition or other response to the request and/or to
the appeal shall be filed promptly, in writing, and shall be served
immediately on the other parties and on the regional director. No party
shall be precluded from raising an issue at a later time because it did
not seek special permission to appeal. If the regional director grants
the request for special permission to appeal, the regional director may
proceed forthwith to rule on the appeal. Neither the filing nor the
grant of such a request shall stay the proceedings unless otherwise
ordered by the regional director. As stated in Sec. 102.67, the
parties may request Board review of regional director actions.
(d) The right to make motions or to make objections to rulings on
motions shall not be deemed waived by participation in the proceeding.
(e)(1) A party to a proceeding may, because of extraordinary
circumstances, move after the close of the hearing for reopening of the
record, or move after the decision or report for reconsideration, for
rehearing, or to reopen the record, but no such motion shall stay the
time for filing a request for review of a decision or exceptions to a
report. No motion for reconsideration, for rehearing, or to reopen the
record will be entertained by the Board or by any regional director or
hearing officer with respect to any matter which could have been but
was not raised pursuant to any other section of these rules, except
that the regional director may treat a request for review of a decision
or exceptions to a report as a motion for reconsideration. A motion for
reconsideration shall state with particularity the material error
claimed and with respect to any finding of material fact shall specify
the page of the record relied on for the motion. A motion for rehearing
or to reopen the record shall specify briefly the error alleged to
require a rehearing or hearing de novo, the prejudice to the movant
alleged to result from such error, the additional evidence sought to be
adduced, why it was not presented previously, and what result it would
require if adduced and credited. Only newly discovered evidence--
evidence which has become available only since the close of the
hearing--or evidence which the regional director or the Board believes
should have been taken at the hearing will be taken at any further
hearing.
(2) Any motion for reconsideration or for rehearing pursuant to
paragraph (e)(1) of this section shall be filed within 14 days, or such
further period as may be allowed, after the service of the decision or
report. Any request for an extension of time to file such a motion
shall be served promptly on the other parties. A motion to reopen the
record shall be filed promptly on discovery of the evidence sought to
be adduced.
(3) The filing and pendency of a motion under this provision shall
not unless so ordered operate to stay the effectiveness of any action
taken or directed to be taken nor will a regional director or the Board
delay any decision or action during the period specified in paragraph
(e)(2) of this section, except that, if a motion for reconsideration
based on changed circumstances or to reopen the record based on newly
discovered evidence states with particularity that the granting thereof
will affect the eligibility to vote of specific employees, the Board
agent shall have discretion to allow such employees to vote subject to
challenge even if they are specifically excluded in the direction of
election and to challenge or permit the moving party to challenge the
ballots of such employees even if they are specifically included in the
direction of election in any election conducted while such motion is
pending. A motion for reconsideration, for rehearing, or to reopen the
record need not be filed to exhaust administrative remedies.
0
16. Revise Sec. 102.66 to read as follows:
Sec. 102.66 Introduction of evidence: rights of parties at hearing;
preclusion; subpoenas; oral argument and briefs.
(a) Rights of parties at hearing. Any party shall have the right to
appear at any hearing in person, by counsel, or by other
representative, to call, examine, and cross-examine witnesses, and to
introduce into the record evidence of the significant facts that
support the party's contentions and are relevant to the existence of a
question of representation. The hearing officer shall also have power
to call, examine, and cross-examine witnesses and to introduce into the
record documentary and other evidence. Witnesses shall be examined
orally under oath. The rules of evidence prevailing in courts of law or
equity shall not be controlling. Stipulations of fact may be introduced
in evidence with respect to any issue.
(b) Response to Statement of Position. Issues in dispute shall be
identified as follows: After a Statement of Position is received in
evidence and prior to the introduction of further evidence, all other
parties shall respond on the record to each issue raised in the
Statement. The regional director may permit the Statement of Position
to be amended in a timely manner for good cause, in which event the
other parties shall
[[Page 74484]]
respond to each amended position. The regional director may also permit
responses to be amended in a timely manner for good cause. The hearing
officer shall not receive evidence concerning any issue as to which
parties have not taken adverse positions, except that this provision
shall not preclude the receipt of evidence regarding the Board's
jurisdiction over the employer or limit the regional director's
discretion to direct the receipt of evidence concerning any issue, such
as the appropriateness of the proposed unit, as to which the regional
director determines that record evidence is necessary.
(c) Offers of proof. The regional director shall direct the hearing
officer concerning the issues to be litigated at the hearing. The
hearing officer may solicit offers of proof from the parties or their
counsel as to any or all such issues. Offers of proof shall take the
form of a written statement or an oral statement on the record
identifying each witness the party would call to testify concerning the
issue and summarizing each witness's testimony. If the regional
director determines that the evidence described in an offer of proof is
insufficient to sustain the proponent's position, the evidence shall
not be received.
