[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Rules and Regulations]
[Pages 74307-74490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28777]



[[Page 74307]]

Vol. 79

Monday,

No. 240

December 15, 2014

Part III





National Labor Relations Board





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29 CFR Parts 101, 102, and 103





Representation--Case Procedures; Final Rule

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

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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102, and 103

RIN 3142-AA08


Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board (the Board) has decided to 
issue this final rule for the purpose of carrying out the provisions of 
the National Labor Relations Act which ``protect[ ] the exercise by 
workers of full freedom of association, self-organization, and 
designation of representatives of their own choosing, for the purpose 
of negotiating the terms and conditions of their employment or other 
mutual aid or protection.'' While retaining the essentials of existing 
representation case procedures, these amendments remove unnecessary 
barriers to the fair and expeditious resolution of representation 
cases. They simplify representation-case procedures, codify best 
practices, and make them more transparent and uniform across regions. 
Duplicative and unnecessary litigation is eliminated. Unnecessary delay 
is reduced. Procedures for Board review are simplified. Rules about 
documents and communications are modernized in light of changing 
technology. In various ways, these amendments provide targeted 
solutions to discrete, specifically identified problems to enable the 
Board to better fulfill its duty to protect employees' rights by 
fairly, efficiently, and expeditiously resolving questions of 
representation.

DATES: This rule will be effective on April 14, 2015.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Rulemaking

    The National Labor Relations Board administers the National Labor 
Relations Act, which, among other things, governs the formation of 
collective-bargaining relationships between employers and groups of 
employees in the private sector. Section 7 of the Act, 29 U.S.C. 157, 
gives employees the right to bargain collectively through 
representatives of their own choosing and to refrain from such 
activity.
    When employees and their employer are unable to agree whether the 
employees should be represented for purposes of collective bargaining, 
Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to 
resolve the question of representation. As explained in the NPRM, the 
Supreme Court has repeatedly recognized that ``Congress has entrusted 
the Board with a wide degree of discretion in establishing the 
procedure and safeguards necessary to insure the fair and free choice 
of bargaining representatives by employees.'' NLRB v. A.J. Tower Co., 
329 U.S. 324, 330 (1946). ``The control of the election proceeding, and 
the determination of the steps necessary to conduct that election 
fairly were matters which Congress entrusted to the Board alone.'' NLRB 
v. Waterman Steamship Co., 309 U.S. 206, 226 (1940); see also Southern 
Steamship Co. v. NLRB, 316 U.S. 31, 37 (1942).
    Representation case procedures are set forth in the statute, in 
Board regulations, and in Board caselaw.\1\ In addition, the Board's 
General Counsel has prepared a non-binding Casehandling Manual 
describing representation case procedures in detail.\2\
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    \1\ The Board's binding rules of procedure are found primarily 
in 29 CFR part 102, subpart C. Additional rules created by 
adjudication are found throughout the corpus of Board decisional 
law. See, NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 770, 777, 779 
(1969).
    \2\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings. The relevant sections of the Casehandling Manual are 
Sections 11000 through 11886. Unless otherwise noted, all references 
to the Casehandling Manual are to the August 2007 edition, which 
predated the NPRMs.
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    The Act itself sets forth only the basic steps for resolving a 
question of representation.\3\ These are as follows. First, a petition 
is filed by an employee, a labor organization, or an employer. Second, 
if there is reasonable cause, an appropriate hearing is held to 
determine whether a question of representation exists, unless the 
parties agree that an election should be conducted and agree concerning 
election details. Hearing officers are authorized to conduct pre-
election hearings, but may not make recommendations as to the result. 
Third, if there is a question of representation, an election by secret 
ballot is conducted in an appropriate unit. Fourth, the results of the 
election are certified. The statute also permits the Board to delegate 
its authority to NLRB regional directors. The statute provides that, 
upon request, the Board may review any action of the regional director; 
however, such requests do not stay regional proceedings unless 
specifically ordered by the Board.
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    \3\ A question of representation is often referred to as a 
``question concerning representation.'' See, e.g., Casehandling 
Manual Section 11084.
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    Underlying these basic provisions is the essential principle that 
representation cases should be resolved quickly and fairly. ``[T]he 
Board must adopt policies and promulgate rules and regulations in order 
that employees' votes may be recorded accurately, efficiently and 
speedily.'' A.J. Tower Co., 329 U.S. at 331. Within the framework of 
the current rules--as discussed at length in the NPRM--the Board, the 
General Counsel \4\ and the agency's regional directors have sought to 
achieve efficient, fair, uniform, and timely resolution of 
representation cases. In part, the final rule codifies best practices 
developed over the years. This ensures greater uniformity and 
transparency.
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    \4\ The General Counsel administratively oversees the regional 
directors. 29 U.S.C. 153(d).
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    But the Board's experience has also revealed problems--particularly 
in fully litigated cases--which cannot be solved without changing 
current practices and rules. For example, pre-election litigation has 
at times been disordered, hampered by surprise and frivolous disputes, 
and side-tracked by testimony about matters that need not be decided at 
that time. Additionally, the process for Board review of regional 
director actions has resulted in unnecessary delays. Moreover, some 
rules have become outdated as a result of changes in communications 
technology and practice. The final rule addresses these and other 
problems as discussed below.

II. List of Amendments

    This list provides a concise statement of the various ways the 
final rule changes or codifies current practice, and the general 
reasoning in support. It is not ``an elaborate analysis of [the] rules 
or of the detailed considerations upon which they are based;'' rather, 
it ``is designed to enable the public to obtain a general idea of the 
purpose of, and a statement of the basic justification for, the 
rules.'' \5\ As this list shows, the amendments provide targeted 
solutions to discrete, specifically identified problems.\6\ All of 
these matters are

[[Page 74309]]

discussed in greater detail below, along with responses to the 
comments.
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    \5\ S. Rep. No. 752, at 225 (1945).
    \6\ In accordance with the discrete character of the matters 
addressed by each of the amendments listed, the Board hereby 
concludes that it would adopt each of these amendments individually, 
or in any combination, regardless of whether any of the other 
amendments were made, except as expressly noted in the more detailed 
discussion of the particular sections below. For this reason, the 
amendments are severable.
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    1. Representation petitions may be filed with the Board 
electronically. The prior rules required hard-copy or facsimile filing, 
which should not be necessary under contemporary litigation practice 
and technological advancements.
    2. Representation petitions (and related documents) must be served 
by the petitioner, which will afford the other parties the earliest 
possible notice of the petition. The Board's prior rules did not 
require the petitioner to serve a copy of its petition on the other 
parties.
    3. At the same time the petition is filed with the Board, the 
petitioner must also provide evidence that employees support the 
petition (the ``showing of interest''). Petitioner must also provide 
the name and contact information of its representative. The prior rules 
gave the petitioner 48 hours after the petition to file the showing of 
interest. This delay is unnecessary.
    4. When a petition is filed, the employer must post and distribute 
to employees a Board notice about the petition and the potential for an 
election to follow. Under prior practice, such notice was voluntary 
(and less detailed). The employees will benefit from a uniform notice 
practice, which provides them, equally and at an earlier date, with 
meaningful information about the petition, the Board's election 
procedures and their rights, and employers will benefit from more 
detailed Board guidance about compliance.
    5. The pre-election hearing will generally be scheduled to open 8 
days from notice of the hearing. This largely codifies best practices 
in some regions, where hearings were routinely scheduled to open in 7 
days to 10 days. However, practice was not uniform among regions, with 
some scheduling hearings for 10 to 12 days, and actually opening 
hearings in 13 to 15 days, or even longer. The rule brings all regions 
in line with best practices.
    6. The pre-election hearing will continue from day to day until 
completed, absent extraordinary circumstances. Prior practice did not 
address the standard for granting lengthy continuances, and sometimes 
continuances unnecessarily delayed the hearing.
    7. Non-petitioning parties are required to state a position 
responding to the petition in writing 1 day before the pre-election 
hearing is set to open. The statement must identify the issues they 
wish to litigate before the election; litigation inconsistent with the 
statement will not be permitted. Timely amendments to the statement may 
be made on a showing of good cause. The employer must also provide a 
list of the names, shifts, work locations, and job classifications of 
the employees in the petitioned-for unit, and any other employees that 
it seeks to add to the unit. The statement must also identify the 
party's representative for purposes of the proceeding. Prior practice 
requested parties to state positions and provide a list of employees 
and job classifications before the hearing, but did not require 
production of such information prior to the hearing. Prior best 
practices required parties to take positions on the issues orally at 
the hearing. But practice was not uniform, and in some cases hearing 
officers have permitted parties to remain silent on their position or 
to take shifting positions during the hearing, unnecessarily impeding 
the litigation. Finally, our experience has demonstrated that clear 
communication about the specific employees involved generally 
facilitates election agreements or results in more orderly litigation.
    8. At the start of the hearing, the petitioner is required to 
respond on the record to the issues raised by the other parties in 
their statements of position. Litigation inconsistent with the response 
will not be permitted. If there is a dispute between the parties, the 
hearing officer has discretion to ask each party to describe what 
evidence it has in support of its position, i.e., make an offer of 
proof. This codifies current best practices, ensuring greater 
uniformity and orderly litigation.
    9. The purpose of the pre-election hearing, to determine whether 
there is a ``question of representation,'' 29 U.S.C. 159, is clearly 
identified. Prior rules did not expressly state the purpose of the 
hearing and, as discussed in item ten below, sometimes litigation on 
collateral issues resulted in substantial waste of resources.
    10. Once the issues are presented, the regional director will 
decide which, if any, voter eligibility questions should be litigated 
before an election is held. These decisions will be made bearing in 
mind the purpose of the hearing. Generally, only evidence that is 
relevant to a question that will be decided may be introduced at the 
pre-election hearing. Prior rules required, e.g., litigation of any 
voter eligibility issues that any party wished to litigate, even if the 
regional director was not going to be deciding that question, and even 
if the particular voter eligibility question was not necessary to 
resolving the existence of a question of representation. This practice 
has resulted in unnecessary litigation. Once it is clear that an issue 
need not be decided, and will not be decided, no evidence need be 
introduced on the matter.
    11. The hearing will conclude with oral argument, and no written 
briefing will be permitted unless the regional director grants 
permission to file such a brief. Prior rules permitted parties to file 
briefs which were often unnecessary and delayed the regional director's 
decision in many cases.
    12. The regional director must decide the matter, and may not sua 
sponte transfer it to the Board. The prior transfer procedure was 
little used, ill advised, and a source of delay; Board decisions are 
generally improved by obtaining the initial decision of the regional 
director.
    13. Absent waiver, a party may request Board review of action of a 
regional director delegated under Section 3(b) of the Act. Requests 
will only be granted for compelling reasons. Requests may be filed any 
time during the proceeding, or within 14 days after a final disposition 
of the case by the regional director. The prior rules included a 
variety of means for asking for Board review, including a ``request for 
review'' which only applied to the direction of election; a complex set 
of interlocking mechanisms for post-election review which varied 
depending upon the type of procedure chosen by the regional director or 
the form of election agreement; and a catchall ``special permission to 
appeal.'' Review of the direction of the election had to be sought 
before the election, even though the vote itself might moot the appeal. 
The final rule improves the process for Board review by giving parties 
an option to wait and see whether election results will moot a request 
for review that prior rules required to be filed before the election, 
and recognizes that Board review is not necessary in most cases. This 
will best serve Congress's purpose of ensuring that the regional 
director can promptly resolve disputes unless there is reason to 
interrupt proceedings in a particular case.
    14. A request for review will not operate as a stay unless 
specifically ordered by the Board. Stays and/or requests for expedited 
consideration will only be granted when necessary. The prior rules 
included an automatic stay of the count of ballots (``impounding the 
ballots'') in any case where a request was either granted or pending 
before the Board at the time of the election. A stay should not be 
routine, but should be an extraordinary form of relief.
    15. Elections will no longer be automatically stayed in 
anticipation of requests for review. The prior rules generally required 
the election which

[[Page 74310]]

followed a Decision and Direction of Election to be held between 25 and 
30 days after the direction of election. The stated purpose of this 
requirement was to permit requests for review to be ruled on by the 
Board in the interim. This delay served little purpose, as few requests 
were filed, and only a very small fraction of these requests were 
granted. Even where a request was granted, the 25-30 day waiting period 
in the prior rules did nothing to prevent unnecessary elections as the 
vote was generally held as scheduled notwithstanding the grant of the 
request.
    16. The regional director will ordinarily specify in the direction 
of election the election details, such as the date, time, place, and 
type of election and the payroll period for eligibility. Parties will 
take positions on these matters in writing in the statement of position 
and on the record before the close of the hearing. Under prior 
practice, election details were typically addressed after the direction 
of election was issued, which required further consultation about 
matters that could easily have been resolved earlier.
    17. The long-standing instruction from the Casehandling Manual that 
the regional director will set the election for the earliest date 
practicable is codified. The statute was designed by Congress to 
encourage expeditious elections, and the rules require the regional 
director to schedule the election in a manner consistent with the 
statute.
    18. The regional director will ordinarily transmit the notice of 
election at the same time as the direction of election. Both may be 
transmitted electronically. Previously, the notice was transmitted by 
mail after the direction of election.
    19. If the employer customarily communicates with its employees 
electronically, it must distribute all election notices to employees 
electronically, in addition to posting paper notices at the workplace. 
Prior rules required only paper notices. This change recognizes that 
modern technology has transformed many workplaces into virtual 
environments where paper notices are less effective.
    20. Within 2 business days of the direction of election, employers 
must electronically transmit to the other parties and the regional 
director a list of employees with contact information, including more 
modern forms of contact information such as personal email addresses 
and phone numbers if the employer has such contact information in its 
possession. The list should also include shifts, job classifications, 
and work locations. The list may only be used for certain purposes. 
Prior caselaw gave employers 7 days to produce a list of names and home 
addresses and send it to the Board, which then served the list on the 
parties. In addition to simplifying and expediting service by cutting 
out the middle man, the amendments update the rules to leverage the 
ways in which modern technology has transformed communications, 
recordkeeping and record transmission. For instance, the changes make 
information that is routinely maintained in electronic form more 
quickly available to the parties. Recognizing the potential sensitivity 
of the information, however, the rules also restrict its use in order 
to guard against potential abuse.
    21. When a charge is filed alleging the commission of unfair labor 
practices that could compromise the fairness of the election, the 
regional director has discretion to delay (or ``block'') the election 
until the issue can be resolved. Any party seeking to block the 
election must simultaneously file an offer of proof and promptly make 
witnesses available. This rule largely codifies what had been best 
practice while adding an offer-of-proof requirement that will expedite 
investigation and help weed out meritless or abusive blocking charges.
    22. After the election, parties have 7 days to file both objections 
and offers of proof in support. Objections, but not offers, must be 
served by the objector on other parties. Prior rules gave 7 days for 
objections but 14 days for evidence in support of the objections. The 
change is made because unsupported objections should not be filed, and 
7 days is typically adequate for the parties to marshal their evidence.
    23. If necessary, a post-election hearing on challenges and/or 
objections will be scheduled to open 21 days after the tally of ballots 
or as soon as practicable thereafter. Prior rules set no timeline for 
opening the hearing, and this rule will give adequate time for the 
region to weed out unsupported and frivolous objections while making 
the process more transparent and uniform.
    24. In every case, the regional director will be required to issue 
a final decision. Where applicable, the regional director's decision 
will be subject to requests for review under the procedure described in 
item 13 above. The prior rules were unduly complex, and frequently did 
not involve a final regional director decision. Regional directors can 
and should issue final decisions because they are delegated authority 
to do so pursuant to Section 3(b) and the Board's rules, and are in the 
best position to initially assess the facts. Where necessary, Board 
decisions on review are improved by first obtaining the final decision 
of the regional director.
    25. Finally, the rule eliminates a number of redundancies and 
consolidates and reorganizes the regulations so that they may be more 
easily understood.

III. The Rulemaking Process

    As the NPRM explains, the Board has amended its representation case 
procedures repeatedly over the years as part of a continuing effort to 
improve the process and eliminate unnecessary delays. Indeed, the Board 
has amended its representation case procedures more than three dozen 
times without prior notice or request for public comment.
    In fact, the Board has seldom acted through notice-and-comment 
rulemaking on any subject. The Board typically makes substantive policy 
determinations in the course of adjudication rather than through 
rulemaking, although this practice has occasionally drawn the ire of 
academic commentators and the courts.\7\
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    \7\ See R. Alexander Acosta, Rebuilding the Board: An Argument 
for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU 
L. Rev. 347, 351-52 (2010); Merton C. Bernstein, The NLRB's 
Adjudication-Rule Making Dilemma Under the Administrative Procedure 
Act, 79 Yale L.J. 571, 589-90, 593-98 (1970); Samuel Estreicher, 
Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 
Admin. L. Rev. 163, 170 (1985); Jeffrey S. Lubbers, The Potential of 
Rulemaking by the NLRB, 5 FIU L. Rev. 411, 414-17, 435 (Spring 
2010); Kenneth Kahn, The NLRB and Higher Education: The Failure of 
Policymaking Through Adjudication, 21 UCLA L. Rev. 63, 84 (1973); 
Charles J. Morris, The NLRB in the Dog House--Can an Old Board Learn 
New Tricks?, 24 San Diego L. Rev. 9, 27-42 (1987); Cornelius Peck, 
The Atrophied Rulemaking Powers of the National Labor Relations 
Board, 70 Yale L.J. 729, 730-34 (1961); Cornelius J. Peck, A 
Critique of the National Labor Relations Board's Performance in 
Policy Formulation: Adjudication and Rule-Making, 117 U. Pa. L. Rev. 
254, 260, 269-72 (1968); David L. Shapiro, The Choice of Rulemaking 
or Adjudication in the Development of Administrative Policy, 78 
Harv. L. Rev. 921, 922 (1965); Carl S. Silverman, The Case for the 
National Labor Relations Board's Use of Rulemaking in Asserting 
Jurisdiction, 25 Lab. L.J. 607 (1974); and Berton B. Subrin, 
Conserving Energy at the Labor Board: The Case for Making Rules on 
Collective Bargaining Units, 32 Lab. L.J. 105 (1981); see also NLRB 
v. Bell Aerospace Co., 416 U.S. 267, 295 (1974); NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 764, 770, 777, 779, 783 n.2 (1969). The 
Portland Cement Association (PCA) contends, as it did in another 
recent Board rulemaking, that the Board should place these and other 
law review articles discussed in the NPRM online for the public to 
read for free on regulations.gov. Just as the Board replied in that 
prior rulemaking, 76 FR 54014, the Board has placed these articles 
in the hard copy docket, but has not uploaded these articles to the 
electronic docket because such an action could violate copyright 
laws. It should also be noted that these materials are generally 
available in libraries.
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    The Board has thus asked for public comments on few proposed rules 
of any kind. A review of prior Board

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rulemaking procedures reveals that, until this proceeding commenced, 
the Board had not held a public hearing attended by all Board members 
for at least half a century.\8\
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    \8\ In the rulemaking proceedings that resulted in adoption of 
rules defining appropriate units in acute care hospitals, the Board 
directed an administrative law judge to hold a series of public 
hearings to take evidence concerning the proposed rules, but no 
Board members participated in the hearings.
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A. Procedural History of This Rule

    On June 22, 2011, the Board issued a Notice of Proposed Rulemaking. 
The Notice provided 60 days for comments and 14 additional days for 
reply comments. The Board issued press releases about the proposals and 
placed summaries, answers to frequently asked questions, and other more 
detailed information on its Web site (www.nlrb.gov). The Board held a 
public hearing during the comment period, on July 18 and 19, 2011, 
where the Board members heard commentary and asked questions of the 
speakers.
    On November 30, 2011, the Board members engaged in public 
deliberations and a vote about whether to draft and issue a final rule, 
and, on December 22, 2011, a final rule issued. 76 FR 80138. A Federal 
court later held that the Board had lacked a quorum in issuing the 
final rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 
2d 18, 28-30 (D.D.C. May 14, 2012). However, because the court did not 
reach the merits, the court also ``emphasize[d] that its ruling need 
not necessarily spell the end of the final rule for all time * * *. 
[N]othing appears to prevent a properly constituted quorum of the Board 
from voting to adopt the rule if it has the desire to do so.''
    The Board then issued a proposed rule on February 6, 2014 under the 
same docket number as the prior NPRM and containing the same proposals. 
79 FR 7318 et seq. The Board again issued press releases and placed 
supporting documents on its Web site. This was ``in essence, a 
reissuance of the proposed rule of June 22, 2011.'' Id. The purpose of 
this NPRM was to give a properly constituted quorum of the Board a 
``legally appropriate, administratively efficient, and demonstrably 
fair process for considering all the issues and comments raised in the 
prior proceeding, while giving an opportunity for any additional 
commentary.'' Id. at 7335.
    The Board provided 60 additional days for the submission of any new 
comments, and 7 days for replies. The Board advised commenters that it 
was not necessary to ``resubmit any comment or repeat any argument that 
has already been made.'' Id. at 7319. During the reply period, on April 
10 and 11, 2014, the Board held another public hearing, at which the 
Board members again heard commentary and asked questions of the 
speakers.
    In sum, the Board has accepted comments on these proposals for a 
total of 141 days, and held a total of 4 days of oral hearings with 
live questioning by Board members. Tens of thousands of people have 
submitted comments on the proposals, and Board members have heard over 
one thousand transcript pages of oral commentary.
    The sole purpose of these procedures was to give the Board the 
benefit of the views of the public. To be clear, none of this process 
was required by law: The Board has never engaged in notice and comment 
rulemaking on representation case procedures, and all of the proposed 
changes could have been made without notice and comment--in part by 
adjudication, and in part by simply promulgating a final rule.\9\
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    \9\ The rule is primarily procedural as defined in 5 U.S.C. 
553(b)(B), and therefore exempt from notice and comment. To the 
extent portions of the rule are substantive--for example, relating 
to information in the voter lists--these changes could have been 
made by adjudication, which is also exempt from notice and comment. 
Wyman Gordon, supra.
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    Nonetheless, a number of comments have criticized the Board's 
process, both in 2011 and again in 2014. At bottom, the claim is that 
the process was inadequate to meaningfully engage with the public, and 
that the Board already had its mind made up. We disagree.
1. Advanced NPRMs and Consultation Under E.O. 13563
    The 2011 comment of the Chamber of Commerce of the United States of 
America (the Chamber) provides a representative example of criticism of 
the 2011 pre-NPRM process. The Chamber believes that the Board missed 
``an opportunity to explore whether a consensus could have been 
reached'' on the rule among stakeholder groups through forums such as 
the American Bar Association's Labor and Employment Law Section. The 
Chamber concedes that stakeholders ``have widely divergent views,'' but 
argues that a consensus on at least some changes might have been 
reached. The Chamber suggests that the Board should withdraw the NPRM 
and publish a more open-ended Advanced Notice of Proposed Rulemaking.
    The Chamber cites Executive Order 13563 Section 2(c) (``Improving 
Regulation and Regulatory Review''), 76 FR 51735, as support. Section 
2(c) of the Executive Order states that ``[b]efore issuing a proposed 
regulation, each agency, where feasible and appropriate, shall seek the 
views of those who are likely to be affected * * *.'' Id. In the NPRM, 
the Board explained the decision to issue a set of specific proposals, 
rather than a more open-ended Advanced NPRM, by stating that ``public 
participation would be more orderly and meaningful if it was based on * 
* * specific proposals.'' 76 FR 36829. The Chamber incorrectly suggests 
the Board conceded that it violated the Executive Order, and questions 
whether the comment process actually was more orderly or meaningful. 
Some other comments suggest that the Board should have engaged in 
negotiated rulemaking, or that the pre-NPRM process was insufficiently 
transparent.\10\
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    \10\ See, e.g., joint comment of HR Policy Association and 
Society for Human Resource Management (collectively, SHRM); Greater 
Easley Chamber of Commerce; Georgia Association of Manufacturers 
(GAM).
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    These arguments were repeated by the Chamber and a number of other 
commenters in 2014, most notably the American Hospital Association (AHA 
II) \11\ and their counsel at the public hearing, (Testimony of Curt 
Kirschner II) who contended that the Board should have issued an 
Advanced NPRM or consulted with stakeholders before reissuing the NPRM 
in February 2014.
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    \11\ The preamble to the final rule uses the roman numeral II to 
signify that a cited comment was received during the second notice 
and comment period in 2014. Comments cited without the roman numeral 
II were received during the first notice and comment period in 2011.
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    An agency generally has discretion over its pre-NPRM procedures, 
including whether to use advanced NPRMs, negotiated rulemaking, or 
other pre-NPRM consultation. See Vermont Yankee Nuclear Power Corp. v. 
Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978). 
Moreover, as recognized by the AHA, the Board is not directly subject 
to Executive Order 13563, nor is its language pertaining to pre-NPRM 
procedures mandatory in any event.
    As explained in both NPRMs, in this instance, the Board concluded 
that beginning the process of public comment by issuing NPRMs would be 
the most effective method of proceeding. The Board continues to believe 
that following the notice-and-comment procedures set forth in the 
Administrative Procedure Act (APA)--and thereby giving formal notice of 
specific proposals to all members of the public at the same time in the 
Federal Register and permitting all members of

[[Page 74312]]

the public to comment on those proposals through the same procedures 
and during the same time periods--was the fairest and soundest method 
of proceeding.
    The contents of the comments themselves have also demonstrated the 
doubtfulness of the Chamber's suggestion that a broad consensus might 
have been reached through a different process. As the Chamber concedes, 
the labor-management bar is polarized on many of the relevant issues. 
Given the degree of polarization reflected at both the public hearings 
and in the comments--notwithstanding the 3 intervening years for 
members of the bar to consider and consult on possible improvements--
consensus seems unlikely.
    Nor would an Advanced NPRM have been an improvement on the present 
process. Indeed, in this proceeding the Board has already benefited 
from something similar to the iterative commenting process of an 
Advanced NPRM. From the 2011 hearing, to the 2011 comment period, to 
the 2011 reply period, to the 2014 comment period, to the 2014 hearing 
and reply period, the commenters have had the opportunity to consider 
and respond to each other's views on many occasions. And, in contrast 
to the typical Advanced NPRM, the specificity of the proposals in the 
NPRM encouraged many commenters to focus on important details. With the 
benefit of this repeated cross analysis and close attention to detail, 
the Board has modified its proposals in a number of significant 
respects in this final rule. We see no merit in the speculative 
retrospective claim that something better might have been achieved by 
another process.
    In sum, the Board's pre-NPRM process was lawful and appropriate.
2. The 2014 NPRM
    A variety of inconsistent claims were made by commenters about the 
significance of the Board's reissuing the NPRM in 2014. Some argued 
that the Board should have considered the 2011 comments before 
reissuing the NPRM.\12\ By contrast, some said that the Board had 
considered and implicitly rejected the 2011 comments, and that this 
rejection required re-submitting the same comments again, or that it 
suggested that a final rule identical to the NPRM was a fait 
accompli.\13\ Some faulted the Board for not addressing the prior final 
rule of December of 2011.\14\
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    \12\ See, e.g., Chamber II; International Franchising 
Association (IFA) II; AHA II. Along the same lines, some argued that 
the Board should have clarified the proposals in light of questions 
raised in the 2011 comments. See, e.g., Association of the Nonwoven 
Fabrics Industry (INDA) II.
    \13\ See, e.g., Association of Equipment Manufacturers (AEM) II; 
INDA II.
    \14\ See, e.g., Senator Lamar Alexander and 17 Republican 
Senators (Senator Alexander and Republican Senators) II.
---------------------------------------------------------------------------

    These arguments are misplaced, and many are predicated on an 
unsupportable and mistaken interpretation of the NPRM. In early 2014, 
the recently appointed and confirmed Board members had a choice to 
make. Significant public effort had been expended in commenting on a 
proposed rule that--according to one court--the Board had not yet 
lawfully acted on. Thus, the questions posed by the NPRM remained 
unanswered by the Board. As years had passed since the comment period 
had closed, the new Board members were interested to know whether the 
public had anything further to say about the proposals.
    That is why the Board reissued the NPRM and reopened the comment 
period. This process allowed the new Board members an opportunity to 
consider new comments and old comments together in a single proceeding.
    This is reasonable. To consider and analyze all the material 
submitted in the 2011 final rule--without considering whether anyone's 
views might have changed in the intervening years--and only then 
issuing a new proposed rule, would have been substantially less 
efficient. Where possible, it is far better, in the Board's judgment, 
to respond to the comments once, rather than twice.
    The 2014 NPRM reflected absolutely no Board judgment about the 2011 
comments. As the Board explained in the NPRM, the purpose was simply to 
re-raise, not resolve, the questions posed and to allow the Board to 
make its decisions about the final rule in light of all the comments 
received.
    The AHA claimed that the Board was ``hiding the ball from the 
public regarding its current views of what should be changed, in light 
of the comments previously received and its analysis of those comments. 
The implication of the Board's reissuance of the same NPRM is that the 
public comment process is, from the Board's perspective, largely 
perfunctory.'' AHA II.
    This statement misses the point. There was no ball to hide. The 
Board reissued the NPRM because it wanted to hear yet again from the 
public before forming its views. This manifests a greater respect for 
the public comment process. As Member Hirozawa said in responding to 
this point at the public hearing:

    Curt, if it makes you feel any better, we don't know where we're 
headed, either. There are a lot of difficult decisions that are 
going to have to be made, a lot of questions where there are 
significant considerations on both sides, and there will be a lot of 
discussion among the members during the coming period of time * * *. 
But in terms of the views of the public, I think that I speak for 
all five of the members here that we all consider them very 
important and [an] essential part of this process.

    A similar point applies to the Board's consideration of the 
December 2011 final rule. Of course, the court held that the rule 
itself is a legal nullity; without the requisite vote (in the court's 
analysis), the Board never took action. Although the various statements 
associated with that publication are important, and represent the 
carefully considered views of three individual Board members (two of 
whom are no longer on the Board), it would be strange, to say the 
least, if the Board were somehow bound to consider and respond to this 
non-action before it could issue a proposed rule. Indeed, although the 
Board has considered those views in issuing the present final rule, 
their function here is persuasive, not authoritative.
    In sum, the Board's decision to consider the 2011 comments, 2011 
hearing testimony, 2011 final rule, and 2012 Board Member statements, 
together and at the same time as the 2014 comments and 2014 hearing 
testimony, is not only a reasonable manner of proceeding, but clearly 
the fairest and most efficient manner of proceeding given the 
procedural posture of this matter as it stood in early 2014.
3. The Length, Timing, and Location of the Hearings
    In 2011, the Board members held a 2-day public hearing in 
Washington, DC, approximately halfway through the initial comment 
period, i.e., about 1 month after publication of the NPRM and 1 month 
before the initial comment period closed. All Board members heard 5-
minute statements from speakers representing diverse organizations and 
groups, and then actively questioned the speakers for an additional 
period of time. This hearing was not legally required.
    Then, in 2014, the Board members held another 2-day public hearing 
in Washington, DC, in the week after the close of the 2014 initial 
comment period, i.e., during the reply period.\15\

[[Page 74313]]

The Board first solicited requests to speak, and instructed requesters 
to clearly identify the particular proposed changes and issues they 
wished to address, and to summarize the statements they wished to make. 
This process enabled the Board to schedule the speakers addressing 
similar issues to speak in adjacent time slots. Everyone who requested 
to speak was given an opportunity to address the Board, and, as time 
allowed, those who wished to speak about multiple issues were given an 
opportunity to address the Board more than once.
---------------------------------------------------------------------------

    \15\ After each public hearing in 2011 and 2014, the transcripts 
containing each speaker's testimony along with any Board questioning 
of the speaker were made part of the record of the rulemaking. Any 
such testimony discussed in this final rule is cited as follows: 
``Testimony of [name of speaker] on behalf of [name or organization, 
if any].'' As with the written comments, the roman numeral II 
follows testimony citations from the 2014 comment period.
---------------------------------------------------------------------------

    The AHA compares this proceeding to the hospital unit rulemaking 
and essentially argues that the Board should have held 14 days of 
hearings instead of 4. AHA II.
    Agencies are not bound to use the same procedures in every 
rulemaking proceeding. Otherwise, agencies could neither learn from 
experience, e.g., what rulemaking procedures are helpful and what 
procedures are simply wasteful, nor adopt procedures suited to the 
precise question at stake.\16\ This learning process is shown in the 
changing nature of the hearings used by the Board from the hospital 
rulemaking, to the 2011 hearing, to the 2014 hearing. At each phase the 
hearing process became more meaningful and efficient.
---------------------------------------------------------------------------

    \16\ As one scholar noted, the hospital unit rulemaking could be 
described as ``procedural overkill,'' see Mark H. Grunewald, The 
NLRB's First Rulemaking: An Exercise in Pragmatism, 41 Duke L. J. 
274, 319 (1991).
---------------------------------------------------------------------------

    This point was recognized by counsel for the AHA itself, who 
``commend[ed] the Board on this public hearing process,'' particularly 
in comparison to the 2011 hearing, and described the exchange with 
Board members as ``gratifying,'' ``valuable,'' and ``productive.'' 
Kirschner II. The Board agrees. The 5 minutes that speakers were given 
on each issue was supplemented by substantial time for questioning and 
the opportunity for written comments. Some speakers gave 2,000 words or 
more of well-informed testimony during their allotted time. The Board 
found that the speakers provided informed, thorough, and thoughtful 
analysis, and the back-and-forth dialogue with the Board members 
demonstrated the familiarity of the speakers with the proposals. Again, 
there was no such dialogue with Board members in the hospital 
rulemaking hearings--regardless of their length--simply because the 
Board members did not participate in those hearings.\17\
---------------------------------------------------------------------------

    \17\ In light of the extensive process provided in 2014, 
comments arguing that the 2011 process was ``rushed'' or gave ``an 
inadequate opportunity for stakeholders to address the merits of the 
rules'' are no longer salient. See National Association of 
Manufacturers (NAM). The parties have had a total of 141 days to 
comment on both NPRMs, (74 with respect to the 2011 NPRM and 67 for 
the 2014 NPRM), and to consider the proposals and data in submitting 
their comments. Some have published law review articles in the 
interim, and it is quite clear that the topics have remained 
relevant questions of public concern during this period. See Joseph 
P. Mastrosimone, Limiting Information in the Information Age: The 
NLRB's Misguided Attempt to Squelch Employer Speech, 52 Washburn L. 
J. 473, 501-06 (2013).
---------------------------------------------------------------------------

    The Board believes that the hearings exceeded the requirements of 
the APA and were fair, appropriate, and useful. Holding the hearings in 
Washington, DC, was appropriate because many of the Board's major 
stakeholders are either headquartered in Washington or are represented 
by counsel in the city or who frequently appear in the city.
    Both hearings were properly noticed and appropriately timed. The 
two hearings served two different functions. The first hearing was 
scheduled half-way through the first comment period. This gave the 
public time to develop their positions before the hearing, while also 
allowing the public to get a preview of the arguments at issue, so that 
written comments could be framed more responsively. The subsequent 
written comments were more informed, thoughtful, and technically 
sophisticated as a result, and many commenters in 2011, such as the 
Chamber, took the opportunity to cite extensively from the hearing 
transcripts for support and to respond to arguments made at the 
hearing. The Board believes the chosen sequence--the hearing followed 
by the close of the initial comment period and then the reply period--
produced more meaningful public comments in 2011.
    In 2014, of course, all of the 2011 comments were available for the 
public to engage, as was the transcript of the 2011 hearing. Thus the 
second hearing served a different purpose, and was therefore scheduled 
at a different time. By scheduling the hearing after the close of the 
comment period, but during the reply period, the Board members were 
able to engage with the speakers deeply and in detail on the substance 
of both their 2011 and 2014 comments, while giving time for speakers 
who wished to supplement or clarify their remarks after the hearing the 
ability to do so with additional written comments to the record.
    In sum, the Board believes that the four days of public hearings, 
attended by all Board members, was highly valuable, was of an 
appropriate length, and was held at appropriate times and in 
appropriate locations.
4. The Length and Timing of the Comment Periods
    The Board provided an initial comment period of 60 days beginning 
June 22, 2011, followed by a reply comment period of 14 days that ended 
on September 6, 2011. The Board then provided an additional comment 
period of 60 days beginning February 6, 2014, followed by a reply 
comment period of 7 days that ended on April 14, 2014.
    The APA provides no minimum comment period, and many agencies, 
including the Board in some recent rulemaking proceedings, have 
afforded comment periods of only 30 days. The agency has discretion to 
provide still shorter periods, and is simply ``encouraged to provide an 
appropriate explanation for doing so.'' Administrative Conference of 
the United States (ACUS), Recommendation 2011-2 at 3 (June 16, 2011).
    Yet, in 2011, many commenters criticized the length of the comment 
period. The Council on Labor Law Equality (COLLE) described the NLRB's 
comment period as ``the bare-minimum 60-day[s],'' and SHRM 
characterized the comment period as ``hurried, abridged and 
clandestine.''
    It would be reasonable to expect that these arguments would not be 
repeated in 2014, considering that the public had a cumulative total of 
141 days in which to submit comments. Yet they were from time to time, 
most notably by the Chamber II, AHA II, and NAM II.\18\
---------------------------------------------------------------------------

    \18\ In each of its reply comments, the Chamber also complained 
that the reply period was too short to read and respond to all of 
the comments. But the purpose of the reply period was not to afford 
interested parties an opportunity to read and reply to all of the 
comments submitted, but to provide an opportunity to read the most 
significant comments and respond to the arguments raised in them. 
This the Chamber and others did quite successfully. For example, in 
2011 the Service Employees International Union (SEIU) cited and 
replied to over twenty unique, detailed, and lengthy comments 
submitted by other parties. Others, such as the Association of 
Corporate Counsel (ACC), took the opportunity to focus on 
elaborating one particular issue of special importance. Both 
approaches were quite helpful, and served the purpose for which the 
Board afforded the reply period.
    A lengthy additional reply period in this context would have 
served little purpose, particularly after a post-comment hearing in 
which the parties and the Board had the opportunity to engage with 
and reply to the comments in great detail. All of which is in 
addition to the fact that neither the APA nor any other law requires 
any opportunity to reply to public comments.
---------------------------------------------------------------------------

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

[[Page 74314]]

period: ``Agencies should set comment periods that consider the 
competing interests of promoting optimal public participation while 
ensuring that the rulemaking is conducted efficiently.'' ACUS 2011-2 at 
3.
    The Montana Chamber of Commerce--though opposing the rule--stated 
that the NPRM provided ``a very reasonable time frame to allow ample 
comments and statements from all interested parties, whether they are 
supportive of these sweeping changes or not.'' And a supportive comment 
noted that the Board was providing far more time for comments than 
required by law. Chairman Tom Harkin of the Senate Committee on Health, 
Education, Labor and Pensions, Senior Democratic Member George Miller 
of the House Committee on Education and the Workforce, and Democratic 
Senators and Members of the House of Representatives (Chairman Harkin, 
Senior Member Miller and Congressional Democrats) at 5.
    The tens of thousands of comments submitted and the depth of 
analysis they provided are ample testament to the adequacy of the 
opportunities for public participation in the rulemaking process.
5. Post-Rulemaking Procedures and Review
    One comment urges the Board to ``incorporate[] plans for 
retrospective review'' into the rule pursuant to Executive Orders 
13,563 and 13,579. Sofie E. Miller. Executive Order 13,563, however, is 
directed to executive branch agencies, not independent agencies, which 
are only encouraged, by Executive Order 13,579, to comply with 
Executive Order 13,563. Moreover, both of the aforementioned Executive 
Orders apply only to ``significant'' regulatory actions, as defined by 
Section 3(f) of E.O. 12,866. This rulemaking does not fall into any of 
the definitions of a ``significant regulatory action'' set forth in 
Section 3(f). Nevertheless, the Board developed and disseminated a 
preliminary plan for retrospective review of significant regulations in 
May 2011 (http://www.whitehouse.gov/files/documents/2011-regulatory-action-plans/NationalLaborRelationsBoardPreliminaryRegulatoryReformPlan.pdf). In 
addition, the Board will continue its longstanding practice of 
incrementally evaluating and improving its processes going forward.

IV. Comments on General Issues

    Before turning to comments on specific provisions of the final 
rule, the Board addresses a number of general issues: (a) the Board's 
rulemaking authority; (b) the need to amend the regulations generally; 
(c) the opportunity for free debate under the regulations; and (d) the 
effects on employee representation and the economy.

A. Board Authority To Promulgate Representation-Case Procedure Rules

    Congress delegated both general and specific rulemaking authority 
to the Board. Generally, Section 6 of the National Labor Relations Act, 
29 U.S.C. 156, provides that the Board ``shall have authority from time 
to time to make, amend, and rescind, in the manner prescribed by the 
Administrative Procedure Act * * * such rules and regulations as may be 
necessary to carry out the provisions of this Act.'' In addition, 
Section 9(c), 29 U.S.C. 159(c)(1), specifically contemplates rules 
concerning representation case procedures, stating that elections will 
be held ``in accordance with such regulations as may be prescribed by 
the Board.''
    The Board's well-established rulemaking authority is recognized by 
comments both opposing and supporting the proposed rule. For example, 
NAM states that ``it is undisputed that the Board has the authority to 
promulgate rules and regulations,'' and the American Federation of 
Labor and Congress of Industrial Organizations (AFL-CIO) states that 
``[t]he NLRB has specific and express statutory authority to engage in 
rule-making to regulate its election process.''
    The Supreme Court unanimously held in American Hospital Association 
v. NLRB, 499 U.S. 606, 609-10 (1991), that the Act authorizes the Board 
to adopt both substantive and procedural rules governing representation 
case proceedings. The Board's rules are entitled to deference. See 
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 
843-44 (1984); NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). 
Representation case procedures are uniquely within the Board's 
expertise and discretion, and Congress has made clear that the Board's 
control of those procedures is exclusive and complete. See NLRB v. Bell 
Aerospace Co., 416 U.S. 267, 290 n.21 (1974); AFL v. NLRB, 308 U.S. 
401, 409 (1940). ``The control of the election proceeding, and the 
determination of the steps necessary to conduct that election fairly 
were matters which Congress entrusted to the Board alone.'' NLRB v. 
Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see also Magnesium 
Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).
    In A.J. Tower, 329 U.S. at 330, the Supreme Court noted that 
``Congress has entrusted the Board with a wide degree of discretion in 
establishing the procedure and safeguards necessary to insure the fair 
and free choice of bargaining representative by employees.'' The Act 
enshrines a democratic framework for employee choice and, within that 
framework, charges the Board to ``promulgate rules and regulations in 
order that employees' votes may be recorded accurately, efficiently and 
speedily.'' Id. at 331 (emphasis added). ``[T]he determination of 
whether a majority in fact voted for the union must be made in 
accordance with such formal rules of procedure as the Board may find 
necessary to adopt in the sound exercise of its discretion.'' Id. at 
333. As the Eleventh Circuit stated:

    We draw two lessons from A.J. Tower: (1) The Board, as an 
administrative agency, has general administrative concerns that 
transcend those of the litigants in a specific proceeding; and, (2) 
the Board can, indeed must, weigh these other interests in 
formulating its election standards designed to effectuate majority 
rule. In A.J. Tower, the Court recognized ballot secrecy, certainty 
and finality of election results, and minimizing dilatory claims as 
three such competing interests.

Certainteed Corp. v. NLRB, 714 F.2d 1042, 1053 (11th Cir. 1983). As 
explained above, the final rule is based upon just such concerns. Some 
comments allege that the Board lacks authority to issue these 
rules.\19\ As discussed, the Supreme Court's interpretation of Section 
6 clearly forecloses this argument.
---------------------------------------------------------------------------

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

    The Board also received dueling comments from two different groups 
of members of Congress on this topic: One group claimed that the 
changes would ``fundamentally alter the balance of employee, employer 
and union rights that Congress so carefully crafted and that only 
Congress can change;'' the other group claimed that the changes are 
``commonsense and balanced'' and ``a positive step toward fixing a 
broken system'' and are consistent with ``the NLRB['s] broad authority 
under the NLRA to promulgate election regulations.'' Compare Senator 
Alexander and Republican Senators; with Chairman Harkin, Senior Member 
Miller and Congressional Democrats.
    The Act delegated to the Board the authority to craft its 
procedures in a manner that, in the Board's expert judgment, will best 
serve the purposes of the Act. Various members of Congress

[[Page 74315]]

may have divergent views, but Article I of the Constitution prescribes 
the method that Congress must use to enact its policies, and the Act as 
written gives the Board broad authority in this area. Here the Board is 
acting pursuant to its clear regulatory authority to change its own 
representation case procedures in a manner that will better serve the 
purposes and text of the Act--a question about which the Board remains 
the congressionally delegated expert authority.
    In sum, the Board clearly has authority to amend its election 
rules.

B. The Need for the Final Rule

    The Board's experience demonstrates that although the fundamentals 
are sound, many of the technical details of representation case 
procedures suffer from a variety of deficiencies. Especially as to 
contested cases, current procedures result in duplicative, unnecessary 
and costly litigation. Simplifying, streamlining and, in some cases, 
bolstering these procedures will reduce unnecessary barriers to the 
fair and expeditious resolution of representation disputes and result 
in more fair and accurate elections. The rule also codifies best 
practices to ensure that our procedures are more transparent and 
uniform across regions. Changes to the representation case procedures 
are also necessary to update and modernize the Board's processes in 
order to gain the advantages of and make effective use of new 
technology, especially affecting communications and document retrieval 
and transmission. These changes will enhance the ability of the Board 
to fulfill its statutory mission.
    Some comments received in response to the Board's NPRM argue that 
the Board failed to present sufficient justification for the proposed 
amendments. For example, SHRM asserts that the Board ``failed to 
articulate a legitimate justification for the significant changes set 
forth in the NPRM'' and that the proposed amendments are therefore 
arbitrary and capricious.\20\ Numerous comments contend generally that 
there is no need for revision of the Board's representation procedures 
because, as argued by NAM, there is no evidence contradicting the 
Board's own data showing that the present time frames for processing 
representation cases are among the most expeditious in the Board's 
history, and further that the Board currently meets its own internal 
time targets for processing representation cases.\21\ As one speaker 
stated ``the Board is just looking to solve a problem that doesn't 
exist'' and ``the NPRM has failed to identify a single problem to which 
the proposed solution is responsive.'' Testimony of Kara Maciel on 
behalf of National Grocers Association (NGA) II. See also Testimony of 
Ross Freidman on behalf of CDW II (``the proposed rules are in large 
part a solution in search of a problem'').
---------------------------------------------------------------------------

    \20\ See also SHRM; Klein, Dub & Holleb (Klein) II.
    \21\ This point was also advanced by the AHA; American Council 
on Education (ACE); COLLE; CDW; Associated Oregon Industries; 
National Marine Manufacturers Association (NMMA); The Bluegrass 
Institute; and the Chamber.
---------------------------------------------------------------------------

    These arguments appear to rest on a number of mistaken assumptions. 
(1) The sole purpose of the rule is to have faster representation 
proceedings; but (2) those proceedings are (generally) fast enough 
already; and, in any event, (3) the changes do not identify or address 
the true sources of delay. We will address each of these assumptions in 
turn.
1. The Amendments Address Efficiency, Fair and Accurate Voting, 
Transparency, Uniformity, and Adapting to New Technology; Speed Is Not 
the Sole or Principal Purpose
    First, the focus on speed fails to consider all the reasons for 
which the various amendments are being made. Many of the changes have 
little to do with the timing of procedures. Indeed, there is no single 
problem that this rule addresses: Rather, as summarized in the list of 
changes above, there are a host of discrete problems addressed by a 
host of discrete amendments. We will amplify the particular rationale 
for each change in the discussion of specific sections below. However, 
in light of the common misconception that the rule is focused on speed, 
we will briefly describe other important principles of sound 
administration at issue.
    Efficiency: The importance of efficiency should be self-evident. If 
a particular procedure serves no purpose, or is unduly complex or 
wasteful, that is reason enough to change it, regardless of whether it 
also causes delay. Thus, for example, rules that permit unnecessary 
litigation, circuitous service of documents and mandatory interlocutory 
appeals are plainly inefficient and should be changed.
    Fair and Accurate Voting: This rationale gets to the heart of 
Section 9, and is always under consideration in any revision of 
representation case procedures. Here, for example, the Board provides 
employees with notice of the petition for election sooner in the 
process, and provides more detailed, meaningful notices about the unit 
at issue, and the voting itself, throughout the process. The notices 
are also transmitted more effectively. As explained further below, the 
amendments provide a better process for identifying voters properly 
subject to challenge, which should reduce the number of ballots 
improperly commingled with unit ballots by oversight, or improperly 
challenged out of ignorance. These changes will all provide better 
guarantees of a fair voting process.
    Transparency and Uniformity: Transparency allows the public to 
understand the process and uniformity allows the parties to form 
reasonable expectations. These two related principles also ensure that 
the protection of statutory rights does not vary arbitrarily from case 
to case or region to region. Again, these basic procedural principles 
should be beyond cavil. Cf. Dorsey v. United States, 132 S. Ct. 2321, 
2326 (2012) (written sentencing guidelines ``increase transparency 
[and] uniformity''). These are adequate reasons to ensure that Board 
best practices are written into the regulations where appropriate, even 
if they do not address delay. Thus, for example, describing the best-
practices hearing date in the rules will promote uniformity and 
transparency.
    Changed Technology: Society changes rapidly, and new technology can 
quickly make old rules obsolete. Of particular relevance here, 
communications technologies developed in the last half-century have 
changed the way litigation, workplace relationships, and representation 
campaigns function. As the Supreme Court has stated in another context, 
``the responsibility to adapt the Act to changing patterns of 
industrial life is entrusted to the Board,'' and we would be remiss in 
leaving unchanged procedures which are predicated on out-of-date facts 
or assumptions, even where there is no consequent delay. NLRB v. J. 
Weingarten, Inc., 420 U.S. 251, 266 (1975). Thus, for example, 
providing for electronic documents, filing, and transmission as well as 
updating the forms of employee contact information are important 
adaptations to changed technological circumstances. In addition, the 
Board is mindful that changes in technology have also raised concerns 
about privacy, and the final rule addresses those concerns.
    In sum, timeliness is one of many reasons proffered for the 
amendments; some changes clearly reduce unnecessary delays; for other 
changes, timeliness is only a collateral benefit and by no means a 
primary purpose;

[[Page 74316]]

and sometimes it plays no role whatsoever. The need for the rule cannot 
be assessed without grappling with these specific, articulated reasons 
underlying each of the amendments.
2. The Board Can and Should Address Delays in the Current Rules
    The second premise is also flawed: Nothing in the statute, the 
General Counsel's current time targets, or any other source establishes 
that current procedures are ``fast enough.''
    Section 9 is animated by the essential principle that 
representation cases should be resolved quickly and fairly. ``[T]he 
Board must adopt policies and promulgate rules and regulations in order 
that employees' votes may be recorded accurately, efficiently and 
speedily.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946). As the 
Supreme Court noted, discussing Section 9(d), the policy in favor of 
speedy representation procedures ``was reaffirmed in 1947, at the time 
that the Taft-Hartley amendments were under consideration.'' Boire v. 
Greyhound Corp., 376 U.S. 473, 479 (1964). Senator Taft stated that the 
Act should not ``permit dilatory tactics in representation 
proceedings.'' Id. In discussing the APA, Congress again exempted 
representation cases because of the ``exceptional need for 
expedition.'' \22\ Finally, the purpose of Congress in 1959 in 
permitting delegation of representation case proceedings to regional 
directors under Section 3(b) was to `` `speed the work of the Board.' 
'' Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141-142 (quoting 
legislative history). Congress did not define any ``time targets'' for 
elections; indeed, in fashioning the LMRDA, Congress considered and 
expressly rejected a proposed amendment to the statute which would have 
imposed a 30-day minimum speed limit on the time from petition to 
election.\23\
---------------------------------------------------------------------------

    \22\ Senate Committee on the Judiciary, comparative print on 
revision of S. 7, 79th Cong., 1st Sess. 7 (1945). It is for this 
reason that 5 U.S.C. 554(a)(6) specifically exempts representation 
cases from even the minimal requirements of the APA.
    \23\ Various legislative efforts to impose particular timelines 
on Board elections have failed repeatedly over the decades. See, 
e.g., 124 Cong. Rec. 7652-54 (1978) (side-by-side comparison of 
House and Senate versions of one proposal, accompanied by analysis 
and criticism by Senator Jesse Helms); ``National Labor Relations 
Fair Elections Act'' H.R. 4800 (1990), 101st Cong, 2d Session; H.R. 
503, 102nd Cong., 1st Session (1991); H.R. 689, 103rd Cong., 1st 
Session (1993); ``Labor Relations Representative Amendment Act'' S. 
1529, 103rd Cong., 1st Session (1993); S. 778, 104th Cong., 1st 
Session (1995).
---------------------------------------------------------------------------

    In short, every time Congress has amended laws governing 
representation cases, it has reaffirmed the importance of speed. This 
is essential both to the effectuation of Section 7 rights of employees, 
and to the preservation of labor peace.\24\
---------------------------------------------------------------------------

    \24\ The importance of prompt resolutions of questions of 
representation is heightened by their perishable nature. ``[U]nlike 
court judgments, [they] do not bind the parties for all time.'' 
Manhattan Center Studios, Inc., 357 NLRB No. 139, slip op. at 5 
(2011). ``In the absence of employer unfair labor practices, a Board 
certification of a representative will bar a new election for only 1 
year if no contract is agreed to, and for no more than an additional 
3 years if an agreement is reached.'' Id.
---------------------------------------------------------------------------

    The timeliness concerns of Congress in 1935, 1947 and 1959 remain 
salient today, as the comments show. Unduly lengthy campaigns cause 
voter participation to drop. Testimony of Glenn Rothner II; Testimony 
of Gabrielle Semel on behalf of CWA II. ``[D]elay can create a sense of 
futility among workers.'' Testimony of Brian Petruska on behalf of 
Laborer's International Union of North America Mid-Atlantic Regional 
Organizing Coalition (LIUNA MAROC) II; see also Testimony of Jody 
Mauller on behalf of the International Brotherhood of Boilermakers 
(IBB) II. As one employee testified at the hearing, significant delay 
in the NLRB's process causes employees to think that there is nothing 
the government can do to protect them. Testimony of Donna Miller II. 
This is precisely what Congress was worried about: that employees would 
think the NLRA's procedures were ineffectual and be tempted to take 
disruptive action instead. Boire, supra. The purpose of the Act is to 
protect with Federal power the free exercise of Section 7 and Section 9 
rights. In one organizer's experience, most workers want elections 
faster than current procedures permit regardless of where the workers 
stand on the union. Testimony of Martin Hernandez on behalf of UFCW II.
    To be clear, the problems caused by delay have nothing to do with 
employer speech.\25\ As discussed infra, the statute encourages free 
debate, and neither Congress nor the Board in this rulemaking has cited 
limiting debate as a reason for speed. It is not the speech, but the 
delay itself which causes the ills identified by Congress and the 
Board. Nor is the problem with delay related to unfair labor practices. 
Though many commenters and academics have argued that lengthy campaigns 
encourage unfair labor practices,\26\ this is not a reason that either 
Congress or the Board have cited in amending representation procedures 
in pursuit of timely elections and it does not underlie the final rule.
---------------------------------------------------------------------------

    \25\ Some have claimed that the Board has a secret mission ``to 
restrict, as far as possible, the participation of employers in the 
union organizing campaign and representation election process.'' 
E.g., COLLE II at 4-5. No credible evidence has ever been mustered 
in support of this claim by any of its proponents, and the Board 
expressly affirms that limiting debate is not a reason for any of 
the amendments.
    \26\ See John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan 
Lamare, Ph.D. (summarizing their study, ``New Data: NLRB Process 
Fails to Ensure a Fair Vote,''). See also SEIU; National Employment 
Law Project (NELP); and Senior Member George Miller and Democratic 
Members of the U.S. House of Representatives Committee on Education 
and the Workforce (Senior Member Miller and Democratic House 
Members) (citing Logan, Johanson, and Lamare study).
---------------------------------------------------------------------------

    As shown, delay itself is the problem this rule addresses--not 
employer speech or unfair labor practices--and eliminating unnecessary 
delay is therefore unquestionably a valid reason to amend these 
regulations. In recognition of this fundamental principle, the Board 
has noted ``the Act's policy of expeditiously resolving questions 
concerning representation.'' \27\ ``In . . . representation proceedings 
under Section 9,'' the Board has observed, ``time is of the essence if 
Board processes are to be effective.'' \28\ Indeed, the Board's 
Casehandling Manual stresses that ``[t]he expeditious processing of 
petitions filed pursuant to the Act represents one of the most 
significant aspects of the Agency's operations.'' \29\
---------------------------------------------------------------------------

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

    Many comments argue that current procedures are fast enough because 
they meet the Board's time targets. The reliance on current time 
targets is mistaken. For decades the Board has continually strived to 
process representation cases more expeditiously, and the targets have 
accordingly been adjusted downward over time. 79 FR 7319-20.\30\ Under 
the commenters' reasoning, in any given year when the agency was 
meeting its then-applicable time targets, the agency should have left 
well enough alone and should not have engaged in any analysis about how 
the process might be improved. This is clearly wrong. Past improvements 
do not and should not

[[Page 74317]]

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

    \30\ The amendments the Board has chosen to adopt represent a 
continuation of this incremental process, rather than a radical 
departure from Board practice as asserted by, for example, the 
Coalition for a Democratic Workplace (CDW) and Associated Builders 
and Contractors (ABC). ABC II asserts that the proposals are far 
more radical than the Board admits, but their contention is stated 
as ipse dixit and remains unsupported. See also AHA II (proposed 
rules are a ``very radical departure'' from December 2011 final 
rule).
---------------------------------------------------------------------------

    The Chamber responds by claiming ``[t]he Board cannot set goals 
regarding acceptable times for elections and then, without 
justification, disregard those benchmarks. Presumably some rational 
approach has been taken to develop the benchmarks over the years.'' 
Chamber II.
    There is a rational approach: the General Counsel sets benchmarks 
by trying to figure out what would be possible--in spite of structural 
delays identified under the rules--if the regions did their very best 
work. Thus, meeting those benchmarks shows only that the regions are 
doing the best they can in spite of the rules, not that the rules are 
incapable of improvement. That the Board seeks to, and does, meet those 
targets in most instances is irrelevant to whether additional 
improvements should be made by amending the rules.
    In addition to the time targets, some commenters point to a number 
of other extrinsic facts which they claim are ``strong evidence that 
the present system works fairly for all parties.'' Testimony of Arnold 
Perl on behalf of the Tennessee Chamber of Commerce (TN Chamber) II. 
For example, they cite the rate of union success in elections as 
evidence that the current procedures are fair and not in need of 
revision. Associated General Contractors of America (AGC); Skripko II. 
From the Board's perspective, this argument is close to tautological. 
The purpose of the election is to find out what the employees want; if 
we knew this a priori, the election would be unnecessary. Whether the 
union win rate is 75% or 25% tells us nothing about whether the 
elections were fair. Either result might accurately reflect the 
employees' free choice. The results are therefore unhelpful in 
determining whether representation case procedures are fulfilling their 
statutory purpose as fully and efficiently as possible. On that 
question, we must look to the procedures themselves, and to the 
policies and purposes of the statute.
    Many comments acknowledge that the expeditious resolution of 
questions of representation is a central purpose of the Act, but argue 
that the Board did not consider other statutory policies in proposing 
the amendments.\31\ In fact, the Board did do so, both in proposing 
amendments to its rules in the NPRM and in issuing this final rule. As 
discussed, the Board considered the statute as a whole, as well as the 
various policies underlying its enactment and amendment. Specifically, 
the Board considered the statutory requirement that the pre-election 
hearing be an ``appropriate hearing'' and the parties' constitutional, 
statutory, and regulatory rights in relation to the hearing. As 
explained in detail below, the final rule makes the hearing more, not 
less, ``appropriate'' to its statutory purpose. The final rule also 
fully respects the procedural rights of the parties. In fact, it 
permits the parties to fully exercise their procedural rights more 
efficiently and with less burden and expense. The final rule promotes a 
more informed electorate by providing an improved process for informing 
the unit about election procedures, the appropriate unit for bargaining 
and the voting procedure for individuals who may properly vote subject 
to challenge. Similarly, the Board considered employees' statutory 
right under Section 7 to ``bargain collectively through representatives 
of their own choosing'' and ``to refrain from any or all such 
activities.'' 29 U.S.C. 157. As explained in detail below, the 
amendments adopted in the final rule do not establish inflexible time 
deadlines or mandate that elections be conducted in a set number of 
days after the filing of a petition. Further, the amendments honor free 
speech rights; they do not in any manner alter existing regulation of 
parties' campaign conduct or restrict freedom of speech. In this 
connection, the Board has carefully considered the possibility that the 
amendments might reduce the time between the filing of the petition and 
the election so as to threaten the communication, association, and 
deliberation needed by employees in order to truly exercise freedom of 
choice. It has concluded the amendments pose no such risk, as more 
fully explained below.
---------------------------------------------------------------------------

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

    In sum, the Board is charged by Congress with eliminating 
unnecessary delays, and nothing about the current process suggests that 
it is ``fast enough'' such that no further improvements are 
justifiable.
3. The Amendments Which Are Intended To Address Delay Will in Fact Do 
So
    Finally, the commenters are also mistaken in claiming that the 
Board has not identified the subset of cases where unnecessary delay is 
prevalent, and has not designed rules responsive to the particular 
delays identified. Again, many of the changes address other purposes, 
but where delay is at issue, the Board clearly identifies problems, and 
the amendments supply sensible and reasonable solutions. Most of the 
changes apply to only a very small subset of Board cases, and those 
cases are the very ones most likely to suffer inordinate delays.
    For example, it is quite clear from the Board's statistics that 
fully litigated cases--that is, cases in which the parties are unable 
to stipulate about pre-election issues--generally take almost twice as 
long to get to an election. The median for all cases is 38 days, 
whereas the median for this particular subset of cases is closer to 70 
in most years. Clearly, these cases suffer a delay in the time it takes 
to hold elections.
    The Board has identified the primary sources of this delay, and the 
amendments address them. Under current rules a delay of 25 to 30 days 
is automatically imposed between the direction of election and the 
election. There can be absolutely no question that eliminating this 
waiting period addresses a very significant source of delay that is 
unique to this subset of demonstrably slower cases.
    Other changes to pre-election litigation--such as the 8 to 10 day 
hearing opening, the standard for continuance, the provision of oral 
argument rather than briefing, the date to provide voter lists, etc.--
will also address less substantial sources of delay in this same small 
subset of cases. And it is important to bear in mind that many of these 
changes are aimed at other goals, such as efficiency, uniformity, and 
adapting to modern technology, and that timeliness is often only a 
collateral benefit.
    Other comments acknowledge that the Board's procedures have been 
subject to misuse in some cases, but suggest that such cases were rare 
and do not form an adequate basis for the Board's proposals. The 
National Retail Federation (NRF) and Printing Industries of America, 
Inc. (PIA), for example, suggest that the rules should be amended only 
to address the more egregious cases. Relatedly, many comments cite the 
high rate of voluntary election agreements (reached in over 90 percent 
of cases), which obviate the need for pre-election hearings, as 
evidence that the representation case procedures are working well in 
the overwhelming majority of cases.
    In a way, this argument accords with the Board's own sense of the 
final rule: many of the amendments are minor changes to the procedure 
used in the small subset of litigated cases where the problem of delay 
is demonstrably more severe. The lack of greater ambitions does not 
mean that the rule is unjustified; rather it means that the amendments 
provide targeted solutions to specifically identified problems.
    In addition, as discussed below, it must be noted that changes to 
litigation

[[Page 74318]]

procedures can be significant in framing the circumstances for entering 
stipulations in all cases.\32\ Under the former rules, the regional 
director lacked discretion to limit the presentation of evidence to 
that relevant to the existence of a question of representation. Thus, 
the possibility of using unnecessary litigation to gain strategic 
advantage existed in every case. That specter, sometimes articulated as 
an express threat according to some comments,\33\ had the effect of 
detrimentally affecting negotiations of pre-election agreements.\34\
---------------------------------------------------------------------------

    \32\ As another example, consider the new Statement of Position 
requirement, which assists both parties in making more informed 
decisions about stipulations. Knowing the issues in dispute will 
help the parties reach agreement.
    \33\ See American Federation of Teachers (AFT); International 
Brotherhood of Electrical Workers (IBEW); LIUNA.
    \34\ Comments by the United Food and Commercial Workers 
International Union (UFCW), LIUNA, AFT, NELP, and Retired Field 
Examiner Michael D. Pearson all point to the impact of that specter 
of unnecessary litigation on negotiations of pre-election 
agreements.
---------------------------------------------------------------------------

    Finally, many comments argue that the proposed amendments did not 
address the most serious causes of delay in Board proceedings. Some 
comments point to delay in the Board's own adjudication of cases.\35\ 
Other comments point to the Board's blocking charge policy.\36\
---------------------------------------------------------------------------

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

    The Board is aware that, in too many instances, it has taken too 
long to decide both representation and unfair labor practice cases. 
This was a problem in 1959 when Section 3(b) was enacted, and, though 
the situation is much improved, it remains a problem today. Part of 
this problem is being addressed by the amendments--namely, by codifying 
the text of Section 3(b), and by the requirement that regional 
directors issue a final decision on the hearing officer's post-election 
recommendations. Giving the Board an authoritative and well-reasoned 
regional director's decision to consider whenever an appeal is taken 
will enhance the Board's decision-making on appeals and permit it to 
deny them where appropriate. To the extent that purely internal Board 
inefficiencies create additional unnecessary delays, these are not 
enshrined in the current rules and therefore need not be addressed by 
rulemaking.
    As for the Board's blocking charge policy, the NPRM specifically 
asked for comments on various proposed revisions. As discussed below, 
the Board received extensive commentary, particularly in 2014, 
regarding this matter, and has decided to make changes which will 
address delay by expediting decision-making on blocking charges.
    Of course, an administrative agency, like a legislative body, is 
not required to address all procedural or substantive problems at the 
same time. It need not ``choose between attacking every aspect of a 
problem or not attacking the problem at all.'' Dandridge v. Williams, 
397 U.S. 471, 487 (1970). Rather, the Board ``may select one phase of 
one field and apply a remedy there, neglecting the others.'' FCC v. 
Beach Communications, 508 U.S. 307, 316 (1993) (quoting Williamson v. 
Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)). ``[T]he reform 
may take one step at a time.'' Id.\37\
---------------------------------------------------------------------------

    \37\ These same principles have been applied to administrative 
action. See, e.g., United Hosp. v. Thompson, 383 F.3d 728, 733 (8th 
Cir. 2008) (the equal protection clause does not require the 
government to attack every aspect of the problem or refrain from 
regulating at all); Great American Houseboat Co. v. U.S., 780 F.2d 
741, 749 (9th Cir. 1986) (same). The AHA acknowledges this fact, but 
states that ``[w]hile this is true, the fact that the Board is 
declining to revise one of the biggest hurdles to timely elections 
[blocking charge policy], and at the same time proposing extensive 
revisions to other aspects of the process that have not proven to 
hold up elections . . . leaves the Board open to questions about its 
motives in issuing the NPRM.'' AHA II at 27. Of course, the Board is 
revising its blocking charge policy, and it is unclear why AHA was 
under the impression that this matter would not be addressed when 
the Board specifically proposed a number of potential options in the 
NPRM and invited comments. And the claim that the other changes do 
not address delay is equally faulty because, as previously stated, 
many of the changes have nothing to do with delay, while those that 
are intended to address delay are in fact related to proven sources 
of delay.
---------------------------------------------------------------------------

    In short, as to those aspects of the final rule where the Board has 
based its amendments on limiting delays, it has in fact identified the 
delay at issue specifically, and has crafted amendments rationally 
designed to address the delay.

C. The Opportunity for Free Speech and Debate

    Many comments filed by employers and employer organizations argue 
that the proposed rule changes in the NPRM would drastically shorten 
the time between the filing of petitions and elections and thereby 
effectively reduce employers' opportunity to communicate with their 
employees concerning whether they should choose to be represented for 
purposes of collective bargaining. These comments make both legal and 
policy arguments based on that claim. The Board also considered the 
matter extensively at the public hearing in 2014, asking questions and 
taking approximately 175 transcript pages of testimony on this specific 
issue from a wide variety of speakers with different views.
    The Board has concluded that the final rule will facilitate 
employees' free choice of representative while advancing the statutory 
objective of promptly resolving questions of representation, and will 
not impinge on anyone's free speech rights or any statutory mandate or 
policy. The amendments do not establish any rigid timeline for the 
conduct of the election itself. Indeed, the Board rejects requests that 
we set minimum or maximum time limits in which all elections must 
occur.\38\ The election date will continue to vary from case to case. 
In selecting the election date under the rules, the regional director 
will continue to consider, among other factors,\39\ the desires of the 
parties, which may include their opportunity for meaningful speech 
about the election.
---------------------------------------------------------------------------

    \38\ The Board declines to adopt a suggestion by one commenter, 
which urged that the election be held within 15 days of the final 
voter list. See Testimony of Hernandez on behalf of UFCW II. 
Likewise, the Board declines to set the election date to be the same 
day the petition is filed, as another commenter urged. See Testimony 
of Thomas Meiklejohn II. The Board also rejects a suggestion by the 
dissent to impose 60 days as a maximum period before holding the 
election.
    \39\ See Casehandling Manual Section 11302.1.
---------------------------------------------------------------------------

1. NLRA Section 8(c) and the First Amendment
    Many employer comments contend that the rule changes reflected in 
the NPRM would be inconsistent with Section 8(c) of the Act \40\ and 
the First Amendment.\41\ But neither the proposed rule nor the final 
rule imposes any restrictions on the speech of any party.
---------------------------------------------------------------------------

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

    Section 8(c) of the Act provides:

    The expressing of any views, argument, or opinion, or the 
dissemination thereof, whether in written, printed, graphic, or 
visual form, shall not constitute or be evidence of an unfair labor 
practice under any of the provisions of this Act, if such expression 
contains no threat of reprisal or force or promise of benefit.

29 U.S.C. 158(c). On its face, Section 8(c)'s stated purpose is to 
prevent speech from ``constitut[ing] or be[ing] evidence of an unfair 
labor practice.'' Accordingly, the Board has repeatedly held that 
Section 8(c) applies only in unfair labor practice and not in 
representation proceedings. See, e.g., Hahn Property Management Corp., 
263 NLRB 586, 586 (1982); Rosewood Mfg. Co., Inc., 263 NLRB 420, 420 
(1982); Dal-Tex Optical Co., Inc., 137 NLRB

[[Page 74319]]

1782, 1787 fn. 11 (1962). Because the final rule, which addresses 
representation case procedures, does not in any way permit the Board to 
use speech or its dissemination as evidence of an unfair labor 
practice, the literal language of Section 8(c) is not implicated. 
Compare Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 956 (D.C. Cir. 
2013) (invalidating Board rule that required employers to permanently 
post a prescribed notice of employee rights ``upon pain of being held 
to have committed an unfair labor practice''), with id. at 959 n.19 
(concluding that a Board rule requiring employers to post an election 
notice immediately before a representation election ``does not 
implicate Sec.  8(c)'' because violation of that rule does not carry 
the prospect of unfair labor practice liability).
    Nor does the final rule run afoul of the First Amendment. Aside 
from the accurate statement that speech about unions is protected by 
the First Amendment,\42\ the comments do not appear to argue (except in 
the most abbreviated fashion) \43\ that the proposed amendments would 
violate the First Amendment. In any event, neither the proposed nor the 
final rule restricts speech. The rule does not eliminate the 
opportunity for the parties to campaign before an election, nor does it 
impose any restrictions on campaign speech. As under the current rules, 
employers remain free to express their views on unionization, both 
before and after the petition is filed, so long as they refrain from 
threats, coercion, or objectionable interference.\44\ As the Supreme 
Court stated in 1941, ``The employer . . . is as free now as ever to 
take any side it may choose on this controversial issue.'' NLRB v. 
Virginia Electric & Power Co., 314 U.S. 469, 477 (1941). Likewise, the 
rule does not impose any new limitations on union speech. Accordingly, 
the Board's effort to simplify and streamline the representation case 
process does not infringe the speech rights of any party.
---------------------------------------------------------------------------

    \42\ Thomas v. Collins, 323 U.S. 516, 537-38 (1945).
    \43\ See, e.g., AEM II; INDA II; Knife River II.
    \44\ In this regard, the Board agrees with comments stating that 
the rule does not restrict, let alone prohibit, any form of 
expression or any particular message. See LIUNA MAROC II; AFL-CIO 
Reply II.
---------------------------------------------------------------------------

    The comments do not contend that employers will be prevented from 
expressing their opinions on unionization, but only that, because there 
may be less time between petition and election in some cases, employers 
will have fewer opportunities to express their opinions before the 
Board concludes its investigation under Section 9. 29 U.S.C. 159. The 
Board recognizes that ``[t]he First Amendment protects the right of 
every citizen to `reach the minds of willing listeners and to do so 
there must be opportunity to win their attention.' '' Heffron v. Int'l 
Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (quoting 
Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (plurality opinion)). But the 
rule does not violate this constitutional principle because employers 
will continue to have ample meaningful opportunities to express their 
views both before and after a petition is filed, as discussed 
below.\45\
---------------------------------------------------------------------------

    \45\ Some comments draw comparisons to political elections, 
which typically occur at regularly set intervals, but the Board does 
not find these comparisons to be apt. See Joseph P. Mastrosimone, 
Limiting Information in the Information Age: The NLRB's Misguided 
Attempt to Squelch Employer Speech, 52 Washburn L. J. 473, 501-06 
(2013); U.S. Poultry & Egg Association, the National Chicken 
Council, and the National Turkey Federation (U.S. Poultry) II. 
Although they share certain common features, such as the secret 
ballot, political elections and representation elections are still 
quite different. Most notably, as discussed above, Congress has 
consistently expressed a clear purpose of limiting obstructions to 
commerce by holding union organizing elections quickly, Boire v. 
Greyhound Corp., 376 U.S. 473, 478 (1964) (quoting legislative 
history)--a consideration which is unique to elections held in the 
labor relations context. Another significant difference is the 
existence of an employment relationship between the electorate and 
one of the parties to the representation case proceeding; this 
changes the election in countless ways, from the various parties' 
relative ease of access to the electorate, to the reasonable 
implications which can be drawn from employer-specific conduct--none 
of which finds any parallel in modern political elections. The Board 
therefore declines to borrow campaign timing principles from the 
political election context wholesale.
---------------------------------------------------------------------------

2. The Final Rule Accords With the Statutory Policy in Favor of Free 
Debate
    Although it is clear that the proposed amendments implicate neither 
the First Amendment nor the literal language of Section 8(c) of the 
Act, many comments nevertheless suggest that the amendments would leave 
employers with too little time to effectively inform their employees 
about the choice whether to be represented by a union.\46\ They contend 
that the consequences of a union vote are long-lasting and could 
significantly affect employees' livelihoods and careers, and therefore 
ensuring that employees have sufficient time to hear from all sides is 
critical to the statutory objective of ensuring employee free 
choice.\47\ Comments in favor of the amendments contend, on the other 
hand, that employers can and do communicate their views on unions to 
employees even before a petition has been filed and will continue to 
have sufficient time to do so after filing under the proposed 
amendment.
---------------------------------------------------------------------------

    \46\ See Chamber; COLLE; SHRM; Seyfarth Shaw; Sheppard Mullin; 
Baker & McKenzie; John Deere Water; PIA; Senator Alexander and 
Republican Senators II; Diamond Transportation; Testimony of Peter 
Kirsanow on behalf of NAM II.
    \47\ See NGA; Retail Industry Leaders Association (RILA); 
Society of Independent Gasoline Marketers of America (SIGMA); 
Ranking Member Michael B. Enzi of the U.S. Senate Committee on 
Health, Education, Labor & Pensions, and Republican Senators 
(Ranking Member Enzi and Republican Senators); National Meat 
Association; NAM II.
---------------------------------------------------------------------------

    There is a clear statutory policy in favor of free debate and these 
amendments recognize, and are fully consistent with that policy.
a. Chamber of Commerce v. Brown
    The Supreme Court recognized in Chamber of Commerce v. Brown, 554 
U.S. 60 (2008), that the enactment of Section 8(c) embodies a general 
``congressional intent to encourage free debate on issues dividing 
labor and management.'' Id. at 67 (quoting Linn v. Plant Guard Workers, 
383 U.S. 53, 62 (1966) (a defamation case)). The Court further 
recognized that such debate contemplates advocacy by both labor and 
management, noting that the inclusion in Section 7 of the right to 
refrain from joining a union ``implies an underlying right to receive 
information opposing unionization.'' Id. at 68.\48\ The Court relied on 
these features of the Act to invalidate, on preemption grounds, a 
California law that prohibited the use of state funds to encourage or 
discourage employees from seeking union representation. As the Court 
found, ``California's policy judgment that partisan employer speech 
necessarily `interfere[s] with an employee's choice about whether to 
join or to be represented by a labor union' '' was in direct conflict 
with national labor policy as reflected by the foregoing provisions of 
the Act. Id. at 69.
---------------------------------------------------------------------------

    \48\ This is not to suggest, of course, that employers are 
required to engage in any campaign speech at all, or to contest 
evidence of majority status; employers are free to decide whether to 
express their views on unionization--pro or con or neutral--if done 
without threat of reprisal or force of promise of benefit. See 
Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974); 
cf. Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d at 956-59 (discussing the 
employer's right to remain silent). See also NLRB v. Creative Food 
Design LTD., 852 F.2d 1295, 1297, 1299 (D.C. Cir. 1988) (``an 
employer's voluntary recognition of a majority union also remains `a 
favored element of national labor policy.' '') (citation omitted).
---------------------------------------------------------------------------

    As recognized by the Court in Brown the Act encourages free debate 
by employers, labor organizations and employees during representation 
proceedings. But ultimately, it is up to employees to evaluate the 
campaign information with which they are presented, as Board precedent 
recognizes. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962) 
(``[T]he employees may select a `good' labor organization, a `bad' 
labor organization, or no labor organization, it being

[[Page 74320]]

presupposed that employees will intelligently exercise their right to 
select their bargaining representative''); Handy Andy, Inc., 228 NLRB 
447, 456 (1977) (declining to withhold certification from unions with 
records of discriminatory practices); Midland Nat'l Life Ins. Co., 263 
NLRB 127, 131-32 (1982) (relaxing the Board's misrepresentation 
standard on the ground that more reliance on the vigorous campaigning 
by the parties would reduce dilatory post-election litigation). These 
decisions confirm that the Act presupposes that all parties to a 
representation proceeding will have a meaningful opportunity to speak.
    But a meaningful opportunity to speak does not mean an unlimited 
opportunity to speak. As in the First Amendment context, there is no 
fundamental right for parties to ``publicize their views `whenever and 
however and wherever they please.' '' Wood v. Moss, 134 S. Ct. 2056, 
2066 (2014).
    The election must be held sometime; therefore, the resource of time 
to campaign is an inherently limited one.\49\ This is particularly 
significant where, as discussed above, the Act also embodies a very 
strong countervailing policy in favor of holding elections 
``efficiently and speedily.'' \50\ In short, the Board is not required 
to wait for the parties to exhaust all opportunities for speech before 
holding an election, so long as the opportunity they have is a 
meaningful one.
---------------------------------------------------------------------------

    \49\ In this way time is fundamentally different from other 
speech resources; by necessity, the government must impose some kind 
of cap on time. Money, by contrast, is a speech resource with no 
such inherent cap. This distinction must be taken into account in 
reading cases such as McCutcheon v. FEC, 134 S.Ct. 1434, 1441 
(2014); Citizens United v. Federal Election Commission, 130 S.Ct. 
876, 898 (2010); Chamber of Commerce v. Brown, 554 U.S. 60 (2008), 
which involve regulation of campaign spending. Compare NGA II 
(eliding this distinction in relying on McCutcheon) with Testimony 
of Thomas Meiklejohn on behalf of Livingston, Adler, Pulda, 
Meiklejohn & Kelly II (discussing this distinction).
    \50\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
---------------------------------------------------------------------------

    As discussed below, the Board concludes that these amendments will 
not deprive employers of a meaningful opportunity to participate in 
election campaigns. Many employers are aware of the campaign before the 
petition is filed, and begin communicating at that time. Indeed, many 
employers speak to employees about unions in the absence of any 
particular campaign, and will have laid the foundation for effective 
campaign speech well in advance. Finally, and most significantly, even 
where no pre-petition speech whatsoever takes place, these amendments 
will not eliminate the opportunity for meaningful speech, which will 
continue to be ample even after the petition is filed.
b. Employer Pre-Petition Knowledge
    Numerous comments contend that any shortening of the time period 
between the petition and election will be detrimental to employers 
because employers are often unaware that an organizing campaign is 
underway until the petition is filed.\51\ These comments contend that 
the union will have had a head start in the campaign because it will, 
necessarily, have already obtained authorization cards from at least 30 
percent of employees in the petitioned-for unit, and will have been 
able to delay filing the petition for whatever amount of time it 
believed was advantageous in order to communicate with employees.\52\ 
For example, the Chamber comments that union petitions ``catch[] many 
if not most employers off guard and ill-prepared to immediately respond 
* * *.'' The Board was presented with no reliable empirical evidence, 
however, suggesting that employers are frequently unaware of an 
organizing drive before the filing of a petition.\53\ Indeed, the 
available evidence suggests the contrary.
---------------------------------------------------------------------------

    \51\ See, e.g., Chamber; CDW; National Ready-Mixed Concrete 
Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark 
Legal Foundation; Vigilant; Food Marketing Institute (FMI) II; Klein 
II.
    \52\ NGA; National Meat Association. See also Spartan Motors, 
Inc.; Cook Illinois Corporation; Arizona Hospital and Healthcare 
Association; Constangy, Brooks & Smith, LLP (Constangy); Sheppard 
Mullin; Ranking Member Enzi and Republican Senators; Specialty Steel 
Industry of North America; International Foodservice Distributors 
Association; NAM; Chamber; NRTWLDF; Chairman John Kline of the House 
Committee on Education and the Workforce, and Chairman Phil Roe of 
the House Subcommittee on Health, Education, Labor and Pensions 
(Chairmen Kline and Roe) II.
    \53\ COLLE acknowledges this in its comment.
---------------------------------------------------------------------------

    The Supreme Court's decision in NLRB v. Gissel Packing Co., 395 
U.S. 575, 620 (1969), which upheld the Board's authority to order an 
employer to bargain with a union that had not been certified as the 
result of an election, is relevant to this issue. In Gissel, the 
employers argued that the Board could not order an employer to bargain 
with the union, even when the union's majority support was demonstrated 
through employees' authorization cards and the employer's unfair labor 
practices had made a free and fair election impossible, because a union 
could solicit such cards before the employer had an adequate 
opportunity to communicate with employees. The Court rejected this 
argument:

    The employers argue that their employees cannot make an informed 
choice because the card drive will be over before the employer has 
had a chance to present his side of the unionization issues. 
Normally, however, the union will inform the employer of its 
organization drive early in order to subject the employer to the 
unfair labor practice provisions of the Act; the union must be able 
to show the employer's awareness of the drive in order to prove that 
his contemporaneous conduct constituted unfair labor practices on 
which a bargaining order can be based if the drive is ultimately 
successful. See, e.g., Hunt Oil Co., 157 NLRB 282 (1966); Don Swart 
Trucking Co., 154 NLRB 1345 (1965). Thus, in all of the cases here 
but [one,] the employer, whether informed by the union or not, was 
aware of the union's organizing drive almost at the outset and began 
its antiunion campaign at that time; and even in the [one] case, 
where the recognition demand came about a week after the 
solicitation began, the employer was able to deliver a speech before 
the union obtained a majority.

Id. at 603. The Supreme Court has thus recognized that the concern 
expressed in the comments ``normally'' does not arise even when there 
is no election and the organizing effort does not proceed beyond the 
signing of authorization cards. What was true at the time of Gissel is 
still true today.
    There is substantial evidence on this point in the rulemaking 
record. See Testimony, Ole Hermanson on behalf of AFT II, Gabrielle 
Semel on behalf of CWA II, Thomas Meiklejohn on behalf of Livingston, 
Adler, Pulda, Meiklejohn & Kelly II, Maneesh Sharma on behalf of AFL-
CIO II. In some cases, the employer's knowledge of the campaign is 
apparent from the fact that the employer committed unfair labor 
practices targeting employees' organizing activity before the filing of 
the petition.\54\ This is the basis for an empirical study conducted by 
Professors Kate Bronfenbrenner and Dorian Warren (and submitted with 
their comment).\55\

[[Page 74321]]

The study concluded that in 47 percent of cases involving serious 
unfair labor practice allegations against employers that resulted in a 
settlement or a Board finding that the law was violated, the alleged 
unlawful conduct occurred before the petition was filed; in 60 percent 
of cases involving allegations of interrogation and harassment, the 
conduct occurred before the petition; and in 54 percent of cases 
involving allegations of threats and other coercive statements, the 
conduct occurred before the petition. Professor Warren testified at the 
2011 public hearing that the researchers' review of the files in these 
cases indicated that the conduct resulting in the charge, whether it 
was actually unlawful or not, evidenced the employer's knowledge of the 
organizing campaign. Critics of the study contend that it 
inappropriately focuses on mere allegations of misconduct and that the 
category of ``charges won'' inappropriately includes settlements.\56\ 
The importance of the study's findings for present purposes, however, 
does not rest on whether or not the charges had merit, but rather on 
the fact that they were filed based on pre-petition conduct and that 
available information in the case files suggests the employer had pre-
petition knowledge of the organizing campaign. The study's findings in 
that regard are consistent with the Board's experience, and no contrary 
study was presented to the Board.
---------------------------------------------------------------------------

    \54\ See, e.g., Ryder Truck Rental, 341 NLRB 761, 765 n.9, 767 
(2004) (petition filed in December; in November, employer invited 
employees to report any harassment by union), enforced, 401 F.3d 815 
(7th Cir. 2005); Dlubak Corp., 307 NLRB 1138, 1141, 1147 (1992) 
(threats and discriminatory discharges occurred October 5-13; 
petition filed October 24), enforced mem., 5 F.3d 1488 (3d Cir. 
1993); Spring City Knitting Co., 285 NLRB 426, 431, 444, 448-49, 450 
(1987) (unfair labor practices occurred March 1, 14, and 29; 
petition filed May 3); Well-Bred Loaf, Inc., 280 NLRB 306, 311-16 
(1986) (threats, interrogation, and unlawful discharges occurred 
August 22 and 23, at a time when union activity was already common 
knowledge; petition filed October 6); Dilling Mechanical 
Contractors, 318 NLRB 1140, 1141, 1144, 1155 (1995) (union informed 
employer of campaign on January 4, but employer had threatened 
employees with discharge in December if they engaged in union 
activity), enforced, 107 F.3d 521 (7th Cir. 1997), cert. denied 522 
U.S. 862 (1997).
    \55\ The study was based on a random sample of 1000 elections 
during the period 1999 through 2003 in units with 50 or more 
eligible voters and a survey of 562 campaigns from that sample. See 
Bronfenbrenner & Warren, supra at 2. An updated version of the study 
was discussed by Professor Bronfenbrenner in her 2014 hearing 
testimony.
    \56\ The Chamber in particular makes this point, and complains 
that the 2011 final rule did not respond to the Chamber's criticism. 
Chamber II. However, again, the Board is not relying on any evidence 
of increased ULPs during a lengthy campaign, or in any way 
suggesting that settled charges are meritorious. The essential point 
is that the case files themselves show that there was evidence that 
the employer knew about the campaign before the petition was filed.
    Other comments argue that the study shows that only about 50-60% 
of employers have prepetition knowledge. This is a misunderstanding 
of the study. The study does not survey a statistical sample of 
campaigns generally, and ask whether the employer had prepetition 
knowledge; the study surveys campaigns which resulted in ULP 
charges, and asks whether the ULP occurred before a petition had 
been filed. Assuming that employers do not commit ULPs at the 
earliest possible moment, the fact that about half of ULPs surveyed 
occurred after petition filing does not prove the negative, i.e., 
that the employers in those cases lacked prepetition knowledge.
    Thus the Board recognizes that neither the surveyed universe nor 
the 50-60% rates observed reflect the broader realities of union 
organizing campaigns. (The rates very likely are substantially 
higher.) The study merely provides some measure of empirical 
confirmation of the Board's qualitative conclusion, based on its own 
experience, that employers are very often aware of the organizing 
campaign before the petition is filed. Indeed, the study's focus on 
employer's with bargaining units larger than the Board's historical 
medians drives home this point. For the Board has long presumed that 
in smaller workplaces, employers are even more likely to be aware of 
union organizing activity among their employees. See, e.g., Wiese 
Plow Welding Co., 123 NLRB 616, 618 (1959).
---------------------------------------------------------------------------

    In addition, the AFL-CIO surveyed 57 union-side labor lawyers, and 
asked whether ``[i]n the organizing drives you have been involved in 
that resulted in a petition for an election, was the employer aware of 
the organizing before the petition was filed?'' The vast majority--41 
attorneys--gave an unqualified ``yes'' in answer to this question (9 
answered ``no'' and 7 gave some answer other than yes or no).\57\ AFL-
CIO II. Though this does not show with quantitative precision how often 
employers know about the campaign, it does cast doubt on the Chambers' 
unsupported statement that ``many if not most'' employers are surprised 
by the petition.
---------------------------------------------------------------------------

    \57\ The Chamber criticizes the statistical rigor and ambiguity 
of the AFL-CIO's survey. Chamber II reply. It is quite true, as the 
Chamber notes, that it is unclear how many campaigns in total are 
represented in this answer, and that, for a variety of reasons, it 
would not be methodologically sound to draw rigorous statistical 
inferences. A speaker representing the AFL-CIO conceded as much at 
the hearing. That is not, however, the purpose for which the survey 
was taken or submitted, and that is not the purpose for which the 
Board is citing it. Rather, the ``survey'' is nothing more than a 
summary of ``what practitioners are reporting that they are 
experiencing.'' Testimony of Sharma on behalf of AFL-CIO II. In this 
way, it is like a compilation of comments from experienced labor 
attorneys, sharing the varieties of their experiences with Board 
procedures.
---------------------------------------------------------------------------

    Board precedent is also replete with cases in which there was clear 
evidence that the employer was aware of the organizing campaign well 
before the petition was filed. In many cases, unions give the employer 
formal notice of the campaign before filing the petition, either by 
demanding recognition or by providing the employer with a list of 
employees on the organizing committee.\58\ There are many pragmatic 
reasons for this common practice, which were explained in some detail 
by one speaker at the hearing: ``[First,] the union, in order to build 
strength, has to * * * build up the confidence among the employees that 
they can join together to speak up for themselves. And then, in order 
to get that message to the larger group of employees, there has to be 
some committee, some group of people who are willing to go public, have 
their faces on campaign literature and have their names disclosed as 
the people who are willing to lead the campaign. Once that happens, the 
employer knows there is something going on. The second reason for this 
is quite simply that if you end up in litigation where somebody was 
discriminated against because of their union activity, you want to be 
able to show that [the employer knew about their union activity.] If 
it's been concealed you have a much, much harder time proving that. And 
then the third reason is because it doesn't work to keep it secret * * 
*. [W]ord gets to the employer.'' Testimony of Meiklejohn on behalf of 
Livingston, Adler, Pulda, Meiklejohn & Kelly II.
---------------------------------------------------------------------------

    \58\ See, e.g., Lucky Cab Co., 360 NLRB No. 43, slip op. at 1 
(Feb. 20, 2014) (Union filed petition on March 30th, but informed 
the employer of its organizing activity on February 25th. Board also 
finds that employer already knew of the organizing drive for months 
before notice was given.); Flamingo Hilton-Laughlin, 324 NLRB 72, 76 
(1997) (union informed employer of campaign and committee members on 
January 26 and filed petition on March 26), enf. granted in part, 
denied in part 148 F.3d 1166 (D.C. Cir. 1998); Keco Industries, 306 
NLRB 15, 16 (1992) (union informed employer of campaign in January 
and filed petition on October 31); Mariposa Press, 273 NLRB 528, 533 
(1984) (union informed employer of campaign on September 25 and 
filed petition on October 6); Comet Corp., 261 NLRB 1414, 1418, 1422 
(1982) (union informed employer of campaign and committee members on 
July 23 and filed petition on August 23); Quebecor Group, Inc., 258 
NLRB 961, 964 (1981) (union informed employer of campaign on 
November 17 and filed petition on November 28).
---------------------------------------------------------------------------

    Finally, the evidence on the record on this point is also 
consistent with the Board's own experience and expertise in processing 
representation petitions and unfair labor practice cases.
c. General Employer Communications About Unionization
    The foregoing authority casts doubt on the contention that ``many 
if not most'' employers are unaware of an organizing drive prior to the 
filing of a petition. But even in the absence of an active organizing 
campaign, employers in nonunionized workplaces may and often do 
communicate their general views about unionization to both new hires 
and existing employees.\59\ Some comments suggest that, prior to 
receiving a petition, employers pay little attention to the issue of 
union representation, and that general efforts to inform and persuade 
employees about unionization in the absence of a petition would be 
time-consuming and expensive.\60\ Although some employers may choose 
not to discuss unionization until a petition is filed, the Board's 
experience suggests that other employers do discuss unionization with 
their employees beforehand, often as soon as they are hired. For 
example,

[[Page 74322]]

some employers distribute employee handbooks or show orientation videos 
to all new employees that express the employer's view on unions or its 
desire that employees remain unrepresented.\61\
---------------------------------------------------------------------------

    \59\ See comments of John Logan, Ph.D., Erin Johansson, M.P.P., 
and Ryan Lamare, Ph.D.; Center for American Progress Action Fund; 
LIUNA MAROC II; Testimony of Hermanson on behalf of AFT II; 
Testimony of Semel on behalf of CWA II.
    \60\ Fox Rothschild LLP; National Mining Association; NRF.
    \61\ See, e.g., U-Haul Co. of California, 347 NLRB 375, 378 
(2006) (employee handbook, distributed to all new employees, 
included a section entitled, ``What about Unions?''; the section 
stated the employer's preference to be union-free and asserted that 
employees do not need a union or outside third party to resolve 
workplace issues); SNE Enterprises, 347 NLRB 472, 473 (2006) 
(employee handbook stated, ``The Company believes a union is not 
necessary and not in the best interest of either the Company or its 
Team Members.''), enforced, 257 Fed.Appx. 642 (4th Cir. 2007); 
Overnite Transportation Co., 343 NLRB 1431, 1455 (2004) (employee 
handbook stated: ``It is important for you to know that the Company 
values union-free working conditions. We believe that true job 
security can come only from you and the management of this company 
working together in harmony to produce a quality product. A union-
free environment allows this kind of teamwork to develop.''); MEMC 
Electronic Materials, Inc., 342 NLRB 1172, 1188 (2004) (employee 
handbook stated that remaining ``union-free'' is an objective of the 
company); Noah's New York Bagels, 324 NLRB 266, 272 (1997) (section 
of employee handbook entitled ``Unions'' states: ``At Noah's Bagels 
we believe that unions are not necessary. We believe this for many 
reasons[.] First, there is no reason why you should have to pay 
union initiation fees, union dues, and union assessments for what 
you already have. . . . Second, there is no reason why you or your 
family should fear loss of income or job because of strikes or other 
union-dictated activity. Third, we believe that the best way to 
achieve results is to work and communicate directly with each other 
without the interference of third parties or unions. . . . The 
Federal government gives employees the right to organize and join 
unions. It also gives employees the right to say 'no' to union 
organizers and not join unions. Remember, a union authorization card 
is a power of attorney which gives a union the right to speak and 
act for you. If you should be asked to sign a union authorization 
card, we are asking you to say `no.'''); American Wire Products, 313 
NLRB 989, 994 (1994) (employee handbook states, ``Our Company is a 
non-union organization and it is our desire that we always will 
be''; the same section also requests employees to direct union-
related questions to a supervisor); Heck's, Inc., 293 NLRB 1111, 
1114 (1989) (employee handbook's ``Union Policy'' read: ``As a 
Company, we recognize the right of each individual Employee, their 
freedom of choice, their individuality and their needs as a worker 
and a fellow human being. For these reasons and others, we do not 
want any of our Employees to be represented by a Union. . . . When 
you thoroughly understand Heck's liberal benefit programs, the 
desire to assist you in your job progress and willingness to discuss 
your job-related problems, you surely will agree there is no need 
for a union or any other paid intermediary to stand between you and 
your company.'') Thus, employees may be well aware of their 
employer's views regarding unions even before any campaign begins.
---------------------------------------------------------------------------

    Several comments contend that an employer's general ability to 
communicate with employees regarding unions is not a complete 
substitute for the ability to communicate regarding a specific petition 
and a known petitioner.\62\ However, a complete substitute is not 
necessary in this context; rather, the question is whether the overall 
speech opportunity in the campaign is meaningful. The opportunity to 
engage in general speech of this sort is undoubtedly relevant on this 
question, and must be considered together with the opportunities for 
later, more specific campaign speech as part of the overall analysis.
---------------------------------------------------------------------------

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

    Finally, even in the absence of any pre-petition campaign, 
employees have experience with the existing labor-management regime in 
their workplace, which informs their choice of whether to seek to alter 
it through collective bargaining. In unionized workplaces in which the 
incumbent union faces a decertification petition or a rival union 
petition, the incumbent union will be appropriately judged by its 
performance to date. Thus, eligible voters have a preexisting base of 
knowledge and experience with which to evaluate the incumbent. The same 
is true in workplaces where employees are unrepresented. Employees 
there have experience with labor-management relations in the absence of 
union representation. In both cases, employees base their choice, at 
least in part, on the relationship they are being asked to change.\63\
---------------------------------------------------------------------------

    \63\ See Testimony of Darrin Murray on behalf of SEIU II. In 
contrast to this point, which is unassailable, the AFL-CIO contends 
that, based upon a study by Getman and Goldberg, the employees' 
votes are determined almost entirely by preexisting attitudes toward 
working conditions, rather than by campaign speech. AFL-CIO Reply 
II. Regardless of the empirical reality of this claim, which we 
strongly doubt, the Act itself is premised on a contrary assumption, 
as discussed above. The supposed ineffectiveness of employer speech 
in persuading voters cannot be cited as reason to restrict that 
speech, and we expressly decline to rely on this rationale.
---------------------------------------------------------------------------

d. Employers' Post-Petition Opportunities for Speech
    Although the Board has concluded that the record does not establish 
that pre-petition employer ignorance of an organizing campaign is the 
norm, the Board accepts that, in at least some cases, employers may, in 
fact, be unaware of an organizing campaign until a petition is filed. 
For example, COLLE cites union campaign strategy documents that 
allegedly call for ``stealth'' campaigns. In such cases, the union may 
indeed have a ``head start'' in the campaign in the sense that it 
begins communicating its specific message to the unit employees before 
the employer does so.\64\
---------------------------------------------------------------------------

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

    And so the question is presented whether, as a general matter, the 
rules will provide a meaningful opportunity to campaign under these 
circumstances. The argument has been presented that a great deal of 
time is required, weeks and even months, in order to decide on a 
message and effectively communicate it. Testimony of Kirsanow on behalf 
of NAM II; Testimony of Edgardo Villanueva on behalf of EMSI Consulting 
II. This is not consistent with our experience in overseeing Board 
elections.
    Most elections involve a small number of employees. A quarter of 
elections are held in units with 10 or fewer employees; half of 
elections are held in units smaller than 25; and three-quarters of all 
Board elections have 60 or fewer employees in the unit.\65\ Given this 
small size--much, much smaller than even the smallest political 
elections--effective communication with all voters can be accomplished 
in a short period of time. Even in much larger units, employers have a 
meaningful opportunity for speech.
---------------------------------------------------------------------------

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

    The employer has opportunities to communicate with employees while 
they are in the workplace, during the workday. It can compel employees 
to attend meetings on working time at the employer's convenience.\66\ 
Most employers spend more than 35 hours per week in close, in-person 
contact with the voters. As pointed out at the Board's public hearings 
in both 2014 and 2011, employers can use as much of that time as they 
wish communicating with employees about these matters. Testimony of 
Hermanson on behalf of AFT II; Testimony of Professor Joseph McCartin 
on behalf of the Kalmanovitz Initiative for Labor and the Working Poor. 
Both professional ``persuaders'' and employer representatives who 
testified against the rule were in agreement on this point. See, e.g., 
Testimony of Villanueva on behalf of EMSI Consulting II. Yet, 
generally, only three or four such meetings were considered necessary 
to communicate with employees effectively. Id.
---------------------------------------------------------------------------

    \66\ A 1990 study of over 200 representation elections found 
that employers conducted mandatory meetings prior to 67 percent of 
the elections. John J. Lawler, Unionization and Deunionization: 
Strategy, Tactics, and Outcomes 145 (1990). A more recent study 
found that in 89 percent of campaigns surveyed, employers required 
employees to attend so-called ``captive audience'' meetings during 
work time and that the majority of employees attended at least five 
such meetings during the course of the campaign. Bronfenbrenner & 
Warren, supra at 6.
---------------------------------------------------------------------------

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

[[Page 74323]]

stipulation, the election was set 25 days from the petition; the unit 
comprised eight employees. The employer held a total of 30 individual, 
mandatory meetings to communicate with employees about the vote. This 
demonstrates that, where employers wish to engage in an unusually high 
amount of communication, they can accomplish that in a short period of 
time because they control the quantum of work time which is used in 
conveying their message.
    Under current law, employers can compel attendance at meetings at 
which employees are often expressly urged to vote against 
representation.\67\ There is no limit on either the frequency or 
duration of such mandatory meetings and the rule imposes none. 
Employees may be relieved of regular duties and, instead, be required 
to attend such meetings.
---------------------------------------------------------------------------

    \67\ See, e.g., Fontaine Converting Works Inc., 77 NLRB 1386, 
1387 (1948) (employer did not violate the Act by ``compelling its 
employees to attend and listen to speeches on company time and 
property'').
---------------------------------------------------------------------------

    These are examples of how employer speech can be expeditiously 
accomplished. The rule does not limit any communication methods 
available to employers. Indeed, that is precisely the point of this 
discussion: That employers have meaningful opportunities to speak with 
employees both under the old rules and the new.\68\
---------------------------------------------------------------------------

    \68\ In light of this fact, the dissent's reading of this 
discussion is particularly perverse. Relying on Citizen's United, 
130 S.Ct. 876 (2010) and progeny, the dissent claims the Board is 
using an ``anti-distortion'' theory to limit ``an employer's undue 
influence,'' and rectify employers' ``upper hand in campaign 
communications'' by limiting the time employers have to speak. We--
yet again--emphatically disclaim any such motivation. As previously 
discussed, the problems caused by delay have nothing to do with 
employer speech.
---------------------------------------------------------------------------

    The Board considered such factors in its Excelsior rule, which 
requires that the names and addresses of voters be provided to the 
petitioning union prior to the election. Excelsior Underwear, Inc., 156 
NLRB 1236, 1240-41 (1966). The rule was designed, in part, to ensure 
fairness by maximizing the likelihood that all voters would be exposed 
to the nonemployer party arguments concerning representation. The rule 
requires that the petitioner have the opportunity to make use of a list 
of names and addresses of voters for a minimum of 10 days before the 
election, effectively allowing the petitioner a minimum of 10 days for 
such speech. See Mod Interiors, 324 NLRB 164, 164 (1997); Casehandling 
Manual Section 11302.1. ``The Excelsior rule is not intended to test 
employer good faith or `level the playing field' between petitioners 
and employers, but to achieve important statutory goals by ensuring 
that all employees are fully informed about the arguments concerning 
representation and can freely and fully exercise their Section 7 
rights.'' Mod Interiors, Inc., 324 NLRB 164 (1997). We think a similar 
analysis is relevant to employers' meaningful opportunity to speak 
here.
    Finally, modern communications technology available in many 
workplaces permits employers to communicate instantly and on an on-
going, even continuous basis with all employees in the voting unit. 
See, e.g., Virginia Concrete Corp., 338 NLRB 1182, 1182 (2003) 
(employer sent ``Vote No'' message to ``mobile data units'' in 
employees' trucks in the final 24 hours before an election); Testimony 
of Bunn & Sharma on behalf of AFL-CIO II (less time is needed to 
communicate in the era of communications technology, from text 
messaging to video presentations on flash drives).\69\ Access to 
information about particular unions, such as news reports, regulatory 
disclosures, or judicial opinions are readily available on the 
Internet, both for employees to peruse and for employers who desire to 
use such information as part of their messaging. See, e.g., Office of 
Labor-Management Standards (OLMS), http://www.dol.gov/olms/regs/compliance/rrlo/lmrda.htm. More general information praising or 
decrying the effects of union representation is also plentiful. Indeed, 
now more than ever, parties who wish to immediately participate in an 
election campaign have the tools to do so at their disposal.
---------------------------------------------------------------------------

    \69\ As described in the NPRM, and below, the Board's experience 
suggests employers are also increasingly using company and personal 
email to send campaign communications to their employees. 76 FR 
36812, 36820 (June 22, 2011).
---------------------------------------------------------------------------

e. No Regulatory Minimum or Maximum Time Should Be Set
    Many comments propose that the Board set specific standards for the 
number of days between the petition and the election. In general, 
however, none of these proposals agree as to what the standards should 
be.
    Some have contended that the minimum should be 0 days. Testimony of 
Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly 
II. Or the minimum could be 10 days, paralleling the Union's time with 
the list of voter contact information, also discussed above. Cook-
Illinois Corporation suggests a minimum of 21 days, subject to 
expansion or contraction by agreement of the parties. The dissent 
suggests a minimum of 30-35 days and a maximum of 60 days. National 
Right to Work Legal Defense Foundation (NRTWLDF) II proposes a minimum 
of 35 days. The Heritage Foundation proposes a minimum of 40 days. 
Others suggest times longer still.\70\ On the other hand, others have 
suggested imposing a different kind of regulatory maximum on the 
election date, i.e., that the election should be held within 15 days of 
the final voter list unless the parties agree to a later date. 
Testimony of Hernandez on behalf of UFCW II.
---------------------------------------------------------------------------

    \70\ CDW draws an analogy to the Older Workers Benefit 
Protection Act, 29 U.S.C. 626, which provides 45 days for employees 
to sign releases regarding age discrimination claims. CDW argues 
that this provision demonstrates the impropriety of forcing 
employees to make a decision on representation in less time than the 
current 38-day median. The Board does not find it instructive to 
compare an individual employee's permanent waiver of rights under a 
completely different statutory scheme with the election procedures 
at issue here involving groups of employees and, typically, an 
active campaign by several parties. We also reject NAM's (II) 
analogy to the 45-day plant-closing or mass layoff notice period 
under the Worker Adjustment and Retraining Notification Act.
---------------------------------------------------------------------------

    As both supporters and opponents of the rule have noted, however, 
every case will be different, and it would disserve the purposes of the 
Act to create a procrustean timeline for election speech. Testimony of 
Professor Samuel Estreicher; Testimony of Petruska on behalf of LIUNA 
MAROC II; Testimony of Ronald Meisburg on behalf of the Chamber II; cf. 
Testimony of Kirsanow on behalf of NAM II (there is no ``irreducible 
point'' where ``logistical First Amendment violation'' takes place). 
The election will ``vary in size, geography and complexity in just 
about every way imaginable,'' and various unique situations will 
present themselves in particular workplaces. Testimony of Petruska on 
behalf of LIUNA MAROC II.\71\ Bearing in mind

[[Page 74324]]

the general principles articulated above, the regional director will 
retain a measure of discretion to consider these matters along with 
other relevant factors in selecting an election date.
---------------------------------------------------------------------------

    \71\ Many commenters argued that their industry or employment 
situation presented unique speech needs that should be considered.
    RILA and NRF argue that sufficient time to campaign is 
particularly critical in the retail industry, where employees work 
on different shifts, often are seasonal or part-time, are less 
accessible during the workday because they are on the sales floor, 
and often are unavailable outside normal working hours due to other 
commitments. See also Food Marketing Institute (FMI) II (similar 
arguments in food retail). NRF contends, however, that more than 98 
percent of all retailers employ fewer than 100 workers, and RILA 
contends that most petitions seek elections in single-store units 
and that front-line managers typically constitute 10 to 20 percent 
of the workforce in each store.
    NRMCA and construction industry employers (ABC II) make similar 
arguments, that their various industries have unique features such 
as isolated plant locations, unpredictable delivery hours, and 
dispersed employees. But again, the commenters state that the vast 
majority of employers in the industry are small businesses. 
Therefore, most bargaining units are likely to be quite small, which 
should enable employer communication to take place in a relatively 
short period of time. In addition, as explained in the text, under 
extant precedent, these employers (and others) can require all 
employees to attend a meeting or multiple meetings outside their 
normal work hours, in a central location, in order to ensure they 
receive the employer's message prior to the election.
    AHA II takes a different tack, arguing that large units are 
common in the healthcare field, where large hospitals average 471 
RNs, and that this requires more time for speech. There is no 
question that a small fraction of the Board's elections take place 
in larger units: in 2013, for example, approximately 2.5% of 
elections were held in units of 300 or more. But this does not 
necessarily mean more time for speech is required; in large units it 
is generally most likely that the employer will have prepetition 
notice of the organizing simply because a campaign of that magnitude 
cannot be kept secret. Moreover, considering all the opportunities 
for speech available in the particular workplace, the mere size of 
the unit may not be sufficient to justify lengthening the campaign 
period in the particular case.
    Nor are we persuaded by the suggestion that prompt elections are 
not possible in work forces with a large number of non-English 
speakers. See testimony of Villanueva on behalf of EMSI Consulting 
II. Of necessity employers with linguistically diverse work forces 
have to find ways to communicate with their employees in order to 
respond to the day-to-day demands of the business. The press of 
daily business requires prompt response in other matters, and it is 
reasonable to believe that employers can respond with equal 
promptness when questions of representation arise in their 
workplace. In addition, standardized campaign material has been 
developed by persuaders in a wide variety of languages.
---------------------------------------------------------------------------

    As an alternative, some have discussed reserving ``expedited'' 
procedures for cases where the employer has received advanced notice of 
the campaign from the union. U.S. Poultry II; Testimony of Perl on 
behalf of the TN Chamber II. This suggestion would at least partially 
account for case-by-case variation in employer knowledge of the 
campaign. However, it would account for none of the other ways that 
campaigns vary, and would continue to apply inappropriate standards to 
cases that do not justify them. More fundamentally, as discussed, the 
petition itself is adequate notice because the procedures under the new 
rules still provide a meaningful opportunity to campaign.
    As another alternative, some have argued that the Board should 
publish, together with the final rule, revised ``time targets'' for 
representation case procedures. CDW; Testimony of Joseph Torres on 
behalf of Winston & Strawn II; Testimony of Ross Friedman on behalf of 
CDW II. The existing time targets set expectations that facilitate the 
negotiation of stipulations because ``there is discretion to negotiate 
an election date anytime within'' the time target. CDW. Time targets 
have never been published by the Board; rather, the extant time targets 
were published by the General Counsel, and represent his experience 
administratively overseeing the regions. The Board declines to publish 
any such time targets at present, and will continue to leave the matter 
within General Counsel discretion. We note that experience with the 
rules will continue to provide the frame of reference for the General 
Counsel's time targets, and that some time may be necessary before 
sufficient experience is available to intelligently revise the current 
targets; however, we think it reasonable to anticipate that time 
targets will ultimately be revised and published, and that timely 
completion of this process will serve the Board's objective of 
encouraging election agreements as parties adjust to the new rule. Any 
short term difficulties in reaching election agreements, should 
dissipate quickly, as they have in the past when prior time targets 
have been adjusted.
    The Board believes that its duty is to perform its statutory 
functions as promptly as practicable consistent with the policies of 
the Act. The Board has amended its rules in order to facilitate that 
objective, but even under the amended rules, which leave the ultimate 
decision about the setting of the election date within the sound 
discretion of the regional director after consultation with the 
parties, the Board does not believe it is likely or even feasible that 
it could perform its statutory functions in such a short period, and a 
regional director would set an election so promptly, that employee free 
choice would be undermined. The Board has thus decided to maintain the 
current practice of not setting either a maximum or a minimum number of 
days between petition and election via its rules.
f. Timing Under the Rules in Practice
    Finally, it must be noted that many of the concerns expressed about 
the time from petition to election are predicated on erroneous 
speculation. Citing Member Hayes's dissent from the NPRM, some comments 
suggest that the amendments will provide for elections in as few as 10 
days after the filing of the petition.\72\ The practicalities of a 
regional director's conducting a directed election suggest otherwise. 
First, it takes at least 8 days to begin the hearing. At least 1 day is 
required for the hearing and then a decision and direction of election 
must be drafted and issued; thereafter, the voter list must be produced 
and the Notice of Election posted for 3 days--all before an election is 
conducted.
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    \72\ See Chamber; COLLE.
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    We are also not persuaded by the complaint that the amendments will 
work a deprivation of employer speech rights in cases where the 
employer feels pressured to enter an agreement regarding the election 
date that provides for a very fast election. Testimony of Elizabeth 
Milito on behalf of National Federation of Independent Business (NFIB) 
II. If the employer does not want a particular election date, it is 
free to not sign, state its position in its statement of position, and 
the regional director can fix the date of the election in the direction 
of election. If the employer does sign, there cannot have been a 
deprivation of rights absent evidence of actual duress.
    In addition to arguing that the rule fails to give employers 
sufficient time to deliver their campaign message, some comments 
contend that the new rules do not give employees sufficient time to 
receive and evaluate that message and, if they so choose, to organize 
themselves to oppose union representation.\73\ This argument is pressed 
with particular force in cases where the employer has exercised its 
statutory right to decline to express any opposition to the union. As a 
related matter, it is argued that an employer's choice to enter into an 
election agreement will deny employees an adequate opportunity for free 
debate among themselves.
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    \73\ See NRTWLDF; Seyfarth Shaw; ALFA; ACE; CDW; NRMCA; Indiana 
Chamber; Con-way; Specialty Steel; Americans for Limited Government; 
International Foodservice; testimony of C. Stephen Jones, Jr. on 
behalf of Chandler Concrete Co., Inc.; testimony of Charles I. Cohen 
on behalf of CDW; testimony of David Kadela on behalf of Littler 
Mendelson; testimony of Harold Weinrich on behalf of Jackson Lewis 
LLP; testimony of Brett McMahon on behalf of Miller & Long 
Construction; NRTWLDF II; testimony of William Messenger on behalf 
of NRTWLDF II.
    Some comments include a related argument that employees who are 
considered likely to oppose the union, and therefore were not 
involved in the pre-petition organizing campaign, may not know about 
the organizing drive until the petition is filed. See Seyfarth Shaw; 
ALFA.
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    This final rule does not change anything about an employer's 
ability to remain silent and agree to an election on a particular date. 
The very same scenario occurs under current rules. If the situation 
were ever such as to truly work a deprivation of employee rights, the 
Board would of course remain free to address it. But to date no such 
case has arisen. Indeed, an important change in this final rule--to 
require an initial notice upon filing of the petition--is likely to 
obviate any such risk. A representative of NRTWLDF acknowledged as much 
at the public