(d) Preclusion. A party shall be precluded from raising any issue,
presenting any evidence relating to any issue, cross-examining any
witness concerning any issue, and presenting argument concerning any
issue that the party failed to raise in its timely Statement of
Position or to place in dispute in response to another party's
Statement of Position or response, except that no party shall be
precluded from contesting or presenting evidence relevant to the
Board's statutory jurisdiction to process the petition. Nor shall any
party be precluded, on the grounds that a voter's eligibility or
inclusion was not contested at the pre-election hearing, from
challenging the eligibility of any voter during the election. If a
party contends that the proposed unit is not appropriate in its
Statement of Position but fails to specify the classifications,
locations, or other employee groupings that must be added to or
excluded from the proposed unit to make it an appropriate unit, the
party shall also be precluded from raising any issue as to the
appropriateness of the unit, presenting any evidence relating to the
appropriateness of the unit, cross-examining any witness concerning the
appropriateness of the unit, and presenting argument concerning the
appropriateness of the unit. If the employer fails to timely furnish
the lists of employees described in Sec. Sec.
102.63(b)(1)(iii),(b)(2)(iii), or (b)(3)(iii), the employer shall be
precluded from contesting the appropriateness of the proposed unit at
any time and from contesting the eligibility or inclusion of any
individuals at the pre-election hearing, including by presenting
evidence or argument, or by cross-examination of witnesses.
(e) Objections. Any objection with respect to the conduct of the
hearing, including any objection to the introduction of evidence, may
be stated orally or in writing, accompanied by a short statement of the
grounds of such objection, and included in the record. No such
objection shall be deemed waived by further participation in the
hearing.
(f) Subpoenas. The Board, or any Member thereof, shall, on the
written application of any party, forthwith issue subpoenas requiring
the attendance and testimony of witnesses and the production of any
evidence, including books, records, correspondence, or documents, in
their possession or under their control. The Executive Secretary shall
have the authority to sign and issue any such subpoenas on behalf of
the Board or any Member thereof. Any party may file applications for
subpoenas in writing with the regional director if made prior to
hearing, or with the hearing officer if made at the hearing.
Applications for subpoenas may be made ex parte. The regional director
or the hearing officer, as the case may be, shall forthwith grant the
subpoenas requested. Any person served with a subpoena, whether ad
testificandum or duces tecum, if he or she does not intend to comply
with the subpoena, shall, within 5 days after the date of service of
the subpoena, petition in writing to revoke the subpoena. The date of
service for purposes of computing the time for filing a petition to
revoke shall be the date the subpoena is received. Such petition shall
be filed with the regional director who may either rule upon it or
refer it for ruling to the hearing officer, except that if the evidence
called for is to be produced at a hearing and the hearing has opened,
the petition to revoke shall be filed with the hearing officer. Notice
of the filing of petitions to revoke shall be promptly given by the
regional director or hearing officer, as the case may be, to the party
at whose request the subpoena was issued. The regional director or the
hearing officer, as the case may be, shall revoke the subpoena if, in
his opinion, the evidence whose production is required does not relate
to any matter under investigation or in question in the proceedings or
the subpoena does not describe with sufficient particularity the
evidence whose production is required, or if for any other reason
sufficient in law the subpoena is otherwise invalid. The regional
director or the hearing officer, as the case may be, shall make a
simple statement of procedural or other grounds for his ruling. The
petition to revoke, any answer filed thereto, and any ruling thereon
shall not become part of the record except upon the request of the
party aggrieved by the ruling. Persons compelled to submit data or
evidence are entitled to retain or, on payment of lawfully prescribed
costs, to procure copies or transcripts of the data or evidence
submitted by them.
(g) Election details. Prior to the close of the hearing, the
hearing officer will:
(1) Solicit the parties' positions on the type, date(s), time(s),
and location(s) of the election and the eligibility period, but shall
not permit litigation of those issues;
(2) Solicit the name, address, email address, facsimile number, and
phone number of the employer's on-site representative to whom the
regional director should transmit the Notice of Election in the event
the regional director directs an election;
(3) Inform the parties that the regional director will issue a
decision as soon as practicable and that the director will immediately
transmit the document to the parties and their designated
representatives by email, facsimile, or by overnight mail (if neither
an email address nor facsimile number was provided); and
(4) Inform the parties what their obligations will be under these
rules if the director directs an election and of the time for complying
with such obligations.
(h) Oral argument and briefs. Any party shall be entitled, upon
request, to a reasonable period at the close of the hearing for oral
argument, which shall be included in the stenographic report of the
hearing. Post-hearing briefs shall be filed only upon special
permission of the regional director and within the time and addressing
the subjects permitted by the regional director. Copies of the brief
shall be served on all other parties to the proceeding and a statement
of such service shall be filed with the regional director together with
the brief. No reply brief may be filed except upon special permission
of the regional director.
(i) Hearing officer analysis. The hearing officer may submit an
analysis of the record to the regional director but shall make no
recommendations.
[[Page 74485]]
(j) Witness fees. Witness fees and mileage shall be paid by the
party at whose instance the witness appears.
0
17. Revise Sec. 102.67 to read as follows:
Sec. 102.67 Proceedings before the regional director; further
hearing; action by the regional director; appeals from actions of the
regional director; statement in opposition; requests for extraordinary
relief; Notice of Election; voter list.
(a) Proceedings before regional director. The regional director may
proceed, either forthwith upon the record or after oral argument, the
submission of briefs, or further hearing, as the director may deem
proper, to determine whether a question of representation exists in a
unit appropriate for purposes of collective bargaining, and to direct
an election, dismiss the petition, or make other disposition of the
matter. A decision by the regional director upon the record shall set
forth the director's findings, conclusions, and order or direction.