[[Page 74325]]

hearing in 2014. Testimony of Messenger on behalf of NRTWLDF II.
g. Miscellaneous Matters Relating to the Opportunity To Campaign
    The Board discounts the argument made in some comments that the 
proposed rule improperly fails to give the employer sufficient time to 
refute unrealistic promises or correct any mischaracterizations or 
errors by union organizers.\74\ For 3 decades, Board law has been 
settled that campaign misstatements--regardless of their timing--are 
generally insufficient to interfere with an election, unless they 
involve forged documents that make employees unable to evaluate the 
statements as propaganda. See Midland National Life Insurance Co., 263 
NLRB 127, 132 (1982) (noting that employees are capable of 
``recognizing campaign propaganda for what it is and discounting it''). 
The Midland rule applies even if the misrepresentation takes place only 
a few days before the election. See, e.g., U-Haul Co. of Nevada, Inc., 
341 NLRB 195, 195 (2004) (document circulated by union two days before 
election did not amount to objectionable misrepresentation under 
Midland).
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    \74\ Vigilant; Indiana Chamber of Commerce; John Deere Water; 
PIA; Greater Raleigh Chamber of Commerce; NMMA; Associated Oregon 
Industries; NAM; testimony of Michael Prendergast on behalf of 
Holland & Knight; Ohio Grocers Association II; Klein Dub & Holleb 
II. T&W Block Company makes a related argument, contending that the 
failure to allow sufficient time would destabilize labor relations 
because employees would enter bargaining with unrealistic 
expectations.
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    The Board rejects the argument of Vigilant that a shorter period 
between petition and election will result in a greater number of mail-
ballot elections and an accompanying increase in the potential for 
fraud and coercion. Nothing in the proposed or adopted rules alters the 
standard for determining when an election should be conducted by mail 
ballot. A regional director's determination of whether an election 
should be held manually or by mail is not informed by the number of 
days between the petition and the election. Rather, it is based on 
factors such as the desires of the parties and whether employees are 
``scattered'' due to their geographic locations or work hours and 
whether there is a strike, lockout, or picketing in progress. See San 
Diego Gas & Electric, 325 NLRB 1143, 1145 (1998); Casehandling Manual 
Section 11301.2.
    Baker & McKenzie contends that, to the extent the amendments will 
result in elections being held within 10 to 25 days after the petition, 
they are inconsistent with the Board's other notice provisions, which 
provide longer periods. For example, Baker & McKenzie notes that a 
respondent must post a remedial notice in an unfair labor practice case 
for 60 days or longer, and that the Board previously promulgated a rule 
requiring employers to continuously post in the workplace a notice of 
employee rights under the Act.\75\ The Board does not agree that its 
other posting requirements are or were in any way inconsistent with the 
final rule, because each serves different purposes in different 
contexts than the notice rules issued today. First, remedial notices 
alleviate the impact of unlawful acts by an employer or union, rather 
than communicate about a specific petition in a specific unit. Thus, 
the time reasonably necessary for employees to obtain the message from 
a posted remedial notice, and for that message to dissipate the effects 
of unfair labor practices, is longer than that necessary for employees 
to receive information from employers and unions actively campaigning 
for their support. Second, the Board explained why it required 
continuous posting of the NLRA rights notice, as opposed to its 
remedial and election notices, ``[I]t is reasonable to expect that even 
though some employees may not see the notices immediately, more and 
more will see them and learn about their NLRA rights as time goes by.'' 
76 FR 54005, 54030 (Aug. 30, 2011). Thus, the Board recognized the goal 
of ``reach[ing] new employees'' (id.) could be met by requiring the 
rights notice to be readily available to employees whenever they chose 
to examine it. In contrast, employee turnover is unlikely to be of 
concern during the time between a direction of election and the 
election itself. Finally, the Board's existing notice-posting provision 
for elections, unaltered by the final rule, requires that the notice be 
posted for only 3 working days before the election. Compare 29 CFR 
103.20 (2010) \76\ with amended 102.67(k). The Board thus rejects the 
``one size fits all'' suggestion for maximum and/or minimum time 
periods for conducting elections under the Act.
---------------------------------------------------------------------------

    \75\ Following litigation, that rule was withdrawn by the Board. 
See 77 FR 25868 (May 2, 2012) (announcing indefinite delay in 
effective date pending litigation outcome); NLRB January 6, 2014 
press release announcing decision not to seek Supreme Court review 
of the two adverse appeals court decisions, http://www.nlrb.gov/news-outreach/news-story/nlrbs-notice-posting-rule (last visited 
September 26, 2014).
    \76\ This and subsequent citations to the regulations in 2010 is 
not meant to suggest that there is a substantive difference between 
the current regulations and the regulations as they existed in 2010, 
but rather to emphasize that the relevant language existed in our 
regulations before the issuance of the first June 22, 2011 NPRM in 
this rulemaking.
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    Other comments suggest that the amendments will generate litigation 
because, if a party has less time to campaign between the petition and 
election, the party will ``assert as many defenses as possible'' or try 
to obtain a hearing simply to ``buy . . . more time'' before the 
election. AHA. SEIU's reply comment notes that there was no significant 
drop in the consent or stipulation rate following former General 
Counsel Fred Feinstein's initiative aimed at commencing all pre-
election hearings between 10 and 14 days after the filing of the 
petition. Rather than undermining the rationale for the proposals, the 
suggestion that parties might use the pre-election hearing to delay the 
conduct of an election reinforces the need for the final rule. Both the 
ability and incentive for parties to attempt to raise issues and engage 
in litigation in order to delay the conduct of an election are reduced 
by the final rule.
    Some comments, including that of Professor Samuel Estreicher, 
suggest that the employer needs sufficient time not only to campaign, 
but to retain counsel so that the employer understands the legal 
constraints on its campaign activity and does not violate the law or 
engage in objectionable conduct.\77\ A number of comments specifically 
argue that any compression of the time period between the petition and 
election will be particularly difficult for small businesses, which do 
not have in-house legal departments and may not have ready access to 
either in-house or outside labor attorneys or consultants to counsel 
them on how to handle the campaign.\78\ Similarly, some comments 
suggest that, to the extent the amendments result in a shorter period 
of time between the petition and the election, they will increase 
objections and unfair labor practice litigation, because employers will 
not have an opportunity to train managers on how to avoid objectionable 
and unlawful

[[Page 74326]]

conduct. See Con-way Inc.; Bluegrass Institute; ATA.\79\
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    \77\ See also testimony of former Board Member Marshall Babson 
on behalf of Seyfarth Shaw LLP (emphasizing that the rules must 
balance the various competing interests).
    \78\ NRMCA; Indiana Chamber; National Automobile Dealers 
Association (NADA); T&W Block Company; York Society for Human 
Resource Management; NMMA; Council of Smaller Enterprises (COSE); 
Bluegrass Institute; Landmark Legal Foundation; American Trucking 
Associations (ATA); testimony of C. Stephen Jones, Jr. on behalf of 
Chandler Concrete Co., Inc.; American Fire Sprinkler Association; 
Leading Age; testimony of Milito on behalf of NFIB II.
    \79\ Other comments, however, cite evidence indicating a 
positive correlation between the length of a campaign and unfair 
labor practice allegations. See SEIU; NELP; Senior Member Miller and 
Democratic House Members; John Logan, Ph.D., Erin Johansson, M.P.P., 
and Ryan Lamare, Ph.D.; Senators Tom Harkin, Robert Casey, and Patty 
Murray, and U.S. Representatives George Miller and John Tierney. See 
also testimony of Professor Ethan Daniel Kaplan (citing similar 
results from a study in Canada).
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    However, under the final rule, when the petition is served on the 
employer by the regional office, it will be accompanied by the Notice 
of Petition for Election, (a revised version of Form NLRB 5492), which 
will continue to set forth in understandable terms the central rules 
governing campaign conduct. This provides an immediate explanation of 
rights and obligations, while an employer who wishes to locate counsel 
may do so. In any event, the Board does not believe that any shortening 
of the time between petition and election that results from the final 
rule will impair employers' ability to retain counsel in a timely 
manner.\80\ In this regard, Russ Brown, an experienced labor-relations 
consultant, testified at the public hearing that his firm routinely 
monitors petitions filed in the regional offices and promptly offers 
its services to employers named in those petitions. In general, the 
well-documented growth of the labor-relations consulting industry 
undermines the contention that small businesses are unable to obtain 
advice quickly. Comments, such as the one cited above, indicate that it 
is a routine practice for labor-relations consultants to monitor 
petitions filed with the regional offices, so that the consultants may 
then approach the employers to offer their services.\81\
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    \80\ Ranking Member Enzi and Republican Senators assert that 
employers will significantly limit their use of legal counsel during 
organizing campaigns due to the Department of Labor's recent NPRM 
interpreting the advice exemption to the ``persuader'' disclosure 
requirement under the Labor-Management Reporting and Disclosure Act. 
See 76 FR 36178 (proposed June 21, 2011). However, the DOL's stated 
goal is publicizing the interactions between employers and covered 
entities, not stopping those interactions from taking place. See id. 
at 36182, 36190. In any event, the Board views such concerns as more 
properly directed to the DOL. The Department of Labor has not yet 
taken action on the proposed rule. See 79 FR 896, 1025 (Jan. 7, 
2014). The Board also wishes to make clear that--contrary to COLLE's 
suggestion--its actions have been in no way influenced by any 
actions of the DOL.
    \81\ See testimony of Russ Brown on behalf of the Labor 
Relations Institute (LRI), noting that the Labor Relations 
Institute's Web site ``is probably one of the leading sources of 
keeping up with just about every scrap of paper you guys push.'' The 
Web site, www.lrionline.com, includes a section entitled ``union 
avoidance'' and advertises online libraries that include a ``daily 
petition library'' with ``supplemental petition information 
available daily'' and an ``organizing library'' tracking ``union 
organizing activity.'' See also testimony of Michael D. Pearson, 
former field examiner (noting that consultants check the public 
filings of RC petitions on a daily basis to solicit business from 
employers); testimony of Professor Joseph McCartin on behalf of the 
Kalmanovitz Initiative for Labor and the Working Poor (noting that a 
``thriving industry of consultants has emerged'').
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3. Congressional Inaction in 1959
    ACC points out that Congress, in enacting the Labor-Management 
Reporting and Disclosure Act (LMRDA) in 1959, rejected a proposal that 
would have permitted an election to take place before a hearing when 
there were no issues warranting adjudication, so long as the election 
was not held sooner than 30 days after the petition was filed (ACC 
Reply). The proposal, contained in the Senate version of the bill, 
would have permitted a so-called ``pre-hearing election,'' barred by 
the 1947 Taft-Hartley amendments to the Act. S. 1555, 86th Cong., 1st 
Sess. 705 (as passed by Senate, Apr. 25, 1959). At one point Senator 
Kennedy suggested that this 30-day period would provide a ``safeguard 
against rushing employees into an election where they are unfamiliar 
with the issues.'' 105 Cong. Rec. 5984 (April 15, 1959) (statement of 
Sen. Kennedy). The House bill, however, never contained a parallel 
provision, and it was not enacted into law.
    Nevertheless, ACC (Reply) argues that the proposed amendments 
described in the NPRM are inconsistent with congressional intent 
because they do not guarantee a minimum of 30 days between petition and 
election. To the extent that ACC's argument bears on the final rule, 
the Board rejects it. Report language and statements of individual 
legislators on a provision that was not enacted in 1959 are entitled to 
little if any weight in assessing the meaning of legislation adopted in 
1935 and amended in 1947. In fact, the Supreme Court has clearly stated 
that ``failed legislative proposals are a particularly dangerous ground 
on which to rest an interpretation of a prior statute'' because a bill 
can be proposed or rejected for any number of reasons.\82\ Solid Waste 
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 
U.S. 159, 169-70 (2001) (internal quotation marks omitted); see also 
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 
511 U.S. 164, 187 (1994). Indeed, the rejection of the proposed 
amendment would more reasonably be understood as an indication that 
Congress did not believe a minimum time between petition and election 
is necessary. However, the legislative history of the LMRDA offers no 
guidance on why the provision was rejected, and Congress imposed no 
requirements in the LMRDA or at any other time concerning the length of 
time that must elapse between petition and election. Accordingly, the 
Board finds no indication in this legislative history that the final 
rule is in any way contrary to Congress's intent.
---------------------------------------------------------------------------

    \82\ For this reason, the Board declines COLLE's similar 
suggestion to find relevant Congress' failure to pass the 1978 Labor 
Law Reform Act, versions of which provided for varying time frames 
for representation elections.
---------------------------------------------------------------------------

D. Effects on Employee Representation and the Economy

    Many comments do not address the substance of the proposed 
amendments, but instead speak generally in favor of, or in opposition 
to, labor unions and the process of collective bargaining. In response, 
the Board continues to observe that, by passing and amending the NLRA, 
Congress has already made the policy judgment concerning the value of 
the collective-bargaining process; the Board is not free to ignore or 
revisit that judgment. As explained in the NPRM, the amendments are 
intended to carry out the Board's statutory mandate to establish fair 
and efficient procedures for determining if a question of 
representation exists, for conducting secret-ballot elections, and for 
certifying the results of secret-ballot elections. Accordingly, the 
Board will not engage in an analysis, invited by these comments, 
concerning the general utility of labor unions and the collective-
bargaining process.\83\
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    \83\ Many comments additionally charge that the Board's motives 
for issuing the rule are improper in that the Board seeks to act as 
an advocate for unions (rather than as a neutral overseer of the 
process), to drive up the rates of union representation, and to 
``stack the deck'' against employers in union organizing campaigns. 
No credible evidence has ever been provided in support of this 
claim. The reasons for issuing the rule are fully set forth in the 
NPRM and in this preamble; favoritism is not among them.
---------------------------------------------------------------------------

    Other comments assert that the proposed amendments would lead to 
increased union representation and question the wisdom of adopting 
rules that would have such an effect on a fragile economy. Again, the 
Board views these comments as questioning policy decisions already made 
by Congress.\84\ The amendments do not reflect a judgment concerning 
whether increased employee representation would benefit or harm the 
national economy.
---------------------------------------------------------------------------

    \84\ To the extent that comments suggest that the Board failed 
to consider the proposed rule's potential to increase the costs on 
small employers associated with increased unionization as part of 
its obligations under the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., those comments are addressed in the Regulatory Flexibility 
Act section below.

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[[Page 74327]]

V. Comments on Particular Sections

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

Sec. 102.60 Petitions
    The final rule adopts the Board's proposals to permit parties to 
file petitions electronically and to require that the petitioner serve 
a copy of the petition on all other interested parties. The final rule 
also clarifies that parties filing petitions electronically need not 
also file an original for the Agency's records. The final rule further 
adopts the Board's proposal to require service of two additional agency 
documents that will be available to petitioners in the regional offices 
and on the Board's public Web site. The first document, which will 
substitute for and be an expanded version of the Board's Form 4812, 
will describe the Board's representation case procedures. The second 
document the petitioner will serve along with the petition will be a 
Statement of Position form, which will include a request for commerce 
information (such as that solicited by current NLRB Form 5081, the 
Questionnaire on Commerce Information).\85\
---------------------------------------------------------------------------

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

    The Board received generally positive comments regarding its 
proposal to allow parties to file petitions electronically.\86\ For 
instance, the AFL-CIO II noted that the electronic filing of petitions 
is consistent with general Federal, state and local government 
practices and is part of the Board's `gradual and entirely sensible 
transition' to electronic filing, service and storage of documents. The 
Center on National Labor Policy (CNLP) commends the proposal as 
``excellent'', but apparently misunderstands the proposal as 
establishing mandatory electronic filing, when it does not. The Board's 
view, echoed by several comments, is that allowing--but not requiring--
the electronic filing of petitions is part of its nearly decade-long 
effort to adapt its procedures to modern methods of communication.\87\ 
This rule recognizes the widely accepted use of email for legal and 
official communications and more closely aligns Board service 
procedures with those of the Federal courts.
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    \86\ See PIA; American Federation of State, County and Municipal 
Employees (AFSCME); Chamber; Chairman Harkin, Senior Member Miller, 
and Congressional Democrats II; United Association of Journeymen and 
Apprentices of the Plumbing & Pipefitting Industry of US and Canada 
(Plumbers) II; Bart Bolger II; Testimony of Professor Anne Marie 
Lofaso.
    \87\ Also, the Board has decided to clarify, consistent with its 
current e-filing practice concerning other types of case documents, 
that petitioners who file their petitions electronically are not 
required to file an extra copy of the petition in paper form. Upon 
careful consideration of the NPRM proposal, which would have 
required extra paper copies to be filed for both faxed petitions and 
electronically-filed petitions, the Board is of the view that an 
extra paper copy of an electronically-filed petition would be 
unnecessary. The Board's experience has been that the legibility of 
electronically-filed documents does not differ significantly from 
paper originals, unlike faxes, which are sometimes significantly 
less legible than their original paper versions. Moreover, original 
paper-copies could cause administrative difficulties if regional 
staff were to inadvertently treat the later-arriving paper copy as a 
new case rather than a courtesy copy of the electronically-filed 
petition that would have been docketed earlier. However, the Board 
has concluded that such risks are worth incurring to overcome 
potential legibility issues regarding faxed petitions.
---------------------------------------------------------------------------

    The final rule's requirement that the petitioner serve a copy of 
the petition on all other interested parties when it files its petition 
with the Board further conforms to ordinary judicial and administrative 
practice. For example, a labor organization filing a petition seeking 
to become the representative of a unit of employees is required to also 
serve the petition on the employer of the employees. This will ensure 
that the earliest possible notice of the pendency of a petition is 
given to all parties. The few comments to focus on this proposal either 
affirmatively support it as an improvement over current procedures or 
find it unobjectionable.\88\
---------------------------------------------------------------------------

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

    Likewise, the Board received no significant negative comments 
concerning its proposal to require service of the Statement of Position 
form and an expanded version of the Board's Form 4812 to inform 
interested parties about the Board's representation case procedures. 
The Board agrees with GAM that requiring service of this latter 
document will aid employers' understanding of representation case 
procedures and render Board procedures more transparent.
    A few comments state that parties may not receive petitions or 
other relevant documents due to the use of electronic filing. For 
example, AGC (AGC II) argues that parties' use of spam filters and 
other computer data protection tools could prevent the delivery of 
electronically-filed petitions and thereby lead to increased litigation 
due to their non-receipt of petitions or related documents. And the 
Cook-Illinois Corporation (Cook-Illinois) contends that the recipient 
of an emailed petition might unwittingly delete the email as spam. The 
Board responds that it already permits parties to electronically file 
most documents in unfair labor practice and representation proceedings 
and has yet to experience any increase in litigation resulting from the 
use of such software. Moreover, it is also possible for representation 
petitions sent via United States mail or facsimile to be misdelivered 
or to be incorrectly identified by the recipient as junk mail. Also, it 
is the practice of the regional offices to have a Board agent contact 
parties as soon as possible after the filing of a petition in order to 
facilitate regional decision making regarding the petition. See 
Casehandling Manual Section 11010. In addition, pursuant to Sec.  
102.63(a), the regional offices will re-serve a copy of the petition 
after the petition is docketed, making it even less likely a party will 
remain ignorant of an electronically-filed petition for any significant 
period of time. Therefore, the Board does not anticipate that the 
electronic filing of petitions will lead to litigation due to delivery 
failure and lack of notice of service.
    A number of comments suggest the final rule should provide guidance 
with respect to what constitutes proper service by identifying the 
title of the individual who should be electronically served with the 
petition because this arguably triggers significant deadlines and 
obligations.\89\ The Board's current rules and regulations do not 
provide guidance with respect to the proper agent for service of a 
petition (or an unfair labor practice charge). Any issue raised with 
respect to whether the petition was properly served will continue to be 
handled consistent with the Board's existing practices in this area. 
Moreover, the petitioner's simultaneous service of the petition is 
simply intended to provide all interested parties with the earliest 
possible notice of the filing of the petition, and does not, by itself, 
establish any deadlines or obligations related to the processing of the 
case for the party being served with the petition. The actual date of 
the hearing and other requirements are set by the regional director 
(after the filing of the petition) when the director issues the notice 
of hearing.
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    \89\ See, e.g., INDA II and AEM II.
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    Several comments express concern that the electronic filing of 
petitions could increase opportunities for fraud. For example, NADA and 
the Chamber argue that the regulations should require a party 
electronically filing a petition to

[[Page 74328]]

mail the original documents to the Board at a later date.\90\ CNLP 
comments that the Board should establish e-security practices that 
protect the identity of a party filing a petition and mitigate the 
possibility that fraudulent documents will be filed. CNLP also suggests 
that the Board should substantially adopt Federal Rule of Civil 
Procedure 11(b) and require a party filing a petition to certify that 
the document is supported by facts and law.
---------------------------------------------------------------------------

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

    The Board believes that the final rule and current electronic 
filing procedures adequately address these concerns. As an initial 
matter, Sec.  102.60 of the final rule continues the Board's practice 
of requiring that petitions ``shall be sworn to before a notary public, 
Board agent, or other person duly authorized by law to administer oaths 
and take acknowledgments or shall contain a declaration by the person 
signing it, under the penalty of perjury, that its contents are true 
and correct.'' The Board already allows parties to maintain password-
protected profiles and to redact or protect their sensitive personally 
identifiable information. To date, there has been no significant 
interference with election processes resulting from fraudulent 
petitions. The Board does not expect any change resulting from its 
decision to permit electronic filing of such petitions. Nonetheless, as 
mentioned above, a Board agent will contact parties after the filing of 
a petition and will be able to determine if there has been a fraudulent 
filing. Further, Sec.  102.177(d) of the existing regulations already 
allows the Board to sanction an attorney or party representative for 
misconduct such as the filing of a document that is unsupported by 
facts and law. See, e.g., In re David M. Kelsey, 349 NLRB 327 (2007).
    The National Right to Work Legal Defense Foundation (NRTWLDF) 
proposes that the Board further amend its existing procedures to 
prevent petitioners from withdrawing otherwise valid petitions before 
an election occurs. It asserts that allowing such withdrawal unfairly 
allows petitioners to manipulate the scheduling of elections. The Board 
declines to adopt this proposal. Continuing to permit the withdrawal of 
petitions serves the efficiency goals of these amendments by avoiding 
unnecessary case-processing efforts. Moreover, the Board's existing 
procedures adequately prevent such manipulation. The regional director 
or the Board will continue to have discretion to accept or reject a 
petitioner's request for withdrawal of the petition if the request 
would run counter to the purposes of the Act. See Casehandling Manual 
Section 11110.
    One commenter noted that the proposal to allow the electronic 
filing of petitions may have merit, but that the Board should seek 
further comment and input from stakeholders before implementing this 
change. Leading Age II. However, the comment did not provide an 
explanation as to why the periods established to allow comments to the 
Board's NPRMs in 2011 and 2014 were not sufficient to effectively 
obtain input from stakeholders on this issue. The Board believes that 
stakeholders have had an ample opportunity to comment on this proposal 
and has carefully considered the input offered on this issue in 
deciding to implement this proposal.
Sec. 102.61 Contents of Petition for Certification; Contents of 
Petition for Decertification; Contents of Petition for Clarification of 
Bargaining Unit; Contents of Petition for Amendment of Certification; 
Use of Electronic Signatures To Support a Showing of Interest
    Section 102.61 of the final rule continues to describe the contents 
of the various forms of petitions that may be filed to initiate a 
representation proceeding under Section 9 of the Act.\91\ The Board 
will continue to make the petition form available at the Board's 
regional offices and on its Web site. As proposed in the NPRM, the 
final rule adds to the contents of the petitions in a few respects. 
First, the revised petition contains the allegation required in Section 
9. In the case of a petition seeking representation, for example, the 
petition contains a statement that ``a substantial number of employees 
wish to be represented for collective bargaining . . . .'' 29 U.S.C. 
159(c)(1)(a)(i). Second, the petitioner is now required to designate, 
in the revised petition, the individual who will serve as the 
petitioner's representative in the proceeding, including for purposes 
of service of papers. GAM acknowledges that this is a practical 
requirement that may allow parties to quickly resolve election issues 
while helping to conserve agency resources. Third, the petitioner is 
now required to state the type, date(s), time(s) and location(s) of 
election it seeks.\92\ This information will facilitate entry into 
election agreements by providing the nonpetitioning parties with the 
earliest possible notice of the petitioner's position on these 
important matters.
---------------------------------------------------------------------------

    \91\ The following abbreviations are used to refer to the 
different types of representation petitions filed under Section 9(c) 
of the Act:
    RC (Representation petition)--A petition filed by a labor 
organization or employee(s) alleging that that there is a question 
concerning representation and seeking an election to determine 
whether employees wish to be represented by the petitioner.
    RD (Decertification petition)--A petition filed by an employee, 
employees or a labor organization alleging that there is a question 
concerning representation and seeking an election to determine 
whether employees in the appropriate unit wish to continue to be 
represented by a labor organization that was previously certified 
and/or is currently recognized by the employer as their collective 
bargaining representative.
    RM (Employer petition)--A petition filed by an employer alleging 
that there is a question concerning representation and seeking an 
election to determine if employees in the appropriate unit wish to 
be represented by a labor organization that has demanded recognition 
as their collective bargaining representative or that is currently 
recognized as their collective bargaining representative.
    UC (Unit clarification petition)--A petition filed by a labor 
organization or an employer seeking a determination as to whether 
certain classifications should or should not be included within an 
existing unit.
    AC (Amendment of certification)--A petition filed by a labor 
organization or an employer for amendment of an existing 
certification because of changed circumstances.
    \92\ The final rule will require the petitioner to identify the 
type of election it seeks (e.g. a manual, mail or a mixed manual-
mail election).
---------------------------------------------------------------------------

    The final rule also requires that the petitioner file with the 
petition whatever form of evidence is an administrative predicate of 
the Board's processing of the petition rather than permitting an 
additional 48 hours after filing to supply the evidence. When filing a 
petition seeking certification as the representative of a unit of 
employees, for example, petitioners must simultaneously file the 
showing of interest supporting the petition. As explained in the NPRM, 
the Board believes that parties should not file petitions without 
whatever form of evidence is ordinarily necessary for the Board to 
process the petition. However, the final rule is not intended to 
prevent a petitioner from supplementing its showing of interest, 
consistent with existing practice, so long as the supplemental filing 
is timely. Also consistent with existing practice, the final rule does 
not require that the showing of interest be served on other parties.
    The Board rejects the Chamber's request that the regional director 
refrain from serving notice of the filing of a petition on other 
parties until the region receives the original signatures establishing 
the showing of interest. Such a requirement would not serve the Board's 
purpose of encouraging the expeditious resolution of questions 
concerning representation. The final

[[Page 74329]]

rule does not change the Board's longstanding policy of not permitting 
the adequacy of the showing of interest to be litigated. See, e.g., 
Plains Cooperative Oil Mill, 123 NLRB 1709, 1711 (1959) (``[T]he Board 
has long held that the sufficiency of a petitioner's showing of 
interest is an administrative matter not subject to litigation.''); 
O.D. Jennings & Co., 68 NLRB 516, 517-18 (1946). Nor does the final 
rule alter the Board's current internal standards for determining what 
constitutes an adequate showing of interest.
    The Board further disagrees with the Chamber's II assertion that 
Sec.  102.61(f)'s mandate that when showings of interest are filed 
electronically or by facsimile, the original authorization cards with 
handwritten signatures must be delivered to the regional director 
within 2 days, conflicts with the proposed language in Sec.  102.60(a), 
which explained that the failure to follow an electronic or facsimile-
filing of the petition with an original paper copy ``shall not affect 
the validity of the filing by facsimile or electronically, if otherwise 
proper.'' First, as discussed in connection with Sec.  102.60 above, 
the Board has decided not to require an extra paper copy of the 
petition when it is filed electronically, and as explained in the 
footnote below, the language in Sec.  102.61 likewise does not require 
paper copies of electronically-signed cards (if accepting electronic 
signatures is deemed practicable by the General Counsel). So there is 
no potential inconsistency in the final rule as to electronically-filed 
petitions and electronically-signed authorization cards. There is also 
no inconsistency in the final rule even when focusing solely on 
facsimile-filed petitions or electronically-filed petitions that do not 
include electronically-filed authorization cards. Thus, the Board 
intentionally distinguishes the handwritten signatures that form the 
showing of interest supporting the petition as items that must be 
transmitted to the Board in their original form in order for the filing 
to be proper. In other words, while a regional director will not 
dismiss a petition filed by facsimile simply because the petitioner 
failed to follow its facsimile filing by supplying the original paper 
copy to the regional office, a regional director will dismiss a 
petition if the facsimile-filed or electronically-filed showing of 
interest is not followed by original documents containing handwritten 
signatures within 2 days.\93\ The Board therefore declines the 
Chamber's suggestion to strike or alter the language in Sec.  102.60(a) 
to conform to the language in Sec.  102.61(f).
---------------------------------------------------------------------------

    \93\ To be clear, the language in amended Sec.  102.61(f) is 
premised upon petitioners who file their petitions electronically 
providing electronically-scanned copies of authorization cards with 
handwritten signatures. This would be permitted completely apart 
from, as discussed below, electronically-signed authorization cards. 
The language in Sec.  102.61(f) is not applicable to electronic 
signatures because electronic signatures are not ``original 
signatures that cannot be transmitted in their original form by the 
method of filing the petition.'' To the contrary, electronic 
signatures should be transmittable with electronically-filed 
petitions in their original form, not triggering a need to later 
submit ``original documents.''
---------------------------------------------------------------------------

    GAM argues that requiring petitioners to file a supporting showing 
of interest simultaneously with the petition will lead to confusion and 
delays and create an unnecessary burden that may discourage the filing 
of petitions. GAM maintains that under existing rules, a petitioner 
could file a petition and then receive useful guidance from the 
regional office about how to file its showing of interest, thereby 
suggesting that a petitioner will no longer have the option of seeking 
such assistance under the amended rules. GAM alleges that the Board's 
motivation in adopting the amendment is a self-interested desire to 
improve its case-processing statistics, not to facilitate the holding 
of elections. The Board believes that parties should not file petitions 
without whatever form of evidence is ordinarily necessary for the Board 
to process the petition. If parties are confused about what evidence is 
necessary to file in support of a petition--or if they are confused 
about any other aspect of the representation case process--they may 
continue to contact regional offices for guidance both before and after 
the filing of a petition, and the continued useful guidance flowing 
from such contact should mitigate any potential for discouragement felt 
by individuals who are contemplating filing an election petition. 
Further, the amendment does not establish inflexible time deadlines for 
when a petition must be filed.
    The Board received a number of comments in response to the question 
of whether the proposed regulations should expressly permit or 
proscribe the use of electronic signatures to support a showing of 
interest under Sec.  102.61(a)(7) and (c)(8) as well as under Sec.  
102.84. Based on these comments, we believe that the Board's 
regulations as currently written are sufficiently broad to permit the 
use of electronic signatures in this context.\94\ We also note that 
evaluating the showing of interest is an administrative matter within 
the discretion of the agency. For the reasons discussed below, we find, 
that the Board should, when practicable, accept electronic signatures 
to support a showing of interest, and therefore direct the General 
Counsel to undertake an analysis of whether there exists a practicable 
way for the Board to accept electronic signatures to support a showing 
of interest while adequately safeguarding the important public 
interests involved.
---------------------------------------------------------------------------

    \94\ To be sure, our current regulations are completely silent 
on the subject of electronic signatures, and, as explained above, we 
likewise believe that the language in amended Sec.  102.61(f) of the 
final rule would be consistent with the Board's acceptance of 
electronic signatures. While the Board's practice has been to accept 
only handwritten signatures, it may, consistent with its current 
Rules and Regulations as well as these amended rules, accept 
electronic signatures.
---------------------------------------------------------------------------

    Several comments address the legal and procedural aspects of this 
potential amendment. Joseph Torres argues that neither the Government 
Paperwork Elimination Act (GPEA), 44 U.S.C. 3504, nor the Electronic 
Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. 7001 
et seq., both of which were cited in the Notice of Proposed Rulemaking, 
supports changing Board practice. Testimony of Joseph Torres on behalf 
of Winston & Strawn II. He argues that electronic signatures accepted 
under either of those acts are distinguishable from the electronic 
signatures that would be accepted to support a showing of interest. 
Regarding GPEA, he observes that there are safeguards attendant to 
submitting information to the government that are not available to the 
private gathering of electronic signatures. And he observes that E-SIGN 
allows private parties to litigate the validity of electronic 
signatures, whereas they cannot under the Board's current procedures. 
The Chamber (Chamber II) argues that the Board has yet to provide 
sufficient details about its potential use of electronic signatures and 
that an advanced notice of proposed rulemaking should therefore precede 
any action in this area. PIA and AHA II, among others, maintain that 
the Board has yet to provide any justification for this rule change.
    The SEIU II, AFL-CIO II, and Alvin Velazquez (testifying on behalf 
of SEIU II) argue that GPEA and/or E-SIGN require the Board to accept 
electronic signatures. Even setting this requirement aside, SEIU 
observes that the Board's acceptance of electronic signatures would be 
beneficial and reflect modern changes in technology and methods of 
communication. SEIU (SEIU II) and the AFL-CIO, among others, also argue 
that the Board does not have to use the notice-and-comment rulemaking 
process to accept electronic

[[Page 74330]]

signatures on showings of interest. For instance, SEIU contends, among 
other things, that such an amendment would relate to Board practice and 
procedure and therefore not require public comment. See 5 U.S.C. 
553(b)(3)(A) (excepting ``interpretative rules, general statements of 
policy, or rules of agency organization, [and] procedure, or practice'' 
from notice-and-comment rulemaking). SEIU and AFL-CIO observe that the 
Board's Rules and Regulations currently do not limit the form that the 
showing of interest can take. Further numerous comments, as summarized 
below, clearly articulate many of the potential benefits of accepting 
electronic signatures. Velazquez II, for instance, observes that 
electronic signatures, which typically require an employee also to 
fill-out an electronic form, are better indicators of an employee's 
interest in joining a union than paper authorization cards, due to the 
increased effort required to input additional verification information.
    We believe that GPEA and E-SIGN embody a strong policy preference 
on the part of Congress for the use and acceptance of electronic 
signatures, when practicable, as a means, along with handwritten 
signatures, to support a showing of interest. GPEA directs the Office 
of Management and Budget (OMB) to ensure that ``Executive agencies 
provide--(1) for the option of the electronic maintenance, submission, 
or disclosure of information, when practicable as a substitute for 
paper, and (2) for the use and acceptance of electronic signatures, 
when practicable.'' GPEA additionally stipulates that ``Electronic 
records submitted or maintained in accordance with procedures developed 
under this title, or electronic signatures or other forms of electronic 
authentication used in accordance with such procedures, shall not be 
denied legal effect, validity, or enforceability because such records 
are in electronic form.'' In its guidance on the implementation of 
GPEA, the OMB observes, ``a decision to reject the option of electronic 
filing or record keeping should demonstrate, in the context of the 
particular application and upon considering relative costs, risks, and 
benefits given the level of sensitivity of the process, that there is 
no reasonably cost-effective combination of technologies and management 
controls that can be used to operate the transaction and sufficiently 
minimize the risk of significant harm.'' OMB, Procedure and Guidance; 
Implementation of the Government Paperwork Elimination Act, 65 FR 
25508, 25512 (2000) (OMB Guidance). We feel that the policy underlying 
this admonition applies equally to the use and acceptance of electronic 
signatures. Likewise, E-SIGN mandates that, ``with respect to any 
transaction in or affecting interstate commerce or foreign commerce--
(1) a signature, contract, or other record relating to such transaction 
may not be denied legal effect, validity, or enforceability solely 
because it is in electronic form; and (2) a contract relating to such 
transaction may not be denied legal effect, validity, or enforceability 
solely because an electronic signature or electronic record was used in 
its formation.'' We believe that both of these statutes clearly 
evidence Congress's intent that Federal agencies, including the Board, 
accept and use electronic forms and signatures, when practicable--i.e., 
when there is a cost-effective way of ensuring the authenticity of the 
electronic form and electronic signature given the sensitivity of the 
activity at issue, here the showing of interest.
    That Congress should adopt this policy preference is not 
surprising. After all, the benefits of e-government are widely known. 
Among other things, electronic forms can ``greatly improve efficiency 
and speed of government services.'' S. Rep. No. 105-335 (1998). 
Electronic forms reduce the ``costs associated with such things as 
copying, mailing, filing and storing forms.'' Id.; see also OMB 
Guidance, 65 FR at 25515-16. These reductions in transaction costs also 
benefit the Board's transaction partner. OMB Guidance, 65 FR at 25516-
17.
    Many comments also address the ability to authenticate the 
electronic signature. Several of these comments argue that the Board 
should not allow the use of electronic signatures because they are more 
difficult to authenticate than handwritten signatures.\95\ The 
Bluegrass Institute argues that, while the Board could allow employees 
to authenticate their electronic signatures with sensitive personal 
information such as social security numbers, this apparent solution 
would create a potential threat of identity theft. Given this problem 
with authentication, CDW suggests that electronic signatures would 
effectively nullify the showing of interest requirement. And SHRM 
accordingly urges the Board to follow the National Mediation Board in 
refusing to allow electronic signatures to support a showing of 
interest. In opposition to these comments, the AFL-CIO (AFL-CIO II), 
SEIU II, and Velazquez II counter that electronic signatures are easily 
verifiable and commonly used in governmental and commercial dealings. 
In fact, more tools are available to confirm the authenticity of 
electronic signatures than are available to confirm physical 
signatures.
---------------------------------------------------------------------------

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

    At this point, the weight of evidence appears to agree with the 
AFL-CIO, SEIU, and Velazquez. ``State governments, industry, and 
private citizens have already embraced the electronic medium to conduct 
public and private business.'' S. Rep. No. 105-335. And since the 
adoption of GPEA and E-SIGN, Federal agencies, including the Board, 
have also accepted electronic signatures and electronic forms.\96\ 
Electronic signatures can ``offer greater assurances that documents are 
authentic and unaltered. They minimize the chances of forgeries or 
people claiming to have had their signatures forged.'' S. Rep. No. 105-
335; see also OMB Guidance, 65 FR at 25516. There are numerous forms 
that electronic signatures can take, each providing additional methods 
to ensure the authenticity of the signature. See, e.g., S. Rep. No. 
105-335; OMB Guidance, 65 FR at 25518-25520. And the technology that 
makes electronic signatures possible continues to evolve and become 
ever-more sophisticated, providing even more safeguards.
---------------------------------------------------------------------------

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

    Some comments claim that the use of electronic signatures to 
support a showing of interest could encourage petitioner misconduct. 
Seyfarth Shaw contends that electronic signatures present a greater 
risk of fraud than handwritten signatures because they do not create 
any physical evidence of signing. Several comments allege that the use 
of electronic signatures could lead to deceptive practices by 
petitioners, such as hiding authorization agreements within seemingly 
innocuous Web site content.\97\ PIA likewise argues that employees 
might have to rely on the petitioner to instruct them in the use of 
electronic signatures, creating the possibility of undue influence and 
coercion. But other comments counter that electronic signatures would 
actually reduce incidents of intimidation due to lack of personal 
solicitation.\98\
---------------------------------------------------------------------------

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

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

[[Page 74331]]

and electronic signature technology may provide more methods to 
authenticate and ensure the validity of the signature as compared to 
handwritten signatures. Further, the Board already has internal 
administrative processes to deal with allegations of fraud and 
misrepresentation regarding manually signed authorization cards and 
petitions. See Casehandling Manual Sections 11028-11029. We expect that 
the General Counsel will evaluate whether the Board could employ these 
or similar processes in connection with electronic signatures.
    A few comments argue that the lack of reliability of electronic 
signatures and the accompanying prospect of petitioner misconduct will 
lead to more pre-election challenges to the validity of petitions, 
creating a greater burden on agency resources, and running counter to 
the goal of eliminating delay.\99\ Constangy, Brooks & Smith, LLP 
(Constangy) contends that the use of electronic signatures would no 
longer allow the Board to verify authorizations by simply comparing 
employee signatures to those on handwritten cards. Rather, Constangy 
argues that the Board would have to allow parties to present testimony 
to challenge or support contested signatures. Torres argues that, if 
the Board starts to look underneath the process of obtaining electronic 
signatures, employers should also be able to examine and, if necessary, 
challenge the showing of interest. Testimony of Torres on behalf of 
Winston & Strawn II. UFCW (UFCW II) disagrees, proposing that the Board 
could verify the authenticity of a showing of interest merely by 
checking a random sample of individual signatures, as is a current 
practice. As noted, the Board already has processes in place for 
resolving allegations of fraud or misrepresentation in connection with 
showing of interest evidence which the rule does not change and which 
might be effectively utilized to verify electronic signatures.
---------------------------------------------------------------------------

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

    For the reasons discussed above, we are not persuaded that the 
Board's current or similar administrative procedures would necessarily 
be inadequate to the task of ensuring that there is a sufficient 
showing of interest to warrant conducting an election. The General 
Counsel should consider the matter and determine whether electronic 
signatures can practicably be accepted without such a fundamental 
change to the Board's procedures as those suggested in the comments.
    A few comments address the practical problems with permitting 
electronically signed authorization cards. Some of these comments are 
concerned that a petitioner could gather electronic signatures through 
the employer's own computer system, thereby disrupting work and opening 
the employer to allegations of unlawful surveillance.\100\ Some of 
these comments further maintain that the use of handwritten 
authorization cards already leads to confusion among employees, and 
that allowing electronic signatures would exacerbate these 
problems.\101\ One comment observes that it would be difficult for the 
Board to impose a unified system of gathering electronic signatures, 
and thereby ensure the reliability of those signatures, given the 
number and diversity of petitioning parties. Testimony of Torres on 
behalf of Winston & Strawn II.
---------------------------------------------------------------------------

    \100\ NCISS II; AEM II.
    \101\ Americans for Limited Government (ALG); Labor Relations 
Institute, Inc. (LRI); PIA; Georgia Mining Association; CAST-FAB 
Technologies, Inc. II; U.S. Poultry II; NAM II.
---------------------------------------------------------------------------

    We are doubtful that the use of electronic signatures will present 
the practical problems raised in these comments. We see no reason why 
electronic authorization cards would create a greater disruption to an 
employer's operations or subject an employer to charges of surveillance 
to a greater extent than would the transmission of other information 
relating to union or protected concerted activity. Regarding Torres's 
argument that electronic signatures would be impracticable to 
administer, we ask the General Counsel to examine the issue and, if 
administration is practicable, issue guidance.
    Based on our review of our current Rules and Regulations, 
Congressional policy, and the comments, we conclude, as a matter of 
policy, that the Board should, when practicable, accept electronic 
signatures to support a showing of interest. Our current rules do not 
prohibit the acceptance of electronic signatures, and so no change in 
our rules is necessary to effectuate this policy conclusion. The 
General Counsel shall promptly determine whether, when, and how 
electronic signatures can practicably be accepted and shall issue 
guidance on the matter. In making these decisions, we encourage the 
General Counsel to follow the framework outlined in the OMB Guidance.
Sec. 102.62 Election Agreements; Voter List; Notice of Election
A. Election Agreements and Board Resolution of Post-Election Disputes
    In the NPRM, the Board proposed a number of amendments to Sec.  
102.62. The amendments were intended to clarify the terms used to 
describe the three types of pre-election agreements, to eliminate 
mandatory Board resolution of post-election disputes under a stipulated 
election agreement, to codify the requirement of the Excelsior list and 
to alter the content and timing of its provision to the nonemployer 
parties to the case,\102\ and to alter the means of transmittal of the 
notice of election. The Board has decided at this time to adopt the 
proposed amendments to Sec.  102.62 clarifying the terms used to 
describe pre-election agreements and eliminating mandatory Board 
resolution of post-election disputes under a stipulated election 
agreement. The Board has also decided to adopt the proposed amendments 
concerning the Excelsior list and the notice of election \103\ with the 
modifications described in the discussion of the voter list below.
---------------------------------------------------------------------------

    \102\ See Excelsior Underwear, Inc., 156 NLRB 1236, 1236 (1966) 
(establishing requirement that employers must file a list of the 
names and addresses of all eligible voters with the regional 
director within 7 days after a Board election has been approved by 
the regional director or directed; the regional director then makes 
the information available to all parties in the case).
    \103\ As noted below in connection with Sec. Sec.  102.63 and 
102.67, the final rule retitles the proposed ``Final Notice to 
Employees of Election'' as the ``Notice of Election.''
---------------------------------------------------------------------------

    The final rule's amendments to Sec.  102.62(b) revise the contents 
of the stipulated election agreement. The revision eliminates parties' 
ability to agree to have post-election disputes resolved by the Board. 
The amendments provide instead that, if the parties enter into what is 
commonly referred to as a ``stipulated election agreement,'' \104\ the 
regional director will resolve any post-election disputes subject to 
discretionary Board review. This procedure is consistent with the 
changes to Sec.  102.69 described below making all Board review of 
regional directors' dispositions of post-election disputes 
discretionary in cases where parties have not addressed the matter in a 
pre-election agreement.\105\
---------------------------------------------------------------------------

    \104\ Casehandling Manual Section 11084.
    \105\ The current rules governing Board review of regional 
directors' dispositions of post-election disputes appear on their 
face to provide for both mandatory and discretionary review 
depending on how the regional office processes the case. See 29 CFR 
102.69(c)(3) and (4).
---------------------------------------------------------------------------

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

[[Page 74332]]

directors' dispositions of post-election disputes parallel to that for 
obtaining Board review of regional directors' dispositions of pre-
election disputes. The Board perceived no reason why pre- and post-
election dispositions should be treated differently in this regard, and 
the comments on this proposal offered no convincing reason.
    The Board affirms the vast majority of post-election decisions made 
at the regional level, and many present no issue meriting full 
consideration by the Board.\106\ In some cases, for example, parties 
seek review of post-election decisions based on mere formulaic 
assertions of error below and without pointing to any facts or law in 
dispute.\107\ Review as of right should not be granted in those 
situations. Others cases present only circumscribed, purely factual 
issues.\108\ Given the highly deferential standard that the Board 
employs in reviewing a hearing officer's post-election credibility 
findings,\109\ it is reasonable for the Board to require the party 
seeking review of such a finding to justify that review by showing that 
the standard for obtaining discretionary review is satisfied. There are 
other cases in which the regional director assumes the facts asserted 
by the objecting party but finds that no objectionable conduct 
occurred,\110\ or where there is no dispute about the facts at 
all.\111\ A discretionary system of review will provide parties with a 
full opportunity to contest those determinations. Another group of 
cases represent parties' efforts to seek reconsideration, extension, or 
novel application of existing Board law,\112\ and there is equally no 
reason why a discretionary system of review will not fully provide that 
opportunity. Still other cases simply involve the application of well-
settled law to very specific facts.\113\ In short, for a variety of 
reasons, a substantial percentage of Board decisions in post-election 
proceedings are unlikely to be of precedential value because no 
significant question of policy is at issue. The final rule requires the 
party seeking review to identify a significant, prejudicial error by 
the regional director or some other compelling reason for Board review, 
just as the current rules require a party to do when seeking Board 
review of a regional director's pre-election decision.\114\
---------------------------------------------------------------------------

    \106\ For example, in FY 2013, parties appealed to the Board in 
only one third of the 98 total cases involving regional post-
election decisions concerning objections or determinative 
challenges, and the Board reversed the regional decision to set 
aside or uphold election results in only 3 cases.
    \107\ See, e.g., C& G Heating, 356 NLRB No. 133, slip op. at 1 
(2011).
    \108\ See, e.g., Ruan Transport Corp., 13-RC-21909 (Nov. 30, 
2010) (resolving intent of voter who marked an X in two boxes on 
ballot but ``nearly obliterated'' one of them with pen markings in 
lieu of erasure); Multiband, Inc., 2011 WL 5101459, slip op. at n.2 
(Oct. 26, 2011) (credibility).
    \109\ See Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
    \110\ See, e.g., Care Enterprises, 306 NLRB 491 n.2 (1992).
    \111\ See, e.g., CEVA Logistics U.S., Inc., 357 NLRB No. 60, 
slip op. at 1-2 (2011) (consequences of regional delay in forwarding 
Excelsior list).
    \112\ See, e.g., 1621 Route 22 West Operating Co., LLC d/b/a 
Somerset Valley Rehabilitation & Nursing Ctr., 357 NLRB No. 71, slip 
op. at 1-2 (2011); Ace Car & Limousine Service, Inc., 357 NLRB No. 
43, slip op. at 1-2 (2011).
    \113\ Mental Health Ass'n, Inc., 356 NLRB No. 151, slip op. at 
n.4 (2011) (whether employer's particular statements about bonuses 
constituted objectionable promise of benefit); G&K Services, Inc., 
357 NLRB No. 109, slip op. at 2-4 (2011) (whether employer's letter 
about health coverage constituted objectionable promise of benefit).
    \114\ See current Sec.  102.67(c) (discussing compelling reasons 
necessary for a grant of review, including the presentation of a 
substantial question of law or policy, a clearly erroneous regional 
director decision on a substantial factual issue prejudicing a 
party, conduct of the hearing prejudicing a party, or compelling 
reasons to reconsider an important Board rule or policy).
---------------------------------------------------------------------------

    In addition, the final rule will enable the Board to devote its 
limited time to cases of particular significance. This should 
constitute a significant time savings considering the inefficiency 
involved in having the multi-member Board engage in a de novo review of 
the entire record before disposing of a post-election case on 
exceptions from a hearing officer's report. Indeed, when post-election 
cases have come before the Board over the past 3 years, the median time 
for the Board to resolve them has ranged from 94.5 days to 127 days. In 
comparison, the median time it has taken regional directors to issue 
pre-election decisions has been 20 days, and the median time for the 
Board's action to grant or deny review regarding these decisions under 
the same request for review standard maintained in the final rule has 
been only 12 to 14 days over the same 3-year period. Under the new 
rules, it will be possible to have similar efficiency in regional and 
Board processing of post-election decisions. This will save time and 
resources, both public and private, and bring finality to 
representation proceedings in a more timely manner.
    Based on all of the considerations listed above, the Board 
concludes that making review of regional directors' post-election 
decisions available on a discretionary basis, as is currently the case 
with pre-election review and some post-election review, will assist the 
Board in fulfilling its statutory mandate to promptly resolve questions 
concerning representation.
    Several comments argue that if the Board were to adopt these 
amendments, it would be abdicating its statutory responsibility and 
function.\115\ For example, SHRM and NAM argue that only Board members, 
because they are appointed by the President and confirmed by the 
Senate, can make final decisions about these matters and that the 
regional directors, who are career civil servants, lack comparable 
authority and political legitimacy. The Chamber II also argues that 
this proposal will make it possible for elections to be conducted 
without Board review of any regional action or decision, contrary to 
Section 3(b) of the Act. Others state that denying aggrieved parties 
the right to appeal adverse determinations to the Board undermines due 
process protections.\116\ NAM contends that the Board is required to 
review conduct affecting election outcomes in order to safeguard 
employees' Section 7 rights. Similarly, other comments argue that 
conduct that could be the basis for setting aside an election goes to 
the essence of employee free choice and deserves de novo Board 
review.\117\ Still other comments contend that, although Section 3(b) 
of the Act permits Board delegation to the regional directors of 
decisions pertaining to representation issues, those decisions must be 
reviewed by the Board upon request.\118\
---------------------------------------------------------------------------

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

    Section 3(b) of the NLRA does not support the conclusion expressed 
in those comments. Section 3(b) provides in part:

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

29 U.S.C. 153(b).
    Since Congress adopted this provision in 1959 and the Board 
exercised its authority to delegate these functions to its regional 
directors in 1961, the Board's rules have provided that regional 
directors' dispositions of pre-election disputes are subject only to 
discretionary Board review even though a failure to request review pre-
election or a denial of review precludes a party from raising the 
matter with the Board post-election. 29 CFR 102.67(b) and (f).

[[Page 74333]]

Notably, none of the comments suggests that the current rules as to 
pre-election disputes violate Section 3(b) or are otherwise 
improper.\119\
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    \119\ Moreover, even under the current rules, specifically Sec.  
102.69(c)(4), if the regional director issues a decision concerning 
challenges or objections instead of a report in cases involving 
directed elections, an aggrieved party's only recourse is a request 
for review. Thus, the comments' objections apply to the current 
regulations as well as to the final rule.
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    In fact, the Supreme Court has upheld the Board's decision not to 
provide parties with a right to Board review of regional director's 
pre-election determinations, in a holding that clearly permits the 
Board to adopt the final rule's amendments concerning post-election 
review. In Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971), the 
employer filed a request for review of the regional director's decision 
and direction of election holding that certain individuals were 
properly included in the unit. The Board denied the petition on the 
ground that it did not raise substantial issues. In the subsequent 
``technical 8(a)(5)'' unfair labor practice proceeding, the employer 
asserted that ``plenary review by the Board of the regional director's 
unit determination is necessary at some point,'' i.e., before the Board 
finds that the employer committed an unfair labor practice based on the 
employer's refusal to bargain with the union certified as the 
employees' representative in the representation proceeding. 401 U.S. at 
140-41. However, the Court rejected the contention that Section 3(b) 
requires the Board to review regional directors' determinations before 
they become final and binding. Citing Congress's authorization of the 
Board to delegate decision-making in this area to its regional 
directors and the use of the clearly permissive word ``may'' in the 
clause describing the possibility of Board review, the Court held, 
``Congress has made a clear choice; and the fact that the Board has 
only discretionary review of the determination of the regional director 
creates no possible infirmity within the range of our imagination.'' 
Id. at 142. Consistent with the purpose of the final rule here, the 
Supreme Court quoted Senator Goldwater, a Conference Committee member, 
explaining that Section 3(b)'s authorization of the Board's delegation 
of its decision-making authority to the regional directors was to 
``expedite final disposition of cases by the Board, by turning over 
part of its caseload to its regional directors for final 
determination.'' Id. at 141 (citing 105 Cong. Rec. 19770). And 
undermining the comments' suggestion that regional directors lack 
authority, status, or expertise to render final decisions in this area, 
the Court further explained that the enactment of section 3(b) 
``reflect[s] the considered judgment of Congress that the regional 
directors have an expertise concerning unit determinations.'' Id.\120\
---------------------------------------------------------------------------

    \120\ See also St. Margaret Memorial Hosp. v. NLRB, 991 F.2d 
1146, 1154 (3d Cir. 1993); Beth Israel Hosp. and Geriatric Ctr. v. 
NLRB, 688 F.2d 697, 700-01 (10th Cir. 1982) (en banc); 
Transportation Enterprises, Inc. v. NLRB, 630 F.2d 421, 426 (5th 
Cir. 1980) (finding that ``decisions rendered by the regional 
offices of the NLRB which are not reviewed by the Board, for 
whatever reasons, are entitled to the same weight and deference as 
Board decisions, and will be given such unless and until the Board 
acts in a dispositive manner.'').
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    The Board concludes that the language of Section 3(b), its 
legislative history, and the Supreme Court's decision in Magnesium 
Casting are dispositive of the statutory objections to the proposed 
amendment.
    Some comments suggest that providing only discretionary review of 
regional directors' decisions will undermine the uniformity of election 
jurisprudence, with different regional directors issuing divergent 
opinions in similar cases and under similar circumstances. The comments 
contend that if those decisions are not reviewed by the Board as a 
matter of right, there is a risk that the regional office in which the 
employer's operations reside, rather than the merits of the parties' 
positions, will govern how the dispute is resolved. For example, 
Bluegrass Institute contends that discretionary Board review will 
result in less uniformity, the denial of due process, and diminished 
legitimacy in election processes. Other comments argue that 
discretionary post election review will result in unchecked regional 
errors \121\ and slow the development of binding and authoritative 
precedent.\122\ The Board disagrees.
---------------------------------------------------------------------------

    \121\ See, AHA II.
    \122\ See, RILA II.
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    Since 1961, regional directors have made pre-election 
determinations, and their decisions have been subject to only 
discretionary review through the request for review procedure. The same 
has been true of post-election determinations processed under Sec.  
102.69(c)(3)(ii). There is no indication that the quality of decision-
making has been compromised by this procedure or that regional 
directors have reached inconsistent conclusions. Under the final rule, 
the same review process will apply to all cases involving post-election 
objections and challenges except where they are consolidated with 
unfair labor practice allegations before an administrative law judge. 
As it has done for over 50 years in respect to pre-election disputes, 
the Board will scrutinize regional directors' post-election decisions 
where proper requests for review are filed.
    One purpose of that review will be to determine if there is an 
``absence of'' or ``a departure from, officially reported Board 
precedent,'' i.e., to ensure uniformity via adherence to Board 
precedent. See 29 CFR 102.67(c)(1). Accordingly, the final rule 
provides parties with an opportunity to appeal regional decisions that 
are inconsistent with precedent or which contain facts that are clearly 
erroneous and prejudicial under a discretionary standard. The parties 
may also utilize this discretionary review process if there are 
substantial questions of law or policy or compelling reasons for 
reconsidering a Board rule or policy.
    For these reasons, the Board does not believe that the final rule 
will lead to lack of uniformity or quality in decisions or adversely 
affect the development of the law. In fact, the discretionary standard 
enables the Board to better focus its resources and attention on those 
cases that are legally or factually significant and have greater impact 
on parties and/or the development of law and policy. And, since most of 
the Board's post election decisions under the existing standard of 
mandatory review are not published and have no precedential value,\123\ 
this proposed change is not likely to have a significant adverse impact 
on the precedential value of post election decisions.\124\
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    \123\ For instance, in FY 13, the Board published only five of 
the decisions it issued on post election exceptions.
    \124\ Nor would the Board agree that a discretionary review 
process infringes on parties' due process rights. Constitutional due 
process requires only one fair hearing and does not require an 
opportunity to appeal. The Supreme Court has so held even with 
respect to criminal cases. See Evitts v. Lucey, 469 U.S. 387, 393 
(1985) (``Almost a century ago, the Court held that the Constitution 
does not require States to grant appeals as of right to criminal 
defendants seeking to review alleged trial court errors. McKane v. 
Durston, 153 U.S. 684 . . . (1894).'').
---------------------------------------------------------------------------

    A few comments question the competence of regional personnel. For 
example, COLLE argues that ``Regional Directors can be dictatorial and 
imprudent to the rights of private parties in disputes before them'' 
and ``can exhibit irrational and unfair behavior and deprive parties of 
their rights to go to hearing and litigate legitimate issues under the 
Act.'' Other comments contend that because hearing officers report 
directly to regional directors, appeal to the regional directors does 
not constitute meaningful review.