(b) Directions of elections. If the regional director directs an
election, the direction ordinarily will specify the type, date(s),
time(s), and location(s) of the election and the eligibility period.
The regional director shall schedule the election for the earliest date
practicable consistent with these rules. The regional director shall
transmit the direction of election to the parties and their designated
representatives by email, facsimile, or by overnight mail (if neither
an email address nor facsimile number was provided). The regional
director shall also transmit the Board's Notice of Election to the
parties and their designated representatives by email, facsimile, or by
overnight mail (if neither an email address nor facsimile number was
provided), and it will ordinarily be transmitted simultaneously with
the direction of election. If the direction of election provides for
individuals to vote subject to challenge because their eligibility has
not been determined, the Notice of Election shall so state, and shall
advise employees that the individuals are neither included in, nor
excluded from, the bargaining unit, inasmuch as the regional director
has permitted them to vote subject to challenge. The election notice
shall further advise employees that the eligibility or inclusion of the
individuals will be resolved, if necessary, following the election.
(c) Requests for Board review of regional director actions. Upon
the filing of a request therefor with the Board by any interested
person, the Board may review any action of a regional director
delegated to him under Section 3(b) of the Act except as the Board's
rules provide otherwise, but such a review shall not, unless
specifically ordered by the Board, operate as a stay of any action by
the regional director. The request for review may be filed at any time
following the action until 14 days after a final disposition of the
proceeding by the regional director. No party shall be precluded from
filing a request for review of the direction of election within the
time provided in this paragraph because it did not file a request for
review of the direction of election prior to the election.
(d) Grounds for review. The Board will grant a request for review
only where compelling reasons exist therefor. Accordingly, a request
for review may be granted only upon one or more of the following
grounds:
(1) That a substantial question of law or policy is raised because
of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) That the regional director's decision on a substantial factual
issue is clearly erroneous on the record and such error prejudicially
affects the rights of a party.
(3) That the conduct of any hearing or any ruling made in
connection with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an
important Board rule or policy.
(e) Contents of request. A request for review must be a self-
contained document enabling the Board to rule on the basis of its
contents without the necessity of recourse to the record; however, the
Board may, in its discretion, examine the record in evaluating the
request. With respect to the ground listed in paragraph (d)(2) of this
section, and other grounds where appropriate, the request must contain
a summary of all evidence or rulings bearing on the issues together
with page citations from the transcript and a summary of argument. Such
request may not raise any issue or allege any facts not timely
presented to the regional director.
(f) Opposition to request. Any party may, within 7 days after the
last day on which the request for review must be filed, file with the
Board a statement in opposition which shall be served in accordance
with the requirements of paragraph (i) of this section. The Board may
grant or deny the request for review without awaiting a statement in
opposition.
(g) Finality; waiver; denial of request. The regional director's
actions are final unless a request for review is granted. The parties
may, at any time, waive their right to request review. Failure to
request review shall preclude such parties from relitigating, in any
related subsequent unfair labor practice proceeding, any issue which
was, or could have been, raised in the representation proceeding.
Denial of a request for review shall constitute an affirmance of the
regional director's action which shall also preclude relitigating any
such issues in any related subsequent unfair labor practice proceeding.
(h) Grant of review; briefs. The grant of a request for review
shall not stay the regional director's action unless otherwise ordered
by the Board. Except where the Board rules upon the issues on review in
the order granting review, the appellants and other parties may, within
14 days after issuance of an order granting review, file briefs with
the Board. Such briefs may be reproductions of those previously filed
with the regional director and/or other briefs which shall be limited
to the issues raised in the request for review. Where review has been
granted, the Board may provide for oral argument or further hearing.
The Board will consider the entire record in the light of the grounds
relied on for review and shall make such disposition of the matter as
it deems appropriate. Any request for review may be withdrawn with the
permission of the Board at any time prior to the issuance of the
decision of the Board thereon.
(i)(1) Format of request. All documents filed with the Board under
the provisions of this section shall be filed in seven copies, double
spaced, on 8\1/2\- by 11-inch paper, and shall be printed or otherwise
legibly duplicated. Extra copies of electronically-filed papers need
not be filed. Requests for review, including briefs in support thereof
and any motions under paragraph (j) of this section; statements in
opposition thereto; and briefs on review shall not exceed 50 pages in
length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 5 days, including Saturdays, Sundays, and holidays, prior to
the date the document is due. Where any brief filed pursuant to this
section exceeds 20 pages, it shall contain a subject index with page
authorities cited. A party may combine a request for review of the
regional director's decision and direction of election with a request
for review of a regional director's post-election decision, if the
party has not previously
[[Page 74486]]
filed a request for review of the pre-election decision. Repetitive
requests will not be considered.
(2) Service. The party filing with the Board a request for review,
a statement in opposition to a request for review, or a brief on review
shall serve a copy thereof on the other parties and shall file a copy
with the regional director. A certificate of service shall be filed
with the Board together with the document.
(3) Extensions. Requests for extensions of time to file requests
for review, statements in opposition to a request for review, or
briefs, as permitted by this section, shall be filed with the Board or
the regional director, as the case may be. The party filing the request
for an extension of time shall serve a copy thereof on the other
parties and, if filed with the Board, on the regional director. A
statement of such service shall be filed with the document.