[[Page 74334]]

    The Board's experience in reviewing the work of and supervising its 
regional directors gives no credence to these comments. Moreover, 
Congress expressed confidence in the regional directors' abilities when 
it enacted Section 3(b). As one comment in favor of the rule (Professor 
Joel Cutcher-Gershenfeld) noted, empowering regional directors to make 
final post-election rulings, as they now do in respect to pre-election 
matters, locates decisions with the individuals who have the greatest 
knowledge about and experience with representation case 
procedures.\125\ Similarly, the Chamber (Chamber II), although it 
generally opposes the proposals, notes the ``professionalism, 
experience and integrity'' of the regional directors and their staffs. 
Rather than detracting from their authority and legitimacy, the Board 
concludes that the regional directors' career status ensures their 
neutrality and, in almost all cases, their extended service at the 
Board and thus extensive experience with and knowledge about 
representation case procedures and rules.
---------------------------------------------------------------------------

    \125\ The Board also notes that regional directors make 
decisions concerning whether to prosecute charges of unfair labor 
practices under the Act, and those prosecutorial decisions often 
involve questions of employee status and questions of whether 
certain conduct is unlawful, both of which often parallel questions 
that arise in post-election representation proceedings. The courts 
have recognized that regional directors have expertise in 
determining what constitutes objectionable conduct. See, e.g., NLRB 
v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991), cert. 
denied, 504 U.S. 955 (1992).
---------------------------------------------------------------------------

    ALFA argues that regional directors tend to uphold election 
results, and therefore a right to Board review should be retained if 
the Board wishes to discourage litigation via refusals to bargain. As 
noted above, the Board rejects the suggestions that regional directors 
are systematically biased in this or any other way, and repeats that it 
will scrutinize regional directors' decisions when proper requests for 
review are filed.
    Some comments contend that, if the proposals are adopted, employers 
will increasingly refuse to bargain with newly certified 
representatives in order to obtain judicial review of regional 
directors' determinations.\126\ This argument is, at best, highly 
speculative. There is no evidence that this happened after the Board 
delegated adjudication of pre-election disputes to its regional 
directors in 1961 subject to only discretionary review by the Board, 
and the Board can see no reason why an increase in refusals to bargain 
would be more likely if Board review of post-election decisions is 
similarly made discretionary. The Board does not believe that judicial 
review through technical refusal to bargain litigation will be more 
frequent when the Board denies review of a regional director's post-
election decision than it is when the Board summarily affirms the same 
regional decision, as it often does now. See, e.g., The Pepsi Cola 
Bottling Company, 9-RC-110313 (Sept. 18, 2013); King Soopers, 27-RC-
104452 (Sept. 13, 2013); Geralex Inc., 13-RC-106888 (Sept. 12, 2013).
---------------------------------------------------------------------------

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

    Several comments argue that the rule is contrary to the preferences 
of both employers and unions, as shown by the high rate of stipulated 
election agreements--providing for adjudication of post-election 
disputes by the Board--and the comparative rarity of consent election 
agreements--providing for a final decision by the regional director. 
AHA (AHA II), SHRM, and ACE contend that parties prefer this form of 
pre-election agreement because it provides for Board disposition of 
post-election issues. As a corollary to this argument, some comments 
argue that eliminating automatic Board review will result in fewer pre-
election agreements and thus more litigation.\127\
---------------------------------------------------------------------------

    \127\ See, e.g., Chamber II. Constangy contends that an employer 
entering into a stipulation will lose any rights to appeal pre-
election unit issues and that this will have a negative effect on 
the Board's stipulation rate. The Board notes, however, that under 
current procedures, parties who enter into stipulated election 
agreements, by definition, agree about pre-election issues, and 
therefore waive any right to bring pre-election issues to the Board. 
Thus, the final rule does not change that aspect of stipulated 
election agreements.
---------------------------------------------------------------------------

    The Board believes for several reasons that the final rule will not 
create a disincentive for parties to enter into consent or stipulated 
election agreements. The final rule makes post-election Board review 
discretionary whether the parties enter into a stipulated election 
agreement or proceed to a hearing resulting in a decision and direction 
of election. Thus, parties who prefer Board review of post-election 
disputes will have no incentive to litigate pre-election issues in 
order to gain such review. The Board believes that if parties genuinely 
prefer agreements that permit Board review, they will continue to enter 
into stipulated rather than consent election agreements in order to 
preserve their right to seek such review. Whether parties enter into 
any pre-election agreement or litigate disputes at a pre-election 
hearing under the final rule will depend on the same calculus that it 
does at present: the likelihood of success, the importance of the 
issue, and the cost of litigation. In addition to avoiding the time, 
expense and risk associated with a pre-election hearing, parties also 
gain certainty with respect to the unit description and the election 
date by entering into a stipulated election agreement. In short, 
parties will continue to have ample reason to enter into stipulated 
election agreements under the final rule, even though the final rule 
makes Board review of regional directors' dispositions of post-election 
disputes discretionary.
    Some comments, such as that of Sheppard Mullin II, express 
confusion about the rule and the request-for-review procedure. The 
grounds for granting a request for review under Sec.  102.69(c)(2) 
(referencing Sec.  102.67(d)) of the final rule are nearly identical to 
the grounds set forth in Sec.  102.67(c) of the existing rules. The 
Board will continue to review cases involving issues of ``first 
impression'' or where there is ``conflicting or unsettled'' law in the 
same manner that it currently does under the pre-election request-for-
review procedure. The Board is not aware of any concerns about the way 
it has evaluated requests for review in representation proceedings, and 
does not anticipate any in the future.
    One comment questions whether ``the denial of review'' is subject 
to appeal to the Federal courts. Orders in representation cases are not 
final orders for purposes of judicial review. Rather, an employer must 
refuse to bargain and commit a ``technical 8(a)(5)'' violation to 
secure court review of the Board's representation decisions. See 29 
U.S.C. 159(d); Boire v. Greyhound Corp., 376 U.S. 473, 476-79 (1964). 
Under the current rules, if an employer refuses to bargain, it may 
obtain review of a regional director's pre-election rulings even if the 
Board denied review thereof, and the same will be true of post-election 
rulings under the final rule. Thus, there are no open questions about 
the Board's discretionary review process that will undermine confidence 
in its decisional processes.
    Similarly, comments misinterpret the rule with respect to how 
regional decisions will be reviewed and how that review will affect the 
law. The final rule simply makes post-election dispositions reviewable 
under a discretionary standard, rather than as of right. The Board's 
rulings on post-election requests for review will be public and will be 
published on the Board's Web site, as will the underlying regional 
directors' decisions, just as rulings on pre-election requests for 
review are now. Thus, the public and labor law community will have full 
access to the Board's rulings.

[[Page 74335]]

    In sum, the amendments to Sec.  102.62(b) conform the review 
provisions of the stipulated election agreement to the amended review 
provisions for directed elections. Parties should not be entitled to 
greater post-election Board review simply by virtue of the fact that 
there are no pre-election disputes. Under the final rule, all Board 
review of regional directors' dispositions of challenges and objections 
will be discretionary under the existing request-for-review procedure.
B. Voter List
    In Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), the 
Board established the requirement that, 7 days after approval of an 
election agreement or issuance of a decision and direction of election, 
the employer must file an election eligibility list--containing the 
names and home addresses of all eligible voters--with the regional 
director, who in turn makes the list available to all parties. Failure 
to comply with the requirement constitutes grounds for setting aside 
the election whenever proper objections are filed. Id. at 1240.
    Numerous comments address the Board's multi-part proposal in the 
NPRM (in Sec.  102.62 as well as in Sec.  102.67(l)) to codify and 
revise the Excelsior requirement, which was approved by the Supreme 
Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).\128\ 
The proposed revisions to the Excelsior requirement were intended to 
better advance the two objectives articulated by the Board in 
Excelsior: (1) Ensuring the fair and free choice of bargaining 
representatives by maximizing the likelihood that all the voters will 
be exposed to the nonemployer party arguments concerning 
representation; and (2) facilitating the public interest in the 
expeditious resolution of questions of representation by enabling the 
parties on the ballot to avoid having to challenge voters based solely 
on lack of knowledge as to the voter's identity. Excelsior, 156 NLRB at 
1240-41, 1242-43, 1246.\129\
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    \128\ Some of the comments concerning the voter list also 
generally implicate the Statement of Position Form proposal.
    \129\ In addition, this information will facilitate both the 
fair and free choice of bargaining representatives and the 
expeditious resolution of questions of representation by permitting 
the parties to more efficiently investigate post-election objections 
and other Board proceedings, such as unfair labor practice charges, 
arising out of the election.
---------------------------------------------------------------------------

    Specifically, the Board proposed that the employer be required to 
furnish to the other parties and the regional director not just the 
eligible voters' names and home addresses, but also their available 
email addresses and telephone numbers as well as their work locations, 
shifts, and job classifications. In addition, the Board proposed to 
shorten the time for production of the voter list from the current 7 
days to 2 work days, absent agreement of the parties to the contrary or 
extraordinary circumstances specified in the direction of election. The 
Board also proposed that the voter list be provided in an electronic 
format generally approved by the Board's Executive Secretary unless the 
employer certifies that it does not possess the capacity to produce the 
list in the required form, and that the employer serve the voter list 
on the other parties electronically at the same time the employer files 
the list with the regional director. In order to be timely filed, the 
list would have to be received by the other parties and the regional 
director within 2 work days after approval of the election agreement or 
issuance of the direction of election. The NPRM also proposed that 
failure to file or serve the list and related information within the 
specified time and in the proper format would be grounds for setting 
aside the election whenever proper objections are filed. Finally, the 
Board proposed a restriction on the use of the voter list, barring 
parties from using it for any purposes other than the representation 
proceeding and related proceedings, and sought comments regarding what, 
if any, the appropriate remedy should be for a party's noncompliance 
with the restriction.
    Comments attacking the proposal criticize the information required 
to be disclosed, the format of the information to be disclosed, the 
time period for its production, and the proposed restriction language. 
Comments praising the proposal claim the proposal would better serve 
the twin purposes of the original Excelsior list requirement and help 
the Board to expeditiously resolve questions of representation. 
Positive comments further claim that the proposal would merely update 
the old disclosure requirement to reflect present day realities 
regarding how people and institutions communicate with one another and 
exchange information. Other comments suggest that the Board should 
require the employer to furnish a broader array of contact information 
than proposed in the NPRM, and that the contact information should be 
provided earlier in the process--before the parties enter into an 
election agreement (or the regional director directs an election).
    After careful consideration of the comments, the Board has decided 
to largely adopt the proposals with certain changes, as outlined below:
    (1) The final rule clarifies that in the event that the parties 
agree that individuals in certain classifications or other groupings 
should be permitted to vote subject to challenge, or the regional 
director directs that individuals in certain classifications or other 
groupings be permitted to vote subject to challenge, the employer shall 
provide the information about such individuals in a separate section of 
the voter list.
    (2) The final rule does not require employers to furnish the other 
parties or the regional director with the work email addresses and work 
phone numbers of the eligible voters and the work email addresses and 
work phone numbers of those individuals whom the parties have agreed 
may vote subject to challenge (or whom the regional director has 
directed be permitted to vote subject to challenge). However, the final 
rule clarifies that the Board retains discretion to require through 
future adjudication or rulemaking that additional forms of contact 
information be included on the list.
    (3) The final rule clarifies that the Board's General Counsel, 
rather than the Board's Executive Secretary, will be the official with 
whom the authority will reside to specify the acceptable electronic 
format of the voter list.
    (4) The final rule clarifies that the employer has 2 business days, 
rather than 2 calendar days, after the regional director approves the 
parties' election agreement or issues a direction of election to 
furnish the list to the nonemployer parties to the case and the 
regional director. Although the NPRM had proposed that the regional 
director would make the voter list available to the nonemployer parties 
upon request, that language has not been incorporated into the final 
rule due to the Board's judgment that it is unnecessary since the rule 
requires direct service of the voter list from the employer to the 
nonemployer parties.\130\
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    \130\ Given that employers will have responsibility for service 
of the voter list on nonemployer parties, the final rule includes a 
requirement that the employer file with the regional director a 
certificate of service on all parties when the voter list is filed. 
The final rule also uses the same ``whenever proper and timely 
objections are filed under the provisions of Sec.  102.69(a)'' 
language in describing the consequences for failure to comply with 
the voter list amendments that Sec.  103.20 of the prior rules used 
in describing the consequences for failure to comply with the 
obligation to post what was previously called the Board's ``official 
Notice of Election.'' Further, the rule adds language to 102.62(d) 
and 102.67(l) (similar to that which had been proposed in 102.76(i) 
regarding the posting of the proposed final notice of election) to 
clarify that employers will be ``estopped from objecting to the 
failure to file or serve the list within the specified time or in 
the proper format'' if the employers are responsible for the 
failure.

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[[Page 74336]]

    (5) The final rule modifies the restriction language to prohibit 
nonemployer parties from using the voter list information for purposes 
other than the representation proceeding, Board proceedings arising 
from it, and related matters.\131\
---------------------------------------------------------------------------

    \131\ The final rule also conforms the election notice 
provisions in Sec.  102.62(e) to the election notice provisions that 
are discussed in relation to Sec. Sec.  102.67(b),(k). Thus, for 
example, the text of amended Sec.  102.62(e) explicitly provides, 
just as the text of amended Sec.  102.67(k) explicitly provides, 
that ``The employer's failure properly to post or distribute the 
election notices as required herein shall be grounds for setting 
aside the election whenever proper and timely objections are filed 
under the provisions of Sec.  102.69(a).''
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1. Contact and Job Information
a. Work Email Addresses/Work Phone Numbers
    A large number of employer comments oppose the voter list 
proposals, particularly to the extent that they could be construed as 
requiring the employer to furnish the other parties with the work email 
addresses and work phone numbers of its employees.\132\ For example, 
CDW suggests that the Board's proposal is vague and does not clarify 
whether the rules require production of employees' work phone numbers 
and email addresses for use by the nonemployer parties. If the rules 
would so require, then CDW argues that they ``would be irreconcilable 
with longstanding Board case law'' on solicitation, distribution, and 
lawful access restrictions,\133\ in addition to prompting a huge number 
of surveillance complaints stemming from employers' routine monitoring 
of internal phone and email systems. The SEIU disagrees, claiming in 
reply that under the Board's proposal, employers would still be able to 
maintain non-discriminatory, restrictive email policies, but that given 
most employers' permissive attitudes toward employees' use of email, it 
would be highly unlikely that many such rules would prevent election-
related uses of employees' work email by the nonemployer parties. 
Meanwhile, the AFL-CIO (AFL-CIO II) contends that the Board should 
address issues surrounding work email through the adjudicatory process, 
and the Chamber II in reply--while generally opposed to requiring any 
phone and email information on the voter list--agrees that it would be 
more appropriate to disclose employees' personal email and phone 
information than their work email and phone information.
---------------------------------------------------------------------------

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

    Other comments emphasize the threat of harm to employer email and 
phone systems and associated productivity concerns that would allegedly 
flow from the disclosure of employees' work contact information to the 
nonemployer parties.\134\ For example, the Employment and Labor Law 
Committee of the Association of Corporate Council (ACC), cites the 
Sixth Circuit's decision in Pulte Homes v. Laborer's Int'l Union, 648 
F.3d 295 (6th Cir. 2011) \135\ as evidence of union propensity to 
misuse this information in order to inflict economic damage on an 
employer. However, the American Health Care Association and the 
National Center for Assisting Living II (AHCA)--which also cites 
Pulte--admits that ``a petitioning union might be expected to be more 
solicitous of employees whose votes it was seeking in an NLRB 
election.'' CDW also mentions the threat of malicious software and 
viruses being introduced to employer computer systems, but SEIU (reply) 
answers that such threats are far-fetched considering that ``riddling 
an employee's computer [albeit one owned by the employer] with a virus 
is not likely . . . to encourage her to support the union.'' 
Furthermore, comments point out that email providers, such as Google 
and Microsoft, are vigilant about identifying malicious attachments, 
and that many employer email systems are protected by commercially 
available software, thus minimizing any potential risks to employer 
email systems.\136\
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    \134\ See, e.g., ACC; AGC; Indiana Chamber; ABC; Sheppard Mullin 
II; Mrs. Octavia Chaves II.
    \135\ In this case, which does not involve a union's use of an 
Excelsior list, the Sixth Circuit denied Pulte's motion for a 
preliminary injunction, but reversed the district court's dismissal 
of Pulte's claims against the Laborers union under the Computer 
Fraud and Abuse Act based upon allegations that the Laborers 
intentionally transmitted a high volume of email messages and phone 
calls to several Pulte executives and managers in retaliation for 
Pulte's firing of several employees concerning which the Laborers 
filed unfair labor practice charges with the NLRB.
    \136\ See SEIU II; Testimony of Jess Kutch on behalf of 
Coworker.org II.
---------------------------------------------------------------------------

    Still other comments argue that because the concerns associated 
with inclusion of work email and work phone numbers on the voter list 
are so significant, the Board would be breaching its obligation of 
neutrality in the election process if it were to order the employer to 
disclose them to a petitioning union.\137\
---------------------------------------------------------------------------

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

    After careful consideration of all the comments concerning the 
voter list proposals as they relate to work email addresses and work 
phone numbers, the Board believes that the issues raised require 
further study, and so the final rule does not require the employer to 
furnish the other parties (such as the union in an initial organizing 
context) with either the work email addresses or work phone numbers of 
eligible voters. If, in the future, the Board decides through 
adjudication or rule-making that the inclusion of additional contact 
information on the voter list is warranted, then it will be incumbent 
on the Board to address concerns appropriately raised at that time. 
However, at this time, we express no opinion as to the merits of the 
various concerns raised that are specific to including work email 
addresses or work phone numbers on the voter list.
b. Personal Email Addresses/Personal Phone Numbers
    Although the final rule does not require the employer to furnish 
the other parties or the regional director with the work email 
addresses and work phone numbers of the eligible voters, the final rule 
does require the employer to furnish the other parties and the regional 
director with the available personal email addresses and available home 
and personal cellular (``cell'') telephone numbers of the eligible 
voters to help advance the principal objectives behind the original 
Excelsior requirement. As set forth in the NPRM, in elections conducted 
under Section 9 of the Act, there is no list of employees or 
potentially eligible voters generally available to interested parties 
other than the employer and, typically, an incumbent representative. 79 
FR 7322. The Board addressed this issue in Excelsior Underwear, Inc., 
156 NLRB 1236, 1239-40 (1966), where it held:

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

Although several Justices of the Supreme Court expressed the view that 
the requirement to produce what has become known as an ``Excelsior 
list'' should have been imposed through rulemaking rather than 
adjudication, the Court upheld the substantive requirement in NLRB v. 
Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).

[[Page 74337]]

    In Excelsior, the Board explained the primary rationale for 
requiring production of an eligibility list:

    [W]e regard it as the Board's function to conduct elections in 
which employees have the opportunity to cast their ballots for or 
against representation under circumstances that are free not only 
from interference, restraint, or coercion violative of the Act, but 
also free from other elements that prevent or impede a free and 
reasoned choice. Among the factors that undoubtedly tend to impede 
such a choice is a lack of information with respect to one of the 
choices available. In other words, an employee who has had an 
effective opportunity to hear the arguments concerning 
representation is in a better position to make a more fully informed 
and reasonable choice . . ..
    As a practical matter, an employer, through his possession of 
employee names and home addresses as well as his ability to 
communicate with employees on plant premises, is assured of the 
continuing opportunity to inform the entire electorate of his views 
with respect to union representation. On the other hand, without a 
list of employee names and addresses, a labor organization, whose 
organizers normally have no right of access to plant premises, has 
no method by which it can be certain of reaching all the employees 
with its arguments in favor of representation, and, as a result, 
employees are often completely unaware of that point of view. This 
is not, of course, to deny the existence of various means by which a 
party might be able to communicate with a substantial portion of the 
electorate even without possessing their names and addresses. It is 
rather to say what seems to us obvious--that the access of all 
employees to such communications can be insured only if all parties 
have the names and addresses of all the voters. In other words, by 
providing all parties with employees' names and addresses, we 
maximize the likelihood that all the voters will be exposed to the 
arguments for, as well as against, union representation

156 NLRB at 1240-41 (footnotes omitted). The Supreme Court endorsed 
this rationale in Wyman-Gordon, 394 U.S. at 767, stating that:

    The disclosure requirement furthers this objective [to ensure 
the fair and free choice of bargaining representatives] by 
encouraging an informed employee electorate and by allowing unions 
the right of access to employees that management already possesses. 
It is for the Board and not for this Court to weigh against this 
interest the asserted interest of employees in avoiding the problems 
that union solicitation may present.

Since Excelsior was decided almost 50 years ago, the Board has not 
significantly altered its requirements despite transformative changes 
in communications technology, including that used in representation 
election campaigns. Fifty years ago, email did not exist; and 
communication by United States mail was the norm. For example, the 
union in Excelsior requested a list of names and home addresses to 
answer campaign propaganda that the employer had mailed to its 
employees. See Excelsior, 156 NLRB at 1246-47. Indeed, if a union 
wanted to reach employees with its arguments in favor of 
representation, it frequently resorted to the United States mail or 
visited employees at their homes because, as the Board recognized in 
Excelsior, the union, unlike the employer, ``normally ha[s] no right of 
access to plant premises'' to communicate with the employees. Id. at 
1240. However, as SEIU points out, in 2010, nearly all working adults 
used email, and indeed, 39.6 billion emails were being sent every day--
more than 80 times the number of letters being sent through the U.S. 
Postal Service.\138\ The AFL-CIO II cites to a study released during 
the 2014 comment period suggesting that up to 87% of U.S. adults have 
an email address and use the internet.\139\ Other comments likewise 
assert that the voter list requirements should be updated to include 
email addresses in recognition of how individuals, employees, 
employers, and institutions now communicate with one another.\140\
---------------------------------------------------------------------------

    \138\ See ``Email vs. snail mail (infographic)'' (Sept. 29. 
2010), http://royal.pingdom.com/2010/09/29/email-vs-snail-mail-infographic.
    \139\ Susannah Fox & Lee Rainie, ``The Web at 25 in the U.S.'', 
Pew Research Center (Feb. 27, 2014), http://www.pewinternet.org/2014/02/27/the-web-at-25-in-the-U-S/.
    \140\ See, e.g., National Nurses Union (NNU); Professor Joel 
Cutcher-Gershenfeld; SEIU-United Healthcare Workers--West; Southwest 
Regional Joint Board, Workers United; Testimony of Brenda Crawford 
II; Testimony of Darrin Murray on behalf of SEIU II.
---------------------------------------------------------------------------

    The Board believes that the provision of only a physical home 
address no longer serves the primary purpose of the Excelsior list. 
Communications technology and campaign communications have evolved far 
beyond the face-to-face conversation on the doorstep imagined by the 
Board in Excelsior. As Justice Kennedy observed in Denver Area 
Educational Telecommunications Consortium, Inc. v. FTC, 518 U.S. 727, 
802-803 (1996) (Kennedy, J., dissenting) (internal citation omitted):

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

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

    While * * * traditional means of communication remain in use, 
email, postings on internal and external websites, and other 
electronic communication tools are overtaking, if they have not 
already overtaken, bulletin boards as the primary means of 
communicating a uniform message to employees and union members. 
Electronic communications are now the norm in many workplaces, and 
it is reasonable to expect that the number of employers 
communicating with their employees through electronic methods will 
continue to increase. Indeed, the Board and most other government 
agencies routinely and sometimes exclusively rely on electronic 
posting or email to communicate information to their employees. In 
short, ``[t]oday's workplace is becoming increasingly electronic.'' 
\141\
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    \141\ To be clear, the Board cites J. Picini Flooring and 
related examples simply to demonstrate its view of the changing 
realities of workplace communication, and not--as suggested in the 
comments of AHCA--to argue that simply because an employer might use 
a particular mode of communication that a union should therefore be 
entitled to use of that same mode as a quid pro quo.

    Moreover, our experience with campaigns preceding elections 
conducted under Section 9 of the Act indicates that employers are, with 
increasing frequency, using email to communicate with employees about 
the vote. See, e.g., Arkema, Inc., 357 NLRB No. 103, slip op. at 14 
(2011) (employer sent an email to employees broadly prohibiting 
``harassment'' with respect to the upcoming election), enf. denied 710 
F.3d 308 (5th Cir. 2013); Humane Society for Seattle, 356 NLRB No. 13, 
slip op. at 3 (2010) (``On September 27, the Employer's CEO, Brenda 
Barnette, sent an email to employees asking that they consider whether 
ACOG was the way to make changes at SHS. On September 29, HR Director 
Leader emailed employees a link to a third-party article regarding 
`KCACC Guild's' petition and reasons the Guild would be bad for 
SHS.''); Research Foundation of the State University of New York at 
Buffalo, 355 NLRB 950, 958 (2010) (``On January 12, Scuto sent the 
first in a series of email's [sic] to all Employer postdoctoral 
associates concerning the Petitioner's efforts to form a Union at the 
Employer[,]. . . . explaining the Employer's position on unionization . 
. . .''); Black Entertainment Television, 2009 WL 1574462, at *1 (NLRB 
Div. of Judges June 5, 2009) (employer notified several employees by 
email to attend a meeting in which senior vice-president spoke one-on-
one with the employees regarding the election scheduled for the 
following day).\142\
---------------------------------------------------------------------------

    \142\ In addition, the rulemaking record reflects that employers 
sometimes use their employees' personal contact information to 
communicate about campaign issues. See United Nurses Associations of 
California/Union of Health Care Professionals (UNAC/UHCP) II and 
testimony of Brenda Crawford II (describing an employer sending text 
message blasts to employees' personal cell phones as part of its 
election campaign).

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[[Page 74338]]

    Disclosure of the employees' personal email addresses, like the 
disclosure of personal phone numbers discussed below, will allow the 
nonemployer parties (including unions and decertification petitioners) 
to promptly convey their information concerning the question of 
representation to all the eligible voters. Disclosure of this contact 
information also makes it more likely that nonemployer parties can 
respond to employee questions, both individually and collectively, 
including questions that employees have, but may be uncomfortable 
raising on their own.\143\ It also permits the nonemployer parties to 
engage with employees on campaign issues in a timely manner and 
specifically, prior to the election, as well as share those responses 
with other employees, thus making it more likely that employees can 
make an informed choice in the election. After all, it obviously takes 
less time for an employee to receive the nonemployer party's campaign 
communication when that message is sent via email than when it is sent 
via United States mail.\144\ Nurse Brenda Crawford explained the 
difficulty in organizing off-campus informational meetings when her 
colleagues work 12-hour shifts and have outside family 
responsibilities. In her view, modern communication tools, including 
email, would enhance the ability to provide information in a manner 
that is convenient to workers and their families. Testimony of Crawford 
II. The Board agrees, and has concluded that the required disclosure of 
available personal email addresses of eligible voters will permit the 
timely give-and-take of campaign information that will increase the 
likelihood that employees will be placed ``in a better position to make 
a fully informed and reasonable choice.'' Excelsior, 156 NLRB at 
1240.\145\ And of course, the Board included employees' home and 
personal cell telephone numbers in the voter list proposals because the 
use of telephones to convey information orally and via texting is an 
integral part of the communications evolution that has taken place in 
our country since Excelsior was decided.\146\
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    \143\ For example, Board caselaw provides examples of campaigns 
in which employees are presented with hypothetical ``questions'' to 
``ask'' the organizing union. See, e.g. Kellwood Co., 178 NLRB 20, 
23 (1969) (employer encouraged employees to ask organizing union 
what would happen when no contract was reached); Smithtown Nursing 
Home, 228 NLRB 23, 26 (1977) (employer encouraged employees to ask 
the organizing union for a ``guarantee'' of no strikes, and other 
strike related demands); World Wide Press, Inc., 242 NLRB 346, 357 
(1979) (employer distributed leaflets encouraging employees to ask 
about discontinued pension negotiations at another plant); Flamingo 
Hilton-Laughlin, 324 NLRB 72, 80-83 (1997) (employer distributed 
leaflets encouraging employees to ask 18 questions of the organizing 
union including certain ``guarantees''); Eldorado Tool, 325 NLRB 
222, 224 (1997) (employer distributed leaflet encouraging employees 
to ask 15 rhetorical questions of the organizing union including 
whether the union could ``guarantee'' no job loss or facility 
closure).
    \144\ We recognize that nonemployer parties can reply by email 
to any voter who chooses to pose questions by email since the return 
email address is included in the email itself, but we would find 
unpersuasive any claim that voluntary disclosures of this sort 
establish that it is unnecessary to provide nonemployer parties with 
email addresses of all eligible voters. Looking at the matter so 
narrowly overlooks that an organizing campaign is not merely a 
series of discrete individual communications addressed to interested 
employees with particular questions. Union representatives may seek 
to answer questions that not all employees may have thought to ask 
and to provide information about representation issues that not all 
employees possess. The ability to communicate effectively with all 
employees is necessary for this purpose. Accordingly, the Board 
believes that requiring an employer to furnish the available 
personal email addresses of eligible voters to the nonemployer 
parties makes it more likely that employees can make an informed 
choice in the election.
    \145\ To be sure, the Board believes that requiring the 
provision of employees' available personal email and phone numbers 
is a necessary improvement to the existing Excelsior policy even in 
workplaces where employers do not choose to avail themselves of 
email and phones as a tool of their representation campaign, i.e., 
its importance and usefulness is not linked to, or dependent on, the 
employer's use of email or phone communication.
    \146\ SIGMA and others suggests that many employers do not keep 
records of employees' personal email addresses and so ``the Board 
may overestimate the availability or utility'' of personal email 
addresses as a means for petitioners to reach all employees with 
their message. Yet, the amendments merely require an employer to 
furnish its employees' ``available personal email addresses'' (and 
``available home and personal cellular (``cell'') telephone 
numbers''). Accordingly, if the employer does not maintain those 
addresses and numbers, it does not need to ask its employees for 
them. As discussed below, the Board recognizes that delays in 
conducting elections would result if employers (or the Board) were 
required to collect personal information directly from employees 
after the parties entered into an election agreement or the regional 
director directed an election. However, the fact that some employers 
may not maintain records of their employees' personal email 
addresses and personal phone numbers does not demonstrate that it is 
not worthwhile to require those employers who do maintain such 
information to disclose it in the interests of fair elections and 
more efficient administrative proceedings. Similarly, the fact that 
an employer may not possess the personal email addresses and 
personal phone numbers for each and every one of its employees does 
not demonstrate that it is not worthwhile to require the employers 
to disclose those employees' personal email addresses and personal 
phone numbers that it does possess.
---------------------------------------------------------------------------

    However, some comments question the inclusion of phone numbers in 
the final rule, implying that because the Board chose not to mandate 
disclosure of phone numbers in 1966, at a time when at least basic 
telephone technology existed, then it should not do so today.\147\ CDW 
attempts to lend force to this argument by asserting that in the late 
1960s ``the United States led the world in telephone usage . . . and . 
. . the average person had 701 telephone conversations'', while 
simultaneously arguing that the home addresses disclosed under the 
current Excelsior policy continue to be the ``most reliable and near 
universal points of contact'' for employees.
---------------------------------------------------------------------------

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

    The Board believes that comments such as CDW's do not adequately 
appreciate the way phone communication has changed in the last 45 
years. While it may be true that when the Board issued its Excelsior 
decision, many households had at least one telephone, the telephone was 
not nearly as ubiquitous as it is presently, and those that existed 
bore little resemblance to the technology we have become accustomed to 
today. In particular, voicemail service had yet to be invented, and no 
commercially viable home answering machine had yet entered the 
marketplace. See ``The History of . . . Answering Machines,'' http://transition.fcc.gov/cgb/kidszone/history_ans_machine.html (last updated 
June 4, 2004). Because answering machine and voicemail technology was 
uncommon or nonexistent in 1966, a nonemployer party could not leave a 
message if the employee with whom it intended to speak about the 
upcoming election was not at home when the union called. By contrast, 
the employee would receive the nonemployer party's letter even if the 
employee was not at home when the post office delivered it. Today, 
however, even if the employee is not home when the call is placed, the 
caller is virtually always able to leave a voice message--to say 
nothing of the ability to send written messages via phone texting 
technology. And, of course, if an employee has a cell phone, the caller 
can reach the employee even if the employee is not at home when the 
call is received.
    Contrary to CDW, the Board believes that the changes in phone 
ownership and use make personal phones a universal point of contact 
today in a way that was unimaginable in 1966. The share of U.S. 
households possessing a telephone has steadily increased since the 
1960s, from 78% in 1960 to 95% in 1990. See Bureau of the Census, 
Census Questionnaire Content, 1990 CQC-26, ``We asked . . . You told 
us: Telephone and Vehicle Availability'' 1 (Jan. 1994), http://
www.census.gov/prod/cen1990/

[[Page 74339]]

cqc/cqc26.pdf. The Census Bureau reports that the numbers of households 
with no available phone had shrunk to only 2.4% by 2000. See U.S. 
Census Bureau, 2000 Census of Population and Housing, Summary Social, 
Economic, and Housing Characteristics, PHC-2-1, United States Summary 
10 (2003) (Table 10), http://www.census.gov/prod/cen2000/phc-2-1-pt1.pdf. And that tiny percentage of households with no phone service 
appears to have remained nearly unchanged through 2013. See Stephen J. 
Blumberg and Julian V. Luke, ``Wireless Substitution: Early Release of 
Estimates From the National Health Interview Survey, January-June 
2013,'' National Center for Health Statistics 2 (December 2013), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201312.pdf (reporting 
only 2.3% of U.S. households lacking phone service).
    In addition, as of January 2014, 90% of American adults had a 
handheld mobile phone or a cell phone--a non-existent technology at the 
time of Excelsior--and 29% of cell phone owners described their cell 
phone as ``something they can't imagine living without.'' Pew Research 
Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. In fact, 
the use of cell phones has increased to the point that it is overtaking 
the use of landline phones. For example, SEIU's comment cites a 2007 
study finding that 85% of adults own cell phones, while only 71% of 
adults own home phones. And the Bureau of Labor Statistics identifies 
2007 as the first year in which spending on cellular phone services 
exceeded spending on residential phone services. See ``Consumer 
Expenditure Survey: Spending on Cell Phone Services Has Exceeded 
Spending on Residential Phone Services,'' http://www.bls.gov/cex/cellphones2007.htm (last modified Jan. 14, 2009). In 2010, more than a 
quarter of adults lived in households with only wireless telephone 
service, up from less than 5% a mere 7 years earlier. See Stephen J. 
Blumberg and Julian V. Luke, ``Wireless Substitution: Early Release of 
Estimates From the National Health Interview Survey, July-December 
2010,'' National Center for Health Statistics 1 (June 2011), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201106.pdf. By 2013, 
38% of all adults lived in households with only wireless service, and 
more than half of adults younger than 35, as well as adults living in 
poverty, had only wireless phone service in their households. See 
Blumberg and Luke, ``Wireless Substitution: Early Release of Estimates 
From the National Health Interview Survey, January-June 2013,'' 
National Center for Health Statistics 2-3 (December 2013), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201312.pdf. These 
statistics validate the hearing comments of Ronald Mikell, speaking on 
behalf of the Federal Contract Guards of America, that many of his 
members possess only cell phones, and that Mikell's cell phone was his 
primary point of contact for both business and personal matters.
    The advent of cell phones has expanded communications not only by 
phone but by other electronic media. Some 55% of cell phone owners use 
their phones to go online-- to browse the internet, exchange emails, or 
download apps. Pew Research Internet Project, Mobile Technology Fact 
Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. In addition, the prevalence of cell phones, 
which are typically carried with adults on their person whether at 
home, at work or around town, now allows callers' messages to reliably 
reach their recipients with speeds that would have been shocking in 
1966. This speed and reliability has been enhanced through text 
messaging, which has seen a dramatic rise in usage in only the past few 
years, becoming the preferred mode of communication for many young 
people. In marked contrast to CDW's citation of an average person's 701 
annual phone conversations in 1968, more recent statistics show young 
adults sending an average of 1,630 texts per month. See ``U.S. Teen 
Mobile Report Calling Yesterday, Texting Today, Using Apps Tomorrow'' 
(October 14, 2010), http://www.nielsen.com/us/en/insights/news/2010/u-s-teen-mobile-report-calling-yesterday-texting-today-using-apps-tomorrow.html.
    Additionally, there is a separate rationale for requiring mobile 
and home phone numbers in addition to email addresses, namely, to reach 
persons who rely on phone calls and not emails. According to the Pew 
Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014), 
http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/, 
over forty percent of phone users do not possess smartphones and 
therefore would not receive last minute emails responding to campaign 
issues. Disclosure of personal phone numbers is thus a practical 
necessity if this significant portion of eligible voters is going to 
have access to late breaking developments.
    In addition to the increased use of personal telephones, text 
messaging, and email, smartphones have recently emerged as single 
devices capable of managing all three modes of communication. Even as 
of 2011, more than two-thirds of Americans 34 years old or younger, and 
48% of individuals 15 years old and above, had a smartphone. U.S. 
Census Bureau, Computer and Internet Use in the U.S. (May 2013). As of 
January 2014, 58% of American adults had a smartphone. Pew Research 
Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/. A 
smartphone's ability to combine telephone, text message, and email 
access in one hand-held, portable device is perhaps the most tangible 
example of how the evolution of communications since 1966 has made the 
personal phone a universal point of contact and, as indicated above, 
smartphone users comprise more than half of cell phone owners.\148\
---------------------------------------------------------------------------

    \148\ See also Riley v. California, 134 S.Ct. 2473, 2484 (June 
25, 2014) (describing cell phones as ``such a pervasive and 
insistent part of daily life that the proverbial visitor from Mars 
might conclude they were an important feature of human anatomy'' and 
acknowledging that smart phones, and even less sophisticated cell 
phones ``are based on technology nearly inconceivable just a few 
decades ago'').
---------------------------------------------------------------------------

    In the face of this revolution in communications technology, it is 
not surprising that, as SEIU notes, door to door solicitation is nearly 
extinct, and first class mail is at its lowest volume in 25 years with 
further profound declines predicted over the next decade. In the 
experience of union attorney Thomas Meiklejohn, some employers may no 
longer keep updated home address information on their employees because 
they do not regularly communicate with them via mail, in contrast to 
employee telephone lists, which are updated of necessity.\149\ Indeed, 
many comments support adding phone numbers to the voter list 
disclosures, as a ``common sense'' change, precisely because the 
disclosures of only home addresses may

[[Page 74340]]

be ineffective in allowing a petitioner's message to reach eligible 
voters.\150\ Union attorney Caren Sencer testified that in her 
experience with seasonal workers covered by the NLRA, employers use 
cell phones to communicate with their employees and have only a P.O. 
Box for a physical address--which would be of limited utility to a 
petitioning union. Similarly, NELP stresses that the expanded voter 
list disclosures are ``especially crucial to low-wage workers, who may 
not remain at one address for long or may not even have a fixed home.'' 
The Board shares this perspective, and for that reason believes that 
the addition of phone numbers is necessary to ensure that messages 
concerning representation are able to reach the lowest paid sectors of 
our national workforce.\151\
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    \149\ Although, the Board is mindful, as asserted by U.S. 
Poultry II, that employees may change personal email addresses and 
phone numbers, it nevertheless disagrees with U.S. Poultry's 
conclusion that requiring this additional information won't solve 
the problem of outdated contact information. By requiring these two 
additional forms of available contact information, the Board 
believes that the voter list amendments will increase the likelihood 
that nonemployer petitioners will receive at least one piece of up-
to-date contact information (if not more) for eligible voters. 
Moreover, instantaneous responsive messages commonly utilized by 
both telephone and email providers--indicating that an email message 
cannot be delivered to the address entered or that a phone call 
cannot be completed as dialed--are much more likely to bring 
inadvertent transcription mistakes to the parties' attention (and 
allow for potential correction) during the pre-election period than 
would corresponding returned pieces of U.S. mail indicating that the 
mailing could not be delivered as addressed.
    \150\ See, e.g., AFL-CIO; SEIU; Senior Member Miller and 
Democratic House Members; testimony of Ronald Mikell on behalf of 
the United Federation of Special Police and Security Officers and 
Federal Contract Guards of America.
    \151\ In view of the foregoing discussion, the Board disagrees 
with PCA's comment that home addresses are sufficient, as well as 
PCA's claim--shared by CNLP--that the Board should not require 
disclosure of the additional contact information because there is no 
evidence that the current requirements hinder union access. Nor is 
the Board persuaded by RILA's II assertion that new electronic means 
of communication outreach available to unions via various social 
media outlets undercuts the need to disclose employee personal email 
and cell phones. Moreover, the Excelsior Board rejected the argument 
that the Board may not require employer disclosure of employee names 
and addresses unless the union would otherwise be unable to reach 
the employees with its message in the particular case at issue. 
Excelsior, 156 NLRB at 1244. As the Board explained, cases 
addressing the existence of alternative channels of communication 
are not relevant in this non-unfair-labor-practice context, where 
the opportunity to communicate made available by the Board does not 
interfere with a significant employer interest, and the interest in 
a fair and free choice of bargaining representatives is so 
substantial. Id. at 1245. Thus, even assuming the availability of 
other avenues by which a union might be able to communicate with 
employees, the Board ``may properly require employer disclosure of 
[the additional contact information] so as to insure the opportunity 
of all employees to be reached by all parties in the period 
immediately preceding a representation election.'' Id. We repeat 
that the Excelsior rule is designed, first of all, to maximize the 
likelihood that all of the voters will be exposed to the nonemployer 
party arguments concerning representation, and the requirement that 
the additional contact information be disclosed better advances that 
goal given the changes in how individuals, employees, employers, 
associations and institutions communicate, and exchange information 
with, one another.
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    Like the disclosure of email addresses, disclosure of the 
employees' home and personal cell phone numbers will allow the 
nonemployer parties to promptly convey their information concerning the 
question of representation to the eligible voters. Disclosure of this 
contact information also makes it more likely that the nonemployer 
parties can both respond to employee questions prior to the election 
and share those responses with other employees, thus making it more 
likely that employees can make an informed choice in the election. 
After all, it obviously takes less time for an employee to receive the 
nonemployer party's campaign communication when that message is sent 
via a telephone call or a text or voice mail message than when it is 
sent via United States mail. In sum, the Board has also concluded that 
requiring the employer to furnish the other parties with the available 
home and personal cell phone numbers of eligible voters will facilitate 
an informed electorate, thus serving the first purpose of the Excelsior 
rule.
    The Board has further concluded that requiring the employer to 
furnish the available personal email addresses and home and personal 
cell phone numbers of the eligible voters will also better advance the 
second rationale articulated by the Board in Excelsior: Facilitating 
the expeditious resolution of questions of representation. As the Board 
explained in Excelsior, in many cases at least some of the names on the 
employer's list of eligible voters are unknown to the other parties. 
The parties may not know where the listed individuals work or what they 
do. Thus, for example, the union may be unable ``to satisfy itself as 
to the eligibility of the `unknowns','' forcing it ``either to 
challenge all those who appear at the polls whom it does not know or 
risk having ineligible employees vote.'' Excelsior, 156 NLRB at 1243. 
As the Board further explained, ``The effect of putting the union to 
this choice . . . is to increase the number of challenges, as well as 
the likelihood that the challenges will be determinative of the 
election, thus requiring investigation and resolution by the Regional 
Director or the Board.'' Id. at 1243. Only through further factual 
investigation--for example, consulting other employees who may work 
with the listed, unknown employees or contacting the unknown employees 
themselves--can the union potentially discover the facts needed to 
assess eligibility and avoid the need for election-day challenges based 
solely on ignorance. And to avoid unnecessary delay, the union must 
receive the recipient's response in time to be able to determine 
whether the employer correctly included those names on the list of 
eligible voters or whether it should challenge those individuals if 
they come to vote.
    The provision of the additional contact information will help the 
union (or decertification petitioner) investigate the identity of any 
unknown employees on the employer's voter list in a more timely manner, 
thereby helping to decrease the chances that the union (or 
decertification petitioner) will have to challenge voters based solely 
on ignorance of their identities.\152\ Accordingly, the Board concludes 
that the provision of the additional contact information will advance 
the second rationale of Excelsior as well as the first rationale, and 
the final rule requires the employer to disclose this additional 
contact information in amended Sec. Sec.  102.62(d) and 102.67(l). The 
Board also reiterates that both rationales will be advanced by 
permitting nonemployer parties to more promptly and effectively contact 
employees in relation to post-election objections and other 
proceedings, such as unfair labor practice charges, that may arise from 
the representation proceedings. For example, as discussed below in 
connection with Sec.  102.69, in order to help the Board to more 
expeditiously resolve election objections and thereby help the Board to 
more expeditiously resolve questions concerning representation, the 
Board has decided to require parties filing election objections to 
simultaneously file with their objections a written offer of proof 
supporting those objections, unless parties can show good cause to file 
their offers of proof at a later date. The Board has thereby eliminated 
the default extra 7-day period parties had to file evidence in support 
of their objections under the Board's prior rules.\153\ Because the 
voter list amendments require the employer to include the available 
home and personal cell phone numbers along with the available personal 
email addresses of the unit employees on the voter list that it 
provides to the nonemployer parties before the election, the Board 
believes that unions, as well as employers, ordinarily will have 
sufficient time to contact potential witnesses and prepare their offers 
within the allotted time.\154\
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    \152\ For comments in agreement, see, e.g., National Union of 
Healthcare Workers--California Nurses Association (NUHW) II; Nicole 
Teixeira II.
    \153\ The regional director may extend the time for filing the 
written offer of proof in support of the election objections upon 
request of a party showing good cause.
    \154\ On a related note, we observe that using modern technology 
to lessen delays in representation cases is also fully consistent 
with one of the key goals of the E-Government Act of 2002 (Pub. L. 
107-347), ``improv[ing] the ability of the Government to achieve 
agency missions and program performance goals,'' id., section 2, 
Dec. 17, 2002, 116 Stat. 2900.
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    Nevertheless, the Board is mindful of comments predicting that 
communications technology is changing so rapidly that even the proposed 
expansion of the voter list to include personal email addresses and 
personal

[[Page 74341]]

phone numbers may be insufficient to advance Excelsior's interest in 
the near future. For example, Joseph Torres predicted that email--both 
work and personal--is headed toward obsolescence and that young people 
are already turning to social media platforms such as Tumblr, 
Instagram, and Facebook to communicate electronically. Testimony of 
Joseph Torres on behalf of Winston & Strawn II. In this vein, SEIU II 
suggests that the Board rules should require employers to provide to 
petitioners ``all other contact information, such as social media 
identifiers, used by the employer to communicate with employees[.]'' 
The Board, however, shares the Chamber's skepticism (Chamber II Reply) 
that few, if any, employers maintain social media contact information 
about their employees, and declines to explicitly include it as part of 
the voter list at this time.\155\
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    \155\ The Board does not, however, share the Chamber's concern 
(Chamber II Reply) that a regulation requiring employers to include 
on voter lists any additional contact information, such as social 
media identifiers, that they maintain in their records would start 
down the ``slippery slope'' of requiring employers to solicit and 
maintain such information from their employees.
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    Should the Board's experience administering the expanded voter list 
requirements suggest that additional forms of contact information 
should be included in future voter lists, then the Board is open to 
revisiting its conclusion concerning the contours of the list. For that 
reason, the Board is adopting a modified version of the language 
suggested by the AFL-CIO II to phrase the required contents of the 
voter list as a minimum, to allow for future Boards to require more or 
different forms of contact information in a particular case (should the 
peculiar circumstances so warrant), or in all future cases. Thus, the 
new regulatory language will read, in pertinent part, `` * * * a list 
of the full names, work locations, shifts, job classifications, and 
contact information (including home addresses, available personal email 
addresses, and available home and personal cellular (``cell'') 
telephone numbers) of all eligible voters.'' Thus, the Board retains 
discretion to require through adjudication or rulemaking that the list 
include additional contact information.
c. Work Location, Shift, and Job Classification Information
    The final rule also adopts the proposal that the employer furnish 
the work locations, shifts, and job classifications of all eligible 
voters in amended Sec. Sec.  102.62(d), (providing for the final voter 
list in election agreement cases), and 102.67(l) (providing for the 
same list in directed election cases). Provision of the information 
will assist the nonemployer parties in investigating whether the 
unknown employees on the employer's list are in fact eligible. The 
Board agrees with the comments advocating that provision of this 
information will reduce the need for challenges based solely on 
ignorance of the identity of voters, and thereby help the Board 
expeditiously resolve questions of representation.\156\ In addition, 
the Board is sympathetic to the view that in some cases, providing 
employee scheduling and shift information to a petitioning union would 
allow for more targeted communications either in person or by phone 
that would be less disruptive to the employee and his or her family. 
See Testimony of Caren Sencer on behalf of Weinberg, Roger & Rosenfeld 
II.
---------------------------------------------------------------------------

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

d. Employee Privacy Concerns
    Many comments argue, however, that the Board should refrain from 
requiring that the employer furnish the other parties with the 
employees' personal email addresses, home and personal cell phone 
numbers, work locations, shifts and job classifications, because, among 
other things, disclosure of such information could cause harm to the 
employees, invade their privacy, or conflict with precedent or other 
laws. Other comments appear to attack even the nearly 50-year old 
Supreme Court-sanctioned requirement that the employer disclose the 
home addresses of eligible voters.
    Without minimizing the legitimacy of the concerns underlying these 
comments, we conclude for the reasons that follow that the public 
interests in the fair and free choice of bargaining representatives and 
in the expeditious resolution of questions of representation outweigh 
the interests employees and employers have in keeping the information 
private. As the Supreme Court has long recognized, it is 
quintessentially the Board's function to balance the competing 
interests of employees, employers, and labor organizations in 
effectuating the policies of the Act. See, e.g., NLRB v. Truck Drivers, 
353 U.S. 87, 96 (1957); NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 
375, 378 (1967); NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975). 
Indeed, in upholding the Board's Excelsior rule the Supreme Court 
noted: ``It is for the Board and not for this Court to weigh against 
this interest [in the fair and free choice of bargaining 
representatives] the asserted interest of employees in avoiding the 
problems that union solicitation may present.'' NLRB v. Wyman-Gordon 
Co., 394 U.S. at 767.\157\
---------------------------------------------------------------------------

    \157\ The issue of employee privacy rights was also raised in 
the litigation preceding Wyman-Gordon, and the courts called on to 
consider the issue consistently held that it was within the Board's 
discretion to conclude that the interests advanced by the Excelsior 
requirement outweighed employee privacy interests. See British Auto 
Parts, Inc. v. NLRB, 405 F.2d 1182, 1183 (9th Cir. 1968) (rejecting 
privacy arguments), cert. denied sub nom., Teledyne, Inc. v. NLRB, 
394 U.S. 1012 (1969); NLRB v. Q-T Shoe Mfg. Co., Inc., 409 F.2d 
1247, 1250 (3d Cir. 1969) (holding employee privacy rights not 
infringed by Excelsior requirement); NLRB v. J.P. Stevens & Co., 409 
F.2d 1207, 1209 (4th Cir. 1969); NLRB v. Beech-Nut Life Savers, 
Inc., 274 F. Supp. 432, 437-438 (S.D.N.Y. 1967), aff'd, 406 F.2d 253 
(2d Cir. 1968), cert. denied 394 U.S. 1012 (1969). Although the 
Motor & Equipment Manufacturers Association (MEMA) II (2-3) 
criticizes the Excelsior Board for its analysis that allegedly did 
not take account of the then-recent decision by the Supreme Court in 
Griswold v. Connecticut, 381 U.S. 479 (1965), recognizing a 
constitutional right to privacy, neither the Supreme Court in its 
1969 Wyman-Gordon decision affirming the Excelsior policy, nor any 
of the post-Griswold circuit court decisions listed above, faulted 
the Excelsior Board for this alleged deficiency.
---------------------------------------------------------------------------

    As explained above, the Board has concluded that access to 
employees' more modern contact information, including available, 
personal email addresses, and home and personal cell phone numbers is 
as fundamental to a fair and free election and the expeditious 
resolution of questions concerning representation in 2014, as was 
access to employee names and home addresses in 1966 when that 
requirement was created in Excelsior, 156 NLRB at 1243, 1246, and later 
approved by the Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S. at 
768. As further noted above, 50 years ago answering machines, 
voicemail, email, cell phones, texting, and smart phones did not exist 
or were not widespread. In this day and age, providing such tools of 
communication to the nonemployer parties once a regional director has 
directed an election or all parties have agreed to an election will 
significantly advance the objectives of the original Excelsior policy: 
Ensuring the fair and free choice of bargaining representatives by 
maximizing the likelihood that all the voters will be exposed to the 
nonemployer party arguments concerning representation, and helping to 
expedite resolution of questions of representation by preventing 
challenges based solely on ignorance of the identities of the voters.
    The objections that disclosure of the additional information could 
lead to harassment and coercion of

[[Page 74342]]

employees \158\ are similar to arguments presented to the Excelsior 
Board. Commenters have failed to persuade us that the Board's response 
then is any less valid today:
---------------------------------------------------------------------------

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

    [W]e reject the argument that to provide the union with employee 
names and addresses subjects employees to the dangers of harassment 
and coercion in their homes. We cannot assume that a union, seeking 
to obtain employees' votes in a secret ballot election, will engage 
in conduct of this nature; if it does, we shall provide an 
appropriate remedy. We do not, in any event, regard the mere 
possibility that a union will abuse the opportunity to communicate 
with employees in their homes as sufficient basis for denying this 
---------------------------------------------------------------------------
opportunity altogether.

156 NLRB at 1244 (footnote omitted). With the benefit of almost fifty 
years of post-Excelsior experience, it is clear that the harm to 
employees forecast by the decision's opponents did not come to pass. 
The Board will not make policy based on mere speculation of misconduct 
and abuse, particularly where, as a matter of the Board's decades of 
experience, such abuse is unlikely.\159\
---------------------------------------------------------------------------

    \159\ See also NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 
494, 499-500 (3d Cir. 1970) (noting that mere possibility of 
harassment is not enough to invalidate directive to furnish 
Excelsior list), cert. denied, 400 U.S. 957 (1970); NLRB v. Q-T Shoe 
Mfg. Co., 409 F.2d 1247, 1250 & n. 9, (3d Cir. 1969) (``it hardly 
appears likely that union agents will unduly harass any employee, 
since their objective is to obtain support rather than arouse 
hostility * * *. The mere possibility of such harassment is surely 
not a sufficient ground for invalidating a rule designed to achieve 
greater enlightenment''); NLRB v. Hanes Hosiery Division--Hanes 
Corp., 384 F.2d 188, 191 (4th Cir. 1967) (``every annoyance of the 
voters is shunned by the seasoned campaigner, and unions are not 
novices in this area''), cert. denied, 390 U.S. 950 (1968).
---------------------------------------------------------------------------

    Nevertheless, the Board is cognizant that advances in technology 
since Excelsior have created a heightened risk of unauthorized 
dissemination of personal information, and comments have stressed the 
public's increased concern with privacy issues due to incidents of 
identity theft, government surveillance and hacking of retailers' 
electronic databases.\160\ However, here, as in Excelsior, and other 
areas of the law, the risk of harm must be balanced against other 
legitimate considerations that also warrant protection. Cf. Canadian 
American Oil Co. v. NLRB, 82 F.3d 469, 473-75 (D.C. Cir. 1996) 
(confidentiality interest of employees claiming union threats yielded 
to union's interest to confront the evidence offered in support of the 
objection at the hearing); NLRB v. Herbert Halperin Distributing Corp., 
826 F.2d 287, 293 (4th Cir. 1987) (confidentiality interest of 
employees claiming union threats did not justify objecting party's 
transmitting the employees' affidavits to the Board without also 
serving them on the union); Seth Thomas Div., 262 NLRB 715, 715 n.2 
(1982) (same).
---------------------------------------------------------------------------

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

    Therefore, even assuming that the privacy, identity theft, and 
other risks may be greater than the Board has estimated--and, in 
particular, that adding personal email addresses and home and personal 
cell phone numbers to home addresses may, in combination, result in 
increased risks, especially as technology changes--nevertheless the 
Board's conclusion remains the same. These risks are worth taking and 
as a practical matter, must be taken, if communication about 
organizational issues is going to take place using tools of 
communication that are prevalent today. Email and cell phones are ever 
increasing the modes by which people communicate; this continuing 
expansion in the use of new electronic media demonstrates that the 
risks associated with these speedy and convenient tools are part of our 
daily life.
    The Board therefore disagrees with the assertion of Constangy, that 
the mere potential for misuse of the voter list information outweighs 
any benefit gained by the disclosures. Nonetheless, we emphasize that 
if the disclosure of the additional contact information does subject 
employees to harm, the Board ``shall provide an appropriate remedy'' 
Excelsior, 156 NLRB at 1244, as discussed further below.
    Likewise, the Board is not persuaded that SHRM's raw citation of 
unfair labor practice charges alleging union coercion evidences a 
problem with communication resulting from current Excelsior 
disclosures. The charges cited are not linked to misuse of Excelsior 
list information but, rather, include the entire range of coercive 
union conduct, including when that union is already acting as an 
employees' bargaining representative. The Board is skeptical that a 
union seeking to persuade employees to select it as a bargaining 
representative would tend to act coercively toward those employees, and 
the statistics cited by SHRM--which do not purport to focus on whether 
the charges were filed in a representational context or had any 
relationship to the Excelsior list information, much less whether they 
had merit \161\--do not undermine the Board's view on the issue.
---------------------------------------------------------------------------

    \161\ Over the past 3 years, just over one third of all charges 
were found to have merit. See NLRB Performance Accountability 
Reports 2011-2013, http://www.nlrb.gov/reports-guidance/reports 
(reporting merit rates of 35.2% in FY 13, 36.4% in FY 12, and 37% in 
FY 11).
---------------------------------------------------------------------------

    Moreover, the dearth of specific and documented incidents of 
alleged misuse of employee contact information cited in the comments 
lends additional support to our conclusion that such misuse has not 
been a significant problem in the past, and is unlikely to be a problem 
in the future. Thus, in the two rounds of critical commentary on the 
voter list proposals, several years apart, the Board was presented with 
no documentation demonstrating misuse of contact information provided 
in voter lists by petitioning unions during the nearly 50 years in 
which the Board's Excelsior policy has been in place.\162\ However, 
despite the absence of any examples of that kind of abuse, the Board 
recognizes that the potential for such abuse exists. For example, RILA 
II mentioned--without citation--one case in which a decertification 
petitioner allegedly received pornography mailed to his home. Yet, even 
in that case, Doreen Davis (testifying on behalf of RILA) reported that 
the NLRB appropriately set aside the subsequent election and ordered it 
to be rerun.\163\ See RILA II. And when William Messenger (testifying 
on behalf of NRTWLDF) discussed another incident where union members 
allegedly harassed a dissident coworker by mailing magazine 
subscriptions to the coworker's home address, he admitted that the 
employee contact information at issue was not made available pursuant 
to the Board's Excelsior policy. In sum, the Board agrees with comments 
by the AFL-CIO II,\164\ Melinda Hensel

[[Page 74343]]

(Testimony on behalf of the International Union of Operating Engineers 
(IUOE), Local 150 II) and Thomas Meiklejohn (Testimony on behalf of 
Livingston, Adler, Pulda, Meiklejohn & Kelly II) who noted the lack of 
evidence demonstrating voter list misuse.
---------------------------------------------------------------------------

    \162\ Indeed, our examination of the data contained in the last 
decade of the Board's use of its Case Activity Tracking System 
(CATS) further confirms the lack of evidence that unions are 
generally coercing and intimidating employees during organizing 
campaigns, or specifically misusing information from Excelsior 
lists. The data reveals that out of 24,681 representation elections 
conducted between fiscal years 2000 and 2010, employers filed 
objections involving allegations of union threats and/or violence in 
469 cases, and the election result was set aside by the Board on 
only 16 occasions. Nothing in the Board's database indicates that 
any of these 16 cases involved the misuse of Excelsior information, 
but even if the Board were to assume that it did, a record of union 
coercion sufficient to set aside an election in 0.065% of elections 
over a recent 10-year span simply does not demonstrate that ``union 
coercion and intimidation in the context of an organizing campaign 
is rampant'' as argued by SHRM. (This data has not been updated 
through 2013 because it is not readily available for 2011-2013 in 
the Board's new NxGen case tracking software which replaced CATS in 
2011.)
    \163\ We also note that a decertification petitioner's address 
appears on the face of the petition itself, which is a public 
document. Thus, there was no allegation that Excelsior list 
information played any role in the case cited by Davis.
    \164\ The AFL-CIO's 2014 comment asserted that ``despite this 
extensive experience [with the existing Excelsior policy], neither 
the Board nor any party that commented on the prior NPRM or 
testified at the prior hearing could point to a single, specific 
instance where an eligibility list was misused or even used for a 
purpose unrelated to the representation proceeding.''
---------------------------------------------------------------------------

    In a similar vein, the Board, contrary to Con-way's comment, does 
not believe that disclosure of employee phone numbers will jeopardize 
truck drivers' safety by potentially interrupting their mandated work 
breaks. The final rule does not require the employer to disclose the 
employees' work phone numbers to the nonemployer parties. Nothing in 
the final rule requires individuals to keep the their home or personal 
cell phone ringers on ``loud,'' let alone requires them to take calls. 
Moreover, cell phones are especially effective in showing the identity 
of the caller, or at least whether the caller is known or unknown, so 
that the recipient may exercise an informed choice in answering or not. 
The Board trusts that after the final rule becomes effective, truckers 
will be able to exercise discretion in fielding incoming union calls 
during their breaks should any occur, just as they exercise discretion 
in fielding other kinds of calls now.\165\
---------------------------------------------------------------------------

    \165\ The Board likewise disagrees with Fern Netzky's 
unsupported assertion that the voter list will violate attorney-
client privilege. The Board fails to see how the new requirements, 
any more than the existing Excelsior requirements, would force 
employers to reveal confidential communications made to counsel in 
order to secure legal advice.
---------------------------------------------------------------------------

    The Board acknowledges, however, the concern raised by many 
comments that the disclosure of the additional contact information 
could harm employees by impinging on their privacy.\166\ To one way of 
thinking, such privacy concerns should be more pronounced surrounding 
an employee's home address--long disclosable under Excelsior--than for 
the additional contact information (phone numbers and email addresses) 
disclosable by virtue of the voter list amendments. After all, 
disclosure of home addresses may lead to face-to-face contact between 
union and employee organizers and an employee at the employee's home, 
whereas disclosure of employee phone numbers or email addresses may 
simply lead to phone calls or email messages, which are more easily 
ignored.\167\ Indeed, to the extent that disclosure of employee email 
and phone contact information lessens the likelihood that union 
organizers will seek to engage them in face-to-face dialogues 
concerning representation,\168\ then those disclosures would arguably 
mitigate the most serious incursions on employee privacy.
---------------------------------------------------------------------------

    \166\ See, e.g., Chairmen Kline and Roe II; Klein II; COLLE; 
SIGMA; RILA; ACE; COSE; Ann Pomola.
    \167\ See, e.g., UFCW II; Chairman Harkin, Senior Member Miller 
and Congressional Democrats; AFL-CIO II; SEIU II; United Association 
of Journeymen and Apprentices of the Plumbing and Pipe Fitting 
Industry (UAJAPPFI) II; Nicole Teixeira II.
    \168\ As IUOE attorney Melinda Hensel explained: ``The days of 
union visits to people's homes I think are--I wouldn't say it's 
over, but I think it's a much less popular manner of organizing 
these days.'' Testimony II.
---------------------------------------------------------------------------

    On the other hand, the Board recognizes that some labor 
organizations may elect to contact employees via telephone and email in 
addition to, rather than instead of, contacting them at home. Further, 
the Board acknowledges that some employees will consider disclosure of 
the additional contact information--particularly email addresses and 
cell phone numbers which may not be readily accessible through public 
directories--to invade their privacy, even if they are never 
contacted.\169\ Moreover, at least two commenters make the 
counterintuitive claim that including personal email addresses and 
phone numbers on voter lists constitutes a bigger invasion of privacy 
than including home addresses because employees have less control over 
unwanted email and phone calls than they do over unwanted visitors at 
their front door.\170\ Although the courts ``have differed in their 
characterization of the magnitude of the interest[s] implicated,'' U.S. 
Dept. of Defense v. FLRA (``DOD v. FLRA''), 510 U.S. 487, 501 n.8 
(1994), the Supreme Court has held, for example, ``that [employees] 
have [a] nontrivial privacy interest in nondisclosure'' of home address 
information. Id. at 501.\171\
---------------------------------------------------------------------------

    \169\ Of course, the rule only impacts contact information that 
the employee has already disclosed to the employer. Any information 
which the employee kept private from the employer will also be kept 
private from other parties to the proceeding. As discussed above, if 
an employee has chosen not to share a personal email address or cell 
phone number with her employer, the employer will not be able to 
disclose it to the other parties--and the amendments do not require 
the employer to ask the employee for it. In this way, employees have 
some control over whether their contact information is utilized by 
employers or nonemployer parties concerning the campaign.
    \170\ See Testimony of Doreen Davis on behalf of RILA II; 
Testimony of William Messenger on behalf of NRTWLDF II.
    \171\ Compare DOD v. FLRA, 510 U.S. at 501 n.8 (noting that 
courts of appeals have variously characterized employees' privacy 
interests in their home addresses as ``important,'' ``minimal,'' 
``general,'' and ``significant'') and id. at 506-07 & n.4 (Ginsburg, 
J., concurring) (noting that ``most courts'' have found that 
employees have only a ``relatively modest'' privacy interest in 
their home addresses) with Electronic Frontier Foundation v. Office 
of the Director of National Intelligence, 639 F.3d 876, 888 (9th 
Cir. 2010) (characterizing agent's privacy interest in his email 
address as ``minor''). See also In re Deloitte & Touche, LLP, 
Overtime Litigation, 2012 WL 340114 (S.D.N.Y. Jan. 17, 2012) (not 
reported) (characterizing the disclosure of class member phone 
numbers as ``routine'', including personal email as not unduly 
intrusive on employee privacy concerns, and collecting similar cases 
ordering such disclosures).
---------------------------------------------------------------------------

    In our view, however, many features of the voter list amendments 
help to minimize any invasion of employee privacy caused by disclosure 
of the information. The disclosure of information is limited in a 
number of key respects. The information itself is limited in scope. It 
is available only to a limited group of recipients, to use for limited 
purposes. These limitations persuade us that the substantial public 
interests--in fair and free elections and in the speedy resolution of 
questions of representation--served by the voter list amendments 
outweigh the employees' acknowledged privacy interest in the 
information that will be disclosed.
    First, the information is limited in scope. Plainly, not every 
piece of personally identifiable information is equally sensitive or 
entitled to the same weight when balanced against the interests served 
by disclosure.\172\ We do not equate disclosure of employee email 
addresses and phone numbers, for example, with disclosure of employee 
medical records. Indeed, in Detroit Edison Co. v. NLRB, 440 U.S. 301, 
318-19 & n.15 (1979), the Supreme Court explicitly noted that the 
``interests at stake'' in Wyman-Gordon--where the Court upheld the 
Board's Excelsior requirement that an employer disclose the names and 
addresses of employees to a union in the process of an organizing 
campaign--were ``far different'' from those at stake when for purposes 
of arbitrating a grievance an incumbent union seeks highly sensitive 
information going to an employee's basic competence such as aptitude 
test scores linked to named employees. While email addresses, phone 
numbers, work locations, shifts, and job classifications constitute 
additional pieces of information, they are not fundamentally different 
in kind from

[[Page 74344]]

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

    \172\ Cf. U.S. Department of Commerce, ``Guide to Protecting the 
Confidentiality of Personally Identifiable Information (PII): 
Recommendations of the National Institute of Standards and 
Technology, Special Publication 800-122'' (2010) http://csrc.nist.gov/publications/nistpubs/800-122/sp800-122.pdf at E-2 
through E-3 (``Organizations should evaluate the sensitivity of each 
individual PII data field. For example, an individual's SSN or 
financial account number is generally more sensitive than an 
individual's phone number or ZIP code.'').
    \173\ See, e.g., SEIU II (pointing out that per the published 
standards of the NLRB (http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1673/electronic_filings.pdf) and the 
D.C. Federal courts (http://www.dcd.uscourts.gov/dcd/civil_privacy_notice; https://ecf.cadc.uscourts.gov/) individual 
email addresses are not treated as sensitive personal information 
that must be deleted from documents before they are filed 
electronically).
---------------------------------------------------------------------------

    Furthermore, disclosure of the employees' email addresses, phone 
numbers, work locations, shifts, and job classifications reveals 
nothing about the employees' politics, their religion, their 
associations, or even their position regarding the labor organization 
in question.\174\ Employees will not have their contact information 
disclosed because they engaged in any particular expressive activity. 
Rather, their information will be disclosed solely by virtue of their 
being employed in a unit in which a question of representation has 
arisen that will be resolved by a secret ballot election conducted by 
the Board. The voter list disclosures will not reveal employees' 
personal beliefs that they might prefer to keep to themselves. Instead, 
the amendments merely require disclosure of information which will 
enable the nonemployer parties to contact the employees outside of the 
workplace to provide information about the voting issues, determine 
whether the employer properly included such employees on the voter 
list, and investigate post-election objections and prepare for Board 
proceedings arising out of the election and related matters.
---------------------------------------------------------------------------

    \174\ For example, the Supreme Court recently justified 
requiring police officers to seek warrants before searching 
arrestees' cell phones by explaining the vast quantity of private 
information that may now be found on modern cell phones. Riley v. 
California, No.13-132, 134 S.Ct. 2473 (June 25, 2014). Yet none of 
that information would be accessible to petitioners merely through 
receipt of individual phone numbers.
---------------------------------------------------------------------------

    Second, the voter list information will be provided to a limited 
set of recipients. It will not be made available to the public at 
large. Nor will it even be made available to the nonemployer parties in 
every representation case. Thus, the Board has not, does not, and will 
not allow ``indiscriminate'' disclosure of employee information to 
petitioning unions, as charged by NRF. The Board's showing of interest 
requirement specifically safeguards against such ``indiscriminate'' 
disclosures. See Local 3, IBEW v. NLRB, 845 F.2d 1177, 1181 (2d Cir. 
1988) (noting that showing of interest requirement was part of 
Excelsior's balancing of public and private interests); see also Big Y 
Foods, Inc., 238 NLRB 855, 855 n.4 (1978) (showing of interest 
requirement safeguards against the indiscriminate institution of 
representation proceedings). Moreover, the employer is not required to 
furnish the list to a petitioning union or a decertification petitioner 
until after the employer admits that a question of representation 
exists by entering into an election agreement or the regional director 
finds that a question of representation exists after a pre-election 
hearing. Indeed, as discussed below in connection with Sec.  102.63, 
the Board has rejected SEIU's suggestion that employee contact 
information be provided to the nonemployer parties before an election 
is directed, as part of the employer's pre-hearing statement of 
position. In addition, the Agency will continue its current practice of 
determining voter lists to be categorically exempt from disclosure to 
non-party FOIA requesters. See Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. 
Cir. 1991).\175\
---------------------------------------------------------------------------

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

    Third, even when the voter list information is disclosed to the 
nonemployer parties in a particular case, such parties will not be able 
to use it for whatever purpose they desire. Rather, they will only be 
allowed to use employee contact information for limited purposes. As 
discussed below, the final rule provides that ``parties shall not use 
the list for purposes other than the representation proceeding, Board 
proceedings arising from it, and related matters.'' Thus, employees 
need not fear that their contact information, once disclosed, will be 
shared with or sold to entities having nothing to do with the 
representation proceeding. And should such misuse of the list occur, 
the Board will provide an appropriate remedy, as discussed further 
below.
    Finally, any infringement into employees' personal sphere enabled 
by the disclosure requirement in the final rule will likely be of 
relatively limited duration. As discussed below in connection with 
Sec.  102.67, the final rule also eliminates the mandatory 25-day 
waiting period between issuance of a decision and direction of election 
and the holding of the election. Accordingly, the time period between 
the employer's production of the voter list and the election may be 
shorter than that which existed prior to the amendments in at least 
some directed election cases. And parties are likely to agree to a 
shorter time period between the employer's production of the voter list 
and the election in at least some stipulated election cases, because 
bargaining about election details in the election agreement context is 
influenced by the parties' estimation of how soon the regional director 
could conduct an election if the parties were to go to a hearing. Thus, 
while some employees may certainly prefer not to receive calls or 
emails from the nonemployer parties, we note that such communications 
may not continue beyond the period of the representation proceeding at 
issue and Board proceedings arising from that election and related 
matters.\176\
---------------------------------------------------------------------------

    \176\ Moreover, in only very few cases do employers refuse to 
bargain in order to test the validity of the certification. From FY 
2008 to FY 2013 between 8 and 18 test of certification cases were 
filed each year in the U.S. Circuit Courts of Appeals. Thus, in the 
great majority of representation cases which are definitively 
resolved without resort to the courts of appeals, the nonemployer 
party is unlikely to use the voter list data after the election in 
the absence of unfair labor practice or other related proceedings.
---------------------------------------------------------------------------

    Accordingly, as previously discussed, just as the Board's 
longstanding Excelsior rule reflects a reasonable balance of the 
conflicting legitimate interests in the context of that era, so the 
Board's update of its policies similarly reflects a reasonable balance 
of risk and benefit that is well adapted to contemporary modes of 
communication. Moreover, the rule reasonably advances the public 
interest in the timely resolution of questions of representation by 
enabling the parties on the ballot to avoid having to challenge voters 
at the polls based solely on lack of knowledge as to the voter's 
identity. These important interests are sufficient to counterbalance 
the interests of those who would prefer to be left entirely alone and 
not be exposed to the issues raised by an organizing campaign.
    Some comments, such as those filed by SHRM, ACE and the NRF, argue 
that FOIA case law demonstrates that employees have such a substantial 
privacy interest in their home addresses and email addresses that the 
Board should abandon the voter list proposals. For example, NRF argues 
that the Supreme Court recognized in DOD v. FLRA, 510 U.S. at 501, that 
``even though the disclosure of personal email addresses may facilitate 
union communications, employees nevertheless enjoy a right not to be 
bothered in their personal environment with work-related matters.''
    After careful consideration of the comments, we conclude that DOD 
v. FLRA does not undermine the Board's position that it is appropriate 
to require employers to furnish the voter list information directly to 
the nonemployer parties. Put simply, the propriety of the

[[Page 74345]]

Board's requiring employers under its jurisdiction to disclose employee 
contact information directly to a union after an election has been 
agreed to or directed under the NLRA--in order to advance the public 
interests in free and fair elections and the expeditious resolution of 
questions of representation--was not before the Court in that case. 
Rather, the issue before the Court there was whether Federal agency 
employers subject to the Federal Service Labor-Management Relations 
Statute could lawfully refuse to furnish the home addresses of their 
employees to the unions which already represented them, because the 
Privacy Act would otherwise bar the employers, as governmental 
entities, from disclosing their employees' home addresses. See id. at 
490-94.
    DOD v. FLRA involved a ``convoluted path of statutory cross-
references.'' Id. at 495. As the Court noted, the Privacy Act provides 
that ``No agency shall disclose any record which is contained in a 
system of records * * * to any person * * * unless disclosure of the 
record would be * * * required under section 552 of [FOIA].'' Id. at 
493-94. The employee addresses that the incumbent unions sought the 
Federal agencies to disclose were ``records'' covered by the Privacy 
Act, and therefore the agencies were forbidden from disclosing them by 
the Privacy Act unless FOIA required release of the addresses. Id.
    As the Court observed, ``while `disclosure [of government 
documents], not secrecy, is the dominant objective of [FOIA],' there 
are a number of exemptions from the statute's broad reach.'' Id. at 494 
(citation omitted). The Court then considered Exemption 6, which 
provides that FOIA's disclosure requirements do not apply to personnel 
files the disclosure of which would constitute a clearly unwarranted 
invasion of personal privacy. Id. at 494-95 (citing 5 U.S.C. 
552(b)(6)).
    In determining whether disclosure of the home addresses to the 
incumbent unions would constitute a clearly unwarranted invasion of the 
personal privacy of the unit employees within the meaning of FOIA, the 
Court explained that a court must balance the public interest in 
disclosure against the interest Congress intended the exemption to 
protect. Id. at 495. However, as the Court explained, there is only one 
``relevant `public interest in disclosure' to be weighed in this 
balance'': Namely whether the information to be disclosed would 
contribute significantly to letting the public know what the government 
is up to. Id. at 495, 497 (citation omitted). By definition, that 
purpose is not served by disclosure of information about private 
citizens that is in governmental files but that reveals little or 
nothing about an agency's own conduct. Id. at 496-97.
    The Court found that disclosure of employee home addresses ``would 
reveal little or nothing about the employing agencies or their 
activities,'' even though it would be useful for the union to have the 
information for bargaining purposes. Id. at 497. In short, because 
disclosure of the employees' home addresses would not serve ``the only 
relevant [FOIA-related] public interest in disclosure'' in that case, 
the ``nontrivial'' privacy interest employees have in their home 
addresses sufficed to outweigh the ``negligible FOIA-related public 
interest in disclosure.'' Id. at 495, 501-02. Accordingly, the Court 
concluded FOIA did not require the agencies to divulge the addresses, 
and the Privacy Act therefore prohibited their release to the unions. 
Id. at 502.
    However, the final rule's requirement that a private sector 
employer disclose voter list information directly to the nonemployer 
parties to a representation case does not run afoul of the Privacy Act, 
and the relevant public interests favoring disclosure of the voter list 
information are entirely different from the only ``relevant'' public 
interest favoring disclosure in DOD v. FLRA. As the Court explicitly 
recognized in DOD v. FLRA, ``unlike private sector employees, Federal 
employees enjoy the protection of the Privacy Act'' with respect to 
their employer's disclosure of information about them.\177\ Id. at 503. 
Put simply, private sector employers' disclosure of the voter list 
information to the nonemployer parties does not implicate the Privacy 
Act because the Privacy Act does not apply to such employers. See also 
DOJ Overview of the Privacy Act of 1974 at 5 (2012) (DOJ Overview), 
http://www.justice.gov/sites/default/files/opcl/docs/1974privacyact-2012.pdf (``The Privacy Act * * * applies only to a Federal 
`agency'.'') Accordingly, unlike in DOD v. FLRA, the Privacy Act would 
not otherwise bar private sector employers from disclosing the voter 
list information to the nonemployer parties to representation cases 
unless disclosure were required by FOIA.
---------------------------------------------------------------------------

    \177\ The Board notes that the United States Postal Service, as 
an employer, is uniquely subject to both the Privacy Act and the 
NLRA. But it has not been exempt from disclosing employee 
eligibility lists to petitioning unions under Excelsior, see NLRB v. 
U.S. Postal Serv., 790 F. Supp. 31, 33 (D.D.C. 1992), and did not 
provide any comment in this proceeding, much less a suggestion that 
it would be exempt from the present amendments. We therefore trust 
that the Postal Service will, in the first instance, seek to 
harmonize its duties under the two Federal statutes.
---------------------------------------------------------------------------

    As also shown, the voter list amendments are designed to advance 
the public interests in free and fair elections as well as the prompt 
resolution of questions of representation--interests entirely different 
from the single relevant public interest FOIA is designed to advance. 
And the public interests in free and fair elections and in the prompt 
resolution of questions of representation are indeed advanced by 
requiring employers to disclose the voter list information to the 
nonemployer parties to representation cases once elections have been 
agreed to or have been directed. Thus, the public interests in favor of 
disclosure of the voter list information are not ``negligible, at 
best'' as was the case in DOD v. FLRA, 510 U.S. at 497.
    In short, we conclude that nothing in DOD v. FLRA calls into 
question the propriety of the voter list amendments requiring employers 
to furnish information about its employees to the nonemployer parties 
after an election has been agreed to by the parties or directed by the 
regional director. To the contrary, the Court recognized there that 
private sector unions covered by the NLRA occupy a different position 
from their Federal sector counterparts. Id at 503. See also id. at 506 
(Ginsburg J. concurring) (noting that private sector unions covered by 
the NLRA ``routinely receive'' employees' home addresses and citing 
NLRB v. Wyman-Gordon for the proposition that the Board may require an 
employer ``to disclose [employees'] names and addresses before 
election[s].'')
    Similarly, Electronic Frontier Foundation v. Office of the Director 
of National Intelligence, 639 F.3d 876 (9th Cir. 2010), cited by SHRM 
among others, is, in relevant part, simply a routine FOIA Exemption 6 
case, in which disclosure is not required if the information sought 
does not advance FOIA's interest in government transparency--the sole 
interest relevant to the court's analysis. That case involved FOIA 
requests for information relating to governmental discussions with 
telecommunication carriers about proposals to immunize the carriers for 
their role in government surveillance activities. Id. at 880-81, 885-
89. To be sure, the court held that the email addresses of the 
carriers' lobbyists were exempt from disclosure under Exemption 6, but 
this was because disclosure of the lobbyists' email addresses--as 
opposed to the lobbyists' names--would reveal little or nothing about 
the government's conduct. Id. at

[[Page 74346]]

888-89. As the court explained, disclosure of the email addresses--as 
opposed to the names--would not shed light on who the government was 
meeting with in deciding whether to immunize telecommunication carriers 
for their role in the government surveillance activities. Id. at 888. 
Accordingly, it was only because the sole relevant public interest in 
favor of disclosure under FOIA would not be advanced by disclosure that 
the lobbyists' privacy interest in their email addresses prevailed. Id. 
at 888-89.\178\ As noted above, the balancing of privacy and public 
interests in this context is quite different from that under FOIA.
---------------------------------------------------------------------------

    \178\ It bears mentioning that, contrary to SHRM's suggestion 
that the court found that lobbyists have a ``substantial privacy 
interest'' in their email addresses, the court actually concluded 
that the lobbyists have only a ``minor privacy interest'' in the 
email addresses. See id. at 888 (``If, however, a particular email 
address is the only way to identify the carriers' agent at issue 
from the disputed records, such information is not properly withheld 
under Exemption 6 because this minor privacy interest does not 
counterbalance the robust interest of citizens' right to know `what 
their government is up to.' '' (citation omitted)).
---------------------------------------------------------------------------

    Nonetheless, given the comments claiming that the Board's proposals 
violate the Privacy Act,\179\ the Board has carefully considered 
whether and how the Privacy Act could be implicated by the voter list 
amendments. The Board notes that the voter list amendments require the 
employer to furnish a copy of the voter list to the regional director. 
See amended Sec. Sec.  102.62(d) and 102.67(l). But, as discussed in 
connection with Sec.  102.67 below, the final rule does not 
anticipate--contrary to the original NPRM proposal--that the regional 
director will attempt to serve employees directly with the notice of 
election. Thus, the agency's use of the list will simply be the 
traditional one of allowing the Board agent conducting the election to 
verify individuals' identification as they arrive to vote at the polls. 
Morever, if the list is retrieved electronically, it will be by the 
employer's name or case number, and not individual voters' names.
---------------------------------------------------------------------------

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

    The Privacy Act generally only applies to ``records'' that are 
maintained by an agency within a ``system of records.'' See, e.g., 
Baker v. Dep't of Navy, 814 F.2d 1381, 1383 (9th Cir. 1987). A piece of 
information is only a ``record'' if it contains information about an 
individual. And it is generally only considered to be maintained in a 
``system of records'' if two conditions are met: (1) the record is 
maintained in a format that makes it possible for agency employees to 
locate it by searching according to a name or other personal 
identifier, and (2) agency employees actually do retrieve records in 
this manner. DOJ Overview of the Privacy Act of 1974 at 28 (2012) (DOJ 
Overview), http://www.justice.gov/sites/default/files/opcl/docs/1974privacyact-2012.pdf. ``The highly technical `system of records' 
definition is perhaps the single most important Privacy Act concept, 
because * * * it makes coverage under the [Privacy] Act dependent upon 
the method of retrieval of a record rather than its substantive 
content.'' DOJ Overview at 30. The OMB has provided the following 
illustration of this concept:

    For example, an agency record-keeping system on firms it 
regulates may contain ``records'' (i.e., personal information) about 
officers of the firm incident to evaluating the firm's performance. 
Even though these are clearly ``records'' [``]under the control of'' 
an agency, they would not be considered part of a system as defined 
by the Act unless the agency accessed them by reference to a 
personal identifier (name, etc.). That is, if these hypothetical 
``records'' are never retrieved except by reference to company 
identifier or some other nonpersonal indexing scheme (e.g., type of 
firm) they are not a part of a system of records.

OMB Privacy Act Guidelines, 40 FR 28948, 28952 (July 9, 1975).\180\
---------------------------------------------------------------------------

    \180\ Subsection (v) of the Privacy Act requires the Office of 
Management and Budget (OMB) to: (1) ``Develop and, after notice and 
opportunity for public comment, prescribe guidelines and regulations 
for the use of agencies in implementing'' the Act; and (2) ``provide 
continuing assistance to and oversight of the implementation'' of 
the Act by agencies. 5 U.S.C. 552a(v). Because ``Congress explicitly 
tasked the OMB with promulgating guidelines for implementing the 
Privacy Act, [the courts] give the OMB Guidelines the deference 
usually accorded interpretation of a statute by the agency charged 
with its administration.'' Sussman v. U.S. Marshals Serv., 494 F.3d 
1106, 1120 (D.C. Cir. 2007) (internal quotation marks omitted).
---------------------------------------------------------------------------

    In short, records are only within a Privacy Act ``system of 
records'' if ``an agency has an actual practice of retrieving 
information by an individual's name'' or other personal identifier. 
Henke v. Dep't of Commerce, 83 F.3d 1453, 1459 (D.C. Cir. 1996). 
``[R]etrieval capability is not sufficient to create a system of 
records.'' Id. at 1460. And a ``practice of retrieval by name or other 
personal identifier must be an agency practice to create a system of 
records and not a practice by those outside the agency,'' McCready v. 
Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006) (internal quotation marks 
omitted), such as the nonemployer parties to an election.
    Applying these principles to the voter list amendments, the Board 
concludes that it will not retrieve information from voter lists by use 
of individuals' names or other personal identifiers (rather, it will 
only be retrieved electronically via the name of the employer or case 
number), and therefore, although the voter lists will generally be 
produced in an electronic format that will theoretically be searchable 
by employees' names, the voters lists are not part of a ``system of 
records'' within the meaning of the Privacy Act. Accordingly, nothing 
about the voter list amendments can reasonably be viewed as violating 
the Privacy Act.
    Multiple comments urge a variety of means by which the Board should 
protect employees' privacy interests: (1) Require that employees must 
affirmatively indicate that they are willing to have their personal 
contact information shared with the parties on the ballot before it 
requires the employer to disclose that information; \181\ (2) allow 
employees the opportunity to opt out of such disclosures; \182\ (3) 
mandate that contact information be obtained directly from employees 
themselves instead of from the employer; \183\ or (4) require that the 
Board host opportunities for electronic contact between petitioners and 
employees through some type of protected communications portal.\184\ We 
have consistently rejected similar proposals in the past. In Excelsior, 
the Board was not swayed by the ``argu[ment] that if employees wished 
an organizing union to have their names and addresses they would 
present the union with that information.'' 156 NLRB at 1244. And in 
British Auto Parts, Inc., we rejected an employer's attempt to comply 
with Excelsior by informing its employees that the Board had requested 
their names and addresses and providing them with ``an envelope 
addressed to the Regional Director for * * * employee[s'] use in 
submitting the information should [they] desire to do so.'' 160 NLRB 
239, 239 (1966). The Board has recognized that even unsolicited contact 
by the union remains an important part of the basic Section 9 process. 
See Excelsior, 156 NLRB at 1244. Indeed, a wide open debate cannot take 
place unless employees are able to hear all parties' views concerning 
an organizing campaign--even views to which they may not be predisposed 
at the campaign's inception. And as explained above, we have concluded 
that

[[Page 74347]]

disclosure of available personal email addresses and telephone numbers 
is just as critical to the holding of fair and free elections and to 
the expeditious resolution of questions of representation in 2014 as 
was disclosure of home addresses in the 1960s. Thus, it would hardly be 
consistent with the policy underlying Excelsior--ensuring that 
employees receive sufficient information from the nonemployer party to 
make an educated decision--to begin allowing employees to opt in or opt 
out of such disclosures.
---------------------------------------------------------------------------

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

    Nevertheless, the Board is mindful that the disclosures in the 
final rule go further than those at issue in the original Excelsior 
decision, and so we have considered whether a different balance should 
be struck. After thoroughly considering the issue, however, we have 
concluded that notwithstanding the additional information to be 
disclosed under the amendments, the public interests in fair and free 
elections and in the prompt resolution of questions of representation 
outweigh employee privacy interests and that creation of an opt-in or 
opt-out procedure, or an agency-hosted protected communications portal, 
would harm those public interests and, in some cases, impose 
significant administrative burdens on the government and the parties.
    Just as was the case under the prior rules, the voter list 
information is not due until soon after the parties have entered into 
an election agreement in a unit appropriate for collective bargaining, 
or the regional director has directed that an election be held in an 
appropriate unit. In either event, congressional policy is clear that 
representation elections should be conducted with the utmost 
expedition.\185\ Yet, typical opt-in or opt-out requirements would 
further delay the election's conduct. Such delay would arise, for 
example, if extra time were allotted between an election's direction 
and its conduct for communication with the subject employees concerning 
their ability to opt in or out of disclosing their email addresses or 
phone numbers because until the parties agree to any election, or the 
director directs an election, the unit in which the election is to be 
conducted is not known. Accordingly, not every relevant employee could 
be contacted regarding opting in or out until after the election 
agreement was reached or the director directed an election. Employees 
would then need some additional reasonable period of time to make their 
choices.\186\ Still more time would be required for compiling those 
preferences and producing a voter list (which respects those 
preferences) for use by the nonemployer parties to the case. And of 
course, the nonemployer parties would have to be afforded time to make 
use of the information with respect to the employees who have opted in. 
Such a system could well prove to be administratively difficult,\187\ 
and even if operating smoothly could delay the election by many days or 
weeks.
---------------------------------------------------------------------------

    \185\ As the Supreme Court held in NLRB v. A.J. Tower, the Board 
must ``promulgate rules and regulations in order that employees' 
votes may be recorded accurately, efficiently and speedily.'' 329 
U.S. 324, 331 (1946). Again, Congress knew that the Board would need 
flexibility in crafting procedures, and noted ``the exceptional need 
for expedition'' in representation cases when exempting them from 
the APA's adjudication provisions. Senate Committee on the 
Judiciary, comparative print on revision of S. 7, 79th Cong., 1st 
Sess. 7 (1945) (discussing 5 U.S.C. 554(a)(6)); see also NLRB v. Sun 
Drug Co., 359 F.2d 408, 414 (3d. Cir. 1966) (Congress insulated 
representation cases from direct review because ``[t]ime is a 
critical element in election cases''). Long before the NPRM, Section 
11302.1 of the Agency's Casehandling Manual reflected this 
congressional directive of timely elections, stating that ``[a]n 
election should be held as early as is practical.'' Similarly, Sec.  
102.67(b) of the final rule provides that ``[t]he regional director 
shall schedule the election for the earliest day practicable 
consistent with these rules.''
    \186\ Marvin Kumley suggests that employees be given at least 30 
days to opt in, and further suggests that opt-in notices be posted 
in the Federal Register and local newspapers as a matter of course.
    \187\ The Excelsior Board rejected a similar suggestion that 
employee names and addresses be provided to a third party mailing 
service for distribution of union campaign literature due, in part, 
to the ``difficult practical problems'' that would be created by 
such an arrangement. 156 NLRB at 1246.
---------------------------------------------------------------------------

    Moreover, if the regional director were assigned the responsibility 
to contact the employees to ascertain whether they wished their contact 
information to be shared with the union, the regional director could 
not do so unless and until the employer revealed the employees' contact 
information to the regional director. Yet, presumably at least some of 
the employees who object to having their contact information disclosed 
to the nonemployer parties to the case would similarly object to having 
their contact information disclosed to the government. And requiring 
the regional director to contact each and every unit employee to 
ascertain his or her position regarding disclosure of the voter list 
information would place a significant administrative burden on the 
government.
    We are also concerned that any opt-in or opt-out process would 
invite new areas of litigation resulting in additional costs to the 
parties and the Board. Considering that neither the region, nor the 
petitioner would be in a position to administer the opt-in or opt-out 
process until after the employer had disclosed employee contact 
information, it could be argued that it would be more efficient for the 
employer to administer the opt-in or opt-out process. It would be 
curious indeed for the Board to create a process which obligated 
employers to ask their employees--including those employees who have 
deliberately chosen to keep their pro or anti-union sentiments 
private--whether they wish to share their contact information with the 
union, given that employers could be found to have committed unfair 
labor practices by interrogating such employees about their union 
sentiments or contacts with the union.\188\
---------------------------------------------------------------------------

    \188\ Indeed, multiple parties at the public hearing on April 
11, 2014, acknowledged this very problem when discussing employer's 
potentially administering an opt-in or opt-out process. See, e.g., 
Testimony of Caren Sencer on behalf of Weinberg, Roger & Rosenfeld 
II.
---------------------------------------------------------------------------

    In the likely circumstance in which nonemployer parties, when 
receiving a voter list indicating that substantial numbers of employees 
had chosen not to have their email addresses or phone numbers 
disclosed, raise accusations of improper employer coercion of their 
employees regarding their choice, investigations would be triggered. 
Such proceedings would impose costs on the parties and the government, 
and could cause significant delay in conducting the election. Even in a 
process in which the employee choices were shielded from employer 
knowledge,\189\ however, we would still foresee frequent accusations of 
and opportunities for subtle employer pressure to keep contact 
information from the petitioning

[[Page 74348]]

union as a fertile area for representation case disputes, requiring the 
expenditure of additional regional resources to investigate and for the 
parties to litigate, all with the result of pushing resolution of 
representation cases further and further into the future.\190\
---------------------------------------------------------------------------

    \189\ For example, once all parties have agreed to an election 
or the regional director has directed an election, the employer 
could be required to post information including the union's (or 
decertification petitioner's) email address and phone number to 
allow employees to directly contact the union (or decertification 
petitioner) if they desired to share their personal email addresses 
or phone numbers in order to receive communications from the 
nonemployer party concerning the upcoming election, without 
informing the employer of their choice. But, as shown, such a 
process would require delaying the election to provide sufficient 
time for employees to opt in and to allow the nonemployer parties to 
make use of the information with respect to those employees who have 
opted in.
    The Chamber's II similar suggestion of allowing petitioning 
unions to create a Web site for employees to visit and then sharing 
site information with employees via U.S. mail after employers shared 
a traditional voter list of names and home addresses with the 
petitioner would involve still more delay, and would, of course, 
reduce the likelihood of employees receiving campaign communication 
from the petitioning union. Furthermore, the Chamber's proposal 
presumes not only internet access for all employees, but also a 
level of technological sophistication (i.e. the ability to create 
and monitor interactive Web sites) that we think is unrealistic for 
many petitioners--particularly low wage workers and small union 
locals or individual employees seeking to oust an incumbent union.
    \190\ We see similar problems with designing a system in which 
the nonemployer parties would, by default, receive only employees' 
names and addresses as under the current Excelsior policy, subject 
to a showing that email addresses and/or phone numbers are necessary 
in a particular case for effective and timely communication with the 
employees. If such a showing were required after the nonemployer 
parties had already attempted communication via home addresses, then 
it would necessarily add a substantial amount of time to the 
election process. In the alternative, if the showing were required 
preemptively as part of the petition itself, we would be introducing 
yet another area for litigation that would have to be decided before 
an election could be directed; likely adding time to the pre-
election process, and increasing the chance of post-election appeals 
by the losing party, which would serve to lengthen the post-election 
process.
---------------------------------------------------------------------------

    Moreover, even if employees were questioned whether they wished to 
share their contact information with the petitioning union in a 
noncoercive manner and even if such an opt-in or opt-out procedure did 
not result in additional litigation, we believe that one could conclude 
that such a process would require the invasion of employee privacy in 
the name of protecting employee privacy. Thus, the opt-in or opt-out 
procedure could not be administered in a blind fashion like a secret 
ballot election in which no one is forced to vote. Rather, each 
employee would have to be asked whether he or she wished to share his 
or her contact information with the nonemployer parties, and the 
questioning would necessarily result in a list indicating which 
employees had authorized their additional contact information to be 
shared with the nonemployer parties. In our view, at least some 
employees would believe that their answering the question would reveal 
their sentiments about whether they wished to be represented for 
purposes of collective bargaining by the union. Accordingly, employees 
could conclude that the process would expose their private beliefs to 
both the party asking the question and to the nonemployer parties who 
ultimately receive the voter list.\191\
---------------------------------------------------------------------------

    \191\ We do note that it would be possible to require all 
employees to designate a single means by which to be contacted--
telephone number, email address, or home address. This approach 
would be less likely to reveal employees' views on the question of 
union representation. Delays would result, however, as employers 
collected employees' designations after the regional director 
directed an election or the parties entered into an election 
agreement. Such delays could only be avoided by imposing a duty upon 
all employers under the Board's jurisdiction to record such employee 
choices at the time of hire. But nothing in the final rule creates 
such a widespread burden on small employers nationwide to collect 
and retain information no matter how remote the possibility may be 
that such employers will someday be involved in an NLRB 
representation case, and we are reticent to impose such a burden in 
this context.
    In any event, such an approach would defeat the very purposes 
identified in Excelsior, by reducing the chance that voters would be 
presented with a nonemployer party's information concerning 
representation and the likelihood that the nonemployer parties could 
investigate the eligibility of the unknown employees on the 
employer's list prior to the election.
---------------------------------------------------------------------------

    The Board has also considered whether the rules might mandate that 
unions provide an opt-out feature, such as an ``unsubscribe'' option in 
bulk emails. But this union-administered approach would do nothing to 
allay privacy concerns having to do with the disclosure of contact 
information in the first place. It would also be of limited utility, 
given the short period during which contacts are most likely to occur 
and given that it would be necessary to allow a certain amount of time 
for the nonemployer party to update its records. Furthermore, as 
discussed below, if they are applicable, the CAN-SPAM Act and Do-Not-
Call Rule may already impose similar requirements in any event. Indeed, 
some union comments stressed that it was already their organizers' 
practice to cease contacting employees when so requested,\192\ and that 
unsubscribe features are included in bulk email messages and texts as a 
matter of course.\193\ For all these reasons, the Board's attempting to 
craft a universally applicable opt-out requirement unique to Board 
elections would have highly uncertain benefits at a cost of generating 
new election disputes and possible conflicts with other Federal 
regulation of the same subject matter. On balance, the existing self 
help remedy available to anyone who objects to unwanted 
communications--ignoring calls or letters and deleting emails--seems 
for the time being to be a more cost-effective option. Of course, 
should unwanted contacts rise to the level of harassment or coercion, 
the Board has the remedial authority to craft appropriate remedies, as 
discussed below in connection with the proposed restriction on use of 
the voter list.
---------------------------------------------------------------------------

    \192\ See UFCW II.
    \193\ See Testimony of Katy Dunn on behalf of SEIU II. Also, 
according to the testimony of Jess Kutch, any union (or third party 
provider) in the business of sending bulk emails already includes 
such unsubscribe options in its bulk emails in order to avoid being 
labeled as spammers with attendant downgrading to their IP server 
reputation scores. This testimony also demonstrates that effectively 
administering a mandatory ``opt-out'' requirement would, as a 
practical matter, likely be beyond the NLRB's capacity, as it might 
unintentionally come into conflict with the requirements of bulk-
emailers already imposed by the market's continuously adapting 
responses to ``spam.'' Meanwhile, an opt-out mandate would also 
likely prove inadministrable as applied to individual employees and 
small independent organizations.
---------------------------------------------------------------------------

    Agency-hosted communications portals--raised in the NPRM (see 79 FR 
7328)--were endorsed by a few comments as an alternative that could 
possibly avoid some of the problems inherent in the opt-in or opt-out 
processes discussed above.\194\ Yet, we harbor serious doubts about 
whether such a portal would be feasible for the agency to construct or 
administer, and the comments did nothing to ease our concerns. To the 
contrary, the comments analyzing the concept in more depth raised 
several issues that lead us to believe that the concept is seriously 
flawed. For example, comments observed that communication between a 
petitioner and employees becomes less likely, the more steps (or 
``clicks'' in internet parlance) that an individual must take to enable 
the communication.\195\ The Board found the testimony of Jess Kutch 
particularly persuasive on this point, especially as she explained how 
the potential problems associated with individuals needing to take 
multiple steps to access or log-in to the agency portal would be 
exacerbated if those individuals--as can reasonably be expected--would 
be attempting to access the portal through the comparatively small 
screens on their cell phones. See Testimony of Jess Kutch on behalf of 
Coworker.org II. Moreover, Ms. Kutch (relying on her background in 
online organizing and bulk email delivery) persuaded the Board that 
designing a system whose success depended on the agency's navigation of 
spam filters to ensure high rates of email deliverability to the 
individuals at issue would likely be beyond the agency's technological 
capacity (or our forseeable budgetary restrictions). Id. In addition, 
the Board finds troubling the suggestions that an agency-sponsored 
communications portal could destroy legal privileges that might 
otherwise attach to communications between union attorneys and 
organizing employees (AFL-CIO II), and that the alternative of 
providing petitioners with masked emails to use in communicating 
directly with employees could have the unintended consequence of 
preventing unions from allowing employees to unsubscribe from bulk 
messages (SEIU II). In sum, we doubt that we have the resources to 
effectively implement a protected communications portal, and even if we 
did, the potential for unintended consequences associated

[[Page 74349]]

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

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

    Perhaps the most fundamental flaws with the agency-sponsored 
communications portal, however, are ones that are shared by any 
paradigm in which the agency would allow employees to opt-in, opt-out, 
or to pick one mode of communication to be utilized by employees with a 
nonemployer party. Namely, each of these options would carry the 
potential to leave nonemployer parties in a worse position to 
effectively communicate with employees than they are under the current 
Excelsior regime. Instituting an opt-in, opt-out, or a portal system 
that would apply only to communications between employees and 
nonemployer parties, would deny employees information from the 
nonemployer party, a problem the Excelsior doctrine seeks to mitigate. 
Moreover, we are concerned that agency communication with employees 
concerning each of these alternatives carries an inappropriate 
implication that those employees have something to fear from 
nonemployer parties possessing their contact information--contact 
information that is, at least in some instances, already in the 
possession of their employers or an incumbent union 
representative.\196\ Each of these alternatives also inappropriately 
implies that the nonemployer party's message is not important--i.e. 
that paying attention to it is optional to becoming fully informed 
about the election. This would amount to the Board putting a virtual 
thumb on the scales in influencing employees' exercise of their rights 
to decide for themselves whether to seek (or maintain) union 
representation, and would run directly counter to a core animating 
purpose of the Excelsior doctrine. The Board notes that some comments 
take the opposite view: that by sponsoring avenues of communication 
between employees and a petitioning union--via protected portals or 
opt-out processes--the Board would improperly suggest that it was not 
neutral, but pro-unionization. This possible interpretation is yet 
another reason not to pursue these alternative proposals.\197\
---------------------------------------------------------------------------

    \196\ See, e.g., NUHW II.
    \197\ See Testimony of Kara Maciel on behalf of the NGA II; see 
also Testimony of Melinda Hensel on behalf of IUOE, Local 150 II 
(agreeing with the NGA's concerns as to the agency-sponsored 
communications portal).
---------------------------------------------------------------------------

    In sum, even if we were to judge that a fair election required only 
that employees be given the option of enabling or disabling email or 
phone communication channels with the nonemployer parties, we are 
skeptical that such a system could be put in place without significant 
negative ramifications for the representation case process. In a 
rulemaking designed to eliminate unnecessary barriers to the fair and 
expeditious resolution of questions concerning representation, we are 
loath to create new barriers in place of the old.\198\ Instead, we have 
concluded that employees' legitimate interest in the confidentiality of 
their personal email addresses and phone numbers is outweighed by the 
substantial public interest in disclosure where, as here, disclosure is 
a key factor in insuring a fair and free election and an expeditious 
resolution of the question of representation.
---------------------------------------------------------------------------

    \198\ We also reject--as inconsistent with the concerns 
animating Excelsior--suggestions that: All individualized contact 
between unions and employees be eliminated (Dante Fauci II); unions 
should only be allowed to pass out flyers from parking lots on 
agreed-upon dates (Charles Lingo II); and unions should only have a 
right to view, but not copy, a list of employee names and addresses 
once within 30 days of an election (Testimony of J. Aloysius Hogan 
on behalf of the Competitive Enterprise Institute II). Similarly, 
the Board declines Brian Richardson's suggestion that an employer 
should mail union information to employees if the union bears the 
costs. At the very least, such a two-step procedure would invite 
delay, and clearly would not serve the key purpose of the Excelsior 
list: Ensuring that the nonemployer parties have access to the 
electorate. As the Excelsior Board noted in rejecting a similar 
argument, the union should not be limited to the use of the mails in 
its efforts to communicate with the entire electorate. 156 NLRB at 
1246. It would also invite litigation if employees did not timely 
receive the union's correspondence. The Board also notes that 
employers have never had a right to see other parties' campaign 
propaganda, let alone to see it before the unit employees view it. 
Nor are we persuaded by comments that the concerns underlying 
Excelsior, or any other relevant concern, would be advanced by 
providing union officials' or union activists' personal contact 
information to employers. (See Richard Oakes II and Anonymous 
Anonymous II). Non-employee union organizers or officials do not 
cast ballots in representation case proceedings, and so there is no 
parallel reason that employers should be empowered to communicate 
with them outside of the official channels listed in the petition. 
To the extent that union activists are employees, employers already 
enjoy all of the mandatory means to communicate with them discussed 
above, and need not be specifically provided with any personal 
contact information that the employer does not otherwise possess.
---------------------------------------------------------------------------

    In reaching this conclusion, we wish to emphasize that we are 
mindful of the privacy interests employees have in the information in 
question. But we reiterate that the Board must balance that privacy 
interest against the interests served by disclosure. As explained 
above, the comments do not persuade us that the balance struck in 
Excelsior and approved by the Supreme Court in Wyman-Gordon should be 
struck differently because of the additional information to be 
disclosed under the voter list amendments.
    AHA II, ACE and others complain that the rule may conflict with 
employer confidentiality policies and that the Board should therefore 
reject the voter list proposals. But the potential for such conflicts 
already exists under the current Excelsior requirement, and the 
comments do not cite a single case in which an employer's 
confidentiality policy has been permitted to stand in the way of 
Excelsior disclosures. Indeed, one of the courts called on to review 
the original Excelsior requirement flatly rejected an employer's claim 
that it did not have to make the disclosures because it had promised 
its employees that any contact information would be kept confidential. 
See NLRB v. British Auto Parts, Inc., 266 F. Supp. 368, 373-74 (C.D. 
Cal. 1967), aff'd, 405 F.2d 1182 (9th Cir. 1967). In a similar context, 
where employers have refused to disclose requested information to an 
incumbent collective-bargaining representative, the Board and the 
courts have repeatedly held that simply invoking a confidentiality 
policy will not allow an employer to avoid disclosure.\199\
---------------------------------------------------------------------------

    \199\ See, e.g., NLRB v. Pratt & Whitney Air Craft Div., 789 
F.2d 121, 131 (2d Cir. 1986) (``Simply asserting that the results 
should remain confidential because the employees were promised 
confidentiality does not discharge the employer's burden''); Holiday 
Inn on the Bay, 317 NLRB 479, 482 (1995) (standing by itself, an 
employer's desire to shield employee information from disclosure on 
the basis of a confidentiality policy ``cannot suffice to preclude 
disclosure which promotes statutory policies''); New Jersey Bell 
Telephone Co., 289 NLRB 318, 319-320 (1988) (noting that Detroit-
Edison provides no support for employer claim that it should be able 
to deny requests for relevant information simply because its privacy 
plan requires employee consent for such disclosures), enforced mem., 
872 F.2d 413 (3d Cir. 1989).
---------------------------------------------------------------------------

    We recognize that some employers strive to preserve the 
confidentiality of private employee information.\200\ But we also note 
that pledges of confidentiality may provide for exceptions such as 
when, as here, disclosure would be legally required. See, e.g., Howard 
University, 290 NLRB 1006, 1007 (1988). Employers will be able to point 
to the Board's published rules should such disclosure be questioned by 
an employee. Ultimately, we conclude that the substantial public 
interests in fair and free elections and in the expeditious resolution 
of questions of representation outweigh whatever legitimate interest an 
employer may have in keeping confidential his employees' personal email 
addresses, home and personal cell phone numbers, work locations, shifts 
and job classifications. See Excelsior, 156 NLRB at 1243 (similarly 
concluding that an employer's interest in keeping

[[Page 74350]]

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

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

    Some comments attacking the proposals also indicate persistent 
privacy concerns about the original Excelsior policy. For example, GAM 
asserts that employers already experience significantly distressed 
employees because their home addresses are currently being disclosed to 
petitioners without their consent under Excelsior. Although some 
comments predict that disclosure of phone numbers and email addresses 
will exacerbate this perceived problem,\201\ as noted above, the Board 
takes the opposite view. Indeed, the Board agrees with the views 
expressed in many comments that contact via phone and email is less 
invasive than face to face visits with employees at their homes. The 
Board anticipates that unions, as predicted by Melinda Hensel,\202\ in 
an effort to conserve finite organizing resources, will in some cases 
make use of phone and email contact information in lieu of visiting 
employees at home.\203\ It follows that to the extent that invasion of 
privacy concerns persist about the original Excelsior policy of home 
address disclosure, those concerns could be ameliorated by the final 
rule's provision for the disclosure of personal email addresses and 
home and personal cell phone numbers.
---------------------------------------------------------------------------

    \201\ See, e.g., Sheppard Mullin II; Bruce E. Buchanan; ALG; 
U.S. Poultry II.
    \202\ See Testimony of Melinda Hensel on behalf of IUOE Local 
150 II.
    \203\ The Board therefore is skeptical of RILA's fear that the 
expanded disclosure requirements will trample the privacy of 
nonemployees. Indeed, the ability of organizers to reach employees 
by personal cell phone or email suggests that organizers will be 
less likely to interact with non-employees (such as family members 
of employees) for any length of time. The Board also sees no reason 
to fear that any serious problems will be created by the potential 
that employees' children could view union messages when sent to an 
email address shared by the family. See Testimony of Maciel II.
---------------------------------------------------------------------------

    To the extent that comments focus on the annoyance of unwanted 
calls or emails,\204\ the Board sympathizes with employees who simply 
wish to reduce the volume of such communications they receive. Even so, 
however, the Board is not persuaded that the potential for such 
irritations--which may be dealt with by simply refusing the call, 
hanging up, scrolling over, or hitting the delete key--should trump the 
public interest in the fair and free choice of bargaining 
representatives and in the expeditious resolution of questions of 
representation. Indeed, the Board agrees with the Fourth Circuit's 
statement regarding the original Excelsior requirement, that ``the mere 
possibility that employees will be inconvenienced by telephone calls or 
visits to their homes is far outweighed by the public interest in an 
informed electorate.'' NLRB v. J. P. Stevens & Co., 409 F.2d at 1209 
(emphasis added). We believe that the advent of caller identification 
services on many home phones and virtually all cell phones will allow 
employees to avoid unwanted calls with relative ease, and the typical 
display of an email's sender and subject should similarly allow 
employees to disregard organizing messages should they so choose. As 
explained by Jess Kutch at the Board's April 11, 2014, public hearing, 
the policies and professional interests of mass emailers utilized by 
most organizing unions will ensure that employees have an option to 
unsubscribe from most mass campaign email lists should they so choose, 
and employees will also enjoy the option of blocking emails from 
individual senders with whom they no longer desire to communicate. See 
Testimony of Kutch II. Moreover, we note that as AFL-CIO Organizing 
Director Elizabeth Bunn explained in her public hearing testimony, 
organizing unions typically ``find that workers actually prefer to talk 
to union supporters and their union representatives off work because 
it's in an environment where the fear at least is taken out of the 
communication. So we've not experienced that anger and irateness that 
was discussed yesterday [by employer representatives].'' In short, the 
Board does not view the potential for annoyance as a sufficient 
counterweight against an informed electorate and the expeditious 
resolution of questions of representation to justify keeping the voter 
list information disclosures as minimal and outdated as they are today.
---------------------------------------------------------------------------

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

    Additionally, as SEIU (reply) points out, labor law already 
tolerates encroachment on an employee's time during representation 
campaigns as employers face no legal impediment to using contact 
information in their possession (which is to be disclosed on the voter 
list). Employers may place calls and text messages to the employees' 
home and personal cell phones and send email messages to their 
employees' personal email addresses. In short, whether or not 
employees' phone numbers and email addresses are disclosed to 
petitioners, there is no guarantee that employees will not receive 
campaign-related messages on their personal phones and personal email 
accounts, because their employer may have this information and use it 
to send campaign information.
    Implicitly, however, privacy claims in the comments assume that 
employees should be able to prevent campaign messages from reaching 
their personal email and phone. If this perspective were accepted in 
toto, it would suggest that the Board should also be restricting 
employer use of personal contact information, in addition to excluding 
it from the voter list given to nonemployers. Yet, we are not persuaded 
that the current rulemaking should be used to restrict such currently-
lawful campaign speech by employers under the cause of employee 
privacy. \205\ In this regard, the Board also rejects the suggestion by 
the Chamber II that home visits should be either eliminated or 
restricted to one visit. As discussed above, no patterns of abuse have 
emerged since Excelsior to support such a restriction on nonemployers' 
ability to use home visits to communicate about representation issues 
if they so choose. Moreover, employees can reject attempts at home 
visits by, for example, not answering the door, closing the door, 
asking visitors to leave, and through enforcement of state and local 
trespass laws.
---------------------------------------------------------------------------