(j) Requests for extraordinary relief. (1) A party requesting
review may also move in writing to the Board for one or more of the
following forms of relief:
(i) Expedited consideration of the request;
(ii) A stay of some or all of the proceedings, including the
election; or
(iii) Impoundment and/or segregation of some or all of the ballots.
(2) Relief will be granted only upon a clear showing that it is
necessary under the particular circumstances of the case. The pendency
of a motion does not entitle a party to interim relief, and an
affirmative ruling by the Board granting relief is required before the
action of the regional director will be altered in any fashion.
(k) Notice of election. The employer shall post copies of the
Board's Notice of Election in conspicuous places, including all places
where notices to employees in the unit are customarily posted, at least
3 full working days prior to 12:01 a.m. of the day of the election and
shall also distribute it electronically if the employer customarily
communicates with employees in the unit electronically. In elections
involving mail ballots, the election shall be deemed to have commenced
the day the ballots are deposited by the regional office in the mail.
In all cases, the notices shall remain posted until the end of the
election. The term working day shall mean an entire 24-hour period
excluding Saturdays, Sundays, and holidays. The employer's failure
properly to post or distribute the election notices as required herein
shall be grounds for setting aside the election whenever proper and
timely objections are filed under the provisions of Sec. 102.69(a). A
party shall be estopped from objecting to the nonposting of notices if
it is responsible for the nonposting, and likewise shall be estopped
from objecting to the nondistribution of notices if it is responsible
for the nondistribution.
(l) Voter list. Absent extraordinary circumstances specified in the
direction of election, the employer shall, within 2 business days after
issuance of the direction, provide to the regional director and the
parties named in such direction a list of the full names, work
locations, shifts, job classifications, and contact information
(including home addresses, available personal email addresses, and
available home and personal cellular (``cell'') telephone numbers) of
all eligible voters. The employer shall also include in a separate
section of that list the same information for those individuals who,
according to the direction of election, will be permitted to vote
subject to challenge, including, for example, individuals in the
classifications or other groupings that will be permitted to vote
subject to challenge. In order to be timely filed and served, the list
must be received by the regional director and the parties named in the
direction respectively within 2 business days after issuance of the
direction of election unless a longer time is specified therein. The
list of names shall be alphabetized (overall or by department) and be
in an electronic format approved by the General Counsel unless the
employer certifies that it does not possess the capacity to produce the
list in the required form. When feasible, the list shall be filed
electronically with the regional director and served electronically on
the other parties named in the direction. A certificate of service on
all parties shall be filed with the regional director when the voter
list is filed. The employer's failure to file or serve the list within
the specified time or in proper format shall be grounds for setting
aside the election whenever proper and timely objections are filed
under the provisions of Sec. 102.69(a). The employer shall be estopped
from objecting to the failure to file or serve the list within the
specified time or in the proper format if it is responsible for the
failure. The parties shall not use the list for purposes other than the
representation proceeding, Board proceedings arising from it, and
related matters.
0
18. Revise Sec. 102.68 to read as follows:
Sec. 102.68 Record in pre-election proceeding; what constitutes;
transmission to Board.
The record in a proceeding conducted pursuant to the foregoing
section shall consist of: the petition, notice of hearing with
affidavit of service thereof, statements of position, responses to
statements of position, offers of proof made at the pre-election
hearing, motions, rulings, orders, the stenographic report of the
hearing and of any oral argument before the regional director,
stipulations, exhibits, affidavits of service, and any briefs or other
legal memoranda submitted by the parties to the regional director or to
the Board, and the decision of the regional director, if any.
Immediately upon issuance of an order granting a request for review by
the Board, the regional director shall transmit the record to the
Board.
0
19. Revise Sec. 102.69 to read as follows:
Sec. 102.69 Election procedure; tally of ballots; objections;
certification by the regional director; hearings; hearing officer
reports on objections and challenges; exceptions to hearing officer
reports; regional director decisions on objections and challenges.
(a) Election procedure; tally; objections. Unless otherwise
directed by the Board, all elections shall be conducted under the
supervision of the regional director in whose Region the proceeding is
pending. All elections shall be by secret ballot. Whenever two or more
labor organizations are included as choices in an election, either
participant may, upon its prompt request to and approval thereof by the
regional director, whose decision shall be final, have its name removed
from the ballot, except that in a proceeding involving an employer-
filed petition or a petition for decertification, the labor
organization certified, currently recognized, or found to be seeking
recognition may not have its name removed from the ballot without
giving timely notice in writing to all parties and the regional
director, disclaiming any representation interest among the employees
in the unit. A pre-election conference may be held at which the parties
may check the list of voters and attempt to resolve any questions of
eligibility or inclusions in the unit. When the election is conducted
manually, any party may be represented by observers of its own
selection, subject to such limitations as the regional director may
prescribe. Any party and Board agents may challenge, for good cause,
the eligibility of any person to participate in the election. The
ballots of such challenged persons shall be impounded. Upon the
conclusion of the election the ballots will be counted and a tally of
ballots prepared and immediately made available to the parties. Within
7 days after the tally of ballots has been
[[Page 74487]]
prepared, any party may file with the regional director an original and
five copies of objections to the conduct of the election or to conduct
affecting the results of the election which shall contain a short
statement of the reasons therefor and a written offer of proof in the
form described in Sec. 102.66(c) insofar as applicable, except that
the regional director may extend the time for filing the written offer
of proof in support of the election objections upon request of a party
showing good cause. Such filing(s) must be timely whether or not the
challenged ballots are sufficient in number to affect the results of
the election. The party filing the objections shall serve a copy of the
objections, including the short statement of reasons therefor, but not
the written offer of proof, on each of the other parties to the case,
and include a certificate of such service with the objections. A person
filing objections by facsimile pursuant to Sec. 102.114(f) shall also
file an original for the Agency's records, but failure to do so shall
not affect the validity of the filing if otherwise proper. In addition,
extra copies need not be filed if the filing is by facsimile or
electronically pursuant to Sec. 102.114(f) or (i). The regional
director will transmit a copy of the objections to each of the other
parties to the proceeding, but shall not transmit the offer of proof.