    \205\ To be sure, there was some agreement amongst speakers at 
the Board's April 11, 2014 public hearing that it would be 
inappropriate to apply the same restrictions to employer 
communications with their employees on the subject of unionization, 
as those same speakers advocated should be applied to communications 
to employees coming from petitioning unions. See, e.g, Testimony of 
Kara Maciel on behalf of NGA II; Testimony of Joseph Torres on 
behalf of Winston & Strawn II; Testimony of Fred Wszolek on behalf 
of Workforce Fairness Institute II.
---------------------------------------------------------------------------

    The Board also disagrees with the view expressed by Pinnacle Health 
System of Harrisburg, Pennsylvania (Pinnacle) that the voter list 
disclosures are ``particularly problematic considering that the list 
may contain the information of individuals who are managers and 
supervisors and whose status will not be determined until after the 
election by way of post-election challenge.'' \206\ As more thoroughly 
explained in connection with Sec.  102.66 below, this alleged problem 
existed prior to the NPRM. Thus, prior to the NPRM, supervisory and 
managerial status determinations could be deferred until after the 
election. In those cases, regional directors instructed employers to 
include the disputed individuals on the Excelsior list with the 
understanding that they would vote subject to challenge. And, in any 
event, the Board does not presume that an alleged supervisor's or 
manager's contact information being inadvertently

[[Page 74351]]

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

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

    The Board also does not share the fears expressed by some 
commenters that disclosure of cell phone numbers will lead employees to 
suffer significant unwelcome costs from phone calls and texts that 
exceed their data plans.\207\ As an initial matter, the Board does not 
believe that a union is likely to act counter to its own organizing 
self-interests by placing so many calls or sending so many texts as to 
financially harm those potential voters who lack unlimited calling and 
text plans. Given that their use will be restricted to the 
representation proceeding at issue, Board proceedings arising from it, 
and related matters, the risk that unions' receipt of cell phone 
numbers will cause financial harm to employees is further lessened. In 
addition, the Federal Communications Commission has addressed the cell 
phone ``bill shock'' issue alluded to by CDW, and in 2011 touted its 
far-reaching agreement with the wireless industry to address the 
problem. See ``CTIA, Consumers Union and the FCC to Announce New 
Industry Guidelines'' (Oct. 17, 2011), http://www.fcc.gov/events/ctia-consumers-union-and-fcc-announce-new-industry-guidelines. By 2013, the 
FCC announced that approximately 97 percent of wireless customers 
across the nation were protected from bill shock as participating U.S. 
wireless companies met a deadline to provide free, automatic alerts to 
customers who approach or exceed their wireless plan limits. See ``FCC 
Marks Milestone in Effort to Eliminate `Bill Shock'.'' (April 18, 
2013), http://www.fcc.gov/tools/headlines-archive/2013. The Board 
trusts that any lingering bill shock concerns--relevant to a great 
percentage of Americans beyond those who may participate in an NLRB 
election--will continue to be addressed by the FCC, and need not cause 
the Board to abandon disclosure of cell phone numbers. Of course, 
should bill shock nonetheless prove to be a serious problem in the 
representation case context, the Board has clear authority to create 
appropriate remedies through adjudication.
---------------------------------------------------------------------------

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

e. Purported Conflict With Precedent and Other Laws
    The National Ready Mix Concrete Association (NRMCA) and others 
assert that disclosure of personal email would be inconsistent with the 
Board's stated concerns about email in Trustees of Columbia University, 
350 NLRB 574, 576 (2007).\208\ We disagree. The Board in that case 
posed a number of questions ``regarding the potential ramifications * * 
* of requiring employers to furnish * * * employees' workplace email 
addresses.'' Id. at 576 (emphasis added). We noted, for instance, that 
union mailings to work email addresses could impose costs on employers 
and raise unlawful surveillance concerns. Id. As explained above, 
however, the final rule does not require the employer to disclose the 
work email addresses to the nonemployer parties, and therefore it is 
unnecessary for us to answer questions concerning work email in this 
rule. And, as we expressed in the NPRM, the Board's limited holding in 
Trustees of Columbia University was only that, ``given the Employer's 
undisputed compliance with its Excelsior obligations as they stood as 
of the date of the Union's request, we are unwilling, on the facts of 
this case, to characterize that compliance as objectionable conduct.'' 
Id. In short, we see nothing in that case that precludes us from 
requiring the provision of personal email addresses as part of the 
voter list, to the extent that an employer keeps records of employees' 
personal email addresses.
---------------------------------------------------------------------------

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

    Several comments also raise the specter of conflicts with circuit 
court precedent and state privacy law if the Board were to require 
disclosure of employee contact information. The Board is not persuaded 
by these comments. Regarding circuit court precedent, ACE for example 
cites JHP & Associates, LLC v. NLRB, 360 F.3d 904, 911-912 (8th Cir. 
2004), and NRMCA II cites Chicago Tribune Co. v. NLRB, 79 F.3d 604, 608 
(7th Cir. 1996) as possibly at odds with the rule. But those cases are 
inapposite. The courts found that harassment was a concern in each of 
those cases because the respective unions sought the home addresses of 
the individuals hired to replace the employees who had struck in 
support of the very union seeking the information. See JHP& Associates, 
360 F.3d at 908, 911-12, and Chicago Tribune, 79 F.3d at 606-08.\209\ 
The disclosures mandated by the final rule therefore do not implicate 
the concerns articulated by the circuit courts in these cases.\210\
---------------------------------------------------------------------------

    \209\ NRMCA II also cites East Tennessee Baptist Hospital v. 
NLRB, 6 F.3d 1139, 1144 (6th Cir. 1993) as possibly at odds with the 
NPRM, but the court's opinion did not address the question whether 
an employer should be obligated to disclose employee contact 
information in any setting, let alone whether an employer should be 
obligated to provide employee contact information to the union which 
had petitioned for an election so that it could be certified as 
their collective-bargaining representative.
    \210\ See also Tenneco, Inc., 357 NLRB No. 84 (Aug. 26, 2011), 
enforced in relevant part, denied in part, 716 F.3d 640 (D.C. Cir. 
2013), where the Board found that the employer's withholding of the 
replacements' home addresses breached its bargaining duty, because 
the union represented the replacements after strike's end and there 
was no ``clear and present danger'' of the union misusing the 
information; the Board also addressed the ``totality of the 
circumstances'' standard used by some circuits.
---------------------------------------------------------------------------

    Regarding state privacy law, NRMCA for example, cites a case 
discussing the New Jersey state constitution while Sheppard Mullin II 
points to several cases explaining the California state constitution. 
The case NRMCA cites, however, is concerned with privacy expectations 
under the unreasonable search and seizure provision of the New Jersey 
state constitution, State v. Reid, 945 A.2d 26, 31-32 (N.J. 2008), an 
entirely different privacy interest than any implicated by the final 
rule. Similarly, the cases involving the California constitution are 
not in obvious conflict with the final rule, as they involve different 
types of disclosures and acknowledge that the right to privacy in 
personal information under the California constitution is not 
absolute.\211\ Indeed, a prior Board, with judicial approval, rejected 
as ``frivolous'' an employer's contention that it would violate an 
employee's California constitutional right to privacy by furnishing an 
employee's address to a labor organization which represents the 
employee. See A-Plus Roofing, Inc., 295 NLRB 967, 974 (1989), enf'd. 
mem., 39 F.3d 1410 (9th Cir. July 12, 1990). Moreover, Sheppard Mullin 
fails to cite the most recent and on point case of County of Los 
Angeles v. Los Angeles County Employee Relations

[[Page 74352]]

Commission, in which the California Supreme Court clarified that an 
incumbent public sector union's significant interest in communicating 
with non-members outweighed employees' privacy interests in their home 
contact information under California's state constitution. 56 Cal.4th 
905, 911-12 (2013). More generally, the Board observes that state 
privacy and confidentiality laws may have exceptions allowing for 
disclosures where authorized by statute or regulation, in which case 
there would be no conflict between such laws and the voter list 
disclosures.\212\ See, e.g., Valley Programs, Inc., 300 NLRB 423, 423 
fn. 2 (1990); Kaleida Health, Inc., 356 NLRB No. 171, slip op. at 6-7 
(2011). Finally, to the extent that the disclosures conflict with any 
state privacy laws, the state laws may be preempted. See San Diego 
Building Trades Council v. Garmon, 359 U.S. 236 (1959); Mann Theatres 
Corp. of California, 234 NLRB 842, 842-843 (1978) (noting, in context 
of employer refusal to provide union with employee wage information, 
that if state public policy in fact required nondisclosure of employee 
wage information, it would be preempted under Garmon).
---------------------------------------------------------------------------

    \211\ See White v. Davis, 13 Cal. 3d 757, 760, 775-776 (1975) 
(holding police posing as students to record classroom activities at 
university solely for information-gathering purposes violated 
California constitution); Belaire-West Landscape, Inc. v. Superior 
Court, 149 Cal. App. 4th 554, 556-559, 561-562 (Cal. Ct. App. 2007) 
(holding that plaintiff's request for names, addresses, and phone 
numbers of defendant's employees did not violate California 
constitution where plaintiff was trying to identify potential class 
members in class action and employees were able to opt out of 
disclosure); Planned Parenthood Golden Gate v. Superior Court, 83 
Cal. App. 4th 347, 352-353, 357, 369 (Cal. Ct. App. 2000) (holding 
state interest in broad discovery outweighed by nonparties' interest 
in privacy where plaintiff sought names, addresses, and phone 
numbers of nonparty supporters of Planned Parenthood without 
demonstrating need for such information). Sheppard Mullin also cites 
Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524, 527 (2011), 
a case dealing with a statute prohibiting businesses from requesting 
that cardholders provide personal identification information during 
credit card transactions and then recording that information. The 
final rule clearly does not implicate the statute or interests at 
issue in that case.
    \212\ IFA II and Senator Alexander and Republican Senators II 
highlight such language in a recently passed privacy statute in 
Virginia, noting that Virginia employers are prohibited from 
disclosing employees' personal identifying information to third 
parties ``unless required by Federal or state law.'' While both 
comments suggest that the voter list proposal puts the Board's 
regulations at odds with the general trend of protecting employee 
privacy rights, neither argues that the Virginia statute's language 
would trump the Board's regulations.
---------------------------------------------------------------------------

    Some comments also claim that the Controlling The Assault of Non-
Solicited Pornography and Marketing Act of 2003 (``the CAN-SPAM Act'') 
evidences a Federal privacy concern regarding email addresses and that 
the Board's voter list proposals run afoul of that Federal 
statute.\213\ Among other things, the CAN-SPAM Act makes it unlawful 
for any person to transmit a commercial electronic mail message that 
``contains, or is accompanied by, header information that is materially 
false or materially misleading'' (15 U.S.C. 7704(a)(1)) and for a 
person to transmit a commercial electronic mail message that does not 
contain an opt-out procedure. 15 U.S.C. 7704(a)(3)(A).\214\ The statute 
further provides that if a recipient requests that the sender not send 
it any more commercial electronic mail messages, then it is unlawful 
for the sender to send it another commercial electronic mail message 
more than 10 business days after receipt of such a request. 15 U.S.C. 
7704(a)(4)(A)(i). Con-way, Inc. argues that email messages transmitted 
by a union would be subject to, and potentially in violation of, the 
CAN-SPAM Act because the ``primary purpose'' of union messages would be 
``the commercial advertisement or promotion of a commercial product or 
service.'' 15 U.S.C. 7702(2)(A). Katy Dunn (Testimony on behalf of SEIU 
II) disputes that unions are bound by the commercial provisions in CAN-
SPAM but nevertheless explains, along with SEIU II, that many unions 
voluntarily comply.
---------------------------------------------------------------------------

    \213\ See, e.g., Con-way; NRTW; Sheppard Mullin; RILA.
    \214\ As the statute indicates, ``The term `commercial 
electronic mail message' means any electronic mail message the 
primary purpose of which is the commercial advertisement or 
promotion of a commercial product or service[.]'' 15 U.S.C. 
7702(2)(A).
---------------------------------------------------------------------------

    We need not offer an opinion as to whether the CAN-SPAM Act would 
apply to a nonemployer party's use of email to investigate voter 
eligibility issues or to solicit a vote in an upcoming Board election. 
Simply put, if the CAN-SPAM Act does apply to a nonemployer party's use 
of email in an organizing campaign, nonemployer parties will have to 
conform their conduct to the statutory requirements, such as providing 
header information that is neither ``materially false [n]or materially 
misleading,'' providing opt out procedures, and honoring opt out 
requests no more than 10 days after the request is made.
    Similarly, PCA and others argue that because union solicitations 
are subject to the Federal Trade Commission's Do-Not-Call Rule, 16 CFR 
part 310, a union could not contact individual employees by phone 
before those employees authorized the union to do so.\215\ The 
regulations were adopted pursuant to the Telemarketing and Consumer 
Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108. (See 16 CFR 310.1) 
in which Congress charged the FTC with prescribing rules prohibiting 
deceptive and other abusive telemarketing acts or practices. 15 U.S.C. 
6102. It further charged the FTC with including in its rules 
requirements that telemarketers not undertake a pattern of unsolicited 
telephone calls which a reasonable consumer would consider coercive or 
abusive of such consumer's privacy and restrictions on the hours when 
unsolicited telephone calls can be made to consumers. 15 U.S.C. 
6102(a)(3)(A), (B).
---------------------------------------------------------------------------

    \215\ In contrast, NGA II notes that it is unclear whether union 
calls to employees would fall under the FTC's definition of 
solicitation for purposes of the Do Not Call Registry. Meanwhile, 
SEIU II cites the Telephone Consumer Protection Act, 47 U.S.C. 227, 
as another comprehensive scheme governing calls and texts by 
autodialers, which among other things, requires an opt-out. In 
SEIU's view, this statute provides an existing regulatory gloss to 
any voter list proposals adopted by the Board, making unnecessary 
any additional restrictions by the Board. We do not agree that the 
statute renders the proposed restriction unnecessary as detailed in 
our discussion of the restriction below.
---------------------------------------------------------------------------

    Again, however, we decline to address the extent to which the FTC's 
Do-Not-Call regulations may or may not cover nonemployer party 
solicitations or use of the phones to investigate eligibility issues. 
Even if these regulations are applicable, the result will be that a 
nonemployer party will be obligated to comply with Do-Not-Call as it 
might relate to potential members of the petitioned-for (or existing) 
bargaining unit. Thus, for example, a nonemployer party would have to 
refrain from making calls outside certain hours, and making calls to a 
person when the person previously has stated that he or she does not 
wish to receive a call from the party or when the person's telephone 
number is on the do-not-call registry.
    In sum, in response to all the comments challenging the propriety 
of the proposals relating to the disclosure of eligible voters' contact 
information, the Board emphasizes that nonemployer parties will not 
have free rein to utilize email addresses and phone numbers in a manner 
that violates other Federal laws that are found to cover such 
nonemployer party conduct. Rather, to the extent that any such laws are 
found applicable to the nonemployer parties' use of the contact 
information, those parties would be required to conform their conduct 
to the governing legal standards.\216\ In much the same way, a 
nonemployer party to a representation case who receives home addresses 
under current Excelsior requirements is not excused from complying with 
other applicable laws, such as trespass.\217\
---------------------------------------------------------------------------

    \216\ Similarly, to the extent state laws, such as the 
Washington Commercial Electronic Mail Act, Wash. Rev. Code. 19.190 
et seq. (cited by RILA), are found to cover nonemployer party use of 
email or telephone technology and such laws are not preempted, 
nonemployer parties would be required to conform their conduct to 
those laws as well.
    \217\ ACE expresses concern that the proposed voter list 
requirements may conflict with the Family Educational Rights and 
Privacy Act (FERPA), 20 U.S.C. 1232g(a)(5)(A), (B) (Supp. IV 2006). 
ACE observes that although FERPA allows colleges and universities to 
release students' ``directory information,'' schools are 
nevertheless required to provide notice that such information will 
be released and to give students the opportunity to opt out of the 
release. However, as ACE also appears to acknowledge, the proposed 
rule and FERPA could only come into conflict if graduate student 
employees are permitted to organize under the Act, which is not 
currently the case. See Brown University, 342 NLRB 483 (2004). (This 
issue is implicated in a case now pending before the Board. See 
Northwestern University, Case 13-RC-121359). In any event, if the 
issue arises, the conclusions expressed above with regard to the 
CAN-SPAM Act and the Do-Not-Call Rule would apply equally here.

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[[Page 74353]]

2. Timing
    In the NPRM, the Board proposed to shorten the time for production 
of the voter list from the current 7 calendar days to 2 work days, 
absent agreement of the parties and the regional director to the 
contrary in the election agreement, or extraordinary circumstances 
specified in the direction of election.\218\ Many comments argue that 
the 2-day time period following a regional director's direction of 
election, or approval of an election agreement, is too brief for an 
employer to produce the voter list, particularly if the Board requires 
the additional information--the personal email addresses, home and 
personal cell phone numbers, work locations, shifts, and job 
classifications of the eligible voters--to be disclosed on the 
list.\219\
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    \218\ Although the NPRM preamble indicated that employers would 
have 2 work days to produce the list, the proposed regulatory voter 
list sections did not explicitly so provide. Compare 79 FR 7333 with 
79 FR 7354, 7360.
    \219\ See, e.g., GAM; AAE; Vigilant; Buchanan; U.S. Poultry II; 
Testimony of Peter Kirsanow on behalf of NAM II.
---------------------------------------------------------------------------

    However, the Board concludes that advances in recordkeeping and 
retrieval technology as well as advances in record transmission 
technology in the years since Excelsior was decided warrant reducing 
the time period for production, filing, and service of the list from 7 
calendar days to 2 business days.\220\ Shortening the time period from 
7 calendar days to 2 business days will help the Board to expeditiously 
resolve questions of representation, because the election--which is 
designed to answer the question--cannot be held until the voter list is 
provided. In many cases the list will be produced electronically from 
information that is stored electronically and then will be served 
electronically in an instant--a far cry from workplace realities when 
the Board first established a 7-day time frame for producing the list, 
when employers maintained their employees' records in paper form, and 
virtually no employer had access to personal computers, spreadsheets or 
email. Indeed, the AFL-CIO points out that even in 1966, under the 7 
calendar day requirement, many employers were actually producing the 
list in only 2 work days. The AFL-CIO's comment posits that of the 
original 7 days, 2 days were lost to the weekend and 3 more days were 
dedicated to service of the list by regular mail because there was no 
existing option for priority, express or overnight mail, let alone for 
instantaneous electronic service via email. The Board views it as 
significant that while the Chamber specifically replies to the AFL-
CIO's Excelsior analysis, it does so only to contend that many 
employers did, and do, work on the list over the weekend. The Chamber's 
reply does not dispute that even under the technological constraints of 
the 1960s, employers could and did produce voter lists, at least for 
deposit into the mails, in 4 calendar days or fewer. Thus, the advent 
of electronic filing and service via email alone warrants a substantial 
reduction in the time provided, and in the Board's view, technological 
advances fully justify the move to 2 business days for production of 
the final voter list.
---------------------------------------------------------------------------

    \220\ As suggested by Nicholas E. Karatinos, the Board will 
interpret the rule to mean that employers have 2 business days 
(i.e., excluding Saturdays, Sundays, and legal (i.e., Federal) 
holidays--rather than 2 calendar days--to produce the eligibility 
list. This interpretation is consistent with Sec.  102.111(a) of the 
Board's prior rules, which this final rule leaves undisturbed. Thus, 
Sec.  102.111(a) provides that when computing time periods of less 
than 7 days in the Board's regulations, intermediate Saturdays, 
Sundays, and holidays are excluded.
    Moreover, in accordance with Karatinos' suggestion, the Board 
has decided to explicitly provide in Sec. Sec.  102.62(d) and 
102.67(l) of the final rule that the employer has two business days 
after the regional director directs an election or approves the 
parties' election agreement to furnish the list to the nonemployer 
parties and the regional director. The Board concludes that adoption 
of this additional language will provide useful guidance to the 
parties and render this particular requirement of the rule more 
transparent.
    As noted above, the Board's prior rules indicated that legal 
holidays were not included in the time calculation for due dates 
shorter than 7 days. The Board has interpreted legal holidays to 
mean ``Federal holidays.'' The Board declines Karatinos' additional 
suggestion to list the particular holidays in the final rule, 
because the number of Federal holidays may change over time and the 
Board does not wish to have to amend its rules each time the number 
of Federal holidays changes.
---------------------------------------------------------------------------

    Indeed, even some of the comments opposed to the new time frame 
tacitly admit that, while challenging, it is nonetheless possible. For 
example, the Indiana Chamber of Commerce (Indiana Chamber) concedes 
that ``It is not that the manual collection of this information itself 
would take extreme amounts of time, but it becomes a hardship when 
imposed concurrently with all of the other, new obligations under the 
compressed schedule.'' Similarly, the Bluegrass Institute does not 
argue that employers cannot compile the list under the new time frame, 
but contends that ``the cumulative effect'' of the new obligations ``on 
small businesses could very well be devastating.'' \221\ Yet, the 
hearing testimony of retired field examiner Michael Pearson implicitly 
contradicts such concerns by recalling approximately one dozen cases in 
which employers were able to file Excelsior lists on the same day as 
they signed election agreements--thus demonstrating an ability to 
simultaneously prepare an Excelsior list while resolving all of the 
issues to be potentially covered in a pre-election hearing. Indeed, as 
more fully discussed below in reference to Sec.  102.63, the Board does 
not agree that the obligations imposed on employers in connection with 
the Statement of Position form vary dramatically from what a reasonably 
prudent employer would have done in any event to adequately prepare for 
a pre-election hearing under the prior rules. Likewise, the 8-day time 
frame for the hearing's opening, which may be extended for up to 2 
business days upon request of a party showing special circumstances and 
even longer upon a showing of extraordinary circumstances, is in line 
with the best practices of some regions under the prior rules, and in 
any event, does not differ dramatically from the overall 10-day median 
for scheduling pre-election hearings, and the 13-day median for opening 
pre-election hearings under the prior rules.\222\
---------------------------------------------------------------------------

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

    Additional factors likewise persuade us that the 2-business day 
time frame is appropriate for production, filing, and service of the 
list. First, in many cases the employer will have provided a 
preliminary list of employees in the proposed or alternative units as 
part of its Statement of Position before the clock ever begins running 
on the new 2-day deadline for production of the voter list. As 
discussed below in connection with Sec.  102.63, that initial list will 
be due no sooner than 7 days after service of the notice of hearing, 
and so the employer will have the same amount of time to produce the 
preliminary list as it had under Excelsior. Accordingly, to produce the 
voter list required by Sec.  102.62 (or Sec.  102.67 in directed 
election cases), the employer need not start from scratch, but need 
only update that initial list of employee names, work locations, 
shifts, and job classifications, by adding employees' contact 
information and making any necessary alterations to reflect employee 
turnover or changes to the unit.\223\ Second, the description of

[[Page 74354]]

representation case procedures which is served with the petition will 
explicitly advise employers of the voter list requirement--just as the 
opening letter does currently--so that employers concerned about their 
ability to produce the list can begin working immediately; before an 
election agreement is approved or an election is directed and thus 
before the clock begins running on the 2-business day time period.\224\ 
Third, in the Board's experience, the units for which lists must be 
produced are typically small-- with half of all units containing 28 or 
fewer employees over the past decade--meaning that even for those small 
employers which lack computerized records of any kind, assembling the 
information should not be a particularly time-consuming task, contrary 
to the comments that suggest otherwise.\225\ Finally, the final rule 
will enable parties to enter into agreements providing more time for 
employers to produce the list subject to the director's approval, and 
the final rule will further enable the regional director to direct a 
due date for the voter list beyond two days in extraordinary 
circumstances.\226\ In sum, the Board is not persuaded that the bulk of 
employers will be unduly burdened by the final rule's voter list time 
frames.\227\
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    \223\ Some employers may have an additional reason to begin 
compiling at least part of the voter list as soon as they receive a 
petition. An employer which doubts that the petitioner has enough 
employee support to warrant an election may provide a payroll list 
to facilitate the regional director's administrative investigation 
of the issue. See Case Representation Manual Section 11020. Because 
the payroll list must be submitted promptly, see id., such an 
employer will likely begin preparing it immediately upon receiving a 
petition. Furthermore, as noted above, an employer which anticipates 
filing a statement of position and the accompanying initial employee 
list will also need to compile much of the information on the voter 
list for that purpose, prior to the start of the 2-day time frame.
    \224\ Thus, Casehandling Manual Section 11009.2(c) provides that 
the initial letter to the employer following the filing of the 
petition should advise the employer: ``In the event an election is 
agreed to or directed, the Agency requires that a list of the full 
names and addresses of all eligible voters be filed by the employer 
with the Regional Director, who will in turn make it available to 
all parties in the case. The list must be furnished to the Regional 
Director within 7 days of the direction of, or approval of an 
agreement to, an election, and the employer is being advised early 
of this requirement so that there will be ample time to prepare for 
the eventuality that such a list may become necessary.''
    \225\ See, e.g., Ranking Member Enzi and Republican Senators; 
COSE; CNLP; Testimony of Elizabeth Milito on behalf of NFIB II.
    \226\ National Mining Association and David A. Kadela complain 
that ``extraordinary circumstances'' is a vague standard that may be 
administered differently by different regional directors. However, 
this standard has been in place since the original Excelsior 
requirements were articulated, and the Board has not experienced the 
problems forecasted by the comments. See Excelsior, 156 NLRB at 1240 
fn. 5 (``In order to be timely, the eligibility list must be 
received by the [r]egional [d]irector within the period required. No 
extension of time shall be granted by the [r]egional [d]irector 
except in extraordinary circumstances * * *.'') Accordingly, the 
Board is not persuaded that it should use different language.
    \227\ In addition, as noted below, the Board has decided to make 
it presumptively appropriate to produce multiple versions of the 
list when the data required is kept in separate databases, thereby 
reducing the amount of time that employers might need to comply with 
the voter list requirement.
---------------------------------------------------------------------------

    Many comments suggest categorical exemptions for various 
industries. For example, AGC argues that the Board should exempt 
construction industry employers from the requirement that they produce 
the voter list 2-days after a direction of election or approval of an 
election agreement. According to AGC, construction industry employers, 
who may handle personnel matters on a decentralized basis at the 
individual jobsite level, cannot timely produce the list, because 2 
days is simply not enough time to review 2 years' worth of payroll 
records as required by the Daniel/Steiny construction industry 
eligibility formula.\228\
---------------------------------------------------------------------------

    \228\ The Daniel/Steiny formula, provides that, in addition to 
those eligible to vote in Board conducted elections under the 
standard criteria (i.e., the bargaining unit employees currently 
employed), unit employees in the construction industry are eligible 
to vote if they have been employed for at least 30 days within the 
12 months preceding the eligibility date for the election and have 
not voluntarily quit or been discharged, or have had some employment 
in those 12 months, have not quit or been discharged, and have been 
employed for at least 45 days within the 24-month period immediately 
preceding the eligibility date. See Steiny & Co. Inc. (``Steiny''), 
308 NLRB 1323, 1326-27 (1992), and Daniel Construction Co., Inc. 
(``Daniel''), 133 NLRB 264, 267 (1961), modified, 167 NLRB 1078, 
1081 (1967).
---------------------------------------------------------------------------

    The Board does not agree that the Daniel/Steiny formula warrants 
carving out a categorical exemption for construction industry employers 
in every case. In the first place, construction industry employers will 
not be required to review 2-years' worth of payroll records to produce 
the list in all cases. In some cases, the parties may stipulate that 
formula not be used. See Steiny, 308 NLRB 1323, 1328 n.16 (1992); 
Signet Testing Laboratories, Inc., 330 NLRB 1, 1 (1999). Moreover, as 
AGC acknowledges elsewhere in its comment, some petitions filed in 
construction industry cases involve situations where the petitioned-for 
units are already covered by 8(f) collective-bargaining agreements. 
Such 8(f) collective-bargaining agreements frequently require the 
signatory employer to make fringe benefit contributions to benefit 
funds on behalf of the unit employees and to file reports of its 
employees' hours with those benefit trust funds. Accordingly, at least 
in those cases, the employer may have ready access to the information 
necessary to produce lists complying with the formula. In addition, not 
every construction industry employer will have intermittently employed 
large numbers of employees over a two-year period. Those employers who 
have employed stable workforces will not face the same burden. And 
while employers may maintain records on different jobsites due to the 
decentralized hiring claimed by AGC II and other construction industry 
commenters, we anticipate that they will be able to transmit the 
records to a central location via modern technology or verbally report 
the information contained in the records.\229\
---------------------------------------------------------------------------

    \229\ For example, if the person responsible for completing the 
form needs records stored at a separate location, those records can 
be faxed (or scanned and then emailed) quickly, and failing access 
to that technology, a phone call would surely suffice for all but 
the largest bargaining units.
---------------------------------------------------------------------------

    The Board also finds it highly significant that, as AGC 
acknowledges, under the Board's current rules, construction industry 
employers, whether decentralized or not and whether large or small, 
already only have 7 days to produce the Excelsior list. The Board 
believes that the same changes that justify the reduction in time to 
produce the final list in cases outside the construction industry, 
likewise justify reducing the time in cases involving the construction 
industry. Thus, given the advances in record-keeping/retrieval 
technology and in the technology for transmitting documents that have 
taken place since Daniel was decided in 1961 and since Excelsior issued 
in 1966, the Board simply does not believe that as a rule it is 
``impossible'' for construction industry employers to comply with the 
requirement, as suggested by NFIB.
    As noted above, employers generally will have more than a week to 
prepare the voter list, assuming they begin work when they receive the 
petition and are explicitly advised of the voter list requirement in 
the description of representation case procedures served with the 
petition. And, employers will have still more time in those cases where 
weighty issues are litigated at the pre-election hearing that require 
resolution by the regional director, because they can continue 
preparing the list after the hearing closes while they await the 
decision by the regional director. Finally, it bears repeating that 
under the final rule, the regional director has discretion to grant an 
employer more time to produce the list, upon a showing of extraordinary 
circumstance which may be met by an employer's particularized 
demonstration that it is unable to produce the list within the required 
time limit due to specifically articulated

[[Page 74355]]

obstacles to its identification of its own employees.
    A number of other comments claim that the 2-day requirement is 
particularly burdensome for other types of employers either because of 
the nature of their operation, the types of employees they employ, or 
the size of their workforces. However, these comments fail to offer any 
persuasive explanations for why their particular circumstances make 
compliance with the 2-business day deadline unworkable.
    For example, the National Mining Association argues it will be 
difficult for employers in the mining industry to comply with the time 
frame for producing the final list because they operate on a 24-hour 
basis. But the fact that shifts of miners rotate through a mine on a 
24-hour basis does not render the employer unable to furnish a list in 
2 business days. Similarly, ACE argues that colleges and universities 
will be particularly burdened because they are decentralized, may 
include multi-site units, and may have difficulty identifying adjunct 
faculty or graduate students that a petitioner seeks to organize. The 
mere fact that an employer is decentralized, or that a party may 
propose a multi-site unit, does not demonstrate that complying with the 
new rule is unduly burdensome for colleges and universities. Moreover, 
as noted above, ACE's concerns about graduate student organization are 
at best premature. \230\ And although ACE contends that gathering 
detailed information on adjunct faculty would be difficult under the 
new time frames, it does not deny that gathering such information is 
feasible under the Board's current requirements and offers no 
explanation for why the new time frames would prove ``nearly 
impossible'' to comply with.
---------------------------------------------------------------------------

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

    Con-way argues that the 2-day period is unworkable in those cases 
where an employer uses employees provided by a temporary agency, 
because the employer will be dependent on the temporary agency to 
supply it with the information. However, it is by no means clear that 
``temporary employees'' provided by a third party will as a matter of 
course even be included in a bargaining unit. See Oakwood Care Center, 
343 NLRB 659 (2004) (employees of staffing agency may not be included 
in a unit of another employer's employees unless both employers 
consent).\231\ If the temporary employees are not included in the unit, 
then the fact that an employer uses employees provided by a temporary 
agency plainly provides no reason to depart from the timeframes in the 
rule, for the temporary employees will not need to be included on the 
list. When a third party's employees are included in the unit, the unit 
may be a multiemployer bargaining unit or the third party may be found 
to be a joint employer, and the entities may be jointly charged with 
filing the list or lists. See, for example, K-Mart, A Div. of S.S. 
Kresge Co., 159 NLRB 256, 262 n.10 (1966). Accordingly, the Board does 
not believe this circumstance warrants a blanket exemption.\232\
---------------------------------------------------------------------------

    \231\ However, we note that there is a case currently pending 
before us, Bergman Brothers Staffing, Inc., Case No. 05-RC-105509, 
in which a party is seeking to have us overrule Oakwood.
    \232\ Nor does the Board believe that the fact that an employer 
relies on a third party to perform its payroll functions warrants a 
blanket exemption from the 2-business day timeframe. The Board notes 
in this regard that employers frequently hire third parties to 
handle such administrative tasks precisely because the third parties 
are able to perform the administrative tasks more efficiently.
---------------------------------------------------------------------------

    As for employers with large workforces,\233\ the fact that a 
petitioned-for unit is large does not, in and of itself, make 
compliance with the rule burdensome for the employer.\234\ 
Significantly, the Board's current rules do not grant employers 
employing large units more time to produce the Excelsior list than 
employers employing small units. The same advances in technology that 
reduce the time it takes to transmit the lists from days to seconds 
apply no less to large employers than to small employers.\235\ The same 
holds true with respect to advances in record keeping technology. 
Indeed, the comments filed by, and on behalf of, small employers 
suggest or imply that large employers are more likely than small 
employers to possess the technology to produce the lists quickly.\236\ 
To the extent that the compilation process takes longer in a larger 
petitioned-for unit, large employers are more likely to have dedicated 
human resources professionals on the payroll who can more easily devote 
the longer period of time to completing the task within the amended 
time frame.\237\ Moreover, large employers, like small employers, can 
begin preparing the list before the director directs an election. 
Finally, the Board notes that Sec.  102.67(l) permits a regional 
director in his direction of election to grant more time to produce the 
final list in extraordinary circumstances, and employers are free to 
describe those circumstances to the hearing officer before the close of 
the hearing when they set forth their positions regarding the election 
details.
---------------------------------------------------------------------------

    \233\ See, e.g., AHCA; Sheppard Mullin; AHA.
    \234\ This is also true of decentralized businesses, which Con-
way argues will also be unduly burdened by the new time frame.
    \235\ As explained above, the Board does not believe that small 
employers without the best available technology will be particularly 
burdened by compiling the list.
    \236\ See, e.g., Chamber; Chamber reply; SIGMA.
    \237\ See Testimony of Elizabeth Milito on behalf of NFIB II 
(clarifying that in her experience as the spokesperson for NFIB, 
employers of more than 50 employees tend to have dedicated human 
resources staff).
---------------------------------------------------------------------------

    Spartan Motors, Inc. complains that the rule requires employers to 
produce the information on the voter list within 2 days of receiving a 
petition. Spartan Motors is mistaken. Thus, an employer need only 
produce the voter list 2 business days after the director approves an 
election agreement or directs an election. An employer cannot be 
compelled to enter into an election agreement 2 days after the petition 
is filed--or ever. And an election cannot be directed until after a 
hearing closes, which, of course, will be more than 2 (business) days 
after the filing of the petition. Indeed, absent agreement otherwise, 
the hearing will open no sooner than 8 days after service of the notice 
under the amendments.
    Several other comments attack the time frame for producing the 
voter list on the grounds that it will result in more inaccurate lists 
and thus more post-election litigation.\238\ As already discussed, the 
Board does not view a 2-business day deadline for production of the 
list in the modern era as a particularly greater burden than was 
production of the list in 7 calendar days during the 1960s. 
Accordingly, the Board is unconvinced that the lists produced under the 
final rule will tend to be any less accurate than lists produced under 
Excelsior's original formulation.\239\ And given the expanded

[[Page 74356]]

ability of petitioners to contact voters by phone and email with the 
new voter lists, the Board rejects the related comments predicting that 
list inaccuracies will result in petitioners having less access to 
voters under the final rule than under the current Excelsior 
rules.\240\
---------------------------------------------------------------------------

    \238\ See, e.g., Pinnacle; ALG; Constangy; LRI.
    \239\ Neither is the Board convinced that expanding the list 
beyond names and addresses will create any significant problems for 
employers in complying with the 2-day time frame. To the extent that 
aspects of particular industries may present challenges in 
identifying certain types of the newly required information, the 
Board believes that these issues can be dealt with in the 
implementation of the voter list (and related initial employee list) 
amendments. For example, Maurice Baskin explained that construction 
industry employees frequently change jobs and job sites, and Doreen 
Davis explained that retail industry employees frequently change 
departments or shifts. See Testimony of Maurice Baskin on behalf of 
ABC II and Doreen Davis on behalf of RILA II. It is the Board's 
preliminary view that there would be no impediment to employers in 
such circumstances noting that certain employees' classifications, 
shifts or locations are variable rather than fixed, providing their 
current classifications, shifts, and locations, and indicating, if 
known, where they will be going next. The need to make such a 
notation should not be particularly challenging to determine within 
the time frames set forth in the final rule. Contrary to the 
suggestion of Ms. Davis (Id.) and the related question raised by 
Baker & McKenzie, an employer need not continually revise the 
initial employee list provided with the Statement of Position or the 
voter list to reflect changes associated with employee information. 
However, if there is a change (due to employee turnover or transfer) 
between the time that the initial employee list and the voter list 
is provided, then it will be incumbent on employers to update the 
information at that time of the voter list's filing (and at that 
time only).
    \240\ See, e.g., Chamber; Sheppard Mullin.
---------------------------------------------------------------------------

3. Format and Service of List
    In the NPRM, the Board proposed that the voter list be provided in 
an electronic format generally approved by the Board's Executive 
Secretary unless the employer certifies that it does not possess the 
capacity to produce the list in the required form, and that the 
employer serve the voter list on the other parties electronically at 
the same time it is filed electronically with the regional office. The 
Board received multiple comments supporting the electronic format and 
service proposals.\241\ These proposals are included in the final rule 
with the slight modification that the General Counsel is substituted 
for the Board's Executive Secretary.\242\ See amended Sec. Sec.  
102.62(d), 102.67(l).
---------------------------------------------------------------------------

    \241\ See, e.g., GAM; UNAC/UHCP II; U.S. Poultry II.
    \242\ Upon further reflection, the Board has concluded that 
periodic approval of acceptable electronic formats for the voter 
list would be a more appropriate role for the agency's General 
Counsel, given the General Counsel's traditional duty of overseeing 
the agency's regional staff as they carry out the bulk of the 
Board's representation case procedures, including the handling of 
the voter list.
---------------------------------------------------------------------------

    The Board has concluded that requiring production of the list in 
electronic form (unless the employer certifies that it does not have 
the capacity to produce the list in the required form) would further 
both purposes of the Excelsior requirement. The Board has further 
concluded that requiring the employer to electronically serve the voter 
list directly on the other parties at the same time the employer 
electronically files the list with the regional office will likewise 
further both purposes of the Excelsior requirement and eliminate an 
administrative burden. As set forth in the NPRM, the Board's Excelsior 
rule requires only that the employer file the list with the regional 
director. 156 NLRB at 1239. Excelsior further provides that the 
regional director in turn shall make the list available to all parties. 
Id. at 1240. This two-step process thus requires the regional office to 
forward to the other parties the list filed in the regional office by 
the employer. This two-step process has also caused delay in receipt of 
the list and unnecessary litigation when the regional office, for a 
variety of reasons, has not promptly made the list available to all 
parties. See, e.g., Ridgewood Country Club, 357 NLRB No. 181 (2012); 
Special Citizens Futures Unlimited, 331 NLRB 160, 160-62 (2000); 
Alcohol & Drug Dependency Services, 326 NLRB 519, 520 (1998); Red 
Carpet Bldg. Maintenance Corp., 263 NLRB 1285, 1286 (1982); Sprayking, 
Inc., 226 NLRB 1044, 1044 (1976). Moreover, some comments also 
complained about their experiences with delay when employers file the 
list with the regional office after business hours on a Friday, and the 
regional office subsequently does not forward the list to the 
petitioner until the following Monday.\243\ The final rule eliminates 
this unnecessary administrative burden--as well as potential source of 
delay and resulting litigation--by providing for direct service of the 
list by the employer on all other parties. See amended Sec. Sec.  
102.62(d), 102.67(l).
---------------------------------------------------------------------------

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

    Spartan Motors complains that small employers might not maintain 
their data in electronic form, and therefore they will be burdened by 
having to produce it in electronic form. The rule, however, exempts 
employers from having to produce the list in the required electronic 
format if the employer certifies that it does not have the capacity to 
produce the list in the required form. Baker & McKenzie questions what 
evidence an employer must provide to show its inability to produce an 
electronic list and what criteria the Board will apply in evaluating 
whether it is feasible for an employer to file and serve the list 
electronically. The Board does not expect this to be a major topic of 
litigation, and for that reason, the final rule provides for an 
employer to certify to the regional director its inability to produce 
the list in the required form, instead of making a special request that 
it be allowed to produce an alternative form of the list. The Board 
trusts that the good faith of employers combined with the 
reasonableness of the format approved by the General Counsel, will lead 
to the smooth application of this process.
    SEIU II suggests that the Board should require employers to provide 
their lists in a searchable format to ease the burden on petitioning 
unions in manipulating the list, and NUHW makes the related suggestion 
that the Board should require employers to provide the list in the same 
format to all parties--noting the alleged injustice suffered when NUHW 
received a voter list in a less useful format than that provided to the 
Board and to a rival incumbent union. The Chamber II specifically 
replies to SEIU's suggestion by asserting that providing the list in a 
searchable format may not be feasible for all employers and so the 
Board should continue to allow flexibility in the format of the voter 
list. We think that each of these concerns has merit. Thus, the Board 
agrees that it would be optimal for parties to provide lists in 
searchable formats, but acknowledges that may be beyond the technical 
expertise of certain employers. The Board expects that the General 
Counsel will establish guidelines that require voter lists in 
searchable formats where feasible to address the concerns expressed by 
SEIU and to maintain the necessary flexibility as advocated by the 
Chamber. The Board further expects that the General Counsel's guidance 
will require, at minimum, that the voter list be provided in the same 
format to all parties--including the situation where there are rival 
incumbent and petitioning unions.
    Some comments, including those of SIGMA, suggest that it may take 
some effort to compile an electronic list using information from 
multiple databases.\244\ SIGMA's point is well taken. The Board does 
not wish to burden employers with the need to merge electronic files 
that may be kept in distinct forms or potentially on distinct computer 
programs. Therefore, it will be presumptively appropriate under the 
final rule to produce multiple lists when the data are kept in separate 
files, so long as all of the lists link the information to the same 
employees using the same names, in the same order and are provided 
within the allotted time.\245\ For example, if an employer keeps 
information about its employees' work locations, shifts, job 
classifications, phone numbers and email addresses in a different 
database

[[Page 74357]]

from the database containing its employees' home addresses, then the 
employer can produce an alphabetized list of employees and their home 
addresses and a second alphabetized list of employees and their work 
locations, shifts, job classifications, phone numbers and email 
addresses so long as both lists are provided within the allotted time.
---------------------------------------------------------------------------

    \244\ See, e.g., Indiana Chamber; Vigilant; AHA; COSE.
    \245\ The Board believes that this aspect of the final rule 
effectively answers AHA's argument that employers in the healthcare 
industry, who are obligated to upgrade information technology 
systems and bring down patient costs under other regulations, will 
be unduly burdened by the voter list timing requirements.
---------------------------------------------------------------------------

    The Washington Farm Bureau requests that employers be allowed to 
choose whether to submit the information in electronic or hardcopy 
form. The Board thinks that the two purposes of Excelsior are better 
served by requiring the electronic form, rather than leaving the choice 
of format to an employer's discretion, provided of course that the 
employer has the capacity to produce the list in the required 
electronic form.
    The Board also rejects the Chamber's II prediction that electronic 
service of the list will ``invite abuse of the system and unauthorized 
use of the information contained'' on the list.\246\ As discussed 
above, we see no reason for assuming that ``a union, seeking to obtain 
employees' votes in a secret ballot election, will engage'' in abusive 
behavior. Excelsior, 156 NLRB at 1244. Although the Board recognizes 
that whenever information is conveyed in an electronic format, there is 
a heightened risk of inadvertent dissemination or unauthorized access 
by third parties, in today's modern workplaces, however, it is simple 
enough to turn any paper document into an email attachment. So, the 
Board fails to see how any dangers of misuse--real or imagined--will be 
avoided simply by requiring parties to continue to use slower and more 
expensive forms of communication when filing the list with the regional 
director and transmitting it to the petitioner.
---------------------------------------------------------------------------

    \246\ Although the Chamber II's comment suggests that service of 
the eligibility list via email invites abuse, other comments from a 
cross-section of interested groups applaud the provision for 
electronic service of the list when feasible. See e.g., GAM, 
Buchanan.
---------------------------------------------------------------------------

    The Board likewise rejects Vigilant's suggestion that, rather than 
have the employer serve the list on the other parties, the Board serve 
the list on the parties after the employer has filed the list with the 
Board. Vigilant asserts that such an intermediate step would allow for 
correction of errors or omissions, but as discussed above, such an 
intermediate step is currently in place and has caused avoidable delay, 
administrative burden, and unnecessary litigation. Moreover, the Board 
is not persuaded that employers generally need the Board's help to 
``proof'' the lists they produce from their own records or that the 
Board could provide meaningful assistance in this regard as it is not 
the employer of the employees at issue.
    The Board also disagrees with INDA II's reasoning for maintaining 
the current two-step procedure. INDA, and others, alleges that it is 
appropriate to keep the burden of serving the voter list on petitioners 
with the regional staff, whose profession is administering the Act, and 
that more errors and litigation are likely to ensue by shifting the 
burden to employers, many of whom will have had no prior experience 
with the Board's representation case processes. While the Board 
certainly credits the statement that many employers are not repeat 
players in representation case proceedings and thus may be initially 
unfamiliar with the requirements, the final rule takes steps to remedy 
any ignorance on the part of employers by sending out a detailed 
explanation of those procedures as part of the first official 
communication that an employer will receive from one of the agency's 
regional offices. That explanation will cover the employer's eventual 
responsibility to serve a voter list on the nonemployer parties to the 
case (using the contact information listed on the face of the petition 
or provided in a Statement of Position or at the hearing) at the same 
time the employer files the list with the regional office. Furthermore, 
the Board believes that employers will typically have a wealth of 
experience sending important documents to entities outside of their 
organization, and should not be particularly challenged by emailing the 
voter list to the nonemployer parties' email addresses at the same time 
they email the list to the regional offices. Indeed, this task could be 
completed by transcribing the email address for the nonemployer party 
onto the recipient line of the same email bound for the regional 
office.\247\
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    \247\ To the extent that INDA II also argues that the age of the 
cases cited in the NPRM demonstrate that there are no contemporary 
problems occasioned by regional service of the voter list following 
its filing by an employer, the Board notes the recent case of 
Ridgewood Country Club, 357 NLRB No. 181 (2012), where we were again 
called upon to set aside an election due to regional office failures 
in transmitting the list to a petitioner.
---------------------------------------------------------------------------

    At least one comment (Sheppard Mullin II) raises the concern that 
rule language stating that an employer's failure to file a timely list 
in a proper format ``shall be grounds for setting aside the election 
whenever proper objections are filed'' signals an inappropriate 
departure from prior Board law governing whether an employer has 
sufficiently complied with its Excelsior obligations. To the contrary, 
while the final rule changes an employer's obligations concerning the 
content, timing, and format of the voter list, the Board does not 
hereby overrule extant law interpreting whether an employer's efforts 
at compliance fall sufficiently short to justify setting aside an 
election's result. The quoted language above is taken directly from the 
original Excelsior decision itself, 156 NLRB at 1240, and has not 
impeded the Board from adding fact-specific glosses to whether the 
requirement was sufficiently met. See, e.g., North Macon Health Care 
Facility, 315 NLRB 359 (1994).\248\
---------------------------------------------------------------------------

    \248\ However, the Board has decided to slightly modify the NPRM 
language regarding the consequences for noncompliance with the voter 
list amendments to track the language from pre-existing Sec.  103.20 
with respect to the consequences for noncompliance with the 
obligation to post what was called prior to the NPRM,'' the Board's 
``official Notice of Election.'' Thus, amended Sec.  102.62(d) and 
Sec.  102.67(l) shall provide in pertinent part that ``The 
employer's failure to file or serve the list within the specified 
time or in proper format shall be grounds for setting aside the 
election whenever proper and timely objections are filed.'' 
(emphasis added)
---------------------------------------------------------------------------

    Other comments suggest additional alterations to the voter list 
rules to protect employers who accidentally produce inaccurate lists. 
For example, ACE submits that the Board should automatically excuse 
inaccurate lists in large units when petitioners are unable to show an 
employer's intent to manipulate the process. The Board declines to 
adopt these suggestions. As discussed above, the Board continues to 
agree with existing precedent on Excelsior compliance, and does not 
intend to limit the discretion of future Boards to apply adjudicative 
glosses to the rule based upon a variety of fact patterns yet to 
arise.\249\
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    \249\ The Board likewise disagrees with Karatinos' complaint 
that ``there is no downside [under the proposals] to an employer 
producing an Excelsior list riddled with inaccuracies.'' As noted, 
just as was the case under the prior rules, the Board may set aside 
an election in which the union failed to obtain a majority of the 
valid votes cast if the employer's voter list was ``riddled with 
inaccuracies.'' See, e.g., Woodman's Food Markets, 332 NLRB 503 
(2000) (noting that the Board considers the percentage of names 
omitted, whether the number of omissions is determinative in the 
election, and the employer's reasons for the omissions); Automatic 
Fire Sys., 357 NLRB No. 190 (2012) (applying this test and ordering 
a rerun election).
---------------------------------------------------------------------------

    Holland & Knight questions if it will be objectionable for an 
employer to omit from the voter list the contact and other information 
of employees whose eligibility is disputed. As discussed more fully 
below in connection with Sec.  102.67, the answer is ``yes.'' Prior to 
the NPRM, parties could agree that

[[Page 74358]]

certain classifications or employees be permitted to vote subject to 
challenge just as a regional director could direct that certain 
classifications or employees be permitted to vote subject to challenge. 
See, e.g., Casehandling Manual Sections 11084.3 and 11338.2(b). In such 
cases, the employer was advised to provide the names and home addresses 
for such individuals on the Excelsior list. Similarly, the final rule 
requires the employer to provide the information for such individuals 
on the voter list. However, as discussed more fully below in connection 
with Sec.  102.67, in order to ensure that the Board agent and the 
parties' observers will properly process employees who were directed to 
vote subject to challenge (or were permitted to vote subject to 
challenge by agreement of the parties), the final rule requires the 
employer to provide the names and related information about such 
employees in a separate section of the list.
4. Restriction and Remedies for Misuse of the Voter List
    In the NPRM, the Board proposed a restriction on the use of the 
voter list--barring parties from using it for any purposes other than 
the representation proceeding and related proceedings--and sought 
comments regarding what, if any, the appropriate remedy should be for a 
party's noncompliance with the restriction.\250\
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    \250\ Although the NPRM used the term ``sanction,'' this usage 
was inapt because of its punitive connotation. See Republic Steel 
Corp. v. NLRB, 311 U.S. 7, 10-13 (1940) (explaining that the NLRA is 
essentially remedial).
---------------------------------------------------------------------------

    Many comments address the proposed restriction and potential 
consequences of noncompliance. At the outset, labor organizations' 
comments point out that Excelsior did not contain any express 
restriction language and generally agree that the lack of historical 
evidence of Excelsior list abuses undercuts the need for any 
restriction.\251\ In contrast, other comments envision, as discussed 
above, a wide variety of potential misuses should the Board implement 
its voter list proposal.\252\
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    \251\ See, e.g., AFL-CIO II; UFCW; NNU.
    \252\ See, e.g., PCA (union selling employee information); 
NRTWLDF (harassment, identity theft, property crime); David Holladay 
II (threats to spouse or children).
---------------------------------------------------------------------------

    Other concerns are shared by both labor organizations and employer 
associations. For example, some comments, such as those from the 
Chamber and SEIU, focus on the lack of clarity as to what activity 
would be encompassed by the restriction (i.e., what activity falls 
outside of ``using the list''), while others, such as PCA's and UFCW's, 
assert that the Board could not effectively police any restriction it 
imposed, or that any remedy would be de minimis with regard to the 
damage done (CNLP; NRTW). The National Education Association Staff 
Organization concludes that the restriction and remedy proposals would 
simply create more litigation concerning matters which the Board, in 
contrast to law enforcement and the civil courts, is ill-equipped to 
handle. Additionally, other comments complain that the proposed 
restriction is unclear as to what counts as ``the representation 
proceeding and related proceedings.'' \253\ In this regard, the Indiana 
Chamber worries that this phrase is overbroad, whereas by contrast, 
SEIU expresses concern that it will prove too narrow and restrictive of 
lawful union activity.
---------------------------------------------------------------------------

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

    Nevertheless, many employer associations' comments propose a range 
of remedies including: Setting aside elections, temporary bans on 
organizing, letters of apology, monetary penalties, referral to law 
enforcement where criminal conduct has occurred, and pursuing 
injunctive relief against the restriction's violators.\254\ Meanwhile, 
labor organizations' comments stress that any sufficiently weighty 
remedy threatens to unfairly penalize employees for the misdeeds of 
labor organizations \255\ and question whether the Board has 
``appropriate remedial authority to address such circumstances.'' \256\ 
In further contrast, the Chamber suggests that remedies should be ``no 
fault'' (applying to any misuse of the list, regardless of the 
petitioner's intent), while the UFCW urges that the Board limit any 
remedy to ``clearly defined circumstances involving willful and 
egregious noncompliance with the rule.''
---------------------------------------------------------------------------

    \254\ See, e.g., Chamber II; SHRM II; AGC; ALG; Indiana Chamber; 
CDW. Other comments propose less concrete remedies, such as 
``affirmative steps to remedy misuse'' (SHRM) or ``severe'' 
consequences (Anchor Planning Group; LRI). On a slightly different 
note, in order to prevent misuse to begin with, NRTWLDF suggests 
that unions not be allowed to withdraw petitions once filed, and 
Anthony Benish suggests that a union be barred from filing another 
petition at that employer for one year after withdrawing a petition. 
The potential for the supposed abuses NRTWLDF and Benish seek to 
prospectively remedy already exists. Without any evidence of such 
risks regularly materializing and negatively affecting employees, 
the Board sees no need to change current practices. As shown, 
regional directors already have discretion to reject a petitioner's' 
request to withdraw its petition if the request would run counter to 
the purposes of the Act or to approve the withdrawal with prejudice 
to refiling. See Casehandling Manual Sections 11110, 11112, 11113, 
11116, 11118.
    \255\ See, e.g., SEIU (reply); UFCW.
    \256\ See AFL-CIO. AFL-CIO further points out that non-Board 
remedies are already available for the possible misuses identified 
by opponents of the rule.
---------------------------------------------------------------------------

    After careful consideration of the comments, the Board has slightly 
modified the proposed restriction language. The final rule shall read 
in relevant part: ``The parties shall not use the list for purposes 
other than the representation proceeding, Board proceedings arising 
from it, and related matters.'' See amended Sec. Sec.  102.62(d), 
102.67(l). This change sufficiently clarifies the circumstances under 
which unions may use the list, balancing both privacy concerns and the 
interests, noted above, in the fair and free choice of bargaining 
representatives and the expeditious resolution of questions concerning 
representation.
    The restriction language will plainly allow the nonemployer parties 
to use the contact information to provide employees with information 
regarding the election and to investigate eligibility issues. Parties 
can also use the information on the list for such purposes as 
investigating challenges and objections and preparing for any post-
election hearings on determinative challenges and/or objections. 
Parties may likewise use the information on the list in connection with 
unit clarification proceedings to decide the status of individuals 
whose status was not determined by the regional director or the Board 
or who voted subject to challenge in an election but whose ballots were 
not determinative. See Casehandling Manual Section 11490.1. Parties may 
also use the information on the list to investigate, and prepare for 
hearings regarding, unfair labor practice charges concerning the 
employer's employees that are filed before or after the election takes 
place. And, just as is the case currently, if post-election objections 
are filed, a union (or decertification petitioner) could continue to 
use the list to maintain their support and to campaign for votes in 
connection with any rerun election that is held. In each of these 
examples, the nonemployer parties would be using the list for purposes 
of the representation proceeding, Board proceedings arising from it, 
and related matters. At the same time, the Board believes it goes 
without saying that nonemployer parties would run afoul of the 
restriction if, for example, they sold the list to telemarketers, gave 
it to a political campaign or used the list to harass, coerce, or rob 
employees.\257\
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    \257\ It is conceivable, as the Indiana Chamber comments, that a 
party alleged to have misused the list might claim in its defense 
that it managed to obtain the information independently of the 
employer's provision of the list, and therefore that it was not 
``using'' the list when it engaged in the challenged conduct. That 
issue, like so many other issues, raises a question of fact for the 
factfinder.

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

[[Page 74359]]

    While the Board thinks it is self-evident that misuse of the voter 
list that adversely affects unit employees should result in some 
remedy, the Board has concluded that it would not be appropriate at 
this time to specify a remedy, or set of remedies, that would be 
applicable in all situations. The Board notes in this regard that while 
the Excelsior Board stated that it would ``provide an appropriate 
remedy'' if a union used the list to harass or coerce employees 
(Excelsior, 156 NLRB at 1244), the Excelsior Board did not specify the 
remedies it would provide. Like the Excelsior Board, we will leave the 
question of remedies to case-by-case adjudication.
    For example, the Board rejects the notion advanced in some comments 
\258\ that misuse of the voter list should always warrant setting aside 
the results of an election won by the party misusing the list. As noted 
below in connection with Sec. Sec.  102.64 and 102.66, the purpose of 
the election is to answer the question of representation. For example, 
the purpose of an election in an initial organizing case is to 
determine whether employees in an appropriate unit wish to be 
represented for the purposes of collective bargaining by the 
petitioner. There is a strong presumption that ballots cast in a secret 
ballot election reflect the true desires of the participating 
employees. Accordingly, the burden is on the objecting party to 
demonstrate that the election results ``did not accurately reflect the 
unimpeded choice of the employees.'' Daylight Grocery Co., Inc. v. 
NLRB, 678 F.2d 905, 909 (11th Cir. 1982). A party seeking to overturn 
the outcome of an election based on another party's conduct has the 
burden of showing not only that the conduct complained of occurred, but 
also that it ``interfered with the employees' exercise of free choice 
to such an extent that it materially affected the [results of the] 
election.'' C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir. 
1988). Accord Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 
818, 827 (D.C. Cir. 1970). The Board has indeed set aside elections 
when union coercion resulted in objections to an election that were 
sustained.
---------------------------------------------------------------------------

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

    But not every misuse of the list can be said to have interfered 
with employee free choice in the election, let alone be said to have 
materially affected the results of the election. For example, if a 
union misuses the list after the election, by, for example selling the 
list to telemarketers, the misuse could not possibly have affected 
employee free choice in the election because the misconduct occurred 
after the election. Even if the union were to sell the list before the 
election, it could not be said to have impeded employee free choice if 
no employee knew about it. Setting aside the results of the election in 
such circumstances would interfere with employee free choice and would 
be contrary to the Act's policy in favor of industrial stability. 
Accordingly, while the Board certainly does not wish to convey that a 
party's misuse of the voter list could never warrant setting aside an 
election, the Board does not feel that it is appropriate to adopt a 
rule that would set aside election results in every case where the 
union chosen by employees misused the list in some way. At the same 
time, the fact that misuse of the list could not warrant setting aside 
the results of an election does not mean that the misuse should not be 
remedied in a manner appropriate to the circumstances.
    Similarly, the Board concludes that it would not be appropriate to 
adopt a per se rule that would bar a labor organization from engaging 
in future organizational drives whenever (and however) the labor 
organization misused the list, for such a remedy would interfere with 
the right of employees to petition for a specific labor organization to 
represent them.\259\ The Board also declines to adopt a rule that would 
require the General Counsel to seek injunctive relief in Federal 
district court whenever a party misuses the list. Injunctive relief is 
not the norm in our system, and while the Board does not wish to rule 
out seeking injunctive relief in an appropriate case, it does not 
believe that seeking such relief as a matter of course would 
necessarily be appropriate.\260\
---------------------------------------------------------------------------

    \259\ Nor is it at all clear whether the Board even possesses 
the requisite statutory authority to ban a union from filing future 
representation petitions because of previous misbehavior. In any 
event, the Board has long been loath to restrict employee free 
choice with respect to union representation on the basis of union 
misconduct. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962) 
(``[I]nitially, the Board merely provides the machinery whereby the 
desires of the employees may be ascertained, and the employees may 
select a `good' labor organization, a `bad' labor organization, or 
no labor organization, it being presupposed that employees will 
intelligently exercise their right to select their bargaining 
representative.''); Handy Andy, Inc., 228 NLRB 447, 454-56 (1977) 
(rejecting employer's argument that a union's practice of race 
discrimination preclude it from being certified as an exclusive 
bargaining representative).
    Nevertheless, Sec.  102.177 of the Board's Rules and Regulations 
appears broad enough to cover an attorney's or party 
representative's failure to abide by Board rules, including the rule 
announced today regarding misuse of the voter list, depending on the 
facts and circumstances of the violation. See Sec.  102.177(d) 
(``Misconduct by an attorney or other representative at any stage of 
any Agency proceeding, including but not limited to misconduct at a 
hearing, shall be grounds for discipline. Such misconduct of an 
aggravated character shall be grounds for suspension and/or 
disbarment from practice before the Agency and/or other 
sanctions.'') Moreover, if violations of the voter list restrictions 
should occur that do not fall within the provisions of Sec.  
102.177, the Board may look to amend that provision in the future.
    \260\ Similarly, the Board hesitates to adopt a rule that would 
require parties in all cases to apologize for misusing the list. An 
apology would amount to an admission of guilt. Regional Directors, 
acting on behalf of the General Counsel, regularly approve 
settlements involving alleged unfair labor practices--even though 
the settlements contain non admissions clauses--where they conclude 
that the settlements effectuate the policies of the Act. The Board 
does not wish to preclude regional directors from resolving cases 
involving alleged misuse of voter lists in a manner the directors 
deem acceptable merely because the parties alleged to have misused 
the lists refuse to admit to having done so.
    As for monetary sanctions, the Board observes that while it does 
have the authority to make employees whole for their losses, it 
lacks authority to impose penalties, as noted above. Accordingly, 
the Board does not believe that a monetary sanction will be 
appropriate in all cases of voter list misuse. Regarding CDW's 
suggestion that the Board refer criminal conduct to law enforcement 
authorities, the Board observes that under Casehandling Manual 
Section 11029.3, the Agency already forwards evidence of forgery to 
the appropriate law enforcement authorities.
---------------------------------------------------------------------------

    AGC suggests that misuse of the voter list should be deemed a 
violation of Section 8(a)(1) or 8(b)(1). The Board rejects this 
suggestion at this time for reasons similar to those that led us to 
reject the suggestion that any misuse should warrant setting aside the 
election results. There may be situations in which the Board finds that 
a party has misused the voter list in violation of Section 8(a)(1) or 
8(b)(a). Even if no such violation is found, the misuse may constitute 
objectionable conduct, which could trigger a new election. The Board 
believes that case-by-case adjudication is the appropriate way to 
consider circumstances in which a remedial order is appropriate so that 
it can tailor its order to the specific misuse and ensure that the 
remedy it imposes is effective. As with all of the foregoing proposals, 
the point is that in determining the appropriate remedy for a proven 
misuse, the Board believes that it is appropriate to consider all the 
circumstances and provide a remedy, where appropriate, which is 
tailored to the misconduct found to have been committed.
    MEMA II argues that any restriction must be accompanied by 
requiring advanced security protocols to be implemented by petitioning 
unions, and cites as models the regulatory regimes developed under the 
Gramm-Leach-

[[Page 74360]]

Bliley Act (``GLBA''), 15 U.S.C. 6801, the Health Insurance Portability 
and Accountability Act (``HIPAA''), 42 U.S.C. 1320d, and the Fair 
Credit Reporting Act (``FCRA''), 15 U.S.C. 1681a. We disagree. The 
personal information at issue in those statutes is far more sensitive 
than what will be disclosed as part of the voter list amendments we 
announce today. We do not believe that we can rationally equate the 
financial and health-related information regulated by those statutes 
with employee contact information, and identification of their work 
location, shift, and job classification.\261\ In addition, MEMA's 
comment loses sight of the fact that the nonemployer party who receives 
the list in a given case may not be a large sophisticated institution 
like an international union, but might be an unsophisticated individual 
who files a decertification petition. Thus, in addition to the 
information's relative lack of sensitivity, the Board believes that it 
would be unrealistic to think that it could require individual 
employees or small labor organizations to--as advocated by MEMA--
designate a security officer or develop a written security program.
---------------------------------------------------------------------------

    \261\ The legislative and administrative histories of the GLBA, 
the HIPAA and the FCRA support our position that financial and 
medical information is special and requires a closer degree of 
protection than other types of information. See, e.g., U.S. Sen. 
Conrad Burns Holds Hearing on Privacy on the Internet Before Sen. 
Subcomm. on Commc'ns, 106th Cong. 1999 WL 542117 (1999) (``Last week 
we unanimously testified in favor of legislation that would protect 
the privacy of financial records, because financial records are 
different. I would say the same thing about medical records.''); 
Standards for Privacy of Individually Identifiable Health 
Information, 64 FR 59918, 59919-20 (proposed November 3, 1999) 
(codified at 45 CFR parts 160 and 164) (discussing why medical 
records specifically warrant privacy protections); Statement of Mr. 
Stephen Brobeck Before H. Comm. on Fin. Servs., 2003 WL 21541527 
(2003) (discussing the need for revisiting and expanding the privacy 
protections in the FCRA because of the exceptional nature of 
financial information); see also Fact Sheet on Fin. Privacy and 
Consumer Prot., 1999 WL 270108 (1999) (discussing need to protect 
medical and financial information due to their particularly private 
and important natures).
---------------------------------------------------------------------------

    Finally, regarding a petitioner's retention of the information 
after a representation campaign ends, the Board observes that 
petitioners are currently entitled to retain the list indefinitely 
under Excelsior, and, as shown, there are certainly legitimate reasons 
why petitioners might use the list after the election. Moreover, the 
Board does not believe that a petitioner's retention of the information 
on the list would implicate any privacy concerns beyond those 
implicated by the initial disclosure under Excelsior. The Board 
therefore declines the suggestion that petitioners be required to 
destroy voter list information after a set period of time or upon an 
individual employee's request.\262\ We reiterate, however, that the 
Board will provide an appropriate remedy under the Act if misconduct is 
proven and it is within the Board's statutory power to do so. In 
addition, individuals may have recourse in other judicial fora.\263\
---------------------------------------------------------------------------

    \262\ See, e.g., Chamber; Daniel Wroblewski.
    \263\ To be clear, the Board will not abdicate its 
responsibility to utilize its statutory authority to remedy any 
misuse that may occur following implementation of the voter list 
amendments merely because the possibility of remedial authority 
exists under a separate civil or criminal statutory scheme. Indeed, 
the Board remains mindful of the possibility raised by J. Aloysius 
Hogan (Testimony on behalf of the Competitive Enterprise Institute 
II) that the voter list amendments could be found by a court to 
preempt state statutes that might otherwise provide breach of 
privacy remedies. Nevertheless, the Board is unprepared at this time 
to say that no set of future circumstances will be appropriate for 
the Board to defer remediation to another state or Federal judicial 
forum, and it cannot assume that every statute potentially relevant 
to misuse of the voter list will be preempted.
---------------------------------------------------------------------------

5. Waiver
    Although the proposed regulatory language did not explicitly so 
state, the preamble section to the NPRM indicated that consistent with 
existing practice, reflected in Mod Interiors, Inc., 324 NLRB 164 
(1997), and Casehandling Manual Section 11302.1, and as recently noted 
by the Board in The Ridgewood Country Club, 357 NLRB No. 181, n.8 
(2012), an election shall not be scheduled for a date earlier than 10 
days after the date by which the voter list must be filed and served, 
unless this requirement is waived by the parties entitled to the list.
    SEIU urges that instead of requiring the employer to provide the 
voter list to the union within 2 days after the direction of election 
with the ensuing 10-day pre-election period, the Board should require 
the employer to provide a ``preliminary'' list of employees (including 
contact information) to the union within 2 days after it receives the 
union's election petition, and to update this list as necessary at the 
pre-election hearing. SEIU points out that if this alternative 
requirement were imposed, the 10-day practice would be largely 
unnecessary since the union would have obtained the voter list at an 
earlier point in the process. SEIU also requests that a post-direction 
period of up to 10 days be available for the union to contact any 
employees who were added to the list at the pre-election hearing. 
However, the Excelsior Board justified the required disclosure in part 
because the interest in the fair and free choice of a bargaining 
representative must be deemed substantial when the regional director 
has found that a question of representation exists or the employer 
admits that such a question exists by entering into an election 
agreement. See Excelsior, 156 NLRB at 1245. Absent an election 
agreement, however, the director cannot find that a question of 
representation exists and direct an election until the hearing closes. 
Under the final rule, the hearing ordinarily will open 8 days after 
service of the notice. Accordingly, the Board rejects SEIU's request 
that the employer be required to furnish the other parties with the 
employee contact information 2 days after the filing of the petition--
i.e., before either the director has found that a question of 
representation exists or the employer has admitted such a question of 
representation exists.
    ALFA and SHRM assert that the waiver of the 10-day period should 
not be permitted on the grounds that the 10-day period is provided for 
the benefit of employees rather than unions, and that the 10-day period 
is always necessary to permit employees to receive information from 
their employers. In this respect, these comments assert that a waiver 
of the 10-day period contributes to the overall shortening of the 
period between the filing of a petition and the election effected by 
the rule amendments, which they oppose. SHRM, quoting Excelsior, 
emphasizes the priority of avoiding ``a lack of information with 
respect to one of the [ballot] choices available.''
    However, the comments take the quoted language out of context: The 
Board imposed the requirement on the employer to disclose the list of 
employee names and addresses in order to maximize the likelihood that 
the voters will be exposed to the nonemployer parties' arguments. Thus, 
as shown, the Excelsior Board observed (156 NLRB at 1240) that in 
contrast to the union, ``[a]s a practical matter, an employer, through 
his possession of employee names and home addresses as well as his 
ability to communicate with employees on plant premises, is assured of 
the continuing opportunity to inform the entire electorate of his views 
with respect to union representation.'' The Board went on to note that 
``by providing all parties with employees' names and addresses, we 
maximize the likelihood that all of the voters will be exposed to the 
arguments for, as well as against, union representation.'' Id. at 1241. 
Similarly, in upholding the requirement, the Supreme Court reasoned 
that the disclosure requirement allows ``unions the right of access to 
employees that management already possesses.'' NLRB v. Wyman-Gordon 
Co., 394 U.S. at 767. The Excelsior rule was accordingly found

[[Page 74361]]

necessary to provide the nonemployer parties with an opportunity to 
communicate its message at least to the extent of having access to 
employees' names and home addresses. Neither the employer's nor the 
employees' interest is compromised by the union's exercise of the 
waiver of the 10-day period, since that results in a reduction only of 
the union's opportunity to further communicate with employees; and the 
union can be expected to exercise the waiver only when it is confident 
that employees have heard its message. The objection that a waiver of 
the 10-day period shortens the opportunity for employers to communicate 
with employees is therefore relevant not to the union's use of the 
Excelsior list, but rather to the other rule amendments at issue here. 
That objection is addressed in connection with The Opportunity for Free 
Speech and Debate above.
    SHRM also contends that if the waiver is retained, the waiving 
party should be treated as also waiving the right to file election 
objections based on the voter list, any failure of the employer to 
properly post election notices, ``and any other potential procedural 
objection.'' We are not persuaded by the suggestion that nonemployer 
parties should not be permitted to waive all or part of the 10-day 
period to use the list unless they also agree to waive objections to an 
employer's failure to fulfill its obligations under the Board 
representation case rules. For example, the fact that a union believes 
that it needs only 5 days to communicate with the electorate if the 
employer furnishes it with an accurate list of the eligible voters' 
contact information certainly does not mean that the union has agreed 
that it only needs 5 days to communicate if the employer furnishes it 
with an inaccurate list of the eligible voters' contact information. 
Accordingly, a union should not be deemed to have waived its right to 
object to an employer's failure to provide an accurate voter list 
merely because it waived its right to use the list for the full 10-day 
period. Similarly, that a union agrees to waive part of the time for 
using the voter list certainly does not mean that a union should be 
held to have forfeited its right to object if the employer alters, or 
fails to post, the Board's election notice and thereby misleads, or 
fails to inform, employees as to the election details. In sum, although 
the final rule does not so state, we reiterate that consistent with 
current practice, an election shall not be scheduled for a date earlier 
than 10 days after the date by which the voter list must be filed and 
served, unless this requirement is waived by the parties entitled to 
the list.
Sec. 102.63 Investigation of Petition by Regional Director; Notice of 
Hearing; Service of Notice; Notice of Petition for Election; Statement 
of Position; Withdrawal of Notice of Hearing
A. Introduction and Overview of Changes From NPRM
    The Board proposed in the NPRM that, absent special circumstances, 
the regional director would set the hearing to begin 7 days after 
service of the notice of hearing. The Board further proposed that, with 
the notice of hearing, the regional director would serve the petition, 
the ``Initial Notice to Employees of Election,'' the description of 
procedures in representation cases, and the Statement of Position form 
on the parties. The NPRM also proposed that the regional director 
specify in the notice of hearing the due date for Statements of 
Position, which would be due no later than the date of the hearing. The 
Board specifically sought comments on the feasibility and fairness of 
these time periods and the wording and scope of the exceptions thereto. 
79 FR 7328.
    The Board received a great number of comments about these matters. 
Comments criticizing the Statement of Position form attacked the scope 
of the information solicited by the form \264\ and the due date for its 
completion,\265\ as well as its binding nature and the consequences of 
failing to complete it.\266\ Comments also criticized the proposed time 
frame for the pre-election hearing \267\ and the wording and scope of 
the exceptions thereto.\268\ Comments praising the proposals argued 
that the Statement of Position form and proposed time frames largely 
mirror best existing casehandling practices.\269\ However, some of 
these comments suggested that the Board require completion of the 
Statement of Position form even earlier.\270\
---------------------------------------------------------------------------

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

    The Board has carefully considered the comments and, as explained 
more fully below, has decided to adopt the proposals with certain 
significant changes:
    (1) Except in cases presenting unusually complex issues, the 
regional director will set the hearing to open 8 days--rather than 7 
days--from service of the notice of hearing excluding intervening 
Federal holidays. However, the regional director may postpone the 
opening of the hearing up to 2 business days upon request of a party 
showing special circumstances, and for more than 2 business days upon 
request of a party showing extraordinary circumstances. Accordingly, 
parties will have at least 8 days notice of the hearing.
    (2) The Statement of Position will be due at noon on the business 
day before the opening of the hearing if the hearing is set to open 8 
days from service of the notice of hearing. Although the regional 
director may set the due date for the position statement earlier than 
at noon on the business day before the hearing in the event the hearing 
is set to open more than 8 days from the service of the notice, parties 
will have 7 days notice of the due date for completion of the Statement 
of Position form in all cases. The Statement of Position form will be 
due no later than at noon on the business day before the hearing so 
that it may serve its intended purposes of facilitating entry into 
election agreements and narrowing the scope of any hearing that must be 
held, thereby enabling the Board to expeditiously resolve questions 
concerning representation.\271\
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    \271\ Just as is the case with respect to the opening of the 
hearing, the regional director may postpone the due date for filing 
and service of the Statement of Position up to 2 business days upon 
request of a party showing special circumstances, and for more than 
2 business days upon request of a party showing extraordinary 
circumstances.
---------------------------------------------------------------------------

    (3) In the event the employer contends as part of its Statement of 
Position that the proposed unit is not appropriate, the employer will 
not be required to identify the most similar unit that it concedes is 
appropriate or provide information about the employees in such a unit. 
However, the employer will be required to state the basis for its 
contention that the proposed unit is inappropriate, and state the 
classifications, locations, or other employee groupings that must be 
added to or excluded from the proposed unit to make it an appropriate 
unit, and the employer will be required to disclose information about 
the individuals in the classifications, locations, or other employee 
groupings that the employer contends must be added to the proposed unit 
to make it an appropriate unit, so that the petitioner will be able to 
evaluate the employer's position and decide whether to amend its 
petition to conform to the unit proposed by the employer.

[[Page 74362]]

    (4) The final rule will not require the employer to disclose as 
part of its Statement of Position any contact information for employees 
in the proposed unit or for employees in any alternative unit proposed 
by the Employer.
    (5) The final rule clarifies the required Statements of Positions 
in RM and RD cases to make them parallel to the required Statement of 
Positions in RC cases, which will facilitate entry into election 
agreements and narrow the scope of pre-election hearings in those 
cases.
    (6) The final rule states explicitly that the regional director may 
permit parties to amend their Statements of Position in a timely manner 
for good cause.
    (7) The final rule also retitles the proposed ``Initial Notice to 
Employees of Election'' as the ``Notice of Petition for Election,'' and 
clarifies that within 2 business days after service of the notice of 
hearing, the employer shall post the Notice of Petition for Election in 
conspicuous places, including all places where notices to employees are 
customarily posted, and shall also distribute it electronically if the 
employer customarily communicates with its employees electronically, 
and that failure to do so may be grounds for setting aside the 
election.
B. Statement of Position Form
    The Board proposed in the NPRM that the Statement of Position form 
would solicit the parties' positions on the Board's jurisdiction to 
process the petition; the appropriateness of the petitioned-for unit; 
any proposed exclusions from the petitioned-for unit; the existence of 
any bar to the election; the type, dates, times, and location of the 
election; and any other issues that a party intends to raise at 
hearing. In those cases in which a party takes the position that the 
proposed unit is not an appropriate unit, the party would also be 
required to state the basis of the contention and identify the most 
similar unit it concedes is appropriate. In those cases in which a 
party intends to contest at the pre-election hearing the eligibility of 
individuals occupying classifications in the proposed unit, the party 
would be required to both identify the individuals (by name and 
classification) and state the basis of the proposed exclusion, for 
example, because the identified individuals are supervisors. Finally, 
parallel to the proposed amendment to the contents of petitions 
described in relation to Sec.  102.61 above, the non-petitioning 
parties would be required to designate, in their Statement of Position, 
the individual who will serve as the party's representative in the 
proceeding, including for service of papers. 79 FR 7328.
    The NPRM also proposed that, as part of its Statement of Position, 
the employer would be required to provide a list of all individuals 
employed by it in the petitioned-for unit. The list would include the 
same information described in relation to proposed Sec.  102.62 except 
that the list served on other parties would not include contact 
information. If the employer contends that the petitioned-for unit is 
not appropriate, the NPRM proposed that the employer also would be 
required to file and serve a similar list of individuals in the most 
similar unit that the employer concedes is appropriate. 79 FR 7328-
7329.
    Under the proposed amendments, the list filed with the regional 
office, but not the list served on other parties, would also contain 
available email addresses, telephone numbers, and home addresses. The 
regional office could then use this additional information to begin 
preparing the electronic distribution of the Notice of Election 
discussed in relation to proposed Sec.  102.67. 79 FR 7329.
    As set forth in the NPRM, completion of the Statement of Position 
form would be mandatory only insofar as failure to timely file it would 
preclude a party from raising issues, such as the appropriateness of 
the unit, and participating in their litigation. A party would also be 
precluded from litigating most issues that it failed to raise in a 
timely filed Statement of Position. However, a party would not be 
precluded from contesting the Board's statutory jurisdiction to process 
the petition, or from challenging the eligibility of a particular voter 
during the election. 79 FR 7328, 7329, 7330, 7358.
    The NPRM set forth the Board's view that the information requested 
by the Statement of Position would facilitate entry into election 
agreements and narrow the scope of pre-election hearings in the event 
parties are unable to enter into such agreements. The Statement of 
Position form would guide prehearing preparation, thereby reducing the 
time and other resources expended in preparing to participate in 
representation proceedings. The NPRM also explained that parties who 
enter into one of the forms of election agreement described in Sec.  
102.62 prior to the due date for completion of the Statement of 
Position would not be required to complete the Statement. 79 FR 7328-
29.\272\
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    \272\ The Board believes that parties may be able to enter into 
election agreements without awaiting completion of the Statement of 
Position when the petitioned-for unit is presumptively appropriate 
and when the nonemployer parties to the case are confident they are 
familiar with all the employees.
---------------------------------------------------------------------------

    The NPRM provided that the Statement of Position would be due no 
later than the date of the hearing. 79 FR 7328. Some comments in favor 
of the Statement of Position argue that if the statement is to fulfill 
its intended purposes, then parties should be required to complete and 
serve it before the hearing. UFCW; SEIU; Testimony of Melinda Hensel on 
behalf of IUOE, Local 150 II. We agree. Requiring completion and 
service of the Statement of Position such that it is received by the 
parties named in the petition and the regional director at noon on the 
business day before the opening of the hearing will help facilitate 
meaningful negotiations concerning election agreements and will narrow 
the scope of preelection hearings in the event parties are unable to 
enter into election agreements. If the Statement of Position were not 
due until the opening of the hearing, then an employer would not need 
to disclose the information required by the form to the petitioner 
until the hearing actually opened. As more fully explained below, this 
would mean that if, as is often the case, the parties attempted to 
negotiate an election agreement before the opening of the hearing, the 
petitioner would lack much of the information necessary to 
intelligently evaluate the merits of the employer's positions. In fact, 
the parties to a representation case frequently attempt to negotiate 
election agreements the day before a hearing opens as the immediate 
prospect of litigation--and its attendant costs--serves to focus the 
parties' attention on the matter at hand. Accordingly, requiring the 
filing and service of the Statement of Position at noon on the business 
day before the opening of the hearing should help the parties negotiate 
election agreements at a time when they typically are actively engaged 
in doing that very thing.
    Requiring filing and service of the Statement of Position at noon 
on the business day before the opening of the hearing will also help 
the parties narrow the scope of the hearing in the event parties are 
unable to enter into election agreements, thereby saving party and 
government resources. For example, even if the parties are unable to 
enter into an election agreement, the Statement of Position will enable 
the parties to know which issues will actually be contested at the 
hearing, so that it can run more smoothly and efficiently. In addition, 
as Caren Sencer testified on behalf of Weinberg, Roger &

[[Page 74363]]

Rosenfeld II by enabling the parties to know what the disputed issues 
are prior to the day the hearing opens, the requirement of a Statement 
of Position could result in parties' needing to pull fewer employees 
from the workplace to testify at the preelection hearing, which could 
result in fewer disruptions to the employer's business.\273\
---------------------------------------------------------------------------

    \273\ Other commenters such as UNAC/UHCP likewise complained 
that when employers refuse to tell unions what their issues are with 
a petition, unions are forced to prepare for, and find witnesses to 
testify on, all possible issues. Testimony of Kuusela Hilo on behalf 
of UNAC/UHCP II.
---------------------------------------------------------------------------

    The Croft Board held that 5 days (excluding intervening weekends 
and holidays) constituted sufficient notice for an employer to prepare 
for a hearing. Croft Metal, Inc., 337 NLRB 688, 688 (2002). As 
explained below, the Board believes that the Statement of Position form 
largely requires parties to do what they currently do to prepare for a 
pre-election hearing.'' \274\ Accordingly, under amended Sec.  
102.63(b)(1-3), a party will be provided with 7 calendar days (5 
business days) notice of the due date for completion of the form, and 
the hearing will ordinarily be set for 8 days from service of the 
notice so that the parties have approximately 1 business day to use the 
information on the form before the hearing opens.
---------------------------------------------------------------------------

    \274\ In some respects, the Statement of Position form requires 
less than what parties frequently do to prepare for a hearing. For 
example, completion of the Statement of Position form does not 
require witness preparation.
---------------------------------------------------------------------------

    Although many employer comments attack the time frame for 
completion of the Statement of Position form, its binding nature, and 
the consequences of failing to complete it, even the Chamber does not 
object to the proposal that parties be required to take positions on at 
least some of the matters addressed by the Statement of Position form. 
For example, the Chamber states in both its comments regarding the 2011 
NPRM and the 2014 NPRM that in general it does not object to the 
proposed requirement that the employer state whether it agrees that the 
Board has jurisdiction and provide requested information concerning the 
employer's relation to interstate commerce, except with respect to the 
timing and legal effect of the Statement of Position form. Similarly, 
the Chamber does not object in general to the proposed requirements 
that the employer state whether it agrees that the proposed unit is 
appropriate, and if the employer does not so agree, state the basis of 
its contention that the proposed unit is inappropriate, except with 
respect to the timing and legal effect of the Statement of Position 
form. Chamber; Chamber II. Nor does the Chamber object in general to 
the requirement that the employer raise any election bars, and state 
the name and contact information of its representative. Chamber; 
Chamber II.
    It is not surprising that the Chamber does not object to the 
requirement that an employer state whether it agrees that the Board has 
jurisdiction and provide requested information concerning the 
employer's relation to interstate commerce; that the employer state 
whether it agrees that the proposed unit is appropriate, and if the 
employer does not so agree, state the basis of its contention that the 
proposed unit is inappropriate; that the employer raise any election 
bars; and that the employer state the name and the contact information 
of its representative.\275\ After all, requiring the employer to 
provide such information plainly facilitates entry into election 
agreements and helps narrow the scope of hearings in the event parties 
are unable to enter into election agreements. For example, if the 
employer explains why it believes that the proposed unit is not 
appropriate before the hearing, the petitioner may decide that the 
employer is correct and amend its petition to meet the employer's 
objections, thereby obviating the need for a hearing. Similarly, if the 
parties are unable to enter into an election agreement but the employer 
provides the requested commerce information and agrees that the Board 
has jurisdiction before the start of the hearing, the parties are 
spared the time and expense of litigating that issue.\276\ Moreover, 
regional employees currently request such information prior to the 
opening of the pre-election hearing.\277\ And, of course, requiring the 
employer to provide the name of, and contact information (including an 
email address and fax number) for, its representative will enable the 
Board and the other parties to utilize modern methods of communication 
to communicate with the employer to resolve election issues and 
transmit case-related documents.
---------------------------------------------------------------------------

    \275\ Although the final rule provides for Statements of 
Position from different parties depending upon the type of petition 
filed, most of the comments focused on employers completing forms in 
the RC petition context. For simplification of the discussion, we 
will focus on that context for the remainder of the section.
    \276\ Because the Board must have statutory jurisdiction, the 
final rule clarifies in Sec.  102.63(b)(2)(iii) and (b)(3)(i), (iii) 
that the employer's Statement of Position in RM and RD cases 
likewise must state whether the employer agrees that the Board has 
jurisdiction over it and provide the requested information about the 
employer's relation to interstate commerce.
    \277\ See Casehandling Manual Sections 11008, 11009, 11012, 
11016, 11025, 11030, 11187, 11189, 11217; Guide For Hearing Officers 
in NLRB Representation and Section 10(k) Proceedings (``Hearing 
Officer's Guide'') at 2-5, 14-18.
---------------------------------------------------------------------------

    To be sure, as comments by the Chamber (Reply) and CDW point out, 
the Statement of Position form is a departure from current practice 
because it mandates, rather than simply requests, that employers share 
such information prior to the hearing. However, the information sharing 
goals underlying the Statement of Position form are nothing new. 
Indeed, they are reflected in best practices promoted more than a 
decade ago, as well as the Casehandling Manual and the Hearing 
Officer's Guide. A model representation-case opening letter circulated 
in 1999 and the Casehandling Manual provide that regional personnel 
should arrange a conference at least 24 hours before the opening of the 
pre-election hearing, in order to explore entry into election 
agreements or to narrow the issues for hearing. In conjunction with the 
prehearing conference, regional office personnel solicit many of the 
same positions requested by the form, and although not requiring 
information disclosure, they encourage parties to share all available 
information at the pre-hearing conference. In particular, they seek the 
employer's permission to share a list of names and classifications of 
all employees at issue with all parties because it is ``an excellent 
aid in resolving many of the eligibility and unit questions that arise 
during case processing.'' See OM Memo 99-56, http://www.nlrb.gov/reports-guidance/operations-management-memos; Casehandling Manual 
Sections 11012, 11016, 11025.1.
    Similarly, the Hearing Officer's Guide provides that the hearing 
officer should meet with parties' representatives prior to the hearing 
to discuss the issues they intend to raise, and that in preparation for 
the hearing, the hearing officer should question the parties regarding 
jurisdictional facts, unit scope, unit composition, availability of a 
list of employee classifications, inclusions and exclusions, and the 
issues that will be raised at the hearing. Hearing Officer's Guide at 
2-5. The Guide instructs the hearing officer to encourage the parties 
at the prehearing conference to share information and documents, and to 
discuss the nature of the evidence to be presented. Hearing Officer's 
Guide at 4-5. Put simply, the Board believes that the information at 
issue is so helpful and important for purposes of facilitating entry 
into election agreements and narrowing the scope of pre-election 
hearings that the employer should be required to produce the 
information or be precluded from litigating certain issues if it 
refuses.

[[Page 74364]]

    The Board also finds that use of the Statement of Position form is 
consistent with Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), 
where the Board observed,''[I]n order to effectuate the purposes of the 
Act through expeditiously providing for a representation election, the 
Board should seek to narrow the issues and limit its investigation to 
areas in dispute.'' Thus, the amendments give all parties clear, 
advance notice of their obligations, both in the rules themselves and 
in the statement of procedures and Statement of Position form. However, 
the amendments are not intended to preclude any other formal or 
informal methods used by the regional offices to identify and narrow 
the issues.
    Although the Chamber does not object to some of the information 
solicited by the Statement of Position form, the Chamber and many 
others do object to the requirement that the employer provide certain 
items of information. For example, many comments object to the 
requirement that the employer: (1) Describe the most similar unit that 
it concedes is appropriate if it contends that the proposed unit is not 
appropriate; \278\ (2) provide the lists of employees in the proposed 
unit and in any proposed alternative unit; \279\ (3) identify any 
individuals occupying classifications in the proposed unit whose 
eligibility to vote the employer intends to contest at the pre-election 
hearing, and the basis for each such contention; \280\ (4) identify all 
other issues it intends to raise at the hearing; \281\ and (5) state 
its position on election details such as the type, date, time, and 
location of any election.\282\
---------------------------------------------------------------------------

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

    Except as noted below, the Board is not persuaded by the comments 
objecting to the content of the information requested by the Statement 
of Position form. Thus, the Board believes that the Statement of 
Position form asks parties to provide information that would facilitate 
entry into election agreements and narrow the scope of hearings in the 
event parties are unable to enter into such agreements, so as to 
eliminate unnecessary litigation and help the Board expeditiously 
conduct an election if it determines that a question of representation 
affecting commerce exists. By doing so, the Statement of Position form 
helps the Board to fairly and expeditiously resolve questions 
concerning representation.\283\ The Board also believes that the 
Statement of Position largely requires parties to do what they 
currently do to prepare for a pre-election hearing.'' Amy Bachelder, a 
former NLRB field attorney of 25 years, agrees. She testified that 
``the issues related to the required Statement of Position in the pre-
election hearing reflect little more than what is current standard pre-
election hearing practice.'' \284\
---------------------------------------------------------------------------

    \283\ The Board categorically denies the National Small Business 
Association's accusation that the Statement of Position form is 
intended to coerce employers into entering into election agreements. 
We take this opportunity to repeat that the form is designed to 
facilitate election agreements and to narrow the scope of pre-
election hearings in the event parties are unable to enter into 
election agreements. Thus, the form is intended to help the Board 
avoid unnecessary litigation and expeditiously resolve questions 
concerning representation.
    \284\ See also National Nurses United (NNU) (``The requirement 
for a prompt Statement of Position simply memorializes what Board 
Agents assigned to processing petitions already try to do.'')
---------------------------------------------------------------------------

1. Identification of Alternative Unit
    Numerous comments address the Board's proposal (in Sec.  
102.63(b)(1)(i)) that, in those cases in which the employer takes the 
position that the proposed unit is not an appropriate unit, it would be 
required to ``describe the most similar unit that the employer concedes 
is appropriate.'' Many comments also address the Board's related 
proposal (in Sec.  102.63(b)(1)(iii)) that, if the employer contends 
that the proposed unit is not appropriate, it would be required to file 
and serve a list of individuals in the ``most similar unit'' that it 
concedes is appropriate. As discussed in the NPRM, these proposed 
changes were intended to assist the parties in identifying issues that 
must be resolved at a pre-election hearing and thereby facilitate entry 
into election agreements. They were also intended to codify parties' 
existing practice where they contend that the proposed unit is not 
appropriate because the smallest appropriate unit includes additional 
classifications or facilities. See, e.g., Westinghouse Electric Corp., 
137 NLRB 332 (1962).
    A large number of comments oppose these proposals. In general, 
those comments argue that an employer should not have to concede the 
appropriateness of any unit before evidence is presented at a hearing 
and the petitioner clarifies who specifically it wants included in, or 
excluded from, the unit. For example, NAM contends that the requirement 
that an employer posit an alternate appropriate unit ``places the 
employer, as the non-petitioning party, in the extraordinary position 
of having to concede the appropriateness of a unit where it may oppose 
the propriety of the unionization effort and where it is without 
determinative evidence that its employees wish to be unionized.'' SHRM, 
among others, contend that this proposed requirement is vastly 
different from the Board's current representation case procedures, 
which, ``[a]t most * * * require non-petitioning parties to take a 
position with respect to the appropriateness of the petitioned for 
unit.''
    Other comments, such as SHRM's, question the Board's statutory 
authority for requiring non-petitioning parties to define the ``most 
similar unit'' when the current rules permit parties to propose 
alternative units that merely may be appropriate under the particular 
circumstances. Those comments further contend that the Board should 
explain the specific legal framework that it will use to determine 
whether the alternative units proposed by employers are, in fact, the 
``most similar'' to the unit described in the petition. SHRM further 
seeks clarification that employers will not be required to identify all 
potentially appropriate units or else risk waiver of any arguments 
regarding such alternative unit descriptions at the hearing given the 
large number of potentially appropriate bargaining units and the 
potential difficulty in determining which alternative unit would be the 
``most similar.''
    Similarly, comments like CDW's object on the ground that the Act 
does not require that elections occur in the most appropriate unit. See 
Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950) (the Board need not 
determine ``that the unit for bargaining be the only appropriate unit, 
or the ultimate unit, or the most appropriate unit; the Act requires 
only that the unit be `appropriate''') (emphasis in original). CDW 
further contends that the proposed ``most similar unit'' rule unfairly 
favors unions by permitting them to choose among the complete array of 
potential ``appropriate'' units while, at the same time, limiting 
employers to a single potential unit that is ``most similar'' to what 
the union has proposed.
    The Chamber argues that, unless and until the proposed unit has 
been subject to examination at a hearing and either been agreed upon by 
the parties or deemed appropriate by the Board, the proposed ``most 
similar unit'' requirement poses a significant burden on employers. 
Other comments, including the Chamber's, argue that the proposed 
requirement that an employer not only agree or disagree with the 
union's petitioned-for unit, but go

[[Page 74365]]

further and make a proposal itself, ``amounts to a forced pleading and 
raises serious due process and free speech concerns.''
    At least one comment questions the need for the proposed ``most 
similar unit'' rule in the acute health care field. Thus, AHA asserts 
that there is no need for an employer in the acute health care field to 
recommend an alternative unit, as there are only eight appropriate 
units under the Board's regulations, and unions organizing under those 
rules are familiar with what constitutes an appropriate unit.
    After careful consideration of all the comments concerning the 
``most similar unit'' requirement proposed in the NPRM, the Board has 
decided to modify this aspect of the NPRM. Accordingly, the final rule 
will not require that, in those cases in which the employer takes the 
position that the proposed unit is not an appropriate unit, the 
employer ``describe the most similar unit that the employer concedes is 
appropriate.'' Rather, in those cases where the employer takes the 
position that the proposed unit is not an appropriate unit, Sec.  
102.63(b)(1)(i) of the final rule will require the employer to ``state 
the basis for its contention that the proposed unit is inappropriate, 
and state the classifications, locations, or other employee groupings 
that must be added to or excluded from the proposed unit to make it an 
appropriate unit.'' \285\
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    \285\ The amendments thus leave employers ``free to propose any 
alternative unit that may be appropriate under the particular 
circumstances.'' ACE II. The final rule also imposes similar 
requirements on the individual or labor organization in the RM 
context and on the employer and the certified or recognized 
representative of employees in the RD context. Amended Sec. Sec.  
102.63(b)(2)(i) and (b)(3)(i).
---------------------------------------------------------------------------

    The Board believes that the final rule will assist the parties in 
identifying issues--including the appropriateness of the proposed 
unit--that must either be agreed to by the parties and approved by the 
regional director, or be resolved at a pre-election hearing. 
Specifically, identification of the precise objections to the 
appropriateness of a proposed unit before the pre-election hearing will 
facilitate entry into election agreements and narrow the scope of 
hearings in the event parties are unable to enter into such agreements. 
Accordingly, the Board believes that the requirement will enable it to 
more promptly resolve questions concerning representation.
    To begin, the Board disagrees with comments, including SHRM's, that 
argue that the proposed unit-appropriateness requirements are vastly 
different from the Board's current representation-case procedures. 
Merely by virtue of explaining the alleged problems with the proposed 
unit, the employer typically must identify the necessary changes to 
that unit. Thus, for example, if an employer with multiple facilities 
says that a proposed single facility unit is not appropriate, the only 
way to explain or support this argument is to point out what it 
believes is inappropriate about it, i.e, that it excludes the employees 
of its other facility, located across the street, who do the same work 
under the same conditions and who frequently transfer back and forth 
between the two facilities. And the employer is free to later agree to 
the appropriateness of a different unit if the petitioner alters its 
position regarding the unit in response to the position taken by the 
employer. As such, the final rule merely codifies and standardizes the 
best party practices under the current representation case procedures 
and, therefore does not differ dramatically from the current 
procedures.\286\ The biggest difference, as explained above, is that 
employers will be required, rather than requested, to share their 
positions on unit appropriateness, including inclusions and exclusions 
of certain job classifications, locations, or other employee groupings 
at noon on the business day before the hearing.
---------------------------------------------------------------------------

    \286\ To the extent that comments perceived that the ``most 
similar'' language charted a different path from current practice, 
the change in the final rule should alleviate those concerns.
---------------------------------------------------------------------------

    The Board believes that the change to the final rule language moots 
comments based on statutory concerns for the proposed ``most similar 
unit'' requirement since the Act does not require that elections occur 
in the most appropriate unit, only an appropriate unit. Some of those 
comments contend that it could be extremely difficult for non-
petitioning parties to determine which possible alternative unit would 
be the ``most similar'' to the proposed unit, especially where the 
proposed rules do not define what is meant by ``most similar.'' \287\ 
In response, the final rule makes clear that an employer only has to 
specify the changes necessary to make an appropriate unit. And the 
Board hereby clarifies, in response to SHRM's comment, that under the 
final rule, a non-petitioning party that takes the position that the 
proposed unit is not an appropriate unit does not have to identify all 
potentially appropriate units; rather, it would merely have to specify 
the basis for its contention, and state the classifications, locations 
or other employee groupings that it believes must be added to or 
excluded from, the proposed unit to make it an appropriate unit 
(singular).
---------------------------------------------------------------------------

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

    The Board concludes that the final rule will not significantly 
burden employers. As explained above concerning the Statement of 
Position form more generally, the Board believes that the time and 
resources expended by employers to determine which classifications, 
locations or other employee groupings must be added to or excluded 
from, the proposed unit to make it an appropriate unit are largely the 
same resources that would be expended in any event by a reasonably 
prudent employer in preparing to either enter into an election 
agreement or take contrary positions at a pre-election hearing under 
the current rules.
    The Board also disagrees with AHA's assertion that there is no need 
for an alternative unit requirement in the acute health care field. 
Under the final rule, if an employer takes the position that the 
proposed unit is not an appropriate unit under the Board's regulations 
that specifically apply to the acute health care field, the employer 
will simply have to specify the classifications, locations or other 
employee groupings that it believes must be added to or excluded from, 
the proposed unit to make it an appropriate unit under those 
regulations.
    Other comments, such as the Chamber's, object that the proposed 
rules absolve the Board of its responsibility to determine the 
appropriate unit. To the extent that the rationale of those objections 
also applies to the amended language of the final rule, the Board 
believes that they are nevertheless in error. As the Chamber's comment 
correctly points out, it is the Board's responsibility under Section 
9(b) of the Act to make appropriate unit determinations. Nothing in the 
final rule changes that. Indeed, the final rule ensures that the Board 
will have sufficient evidence in the record to make an appropriate unit 
determination even if the employer fails to complete its Statement of 
Position. Specifically, if the employer fails to take a position 
regarding the appropriateness of a proposed unit that is not 
presumptively appropriate, then as discussed below in connection with 
Sec.  102.66, the regional director may direct the hearing officer to 
permit the petitioner to introduce evidence regarding the 
appropriateness of the proposed unit.
    Thus, contrary to CDW, the final rule does not permit the Board to 
direct an election in an inappropriate unit simply because the employer 
does not suggest an alternative unit in the Statement of Position. 
Moreover, contrary to comments by ALFA and ACE, among

[[Page 74366]]

others, the Board has not shifted the burden. The final rule is 
consistent with Allen Health Care Services, 332 NLRB 1308 (2000), in 
which the Board held that even when an employer refuses to take a 
position on the appropriateness of a proposed unit, the regional 
director must nevertheless take evidence on the issue unless the unit 
is presumptively appropriate. The final rule thus permits the 
petitioner to offer evidence in such circumstances and merely precludes 
non-petitioners, which have refused to take a position on the issue, 
from offering evidence or cross-examining witnesses.
    Likewise, there is no merit in Littler Mendelson's argument that, 
under the proposed rules, the unit-appropriateness question will 
necessarily turn on ``the extent to which employees have organized,'' 
in violation of Section 9(c)(5) of the Act. Prepared Testimony of David 
Kadela on behalf of Littler Mendelson. In NLRB v. Metropolitan Life 
Insurance Co., 380 U.S. 438, 441-442 (1965), the Supreme Court made 
clear that, under Section 9(c)(5), the Board may consider the wishes of 
a petitioning union as a factor in the making a unit determination, but 
those wishes cannot be the only factor. Accordingly, in cases where the 
proposed unit is not presumptively appropriate, the Board cannot stop 
with the observation that the petitioning union proposed a particular 
unit, but must proceed to determine, based on community-of-interest 
factors, that the proposed unit is an appropriate unit. Again, nothing 
in the final rule changes that, and the deletion of the ``most 
similar'' language removes the application of the rule even further 
from Littler Mendelson's concern.
2. Initial Employee Lists
    The NPRM proposed that the employer provide as part of its 
Statement of Position a list of the full names, work locations, shifts, 
and job classifications of all individuals in the proposed unit, and if 
the employer contends that the proposed unit is inappropriate, to also 
provide a list of the full names, work locations, shifts, and job 
classifications of all employees in the most similar unit that the 
employer concedes is appropriate. 79 FR 7355. The NPRM also proposed 
that the initial lists provided to the regional director, but not the 
parties, also include contact information for such employees. 79 FR 
7355. Several comments, such as ALFA's, question why production of such 
employee lists (without personal contact information) is necessary 
until an appropriate unit is identified by the regional director. 
Others, like SHRM's, take issue with the necessity for multiple lists 
to be provided as part of the Statement of Position form when the 
employer proposes alternative groupings of employees to those 
petitioned for by the union. And COLLE claims (Testimony of Deakins on 
behalf of COLLE II) that the proposal to require employers to disclose 
names and job classifications as part of the Statement of Position 
conflicts with the NPRM proposal to defer deciding individual 
eligibility or inclusion questions under the so-called 20 percent rule. 
In contrast, SEIU's comment requests a blanket rule that employee lists 
complete with contact information be provided to the petitioner within 
2 days of the petition being filed.
    As discussed above, the final rule provides that in the event the 
employer contends that the proposed unit is not appropriate, the 
employer shall state the basis for its contention that the proposed 
unit is inappropriate, and state the classifications, locations, or 
other employee groupings that must be added to or excluded from the 
proposed unit to make it an appropriate unit. Amended Sec.  
102.63(b)(1)(i). The Board concludes that requiring the employer 
additionally to furnish a list of the names, job classifications, work 
locations, and shifts of the individuals in the proposed unit, a 
similar list for the individuals that the employer contends must be 
added to the proposed unit to make it an appropriate unit, and the 
names of the individuals, if any, whom it believes must be excluded 
from the proposed unit to make it an appropriate unit will help the 
Board to expeditiously resolve questions of representation by 
facilitating entry into election agreements, narrowing the scope of the 
preelection hearing in the event that parties are unable to enter into 
an election agreement, and reducing the need for election-day 
challenges based solely on lack of knowledge of the voters' identities.
    As an initial matter, the Board concludes that the lists will help 
ensure that all parties have access to the information they need to 
resolve disputes concerning the appropriate unit in which to conduct 
the election. As the comments of Caren Sencer (Testimony of Sencer on 
behalf of Weinberg, Roger and Rosenfeld II) and Supplemental Written 
Testimony of Thomas W. Meiklejohn on behalf of Livingston, Adler, 
Pulda, Meiklejohn & Kelly demonstrate, one of the impediments to 
reaching an election agreement is that the parties sometimes talk past 
each other regarding the appropriate unit in which to conduct the 
election because, unbeknownst to them, they are using different 
terminology to describe the very same employees.\288\ In our 
experience, parties also sometimes use different terms to describe work 
locations and shifts. The requirement that employers disclose the 
names, job classifications, work locations and shifts of employees will 
enable the parties to discover if that is the problem, and therefore 
assist the parties in entering into an election agreement.
---------------------------------------------------------------------------

    \288\ Sencer testified:
    Frequently we have a problem where we talk past each other, The 
employee identifies themselves as a technician. The employer 
indentifying [sic] themselves as an associate. We say ``Technicians 
are in'' and they say, ``We have no technicians, we only have 
associates.'' And we might actually not have a disagreement, but 
we're using different language to talk about the same points. So 
simply having the classifications used by the employer would allow 
for the easier resolution of issues because everyone would know what 
they were talking about * * *.