(b) Certification in the absence of objections, determinative
challenges and runoff elections. If no objections are filed within the
time set forth in paragraph (a) of this section, if the challenged
ballots are insufficient in number to affect the results of the
election, and if no runoff election is to be held pursuant to Sec.
102.70, the regional director shall forthwith issue to the parties a
certification of the results of the election, including certification
of representative where appropriate with the same force and effect as
if issued by the Board.
(c)(1)(i) Decisions resolving objections and challenges without a
hearing. If timely objections are filed to the conduct of an election
or to conduct affecting the results of the election, and the regional
director determines that the evidence described in the accompanying
offer of proof would not constitute grounds for setting aside the
election if introduced at a hearing, and the regional director
determines that any determinative challenges do not raise substantial
and material factual issues, the regional director shall issue a
decision disposing of the objections and determinative challenges, and
a certification of the results of the election, including certification
of representative where appropriate.
(ii) Notices of hearing on objections and challenges. If timely
objections are filed to the conduct of the election or to conduct
affecting the results of the election, and the regional director
determines that the evidence described in the accompanying offer of
proof could be grounds for setting aside the election if introduced at
a hearing, or if the challenged ballots are sufficient in number to
affect the results of the election and raise substantial and material
factual issues, the regional director shall transmit to the parties and
their designated representatives by email, facsimile, or by overnight
mail (if neither an email address nor facsimile number was provided) a
notice of hearing before a hearing officer at a place and time fixed
therein. The regional director shall set the hearing for a date 21 days
after the preparation of the tally of ballots or as soon as practicable
thereafter, unless the parties agree to an earlier date, except that
the regional director may consolidate the hearing concerning objections
and challenges with an unfair labor practice proceeding before an
administrative law judge. In any proceeding wherein the election has
been held pursuant to Sec. 102.62(a) or (c) and the representation
case has been consolidated with an unfair labor practice proceeding for
purposes of hearing, the administrative law judge shall, after issuing
a decision, sever the representation case and transfer it to the
regional director for further processing.
(iii) Hearings; hearing officer reports; exceptions to regional
director. The hearing on objections and challenges shall continue from
day to day until completed unless the regional director concludes that
extraordinary circumstances warrant otherwise. Any hearing pursuant to
this section shall be conducted in accordance with the provisions of
Sec. Sec. 102.64, 102.65, and 102.66, insofar as applicable. Any party
shall have the right to appear at the hearing in person, by counsel, or
by other representative, to call, examine, and cross-examine witnesses,
and to introduce into the record evidence of the significant facts that
support the party's contentions and are relevant to the objections and
determinative challenges that are the subject of the hearing. The
hearing officer may rule on offers of proof. Post-hearing briefs shall
be filed only upon special permission of the hearing officer and within
the time and addressing the subjects permitted by the hearing officer.
Upon the close of such hearing, the hearing officer shall prepare and
cause to be served on the parties a report resolving questions of
credibility and containing findings of fact and recommendations as to
the disposition of the issues. Any party may, within 14 days from the
date of issuance of such report, file with the regional director an
original and one copy of exceptions to such report, with supporting
brief if desired. A copy of such exceptions, together with a copy of
any brief filed, shall immediately be served on the other parties and a
statement of service filed with the regional director. Within 7 days
from the last date on which exceptions and any supporting brief may be
filed, or such further time as the regional director may allow, a party
opposing the exceptions may file an answering brief with the regional
director. An original and one copy shall be submitted. A copy of such
answering brief shall immediately be served on the other parties and a
statement of service filed with the regional director. Extra copies of
electronically-filed papers need not be filed. The regional director
shall thereupon decide the matter upon the record or make other
disposition of the case. If no exceptions are filed to such report, the
regional director, upon the expiration of the period for filing such
exceptions, may decide the matter forthwith upon the record or may make
other disposition of the case.
(2) Regional director decisions and Board review. The decision of
the regional director may include a certification of the results of the
election, including certification of representative where appropriate,
and shall be final unless a request for review is granted. If a consent
election has been held pursuant to Sec. Sec. 102.62(a) or (c), the
decision of the regional director is not subject to Board review. If
the election has been conducted pursuant to Sec. 102.62(b), or by a
direction of election issued following any proceeding under Sec.
102.67, the parties shall have the right to Board review set forth in
Sec. 102.67, except that in any proceeding wherein a representation
case has been consolidated with an unfair labor practice proceeding for
purposes of hearing and the election was conducted pursuant to
Sec. Sec. 102.62(b) or 102.67, the provisions of Sec. 102.46 shall
govern with respect to the filing of exceptions or an answering brief
to the exceptions to the administrative law judge's decision, and a
request for review of the regional director's decision and direction of
election shall be due at the same time as the exceptions to the
administrative law judge's decision are due.
(d)(1)(i) Record in case with hearing. In a proceeding pursuant to
this section in which a hearing is held, the record in the case shall
consist of the notice of
[[Page 74488]]
hearing, motions, rulings, orders, stenographic report of the hearing,
stipulations, exhibits, together with the objections to the conduct of
the election or to conduct affecting the results of the election,
offers of proof made at the post-election hearing, any briefs or other
legal memoranda submitted by the parties, any report on such objections
and/or on challenged ballots, exceptions, the decision of the regional
director, any requests for review, and the record previously made as
defined in Sec. 102.68. Materials other than those set out above shall
not be a part of the record.
(ii) Record in case with no hearing. In a proceeding pursuant to
this section in which no hearing is held, the record shall consist of
the objections to the conduct of the election or to conduct affecting
the results of the election, any decision on objections or on
challenged ballots and any request for review of such a decision, any
documentary evidence, excluding statements of witnesses, relied upon by
the regional director in his decision, any briefs or other legal
memoranda submitted by the parties, and any other motions, rulings or
orders of the regional director. Materials other than those set out
above shall not be a part of the record, except as provided in
paragraph (d)(3) of this section.
(2) Immediately upon issuance of an order granting a request for
review by the Board, the regional director shall transmit to the Board
the record of the proceeding as defined in paragraph (d)(1) of this
section.
(3) In a proceeding pursuant to this section in which no hearing is
held, a party filing a request for review of a regional director's
decision on challenged ballots or on objections or on both, or any
opposition thereto, may support its submission to the Board by
appending thereto copies of any offer of proof, including copies of any
affidavits or other documentary evidence, it has timely submitted to
the regional director and which were not included in the decision.
Documentary evidence so appended shall thereupon become part of the
record in the proceeding. Failure to append that evidence to its
submission to the Board in the representation proceeding as provided
above, shall preclude a party from relying on such evidence in any
subsequent unfair labor proceeding.
(e) Revised tally of ballots. In any case under this section in
which the regional director or the Board, upon a ruling on challenged
ballots, has directed that such ballots be opened and counted and a
revised tally of ballots issued, and no objection to such revised tally
is filed by any party within 7 days after the revised tally of ballots
has been made available, the regional director shall forthwith issue to
the parties certification of the results of the election, including
certifications of representative where appropriate with the same force
and effect as if issued by the Board.
(f) Format of filings with regional director. All documents filed
with the regional director under the provisions of this section shall
be filed double spaced, on 8\1/2\- by 11-inch paper, and shall be
printed or otherwise legibly duplicated. Extra copies of
electronically-filed papers need not be filed. Briefs in support of
exceptions or answering briefs shall not exceed 50 pages in length,
exclusive of subject index and table of cases and other authorities
cited, unless permission to exceed that limit is obtained from the
regional director by motion, setting forth the reasons therefor, filed
not less than 5 days, including Saturdays, Sundays, and holidays, prior
to the date the brief is due. Where any brief filed pursuant to this
section exceeds 20 pages, it shall contain a subject index with page
references and an alphabetical table of cases and other authorities
cited.
(g) Extensions of time. Requests for extensions of time to file
exceptions, requests for review, supporting briefs, or answering
briefs, as permitted by this section, shall be filed with the Board or
the regional director, as the case may be. The party filing the request
for an extension of time shall serve a copy thereof on the other
parties and, if filed with the Board, on the regional director. A
statement of such service shall be filed with the document.
0
20. Revise Sec. 102.71(c) to read as follows:
Sec. 102.71 Dismissal of petition; refusal to proceed with petition;
requests for review by the Board of action of the regional director.
* * * * *
(c) A request for review must be filed with the Board in
Washington, DC, and a copy filed with the regional director and copies
served on all the other parties within 14 days of service of the notice
of dismissal or notification that the petition is to be held in
abeyance. The request shall be submitted in eight copies and shall
contain a complete statement setting forth facts and reasons upon which
the request is based. The request shall be printed or otherwise legibly
duplicated. Extra copies of electronically-filed papers need not be
filed. Requests for an extension of time within which to file the
request for review shall be filed with the Board in Washington, DC, and
a certificate of service shall accompany the requests.
Subpart D--Procedure for Unfair Labor Practice and Representation
Cases Under Sections 8(b)(7) and 9(c) of the Act
0
21. Revise Sec. 102.76 to read as follows:
Sec. 102.76 Petition; who may file; where to file; contents.
When picketing of an employer has been conducted for an object
proscribed by Section 8(b)(7) of the Act, a petition for the
determination of a question concerning representation of the employees
of such employer may be filed in accordance with the provisions of
Sec. Sec. 102.60 and 102.61, insofar as applicable, except that if a
charge under Sec. 102.73 has been filed against the labor organization
on whose behalf picketing has been conducted, the petition shall not be
required to contain a statement that the employer declines to recognize
the petitioner as the representative within the meaning of Section 9(a)
of the Act; or that the union represents a substantial number of
employees; or that the labor organization is currently recognized but
desires certification under the Act; or that the individuals or labor
organizations who have been certified or are currently recognized by
the employer are no longer the representative; or, if the petitioner is
an employer, that one or more individuals or labor organizations have
presented to the petitioner a claim to be recognized as the exclusive
representative of the employees in the unit claimed to be appropriate.
0
22. Revise Sec. 102.77(b) to read as follows:
Sec. 102.77 Investigation of petition by regional director; directed
election.
* * * * *
(b) If after the investigation of such petition or any petition
filed under subpart C of this part, and after the investigation of the
charge filed pursuant to Sec. 102.73, it appears to the regional
director that an expedited election under section 8(b)(7)(C) of the Act
is warranted, and that the policies of the Act would be effectuated
thereby, the regional director shall forthwith proceed to conduct an
election by secret ballot of the employees in an appropriate unit, or
make other disposition of the matter, except that in any case in which
it appears to the regional director that the proceeding raises
questions which cannot be decided without a hearing, the director may
issue and cause to be served on the parties, individuals, and labor
[[Page 74489]]
organizations involved a notice of hearing before a hearing officer at
a time and place fixed therein. In this event, the method of conducting
the hearing and the procedure following shall be governed insofar as
applicable by Sec. Sec. 102.63 through 102.68 inclusive.
Subpart E--Procedure for Referendum Under Section 9(e) of the Act
0
23. Revise Sec. 102.83 to read as follows:
Sec. 102.83 Petition for referendum under Section 9(e)(1) of the Act;
who may file; where to file; withdrawal.
A petition to rescind the authority of a labor organization to make
an agreement requiring as a condition of employment membership in such
labor organization may be filed by an employee or group of employees on
behalf of 30 percent or more of the employees in a bargaining unit
covered by such an agreement. The petition shall be in writing and
signed, and either shall be sworn to before a notary public, Board
agent, or other person duly authorized by law to administer oaths and
take acknowledgments or shall contain a declaration by the person
signing it, under the penalties of the Criminal Code, that its contents
are true and correct to the best of his knowledge and belief. One
original of the petition shall be filed with the regional director
wherein the bargaining unit exists or, if the unit exists in two or
more Regions, with the regional director for any of such Regions. A
person filing a petition by facsimile pursuant to Sec. 102.114(f)
shall also file an original for the Agency's records, but failure to do
so shall not affect the validity of the filing by facsimile, if
otherwise proper. A person filing a petition electronically pursuant to
Sec. 102.114(i) need not file an original. The petition may be
withdrawn only with the approval of the regional director with whom
such petition was filed. Upon approval of the withdrawal of any
petition the case shall be closed.
0
24. Amend Sec. 102.84 by revising paragraph (i), redesignating
paragraph (j) as paragraph (k), and adding new paragraphs (j), (l),
(m), and (n) to read as follows:
Sec. 102.84 Contents of petition to rescind authority.
* * * * *
(i) The name and address of the petitioner, and the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the petitioner and
accept service of all papers for purposes of the proceeding.
(j) A statement that 30 percent or more of the bargaining unit
employees covered by an agreement between their employer and a labor
organization made pursuant to Section 8(a)(3) of the Act, desire that
the authority to make such an agreement be rescinded.
* * * * *
(l) Evidence supporting the statement that 30 percent or more of
the bargaining unit employees desire to rescind the authority of their
employer and labor organization to enter into an agreement made
pursuant to Section 8(a)(3) of the Act. Such evidence shall be filed
together with the petition, but shall not be served on any other party.
(m) Evidence filed pursuant to paragraph (l) of this section
together with a petition that is filed by facsimile or electronically,
which includes original signatures that cannot be transmitted in their
original form by the method of filing of the petition, may be filed by
facsimile or in electronic form provided that the original documents
are received by the regional director no later than 2 days after the
facsimile or electronic filing.
(n) The type, date(s), time(s) and location(s) of the election
sought.
0
25. Revise Sec. 102.85 to read as follows:
Sec. 102.85 Investigation of petition by regional director; consent
referendum; directed referendum.
Where a petition has been filed pursuant to Sec. 102.83, and it
appears to the regional director that the petitioner has made an
appropriate showing, in such form as the regional director may
determine, that 30 percent or more of the employees within a unit
covered by an agreement between their employer and a labor organization
requiring membership in such labor organization desire to rescind the
authority of such labor organization to make such an agreement, the
director shall proceed to conduct a secret ballot of the employees
involved on the question whether they desire to rescind the authority
of the labor organization to make such an agreement with their
employer, except that in any case in which it appears to the regional
director that the proceeding raises questions which cannot be decided
without a hearing, the director may issue and cause to be served on the
parties a notice of hearing before a hearing officer at a time and
place fixed therein. The regional director shall fix the time and place
of the election, eligibility requirements for voting, and other
arrangements of the balloting, but the parties may enter into an
agreement, subject to the approval of the regional director, fixing
such arrangements. In any such consent agreements, provision may be
made for final determination of all questions arising with respect to
the balloting by the regional director or, upon grant of a request for
review, by the Board.
0
26. Revise Sec. 102.86 to read as follows:
Sec. 102.86 Hearing; posthearing procedure.
The method of conducting the hearing and the procedure following
the hearing shall be governed, insofar as applicable, by Sec. Sec.
102.63 through 102.68 inclusive.
Subpart I--Service and Filing of Papers
0
27. Revise Sec. 102.112 to read as follows:
Sec. 102.112 Date of service; date of filing.
The date of service shall be the day when the matter served is
deposited in the United States mail, or is deposited with a private
delivery service that will provide a record showing the date the
document was tendered to the delivery service, or is delivered in
person, as the case may be. Where service is made by electronic mail,
the date of service shall be the date on which the message is sent.
Where service is made by facsimile transmission, the date of service
shall be the date on which transmission is received. The date of filing
shall be the day when the matter is required to be received by the
Board as provided by Sec. 102.111.
0
28. Revise Sec. 102.113(d) to read as follows:
Sec. 102.113 Methods of service of process and papers by the Agency;
proof of service.
* * * * *
(d) Service of other documents. Other documents may be served by
the Agency by any of the foregoing methods as well as regular mail,
electronic mail or private delivery service. Such other documents may
be served by facsimile transmission with the permission of the person
receiving the document.
* * * * *
0
29. Revise Sec. 102.114(a), (d), and (g) to read as follows:
Sec. 102.114 Filing and service of papers by parties; form of papers;
manner and proof of filing or service; electronic filings.
(a) Service of documents by a party on other parties may be made
personally, or by registered mail, certified mail, regular mail,
electronic mail (if the document was filed electronically or if
specifically provided for in these rules), or private delivery service.
Service of documents by a party on other parties by any other means,
including facsimile transmission, is permitted only with the consent of
the party being served. Unless otherwise specified elsewhere in these
rules, service on all parties shall
[[Page 74490]]
be made in the same manner as that utilized in filing the document with
the Board, or in a more expeditious manner; however, when filing with
the Board is done by hand, the other parties shall be promptly notified
of such action by telephone, followed by service of a copy in a manner
designed to insure receipt by them by the close of the next business
day. The provisions of this section apply to the General Counsel after
a complaint has issued, just as they do to any other party, except to
the extent that the provisions of Sec. 102.113(a) or (c) provide
otherwise.
* * * * *
(d) Papers filed with the Board, General Counsel, Regional
Director, Administrative Law Judge, or Hearing Officer shall be
typewritten or otherwise legibly duplicated on 8\1/2\- by 11-inch plain
white paper, shall have margins no less than one inch on each side,
shall be in a typeface no smaller than 12 characters-per-inch (elite or
the equivalent), and shall be double spaced (except that quotations and
footnotes may be single spaced). Nonconforming papers may, at the
Agency's discretion, be rejected.
* * * * *
(g) Facsimile transmissions of the following documents will not be
accepted for filing: Answers to Complaints; Exceptions or Cross-
Exceptions; Briefs; Requests for Review of Regional Director Decisions;
Administrative Appeals from Dismissal of Petitions or Unfair Labor
Practice Charges; Objections to Settlements; EAJA Applications; Motions
for Default Judgment; Motions for Summary Judgment; Motions to Dismiss;
Motions for Reconsideration; Motions to Clarify; Motions to Reopen the
Record; Motions to Intervene; Motions to Transfer, Consolidate or
Sever; or Petitions for Advisory Opinions. Facsimile transmissions in
contravention of this rule will not be filed.
* * * * *
PART 103--OTHER RULES
0
30. The authority citation for part 103 continues to read as follows:
Authority: 29 U.S.C. 156, in accordance with the procedure set
forth in 5 U.S.C. 553.
Subpart B--Election Procedures
0
31. Revise Sec. 103.20 to read as follows:
Sec. 103.20 Election procedures and blocking charges; filing of
blocking charges; simultaneous filing of offer of proof; prompt
furnishing of witnesses.
Whenever any party to a representation proceeding files an unfair
labor practice charge together with a request that it block the
processing of the petition to the election, or whenever any party to a
representation proceeding requests that its previously filed unfair
labor practice charge block the further processing of a petition, the
party shall simultaneously file, but not serve on any other party, a
written offer of proof in support of the charge. The offer of proof
shall provide the names of the witnesses who will testify in support of
the charge and a summary of each witness's anticipated testimony. The
party seeking to block the processing of a petition shall also promptly
make available to the regional director the witnesses identified in its
offer of proof. If the regional director determines that the party's
offer of proof does not describe evidence that, if proven, would
interfere with employee free choice in an election or would be
inherently inconsistent with the petition itself, and thus would
require that the processing of the petition be held in abeyance absent
special circumstances, the regional director shall continue to process
the petition and conduct the election where appropriate.
By direction of the Board.
Dated: Washington, DC, December 4, 2014.
William B. Cowen,
Solicitor.
[FR Doc. 2014-28777 Filed 12-12-14; 8:45 am]
BILLING CODE 7545-01-P