    See also Supplemental Written Testimony of Meiklejohn on behalf 
of Livingston, Adler, Pulda, Meiklejohn & Kelly (``When the Employer 
finally disclosed the names of the employees in the `disputed' job 
classifications, it turned out that we were in agreement on many of 
the employees. The first two days of hearing had, in large part, 
been devoted to issues that were not in contention.'')
---------------------------------------------------------------------------

    Requiring employers to furnish this information to the nonemployer 
parties to the case plainly facilitates entry into election agreements 
and helps narrow the issues in dispute in the event the parties are 
unable to enter into election agreements even if the parties do not 
have a terminology problem. Under the current rules, the names of the 
individuals occupying classifications (or falling within other employee 
groupings) that the employer would like added to or excluded from the 
unit in many cases are unknown to the petitioning union. Often, the 
union also does not know where and on what shifts individuals in those 
classifications (or in those employee groupings) work, what they do, or 
even how many employees in each such classification (or employee 
grouping) there are. Accordingly, the petitioner cannot make an 
informed decision about whether it agrees with the employer's 
objections to the proposed unit and with the employer's proposed 
alterations to the unit. However, with information from such lists, a 
petitioner, in consultation with its employee supporters, should be 
able to make informed decisions about whether to amend its petition to 
conform in whole or in part to the alternate unit suggested by the 
employer.\289\ Accordingly, the

[[Page 74367]]

requirement that the employer provide the information in question 
serves the goals of facilitating entry into election agreements which 
obviates the need for pre-election litigation and by narrowing the 
number of issues in dispute between the parties in the event the 
parties are unable to enter into an election agreement.
---------------------------------------------------------------------------

    \289\ Similarly, if a petitioner petitions for a single facility 
unit and the employer contends that the petitioned-for unit is not 
appropriate because it does not also include the employees at its 
other facility, the employer must so state and provide the list of 
employees at the second facility.
---------------------------------------------------------------------------

    Indeed, as illustrated by comments like NNU's, without the 
information contained in the initial lists, petitioning unions are 
often ``in the dark'' as to the actual contours of any alternative 
units proposed by an employer, including the alternative unit's size. 
If parties are to reach reasonable agreements concerning which 
classifications, locations or employee groupings the bargaining unit 
should include, then nonemployers should have access to the information 
that is necessary for them to intelligently evaluate an employer's 
claim that certain classifications, locations or other employee 
groupings should be added to or excluded from, the petitioner's 
proposed unit. The Board is not persuaded that employers should be 
allowed to keep plainly pertinent information to themselves that would 
clearly assist parties to knowledgeably reach a voluntary resolution of 
the issue.
    The Board also concludes, in agreement with AFL-CIO II, that the 
information will serve the salutary function of facilitating entry into 
Norris-Thermador agreements, whereby parties definitely resolve issues 
of eligibility by constructing a list of eligible voters and including 
it in their election agreement. See Casehandling Manual Section 11324 
(discussing Norris-Thermador Corp., 119 NLRB 1301 (1958)). Such 
agreements obviously can expedite the period between the conduct of the 
election and the certification of the results by essentially limiting 
the potential universe of post-election disputes to those involving 
election objections. Put simply, it will be easier for the nonemployer 
parties to enter into a Norris-Thermador agreement if the employer is 
required to disclose as part of its Statement of Position the names, 
job classifications, work locations and shifts of employees in the 
proposed unit and for any alternative unit it proposes.
    The Board further concludes that the production of employee lists 
complete with each employee's name, work location, shift, and job 
classification prior to the opening of the pre-election hearing 
furthers the second purpose articulated by the Board in Excelsior. 
Thus, production of the initial lists of employees should reduce the 
need for election-day challenges based solely on lack of knowledge of 
the voters' identities by giving the nonemployer parties more time to 
investigate and formulate knowledgeable positions about the eligibility 
of any such employees.
    For all these reasons, amended Sec.  102.63(b)(1)(iii) of the final 
rule requires the employer to provide a list of the full names, work 
locations, shifts, and job classifications of all individuals in the 
proposed unit, and if the employer contends that the proposed unit is 
inappropriate, to (1) separately list the full names, work locations, 
shifts, and job classifications of all individuals that the employer 
contends must be added to the proposed unit to make it an appropriate 
unit and (2) indicate those individuals, if any, whom it believes must 
be excluded from the proposed unit to make it an appropriate unit.\290\ 
And because, as shown, the information on the lists is useful for 
purposes beyond resolving individual eligibility issues, we reject 
COLLE's claim (Testimony of Deakins on behalf of COLLE II) that there 
is a conflict between the initial list disclosure requirements in Sec.  
102.63 and the Board's conclusion discussed below in connection with 
Sec. Sec.  102.64 and 102.66 that resolution of disputes concerning the 
eligibility or inclusion of individual employees ordinarily is not 
necessary in order to determine if a question of representation exists, 
and, therefore, that such disputes can be resolved, if necessary, post-
election.
---------------------------------------------------------------------------

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

    To be sure, facilitating agreements and thereby avoiding litigation 
of these issues might best be served by mandating disclosure of 
employee list information (including contact information) within 2 days 
of a petition's filing (and well before the opening of a pre-election 
hearing), as SEIU suggests. However, as discussed above in connection 
with Sec.  102.62, the Board does not believe it would be appropriate 
to require disclosure of employee contact information to the 
nonemployer parties to the case before the regional director finds that 
a question of representation exists (or the employer admits that a 
question of representation exists by entering into an election 
agreement). Moreover, given employer protests about their abilities to 
prepare for a hearing in 7 days (when a petition's filing actually 
takes them by surprise), the Board is hesitant to impose a blanket 
requirement that such disclosures should occur so quickly after every 
petition. At a minimum, the Board believes that stipulations concerning 
the unit will be better facilitated and any pre-election hearings will 
avoid unnecessary litigation, if the additional information is made 
available 1 business day before the hearing is set to open. 
Accordingly, the final rule provides that employee lists complete with 
full names, job classifications, work locations, and shifts, will be 
part of the Statement of Position, to be provided to the nonemployer 
parties to the case at noon on the business day before the opening of 
the pre-election hearing.
    This amendment is yet another effort to build upon the existing 
best practices in the Board's regional offices. Regional personnel 
currently request from the employer--early in a representation case's 
processing--a list of employees' names and job classifications in the 
petitioned-for unit and each other unit that the employer contends is 
appropriate for purposes of checking the showing of interest and 
resolving potential eligibility and unit issues.\291\ Because regions 
know that the provision of such information to all parties to the case 
is an excellent aid in resolving many of the eligibility and unit 
questions that arise during case processing, regions encourage the 
employer to permit the region to provide the lists to the petitioner 
and all other parties. See Casehandling Manual Sections 11009, 11025.1, 
11030.5; OM Memo 99-56; Hearing Officer's Guide at 2-5. But employers 
currently are not required to provide such information. Indeed, an 
employer's refusal to do so currently has no legal consequences beyond 
inhibiting the Board agent's efforts to resolve eligibility and unit 
issues. The Board agrees with the AFL-CIO that parties should be able 
to more promptly resolve disputes if this information is required to be 
provided to both the Board and the nonemployer parties before any pre-
election hearing has begun, and therefore the rule precludes the 
employer from litigating certain issues if the employer fails to

[[Page 74368]]

share the information.\292\ As discussed above, the final rule's 
provision for the initial employee list(s) being provided to the 
nonemployer parties no later than at noon on the business day before a 
pre-election hearing is set to open should, consistent with the AFL-
CIO's analysis, make election agreements more likely and, in the event 
a hearing is required, reduce the issues to be litigated and therefore 
reduce cost and resources otherwise expended.
---------------------------------------------------------------------------

    \291\ For example, Casehandling Manual Section 11025.1 provides 
that in its initial communication with the employer, the region 
should request that the employer submit an alphabetized list of the 
full names and job classifications of the employees in the 
petitioned-for unit and, as the case develops, in any alternative 
units proposed by the employer. Casehandling Manual Sections 11025.1 
and 11030.5 indicate that the purpose of such lists is not just to 
check the showing of interest, but also to resolve possible 
eligibility and unit issues.
    \292\ The Board believes that the purposes of the form will best 
be realized if parties are faced with litigation preclusion for 
failing to complete it. However, the Board is equally persuaded that 
implementing the Statement of Position form would be an improvement 
over the status quo even if it were not coupled with the threat of 
preclusion, because we believe at least some employers would 
complete and serve the form if the Board's rules explicitly required 
it, and the form would guide hearing preparation. Thus, the Board 
would mandate service of the form by petitioners (102.60(a)), 
completion of the form by the nonpetitioning parties named on the 
petition (102.63), and introduction of the form at the opening of 
the hearing (102.66(b)), even if use of the form was not enforced 
through mandatory litigation preclusion.
---------------------------------------------------------------------------

    The Board rejects the notion, raised by SHRM and others, that the 
initial employee lists constitute improper unilateral pre-hearing 
discovery. In fact, as the AFL-CIO points out (Reply), the Statement of 
Position form--of which the initial employee lists are a part--
constitutes the employer's response to positions already taken by a 
union in its petition, including: a description of the unit it desires 
to represent, categories of employees it believes should be included in 
or excluded from the unit, an estimate of the unit's total size, and 
the type, date(s), time(s) and location(s) of election it seeks. As 
described more fully in Sec.  102.66 below, immediately after the 
Statement of Position is received into evidence at the hearing, the 
petitioning union is required to respond to each position raised in the 
statement. In the Board's view, there is no additional bilateral 
discovery that employers would need from a petitioning union to 
adequately contest unit issues at the hearing. After all, it is nearly 
always the employer who is in possession of the relevant evidence on 
virtually all issues likely to be contested at a pre-election hearing 
concerning the proposed bargaining unit. Thus, as discussed more fully 
below, the employer knows its employees' terms and conditions of 
employment because it established them. And, as shown, regions already 
ask employers for name and classification information.
    As noted, the NPRM proposed that the initial lists provided to the 
regional director, but not the parties, would include employee contact 
information for the employees on the list(s). 79 FR 7355. Some 
comments, such as those filed by ACE and the Chamber II, question the 
need for that information. The NPRM proposed that the regional office 
would use the email addresses and telephone numbers from this separate 
list to begin preparing for electronic transmission of the election 
notice that is issued once the parties enter into an election agreement 
or the regional director directs an election. 79 FR 7329. ALFA 
criticizes the proposal on the grounds that the provision of greater 
information through the vehicle of initial employee lists will generate 
more issues for litigation.
    However, as discussed below in connection with Sec.  102.67, the 
Board has decided to reject the proposal in the NPRM to require the 
regional director to serve the affected employees with the election 
notice. Accordingly, the Board has likewise decided to reject the 
proposal in the NPRM to require the employer to disclose to the 
regional director as part of its Statement of Position contact 
information for employees on the initial lists. Accordingly, employers 
will not be required to disclose employee contact information to either 
the regional director or the nonemployer parties to the case as part of 
its Statement of Position.
    Cook Illinois, among others, express concerns about petitioners 
misusing information received from an initial employee list, and 
Littler Mendelson fears unions filing petitions simply to acquire 
employee information concerning units that it has no intention of 
representing. As expressed in Sec.  102.62 above, the Board has not 
experienced significant misuse of information long-provided in 
Excelsior lists, and it does not reasonably expect misuse of employee 
names simply because that information will be provided prior to a 
direction of election. Nor does the Board expect such misuse simply 
because the employer will now be required to disclose job 
classifications, work locations, and shifts. If such misuse occurs, 
then the Board can provide a remedy. Currently, in appropriate 
circumstances, a regional director may limit a petitioner's ability to 
refile a petition as a condition for approving the withdrawal. See 
Casehandling Manual Section 11118. Similarly, as mentioned in Sec.  
102.60, the regional directors and the Board will continue to have 
discretion to reject a petitioner's request for withdrawal of the 
petition if the request would run counter to the purposes of the Act. 
See Casehandling Manual Section 11110.
    Some comments argue that it will be particularly burdensome to 
produce multiple lists, but the Board believes that with modern record-
keeping and retrieval technology, the requirement can be easily met by 
most employers.\293\ Whether the employer asserts that the unit should 
go far beyond what the petitioner proposed is, of course, up to the 
employer. For example, employers sometimes assert that a proposed unit 
containing a handful of employee classifications must instead be 
``wall-to-wall'' (including every employee classification at the 
location) in order to be appropriate. If the employer's position on the 
unit is proven correct, or nearly so, then the full information about 
all or most of those employees would have to be provided pursuant to an 
amended petition anyway when the election is directed. If the 
employer's position is untenable, then the burden of producing a list 
of employees in that alternative unit is truly self-imposed because the 
employer chose to take an extreme litigating position. In any event, as 
discussed above, the final rule language no longer contains a 
requirement that the employer produce lists corresponding to ``the most 
similar unit that the employer concedes is appropriate.'' So, to the 
extent some comments foretold a need to produce multiple alternative 
unit lists because of a lack of clarity concerning which concededly 
appropriate iteration was ``most similar'' to the petitioned for unit, 
that concern should be alleviated. Instead, if the employer contends 
that the unit described in the petition is inappropriate, the final 
rule clarifies that the employer need only produce one alternative list 
containing information about employees in the unit that the employer 
contends is an appropriate unit. Moreover, as discussed above, the 
Board has decided to reject the proposal that employers provide 
separate lists to the regional director containing contact information. 
In short, employers will be required to produce fewer lists under the 
final rule than the NPRM proposed, and the employer may file the same 
list(s) with the regional director that it provides to the nonemployer 
parties to the case.
---------------------------------------------------------------------------

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

    We are not persuaded by SHRM's contention that there is little 
reason to require the initial employee lists because they will not 
necessarily reflect an accurate list of eligible voters. As already 
explained above, the initial lists provided to the nonemployer parties 
to the case should facilitate entry into election agreements and narrow 
the scope of pre-election hearings in the

[[Page 74369]]

event parties are unable to enter into election agreements. Moreover, 
the nonemployer parties to a case may still find it prudent to begin 
their investigation of the eligibility of any unknown employees 
notwithstanding the possibility of turnover in the unit--between the 
date the initial lists are provided and the close of the eligibility 
period--in which the election is ultimately directed. That the initial 
lists may not entirely eliminate the need for election-day challenges 
in all cases certainly does not mean that provision of the lists cannot 
reduce the need for at least some election-day challenges in some 
cases. Thus, the Board believes that more information earlier in the 
process will avoid unnecessary delay in conducting elections and 
resolving questions of representation.
    Baker and McKenzie questions whether the employer will be obligated 
to update the employee information that it provides in connection with 
the Statement of Position when it provides the voter list pursuant to 
Sec.  102.67 after an election is directed. The answer is ``yes.'' To 
be sure, some of the information required to be produced as part of the 
Statement of Position is also required to be produced as part of the 
voter list in the event an election is agreed to or directed. For 
example, both the Statement of Position and the voter list amendments 
require employers to furnish the employees' names, job classifications, 
work locations, and shifts. However, there may be employee turnover 
between the time the Statement of Position is filed and the eligibility 
date for voting in the election, even assuming the unit in which the 
election is conducted does not differ from the petitioned-for unit. It 
is also possible that employee job classifications, work locations, and 
shifts may change during this interval. It would hardly serve the 
purpose of maximizing the likelihood that all eligible voters be 
exposed to the nonemployer party arguments concerning representation if 
the employer were permitted to provide the nonemployer parties with an 
outdated list of employees. Nor would it serve the goal of avoiding 
challenges based solely on lack of knowledge of the identities of the 
voters if the employer were permitted to provide the nonemployer 
parties with a list of eligible voters containing outdated information 
about them.\294\ Moreover, although an employer is not required to 
furnish the nonemployer parties with employee contact information as 
part of its Statement of Position, the employer is required to furnish 
the nonemployer parties with employee contact information shortly after 
the parties enter into an election agreement or the regional director 
directs an election. Accordingly, as the amendments to Sec. Sec.  
102.62(d) and 102.67(l) make clear, once an election is agreed to or 
directed, the employer must furnish the nonemployer parties to the case 
and the regional director with an (up-to-date) list of the full names, 
work locations, shifts, job classifications and contact information 
(including home addresses, available personal email addresses and 
telephone numbers) of all eligible voters, and in a separate section of 
the list the same information for those individuals the parties have 
agreed to permit to vote subject to challenge or those individuals who, 
according to the direction of election, will be permitted to vote 
subject to challenge.\295\
---------------------------------------------------------------------------

    \294\ The possibility of having to update employee information 
already existed under the prior rules. Thus, prior to the NPRM, 
employers were required to furnish a list of the names and home 
addresses of all eligible voters once an election was agreed to or 
directed even though, as noted, the region had previously requested 
the employer to submit an alphabetized list of the full names and 
job classifications of the employees in the petitioned-for unit and 
in any alternative units proposed by the employer. Casehandling 
Manual Sections 11025.1 and 11030.5.
    \295\ Consistent with the amendments to Sec.  102.62, the final 
rule provides that the list(s) of names shall be alphabetized and be 
in an electronic format approved by the General Counsel, unless the 
employer certifies that it does not possess the capacity to produce 
the list(s) in the required form.
    The NPRM proposed in Sec.  102.63(b)(1)(v), (2)(v), and 3(v) 
that the employer would be precluded from contesting the 
appropriateness of the proposed unit at any time and from contesting 
the eligibility or inclusion of any individuals at the pre-election 
hearing if the employer fails to timely furnish the lists of 
employees as part of the Statement of Position. 79 FR at 7355-7366. 
The final rule moves this language to amended Sec.  102.66(d) in the 
paragraph entitled ``Preclusion.''
---------------------------------------------------------------------------

3. Identification of Individual Eligibility and Other Issues
    As noted above, the NPRM proposed that as part of its Statement of 
Position, the non-petitioner identify any individuals occupying 
classifications in the petitioned-for unit whose eligibility to vote it 
intends to contest at the pre-election hearing and the basis for each 
such contention, and describe all other issues the non-petitioner 
intends to raise at hearing.\296\ Comments criticize these requirements 
as imposing unfair and unrealistic burdens because, for example, it may 
not be possible to identify all legal issues until testimony is 
taken.\297\
---------------------------------------------------------------------------

    \296\ The final rule uses the single term ``proposed unit'' in 
place of the two terms ``proposed unit'' and ``petitioned-for unit'' 
that the NPRM used in Sec.  102.63 to describe Statement-of-Position 
obligations. 79 FR at 7355.
    \297\ See, e.g., Chamber; ACC.
---------------------------------------------------------------------------

    The Board is not persuaded by these comments. It clearly 
facilitates entry into election agreements and helps narrow the scope 
of the hearing if all parties state what they believe the open issues 
(including eligibility issues) are and what they seek to litigate in 
the event of a hearing. It is thus not surprising that Board agents 
currently ask the parties to do precisely that now. For example, prior 
to the scheduled hearing, Board agents attempt to secure the basic 
facts with respect to each potential issue, including bargaining unit 
and eligibility issues, and they use the payroll lists to resolve 
eligibility and unit issues. Casehandling Manual Sections 11009, 11012, 
11016, 11025, 11187. As also shown, the hearing officer attempts to 
meet with parties' representatives prior to the hearing to discuss the 
issues they intend to raise, and the hearing officer is instructed to 
discuss at the pre-hearing conference ``each party's position on each 
issue.'' Hearing Officer's Guide, 2-3, 5, 15-18 (emphasis added); OM 
Memo 99-56.
    Given that Board agents are already asking the parties to state the 
issues (including individual eligibility issues) that they intend to 
raise at the hearing, we reject the argument that it is unfair and 
unrealistic for the Board to require the parties to do so as part of 
their Statements of Position. Some comments, such as the Chamber's and 
ACC's, complain that it will be difficult to identify individual 
eligibility questions if the union's petition describes the unit in 
vague terms. However, that situation could arise under the prior rules 
and the employer may move to amend its Statement of Position if union 
clarification of its positions at the hearing calls for more nuanced 
responses from the employer.\298\
---------------------------------------------------------------------------

    \298\ UFCW requests that if an employer intends to contest at 
the pre-election hearing the eligibility of an individual on the 
basis of supervisory status, the employer should be required to 
identify in its Statement of Position the particular indicia of 
supervisory status that the individual possesses. The Board declines 
to require the employer to do so. The Board notes in this regard 
that a union currently is not required to identify on its petition 
why it believes that the employees in its petitioned-for unit share 
a community of interest. We think that for purposes of determining 
whether to enter into an election agreement prior to the opening of 
a hearing, a union can begin to evaluate the propriety of an 
employer's contention that a particular individual is a supervisor 
even if the employer declines to identify the particular indicia of 
supervisory status in its Statement of Position. For example, the 
union may consult with its supporters about the authority of the 
alleged supervisor. The Board notes, however, that in the event a 
regional director permits litigation of individual eligibility 
issues, the employer bears the burden of proving that such 
individuals are in fact supervisors.

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[[Page 74370]]

4. Election Details
    The NPRM also proposed that the Statement of Position form require 
the non-petitioning party to state its preferences with respect to the 
type, date(s), time(s), and location(s) of the election and the 
eligibility period. 79 FR7328, 7355. The final rule adopts this 
proposal.\299\ This requirement eliminates unnecessary barriers to the 
expeditious resolution of questions concerning representation in two 
ways. First, it facilitates entry into election agreements. Parties 
enter into election agreements only if they agree, among other things, 
on the election details. It plainly serves the goal of making it easier 
for parties to promptly enter into election agreements if the 
petitioner is advised of the nonpetitioner's position on those matters 
prior to the hearing. Second, in cases where the parties are unable to 
enter into an election agreement, the amendment (in conjunction with 
the provision in Sec.  102.66(g) that the hearing officer solicit all 
parties' positions concerning the election details) ordinarily will 
make it possible for the regional director to specify the election 
details in the direction of election, and to simultaneously issue the 
Notice of the Election with the Decision and Direction of Election, 
because the parties will have provided their positions on the election 
details prior to, and at, the hearing.
---------------------------------------------------------------------------

    \299\ The final rule makes explicit in amended Sec. Sec.  
102.63(b)(1)(i), (b)(2)(i), (b)(3)(i) that nonpetitioning parties 
must state their positions regarding election details in RM and RD 
cases as well as in RC cases. Amended Sec. Sec.  102.63(b)(1)(i), 
(b)(2)(iii), and (b)(3)(iii) also require the employer to state the 
length of the payroll period for employees in the proposed unit and 
the most recent payroll period ending date, information which Board 
agents have long requested as it is useful for purposes of setting 
the eligibility date. See, for example, Casehandling Manual Section 
11086.3_(``The payroll period for eligibility should be designated 
as ``the period ending,'' etc. Normally it should be the last period 
ending before the Regional Director's approval of the 
agreement.'');_Casehandling Manual Section 11312.1 (``If there is an 
issue as to an unusual eligibility date, i.e., the use of a date 
other than the payroll period ending before the approval of the 
agreement or the Direction of Election, * * * the Board agent * * * 
should obtain the information necessary for resolution of this 
issue.'')
---------------------------------------------------------------------------

    Currently, however, the regional director frequently is unaware of 
the parties' positions concerning the election details when the 
director issues the direction of election, and, not surprisingly, the 
decision and direction of election frequently does not specify those 
details. Instead, a Board agent must contact the parties after the 
direction issues to solicit their positions. After obtaining the 
positions, the regional director must decide those details and then 
draft and serve the official Notice of Election on the employer for 
posting. This takes time and can unnecessarily delay the election.
    The Chamber objects that until the appropriate unit is determined, 
an employer cannot develop a reasoned position on the type, date(s), 
time(s), and location(s) of the election and the eligibility period. To 
the extent the Chamber is suggesting that the requirement is 
unreasonable because an employer may have one position on these matters 
if the petitioned-for unit is found to be appropriate, but another 
position if the director finds some other unit, such as an employer's 
alternate unit, appropriate, the Board disagrees. The employer will be 
permitted to state its preferences in the alternative. And as the 
amendments to Sec.  102.66(g) indicate, the hearing officer shall 
solicit the parties' positions on the election details prior to the 
close of the hearing. Thus, if the petitioner has modified its position 
on the unit during the hearing in response to the employer's Statement 
of Position, the employer will be able to present its position 
regarding any new unit sought by the petitioner. Moreover, given the 
relatively small size of bargaining units in representation cases, the 
Board anticipates that it will be the exceptional case, rather than the 
norm, where differences between the petitioned-for unit and any other 
unit would cause the employer to feel the need to take such alternative 
positions regarding the election details.\300\
---------------------------------------------------------------------------

    \300\ In addition, as noted below in connection with Sec.  
102.67, the final rule grants regional directors discretion to 
consult with the parties concerning election details after issuing a 
direction of election where unusual circumstances warrant, such as 
when the decision issues substantially after the close of the 
hearing, or the election is directed in a unit very different from 
that proposed by either the employer or the union.
---------------------------------------------------------------------------

    ALFA characterizes this requirement as indicating a possible 
``abandonment of the long-established Board presumption favoring manual 
ballot elections at employers' premises.'' However, the new requirement 
is not intended to change Board policy in this respect.
C. Scheduling of Pre-Election Hearing
    A great number of comments responded to the Board's call for 
comments on the feasibility, fairness and proper scope of the proposed 
exceptions to the NPRM provision that, absent special circumstances, 
the regional director would set the hearing to begin 7 days after 
service of the notice of hearing.\301\ As explained in the NPRM, this 
proposal reflects the current practice of some regions, but would make 
the practice explicit and uniform, thereby rendering Board procedures 
more transparent and predictable. Under the proposed amendments, 
parties served with a petition and description of representation 
procedures, as described in relation to proposed Sec.  102.60, would 
thus be able to predict with a high degree of certainty when the 
hearing will commence even before service of the notice. 79 FR 7328.
---------------------------------------------------------------------------

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

    In the NPRM, the Board proposed that the amendments would be 
implemented consistent with the Board's decision in Croft Metals, Inc., 
337 NLRB 688, 688 (2002), requiring that, ``absent unusual 
circumstances or clear waiver by the parties,'' parties ``receive 
notice of a hearing not less than 5 days prior to the hearing, 
excluding intervening weekends and holidays.'' The amendments would 
thus not require any party to prepare for a hearing in a shorter time 
than permitted under current law. Rather, as the Board held in Croft 
Metals, 337 NLRB at 688, ``By providing parties with at least 5 working 
days' notice, we make certain that parties to representation cases 
avoid the Hobson's choice of either proceeding unprepared on short 
notice or refusing to proceed at all.'' \302\ Thus, contrary to PCA, 
the NPRM's choice of a 7-day time frame was not arbitrary. The existing 
regional best practice is to set the hearing in 7 days, and that 
practice comports with the minimum notice standard that has governed 
Board hearings for the last decade.
---------------------------------------------------------------------------

    \302\ To be clear, the date of the petition's filing was 
irrelevant to the Board's holding in Croft Metals. Although the 
hearing had been scheduled to open 14 calendar days from the 
petition's filing in that case, it was undisputed that the employer 
did not receive notice of the hearing until 3 working days before 
the hearing was scheduled to open. Thus, the Board's holding in 
Croft Metals, just as its proposal in the NPRM, was keyed only to 
the time from service of the notice of hearing to the opening of the 
hearing itself.
---------------------------------------------------------------------------

    Several comments directly suggest that the Board should alter the 
proposed language governing exceptions to the hearing and Statement of 
Position time frames. Specifically, the Board proposed that the 
regional director would set a pre-election hearing to open in 7 days 
``absent special circumstances.'' Dissatisfied with the standard's 
perceived leniency, the AFL-CIO argues that ``special circumstances'' 
should be exchanged for ``unusual circumstances'' consistent with Croft 
Metals, while

[[Page 74371]]

SEIU advocates that ``extraordinary circumstances'' would be the 
appropriate descriptor. Attorney Nicholas Karatinos urges the Board to 
allow regional directors to delay the opening of the hearing by 1-3 
days upon a showing of hardship, and the Chamber (reply) submits that 
the Board should adhere to section 11082.3 of the Casehandling Manual's 
guidance that ``requests for postponement of the hearing will be 
granted only for good cause.'' Maury Baskin, testifying on behalf of 
ABC II, argued that ``sufficient cause, sometimes called good cause,'' 
is a ``good standard.'' Curiously, COLLE opines that regional 
directors' rigid adherence to internal time targets make it a fool's 
errand to consider which exception language would be most appropriate. 
Thus, in COLLE's view ``the Board's invitation to suggest language to 
guide exceptions to the target, even if it results in a stated test for 
doing so that is not unreasonable, is likely to be ignored in practice 
by the Regional Directors.''
    The Board has carefully considered the comments in this area--
including COLLE's fatalistic assertion--and believes that the competing 
interests represented would best be balanced by altering the language 
in the proposed rules in several ways. First, as shown, consistent with 
Croft Metals' concern for adequate hearing preparation, Sec.  102.63 of 
the final rule, will guarantee employers (and all nonpetitioning 
parties) 8 days notice of the hearing and 7 days notice of the due date 
for completion of the SOP form. Second, as also shown, in order to 
ensure that the Statement of Position serves its intended purposes of 
facilitating entry into election agreements and narrowing the scope of 
any pre-election hearings that must be held, Sec.  102.63(b)(1) of the 
final rule requires the form to be filed with the regional director and 
served on all parties such that it is received by them at noon on the 
business day before the opening of the hearing. Third, to allow for 
both changes listed above, Sec.  102.63(a)(1) of the final rule 
provides that except in cases presenting unusually complex issues, the 
regional directors will set pre-election hearings to open, in 8 days 
from service of the notice excluding intervening Federal holidays, not 
7.\303\ (Of course, if the 8th day would fall on a weekend or Federal 
holiday, then the rule provides that the regional director shall set 
the hearing to open on the following business day.) Thus, based on the 
regional director's analysis of the complexity of the issues raised by 
the petition, a director will have discretion, even without a party 
filing a motion, to set the opening of the hearing beyond the normal 8-
day time frame if the director concludes such extra time is warranted. 
Fourth, even if the director sets the hearing for the normal 8-day time 
frame, the director will retain discretion under Sec.  102.63(a)(1) of 
the final rule to extend the opening of the hearing for up to 2 
business days upon request of a party showing special circumstances. By 
cabining the regional directors' discretion to extend the hearing's 
opening to 2 business days, the Board trusts that contrary to concerns 
exhibited in some comments, the exception will not swallow the rule. 
Finally, because the Board is persuaded that there may be the 
exceptional case that should not go to hearing within that time frame, 
regional directors will retain discretion under Sec.  102.63(a)(1) of 
the final rule to postpone the opening of the hearing for more than 2 
business days upon request of a party showing extraordinary 
circumstances. The Board has concluded that the hearing scheduling 
amendment will help the Board to expeditiously resolve questions 
concerning representation because, absent an election agreement, the 
Board may not conduct an election outside of the 8(b)(7)(C) and 9(e) 
contexts without first conducting a pre-election hearing. The amendment 
will also render Board procedures more transparent and uniform across 
regions.\304\
---------------------------------------------------------------------------

    \303\ Although the Board has selected a hearing-opening baseline 
of 8 days from service of the notice, in part, to allow parties to 
use the completed Statement of Position form to explore entrance 
into election agreements and to try to narrow the scope of the 
hearing for approximately 1 business day before the hearing, the 
Board views an 8-day baseline as an independent improvement over the 
current regional variation in scheduling hearings. Accordingly, the 
Board would implement an 8-day hearing baseline even in the absence 
of the final rule's introduction of a Statement of Position form.
    \304\ The IFA II argues that the timeline is too short in cases 
where a union's petition raises novel or complex issues. But, as the 
AFL-CIO II points out (Reply), such cases are relatively rare, and, 
as discussed above, the final rule permits the regional director on 
the director's own initiative to schedule the hearing to open at a 
later date if the case presents unusually complex issues. The final 
rule also provides a mechanism by which parties can request 
postponements if they need additional time to prepare for a hearing 
based on the novelty or complexity of the issues raised by the 
petition.
---------------------------------------------------------------------------

    Some union comments suggest that the Board specify that regional 
directors serve the notice of hearing immediately.\305\ We decline to 
do so, because the regions, among other things, check the showing of 
interest prior to serving the notice. However, in our experience, 
regions currently are promptly serving the notices, and we anticipate 
that the directors will issue the notices as soon as is practicable. 
SEIU suggests that the regional director should mark any correspondence 
regarding the hearing notice as ``urgent'' so as to help ensure that 
the recipient will pay proper attention to it. The Board agrees, and 
has so indicated in its statement of the general course.
---------------------------------------------------------------------------

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

    Many employer comments attack the proposed time frames. Although, 
as shown, the final rule provides that, except in cases presenting 
unusually complex issues, the hearing will open in 8 days--not 7 days--
from the notice and that parties will always have at least 7 days 
notice of the due date for completion of the Statement of Position 
form, we shall assume that all comments opposing the proposed time 
frames would similarly object to the 8-day hearing/7-day Statement of 
Position time frames.\306\
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    \306\ The ACC, ACE II, and others found it troubling that the 
NPRM's proposals would seemingly allow the Statement of Position 
form to be due even sooner than 7 days from the regional director's 
service of the notice of hearing. As shown, however, under the final 
rule parties will always have a minimum of 7 days notice of the due 
date for completion of their Statements of Position.
---------------------------------------------------------------------------

    A number of comments assert, with little legal analysis, that the 
time frames for the opening of the pre-election hearing and completion 
of the Statement of Position violate employer due process rights.\307\ 
However, due process does not require the Board to conduct a pre-
election hearing. See Inland Empire District Council v. Millis, 325 
U.S. 697, 707, 710 (1945). But, to be sure, Section 9(c) does require a 
pre-election hearing in the event parties are unable to reach an 
election agreement. And, in determining whether the notice given under 
the amendments is ``due notice'' as required by Section 9(c), the 
procedural due process case law provides some helpful analogies.
---------------------------------------------------------------------------

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

    ``[T]he timing and content of the notice and the nature of the 
hearing will depend on appropriate accommodation of the competing 
interests involved.'' Goss v. Lopez, 419 U.S. 565, 579 (1975). Under 
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), three factors are 
weighed in evaluating the adequacy of the notice: (1) The gravity of 
the private interest that will be affected by the official action, (2) 
the value of procedural safeguards, like additional time, in reducing 
the risk of error, and (3) the public interest--including the burden of 
additional time on the government.
    The Board believes that the 8-day hearing/7-day Statement-of-
Position-form time frames provide parties with

[[Page 74372]]

``due notice.'' The final rule provides in amended Sec.  102.60 that 
the petition, which describes the unit sought, is served upon the 
employer as soon as it is filed in order to insure that the earliest 
possible notice of the pendency of a petition is given to all parties. 
Served together with the petition is an Agency form describing the 
Board's representation case procedures, and a copy of the Agency's 
Statement of Position form. Soon thereafter, the regional director 
serves the notice of hearing, specifically informing the parties of the 
time, place and subject of the hearing, and the deadline for the 
position statement. Amended Sec.  102.63(a)(1) provides that except in 
cases presenting unusually complex issues, the hearing will be ``8 days 
[after] the date of service of the notice [of hearing] excluding 
intervening Federal holidays,'' and that the Statement of Position will 
be due at noon on the business day before the hearing, i.e. no sooner 
than 7 days from the notice of hearing.
    The courts have held that less than 8 days notice constitutes due 
notice even when very substantial interests are at stake. For example, 
in Wilkinson v. Austin, 545 U.S. 209, 213, 216 (2005), the Supreme 
Court addressed the appropriateness of an Ohio procedure for placing 
prisoners in a ``Supermax'' prison. The procedures involved at least 48 
hours written notice of the issues that would be addressed at the 
hearing. The unanimous Court held that the procedures satisfy due 
process. Id. at 229. In Wolff v. McDonnell, 418 U.S. 539, 564 (1974), 
the Court held that before a hearing on inmate discipline, ``[a]t least 
a brief period of time after the notice, no less than 24 hours, should 
be allowed to the inmate to prepare for the appearance [at the 
hearing.]'' This advance notice was required in order to ``give the 
charged party a chance to marshal the facts in his defense.'' Id.
    In the Federal context, employees facing termination for criminal 
conduct have a statutory right to ``a reasonable time, but in any event 
not less than 7 days, to answer orally and in writing and to furnish 
affidavits and other documentary evidence in support of [their 
position].'' 5 U.S.C. 7513(b)(2). This provision has been upheld 
against constitutional attack. Perez v. Dep't of Justice, 480 F.3d 
1309, 1312 (Fed. Cir. 2007) (discussing cases). In Schapansky v. Dep't 
of Transportation, 735 F.2d 477, 480, 486-88 (Fed. Cir. 1984), for 
example, the Federal Circuit upheld the agency's firing of PATCO 
strikers after 7-days notice. See also Darnell v. Dep't of 
Transportation, 807 F.2d 943, 944-46 (Fed. Cir. 1986) (discharges not 
unlawful where air traffic controllers had 7 days to prepare and 
respond to notices of termination). And, in some cases, the interests 
at stake are considered of such minor significance and the value of 
additional preparation time so small that notice may be provided orally 
and contemporaneous with the hearing: ``There need be no delay between 
the time `notice' is given and the time of the hearing.'' Goss, 419 
U.S. at 582 (suspension from school of 10 days or less).
    Under the first Mathews factor, the arguable employer private 
interest at stake in pre-election litigation typically concerns the 
contours of the unit in which the election will be conducted, for the 
employer risks losing the right to deal directly with the unit 
employees. This interest, though important, is generally not so 
important to the employer as the question at stake in the election 
itself--that is, whether the Section 9 relationship will form. To the 
extent that the employer has a legally cognizable interest in being 
free to deal with its employees directly, the pre-election hearing 
cannot deprive the employer of that freedom, because an employer loses 
the right to deal directly with bargaining unit employees only if the 
union wins the election. In any event, the time given is sufficient to 
account for even the serious interests under Wilkinson, Wolff, and 
Perez.
    The Board also is of the opinion that the time frames in question 
pose little risk of error, the second Mathews factor. The Board has 
substantial experience applying the NLRA to various industries over the 
last 7 decades. The factual subject matter that is the focus of the 
hearing typically is not all that complex to litigate, and is 
intimately familiar to the employer, permitting very rapid preparation. 
As discussed, the Board need not direct an election in the most 
appropriate unit; it need only select an appropriate unit. In 
determining whether a group of employees constitutes an appropriate 
unit, the Board analyzes whether the employees in that unit share a 
community of interest by examining the employees' terms and conditions 
of employment, the employees' job duties, skills, training, and work 
locations, the employees' supervision, the extent of employee 
interchange and contact with one another, and the history of collective 
bargaining. The employer already knows all those things before the 
petition is even filed. Thus, the employer knows its employees' terms 
and conditions of employment because it established its employees' 
terms and conditions of employment. The employer knows its employees' 
job duties, work locations, and supervision, because it assigned those 
job duties, work locations, and supervisors to its employees. The 
employer knows its employees' skills because it sets the skill 
requirements for its positions, and hires and evaluates its employees. 
Similarly, the employer is aware of the collective bargaining history 
of its employees, as well as the level of employee interchange and 
contact, and the training it provides for its employees.\308\ The 
employer likewise knows its connection to interstate commerce, and 
whether the petitioned-for employees are covered by a collective-
bargaining agreement or participated in a valid election in the 
preceding 12-month period, thereby barring an election. Even if 
preparation within ``a few hours'' would not be feasible in some cases, 
within a few days an employer should reasonably be able ``to gather his 
thoughts and his evidence and to make an informed decision about the 
best way to respond'' regarding the community of interest and other 
issues. Staples v. City of Milwaukee, 142 F.3d 383, 385-86 (7th Cir. 
1998). Furthermore, in those cases where the timeline would be too 
short, the final rule provides exceptions so that, in practice, there 
should be no impact on the likelihood of error.
---------------------------------------------------------------------------

    \308\ Some attorney commenters contend that when they start 
asking their clients questions about community-of-interest factors, 
such as employee interchange, they sometimes are met with ``a blank 
look'' and are told ``research'' is necessary. See, e.g., Testimony 
of Maury Baskin, on behalf of ABC II. The Board rejects any 
suggestion that this anecdotal testimony renders the time frames 
inappropriate. In the first place, in the case of very small 
employers where the owner directly supervises, and even works 
alongside, rank and file employees, it seems unlikely that the owner 
will lack direct knowledge of the facts necessary to take positions 
on the relevant issues. In any event, even if the owner or CEO who 
might meet with an attorney does not have first-hand knowledge of 
these things, it should not be particularly challenging or time-
consuming to identify the manager who would have that information 
readily available. The Board is also confident that counsel can 
minimize the likelihood of a ``wasted'' first meeting simply by 
communicating in advance with the client that counsel needs to meet 
with someone with first-hand knowledge of such matters as what the 
petitioned-for employees do and how often they fill in for one 
another.
---------------------------------------------------------------------------

    The Board also believes that the proposed time frames serve very 
important public interests, the third Mathews factor. Put simply, 
permitting a timely choice of representative is of inherent value under 
the Act; each delay in resolving the question concerning representation 
causes public harm by denying the employees their right to bargain 
collectively through representatives of their own choosing--or denying 
employees their right to rid themselves of an unwanted incumbent

[[Page 74373]]

representative. Moreover, Congress has already determined that the 
expeditious resolution of questions concerning representation 
``safeguards commerce from injury, impairment or interruption.'' 29 
U.S.C. 151. As favorable comments indicate, providing such standard 
time frames also has the salutary effect of conveying to the employees 
that the Board, not the parties, is in charge of the process, and 
reduces chances of manipulation of the process by the parties.\309\ The 
establishment of uniform time frames across the regions also has the 
salutary effect of affording employees' Section 7 rights the same 
treatment across the country.\310\ The ability to exercise Section 7 
rights should not turn on the particular region where the petition is 
filed. The timeline will also reduce the Board's expenses and make the 
process more economically efficient by discouraging abusive delays by 
the parties and encouraging prompt settlement without litigation.
---------------------------------------------------------------------------

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

    For all the foregoing reasons, the Board believes that the time 
frames do not run afoul of constitutional due process or statutory due 
notice requirements. The Board also rejects the argument of many 
comments that, as a matter of policy, the time frames proposed in the 
NPRM are wholly insufficient,\311\ virtually impossible,\312\ 
draconian,\313\ facially absurd,\314\ unconscionable,\315\ and just too 
short.\316\ A major premise of many of these comments is that employers 
are completely unaware of any union organizing until the petition is 
filed, and therefore have not even begun to think about contacting an 
attorney or other advisor about how to respond to a petition. However, 
as discussed more fully above in connection with the opportunity for 
free speech and debate, these comments offer no reliable empirical 
evidence establishing that employers are frequently blindsided by the 
petition, and our experience and recent scholarly research suggest the 
opposite. Put simply, in the multitude of cases where employers are 
aware of the union drive before the petition, they have more, often 
much more, than 7 days to contact an attorney or advisor or otherwise 
begin to consider the issues listed on the Statement of Position form 
and to prepare for a possible hearing.
---------------------------------------------------------------------------

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

    But even in cases where employers are caught completely unaware by 
the petition, we reject the notion that employers will be unable to 
consult advisors, complete the Statement of Position form, and prepare 
for the hearing in the allotted time frames. As some of the comments 
appear to concede, at least some employers facing petitions will have 
ready access to labor counsel. Although we recognize that some 
employers may not have labor counsel on retainer, in our experience, 
employers are able to promptly retain advisers and prepare for the 
hearing in relatively short order. For example, as the testimony of 
Russ Brown on behalf of LRI and of Michael Pearson, a retired NLRB 
field examiner with nearly 34 years of experience, indicate, under the 
Board's current rules, management consultants regularly survey public 
notice of the filing of representation petitions to offer their 
services to employers named in the petition, and they would continue to 
be able to do so under the final rule. Indeed, this is such a 
widespread practice that a regional director's model opening letter to 
employers to accompany service of the petition advises employers that 
they may be contacted by organizations or persons who seek to represent 
the employer before the Board in connection with the representation 
case, but that such persons or organizations do not have any ``inside 
knowledge'' or ``favored relationship'' with the Board. See OM Memo 99-
56.\317\ Similarly, the retired field examiner commented that it was 
his experience that even small employers were able to obtain competent 
legal counsel in short order. Michael Pearson supplemental statement; 
Testimony of Pearson.
---------------------------------------------------------------------------

    \317\ Ranking Member Enzi and Republican Senators assert that 
employers will significantly limit their use of legal counsel during 
organizing campaigns due to the Department of Labor's recent NPRM 
interpreting the advice exemption under the Labor Management 
Reporting and Disclosure Act. See 76 FR 36178. Other commenters 
share this view. See, e.g., COLLE II; NRF II. The Board doubts the 
accuracy of this prediction given DOL's stated goal of publicizing 
the interactions between employers and anti-union consultants, not 
stopping those interactions from taking place. See id. at 36182, 
36190. In any event, the Board views such concerns as more properly 
directed to DOL and not the NLRB. If changes in the legal landscape 
prevent parties from obtaining representation in a timely fashion, 
the Board will take that into consideration in determining whether 
to grant a party's request to postpone the opening of the hearing 
and, more generally, whether there is a need to revise the final 
rule's time frames.
---------------------------------------------------------------------------

    Indeed, despite the comments to the contrary, the proposed time 
frames do not constitute a radical change from the status quo. Under 
the final rule, hearings ordinarily will be scheduled to open 8 days 
from service of the notice of hearing, but a party may for special 
circumstances move to postpone the hearing by up to 2 business days and 
for extraordinary circumstances for more than 2 business days. A 1997 
Report of the Best Practices Committee provided that hearings should 
open between 10 to 14 days of the petition's filing. GC 98-1. A model 
opening letter in 1999 indicated that the hearing should open no later 
than 7 days after service of the notice, which should issue no more 
than 3 days after the filing of the petition. OM 99-56. The 2002 Board 
held that 5 business days notice was sufficient: ``By providing parties 
with at least 5 working days notice, we make certain that parties to 
representation cases avoid the Hobson's choice of either proceeding 
unprepared on short notice or refusing to proceed at all.'' Croft 
Metals, Inc., 337 NLRB 688, 688 (2002). And, according to ALFA, 
``[m]any Regions now schedule hearings within seven (7) days and are 
reluctant to grant any postponements.'' Most pre-election 
representation case hearings last only 1 day. Accordingly, the reality 
is that under the current rules, employers sometimes must already 
formulate, assert, and produce supporting evidence for all their 
positions before a hearing officer within 7 days even though the 
current rules do not mandate completion of a Statement of Position 
form.\318\ Because the proposed time frames are not radically different 
from the status quo and the Statement of Position form largely requires 
an employer to do what it currently does to prepare for a hearing, the 
Board rejects the Bluegrass Institute's contention that the proposed 
time frames will result in significantly higher legal fees for 
employers.\319\
---------------------------------------------------------------------------

    \318\ If, as some comments, including Fox Rothschild's, suggest, 
a party's preferred witnesses are unavailable and no other available 
witness has comparable knowledge, that party is free to move to 
postpone the hearing. The fact that special circumstances may exist 
to postpone some hearings, however, hardly warrants delaying the 
opening of all hearings. No matter when the hearing is scheduled to 
open, there is always the possibility that a witness may have a 
conflict. Similarly, counsel may also adjust the order of his 
planned presentation if it appears that the hearing may run more 
than one day and a witness is not available the second day.
    \319\ To be clear, consistent with the reasoning in Croft 
Metals, the Board would set the baseline due date for the Statement 
of Position form at 7 days even in the absence of the hearing being 
scheduled in 8 days. Even if the pre-election hearing were to be 
held at a point more distant than 8 days from service of the notice, 
the timely sharing of the information contained in the Statement of 
Position form should encourage the timely entrance into election 
agreements and narrow the scope of the pre-election hearing in the 
event parties are unable to enter into such agreements, thereby 
contributing to the Board's goal of expeditiously resolving 
questions concerning representation.

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

[[Page 74374]]

    The Board likewise rejects the notion that the amended scheduling 
provisions are unfair because if a union does not know the correct 
individual to serve, the petition might not be received by the proper 
recipient for a day or more. Cook-Illinois; California Healthcare 
Association (CHA) II. Thus, the same possibility existed under the 
prior rules. Moreover, as shown, the region will also serve the 
petition, the Statement of Position form, and related papers with the 
notice of hearing (Sec.  102.63(a)(1)), and it is the practice of the 
regional offices to have a Board agent contact parties as soon as 
possible after the filing of a petition in order to facilitate the 
election process. See Casehandling Manual Section 11010. The Board 
likewise rejects COLLE's suggestion that the Board is incapable of 
timely serving the notice of hearing on the person specifically named 
in the petition as the employer representative to contact. In any 
event, a nonpetitioning party may move to postpone the opening of the 
pre-election hearing (and the date for filing the Statement of 
Position) if it does not receive the notice of hearing (or the 
Statement of Position form) in a timely manner.
    Although many comments complain about the consequences of failing 
to note something on the Statement of Position form, the fact of the 
matter is that the Board's prior rules and case precedent already 
required parties to raise contentions at specified times in the process 
or face preclusion. Indeed, even taking the preclusion provisions into 
account, the 7-day time frame for completion of the Statement of 
Position--which can be extended up to two business days for special 
circumstances and even further for extraordinary circumstances--does 
not constitute a material change from what could, and sometimes did, 
occur under the Board's prior rules and case precedent. Prior to the 
NPRM, the Board held that a hearing officer may refuse to allow an 
employer to introduce evidence regarding the supervisory status of 
employees in certain job classifications if the employer refuses to 
take a position on their status and their inclusion or exclusion from 
the unit. Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994). 
Similarly, under the rules in effect prior to the NPRM, a party could 
``not [in a request for review of a regional director's decision and 
direction of election] raise any issue or allege any facts not timely 
presented to the regional director.'' 29 CFR 102.67(d) (2010). 
Accordingly, even under the Board's prior rules, if a party failed to 
present facts or take a position before the hearing officer at a 
hearing, including one which opened and closed within 7-days of the 
notice, it could not do so later.\320\
---------------------------------------------------------------------------

    \320\ There were numerous other examples prior to the NPRM of 
parties being required to raise contentions at specified times in 
the process or face preclusion. For example, under the rules in 
effect prior to the NPRM, a party could not challenge the 
eligibility of voters for the first time after an election by filing 
an election objection. HeartShare Human Services of New York, Inc., 
317 NLRB 611, 611 n.1 (1995), enforced, 108 F.3d 467 (2d Cir. 1997). 
See also Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994) 
(disagreeing with regional director, Board states that because 
employer refused to take a position at the pre-election hearing 
regarding the supervisory status of leadpersons and quality control 
inspectors and the regional director included those classifications 
in the unit, the employer may not, absent changed circumstances, 
challenge their votes on the basis that they are supervisors). 
Similarly, the courts have held that because the representation 
proceeding is the forum designed for parties to contest the 
appropriateness of the unit, any issue that can be raised in the 
representation case proceeding must be raised there and cannot be 
raised for the first time in response to a complaint alleging an 
unlawful refusal to bargain with a newly certified union. See Pace 
University v. NLRB, 514 F.3d 19, 20, 23-27 (D.C. Cir. 2008) 
(employer precluded from justifying its refusal to bargain with the 
certified union on the ground that the bargaining unit is 
inappropriate because employer did not raise its contention in the 
underlying representation case proceeding).
---------------------------------------------------------------------------

    In view of the foregoing, the Board rejects as unfounded those 
comments that complain that the proposed time frames are so short as to 
inevitably cause parties to make mistakes.\321\ Moreover, the Board 
indicated in the preamble to the NPRM that the hearing officer would 
retain discretion to permit parties to amend their Statements of 
Position for good cause. 79 FR at 7330. In its reply comment, the 
Chamber complains (Reply) that the proposed regulations themselves did 
not so provide.\322\ In response to the comment, the Board has modified 
Sec. Sec.  102.63 and 102.66 to provide that the regional director may 
permit parties to amend their Statements of Position in a timely manner 
for good cause.\323\
---------------------------------------------------------------------------

    \321\ See, e.g., COSE; LRI.
    \322\ Other commenters, such as U.S. Poultry II also appear to 
question whether the proposal would permit parties to amend 
Statements of Position at the hearing.
    \323\ As discussed below in connection with Sec.  102.66, the 
Board received a number of comments complaining about the hearing 
officer's authority under the proposed amendments. Accordingly, the 
Board has decided that the regional director, rather than the 
hearing officer, should be the one to decide whether parties may 
amend their Statements of Position.
    Comments addressing the consequences of failing to timely 
complete the Statement of Position are also addressed below in 
relation to Sec.  102.66.
---------------------------------------------------------------------------

    The dissent argues that the Statement-of-Position and preclusion 
provisions should be modified so that a party retains the right to 
address issues it did not raise in its initial Statement of Position in 
response to another party's contentions. No modification is necessary. 
The Statement of Position in large part constitutes a response to 
positions previously taken by the petitioner in its petition. For 
example, after a union files a petition which identifies the unit it 
seeks, the employer is required to state whether it agrees that the 
petitioned-for unit is appropriate and whether there is a bar to 
conducting an election in that unit. The final rule also provides that 
the regional director may permit a party to amend its Statement of 
Position in a timely manner for good cause. And a party typically will 
have good cause to timely amend its Statement of Position to raise an 
issue that is presented by virtue of a petitioner's amending its 
petition. For example, it would constitute good cause for an employer 
to amend its Statement of Position to raise for the first time a 
contract bar issue if a petitioner amended its petition to change the 
petitioned-for unit from one which is entirely unorganized to one 
including employees who are covered by an existing collective-
bargaining agreement. Contrary to the dissent, the good-cause standard 
governing amendments of statements-of positions is less strict than the 
Pergament standard governing whether the Board may find a violation 
that was never alleged in an unfair labor practice complaint. See 
Pergament United Sales, Inc., 296 NLRB 333, 333-334 (1989) (Board may 
find a violation even in the absence of a specific complaint allegation 
if the unalleged violation is closely connected to the subject matter 
of the complaint and has been fully litigated). Thus, if a union seeks 
to amend its petition in a fundamental way, an employer may have good 
cause to amend its Statement of Position even if the amendment is not 
closely related to the original position taken by the employer. 
Moreover, it is not clear how many of the retrospective criteria used 
to determine whether Pergament's fully-litigated prong has been 
satisfied could have any kind of coherence in the context of the 
position statement, particularly where amendment is sought early in the 
process.
    At least one comment suggests that the Board should make clear that 
the Statement of Position is required only to alert the Board to issues 
that need to be decided during the pre-election stage, not to foreclose 
legitimate issues that may be raised after the election. The Board 
believes that the proposed

[[Page 74375]]

language already does so. Certainly, nothing in the NPRM or final rule 
suggests that a party must raise post-election issues, such as 
objectionable conduct, in its pre-election Statement of Position.
    Although some employer comments concede that requiring completion 
of the Statement of Position form is a good idea in theory, many 
complain that it will be a bad idea in practice because the time frame 
for completing it--coupled with the preclusion provisions--will cause 
employers to list every conceivable issue on the form to preserve their 
right to litigate such issues, which will only lengthen (and increase 
the number of) hearings.\324\ The Board disagrees. As shown, we do not 
believe that the information sought, time frames and preclusion 
provision are unreasonable. To the contrary, they are similar to what 
could occur under the Board's prior rules and case precedent. And, as 
shown, under existing rules, most hearings currently last only a day, 
and the Board's current rules and case precedent obviously are not 
preventing the parties from entering into election agreements.
---------------------------------------------------------------------------

    \324\ See, e.g., NADA II; Indiana Chamber; Miners; Pinacle 
Health Systems of Harrisburg; Vigilant; Associated Oregon 
Industries; Ohio Grocers Association II; US Poultry II; the Textile 
Rental Services Association (TRSA) II.
---------------------------------------------------------------------------

    Moreover, the Board is of the opinion that some of the comments 
suggest that the Board adopt time frames which bear no relation to 
reality. For example, NADA suggests that a 30-day period to complete 
the Statement of Position form is necessary. Other comments suggest a 
much shorter period is necessary, though not as short as the 7 day 
period set forth in the amendments. Thus, the Indiana Chamber suggests 
a period of 14-18 days. Put simply, we categorically reject any notion 
that the Statement of Position form will routinely require such long 
periods of time to complete. As shown, the Statement of Position form 
largely requires parties to do what they currently do to prepare for a 
pre-election hearing. The Croft Board held that 5 days (excluding 
intervening weekends and holidays) constituted adequate notice of such 
a hearing, and some hearings are already occurring within 7 calendar 
days.
    We also find it significant that parties commit to enter into 
stipulated election agreements in 7 days or less. Under current rules, 
by entering into a stipulated election agreement, a party waives the 
right to raise issues at a pre-election hearing, and is precluded from 
later challenging matters such as the appropriateness of the unit. See, 
e.g., Micro Pacific Development, Inc. v. NLRB, 178 F.3d 1325, 1335-1336 
(D.C. Cir. 1999). As is well known, approximately 90 percent of Board 
elections are conducted pursuant to election agreements. Frankly, the 
Board finds it difficult to believe that an employer would commit to 
enter into a stipulated election agreement--and thereby waive its right 
to raise issues at a pre-election hearing--before satisfying itself 
that the Board did in fact have jurisdiction over it, that there were 
no bars to an election, and that the unit described in the agreement 
was appropriate. Indeed, as Jonathan Fritts testified on behalf of CDW, 
``it's hard to say that negotiating a stip[ulated election agreement] 
would necessarily take less time than preparing for the hearing[.] I 
think that everything that precedes the negotiation, at least in my 
experience, is something that you would do to identify the issues that 
may be subject to litigation. And so, if you're going to negotiate a 
stip I think you have to know what the issues are that you might go to 
hearing on, and then you have to decide if you can resolve them. The 
process of identifying those issues, what the evidence is, what the 
circumstances are, that's going to happen I think regardless of whether 
you go to a hearing or whether you go to a stip. It's only once you've 
done all that that you really begin the process of negotiating a 
stip.'' Testimony of Fritts on behalf of CDW II.\325\ In other words, 
the fact that parties currently agree to enter into stipulated election 
agreements in 7 days constitutes powerful evidence that employers can 
in fact obtain advisers and have the conversations necessary to 
formulate positions on the issues covered by the Statement of Position 
form (and that would be addressed at a pre-election hearing) in the 
time frames set forth in the final rule. And the Board is confident 
that, if parties do not enter into election agreements, the offer-of-
proof procedures discussed below in connection with Sec.  102.66 
provide tools for the region to swiftly dispose of unsupported 
contentions that a party may set forth in its Statement of Position 
simply to avoid triggering the preclusion provisions.\326\
---------------------------------------------------------------------------

    \325\ Accordingly, we reject the contention of the NGA that the 
time spent on the Statement of Position form would be better spent 
trying to reach an election agreement. Testimony of Kara Maciel on 
behalf of NGA II. As noted, the final rule gives the parties 
approximately 1 business day--after completion of the Statement of 
Position--to negotiate an election agreement. In response to 
concerns raised by CDW and others, the Board wishes to clarify that 
parties remain free to file joint postponement requests when they 
need additional time to finalize election agreements. Nothing in the 
final rule is intended to deprive regional directors of the 
discretion they currently enjoy to postpone hearings when they 
conclude that it is highly probable that the parties will be able to 
enter into an election agreement.
    \326\ Contentions that the Statement of Position form is 
analogous to an appellate brief, such as the one made by the 
National Meat Association, are wildly off the mark. The Statement of 
Position form does not require a party to provide any legal 
citations for its positions. For example, the Statement of Position 
form requests the employer to state its position regarding election 
details such as the type, date(s), time(s), and location(s) for the 
election, and the names of, and information about, the employees in 
the petitioned-for unit and in any alternative unit proposed by the 
employer. Providing such information does not require case 
citations. Similarly, the employer need not provide case citations 
in providing information about its connection to interstate 
commerce. Nor does an employer need to provide case citations to 
support a contention that an election is barred because the 
petitioned-for unit is covered by a collective-bargaining agreement 
or participated in a valid election within the preceding 12-month 
period. The employer likewise need not cite cases to explain why it 
disagrees that the petitioned-for unit is appropriate. We similarly 
reject contentions that completing the Statement of Position form 
should be subject to the same timelines as filing a response to a 
complaint in Federal court. See Clear Channel Outdoor; MEMA.
---------------------------------------------------------------------------

    The Chamber II argues that the Board should have analyzed the 
impact of the Board's decision in Specialty Healthcare and 
Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), affd sub. nom, 
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) 
before making the proposals in the NPRM. However, Specialty Healthcare 
has not had, and is not likely to have, a significant impact on 
representation case processing by the Board. Specialty Healthcare sets 
forth a clear test for unit determinations when an employer contends 
that a proposed bargaining unit is inappropriate because additional 
groups of employees are excluded from the bargaining unit. Specialty 
Healthcare, slip op. at 14. These issues are not addressed by the NPRM, 
which does not affect the appropriateness of bargaining units. 
Likewise, Specialty Healthcare does not implicate representation-case 
procedures, which are addressed by the NPRM. Before Specialty 
Healthcare, regional directors were required to determine whether the 
petitioned-for unit was appropriate prior to directing an election but 
were not required to resolve all individual eligibility issues in the 
pre-election decision, and both remain true after Specialty Healthcare.
    Some comments argue that Specialty Healthcare renders the proposed 
time periods too short.\327\ They claim that more time is needed 
because Specialty Healthcare constitutes a dramatic

[[Page 74376]]

change in the law and heightens the employer's burden when it wishes to 
contest the appropriateness of the petitioned-for unit. However, the 
premises for that argument were rejected in Specialty Healthcare and in 
the litigation which followed. See Specialty Healthcare, slip op. at 14 
(``Our dissenting colleague is simply wrong when he says that 
`[t]oday's decision fundamentally changes the standard for determining 
whether a petitioned-for unit is appropriate in any industry subject to 
the Board's jurisdiction.' Our decision adheres to well-established 
principles of bargaining-unit determination, reflected in the language 
of the Act and decades of Board and judicial precedent.''). Thus, 
Specialty Healthcare holds that ``the traditional community of interest 
test * * * will apply as the starting point for unit determinations in 
all cases not governed by the Board's Health Care Rule,'' and sets 
forth a clear test--``using a formulation drawn from Board precedent 
and endorsed by the District of Columbia Circuit''--for those cases in 
which an employer contends that a proposed bargaining unit is 
inappropriate because additional groups of employees are excluded from 
the bargaining unit. Ibid. In such cases, the Board held, ``the 
employer must show that the excluded employees share an `overwhelming 
community of interest' with the petitioned-for employees.'' Ibid.
---------------------------------------------------------------------------

    \327\ See, e.g., Chairmen Kline & Roe II; COLLE II; Chamber II; 
SHRM II; Acme-McCrary and 56 other representatives of small, medium 
and large businesses (Acme) II.
---------------------------------------------------------------------------

    When the employer subsequently challenged the Specialty Healthcare 
standard in the Sixth Circuit, the employer and amici such as COLLE and 
the American Health Care Association, raised the same argument that 
Specialty Healthcare had fundamentally changed the standard for 
determining whether the petitioned-for unit is appropriate. See 2012 WL 
1387314 *3, *44 (employer brief); 2012 WL 1494162 * 3-4 (COLLE amicus 
brief); 2012 WL 1494157 *17 (American Health Care Association amicus 
brief). The Sixth Circuit squarely rejected the argument. See Kindred 
Nursing Centers East, LLC v. NLRB, 727 F.3d 552, 561 (6th Cir. 2013) 
(``Kindred argues that this overwhelming-community-of-interest standard 
represents a `material change in the law' and is not a mere reiteration 
nor clarification. But this is just not so. The Board has used the 
overwhelming-community-of-interest standard before, so its adoption in 
Specialty Healthcare II is not new.'').
    We also agree with the AFL-CIO that Specialty Healthcare makes 
preparation easier by clarifying the standard. Reply II. As the Board 
made clear in Specialty Healthcare, ``employees in the petitioned-for 
unit must be readily identifiable as a group and the Board must find 
that they share a community of interest using the traditional criteria 
before the Board applies the overwhelming-community-of-interest 
standard to the proposed larger group.'' Specialty Healthcare, slip op. 
at 11 n.25 (emphasis added). And the employer possesses the evidence 
relevant to whether the petitioned-for employees constitute a readily 
identifiable group; \328\ whether the petitioned-for employees share a 
community of interest,\329\ and whether the employees it seeks to add 
share an overwhelming community of interest with the petitioned-for 
employees.\330\ Accordingly, we reject the contention that Specialty 
Healthcare renders the proposed time frames unworkable in the typical 
case. In any event, as discussed above, if a petition raises an 
unusually complex issue, the regional director has discretion to set 
the hearing for a later date on the director's own initiative, and 
parties remain free to file postponement requests themselves.\331\
---------------------------------------------------------------------------

    \328\ For example, employees can be readily identifiable as a 
group based on job classifications, departments, functions, work 
locations, skills, or similar factors. Specialty Healthcare, slip 
op. at 12. It is the employer who designates the job classifications 
and functions of its employees, and it is the employer who assigns 
its employees to their departments and work locations. The employer 
knows the skills of its employees because it sets the skill 
requirements for its positions, interviews applicants, and trains 
and evaluates its employees.
    \329\ Thus, it is the employer that establishes the terms and 
conditions of employment of the petitioned-for employees.
    \330\ The employer also establishes the terms and conditions of 
employment of those employees that it wishes to add to the 
petitioned-for unit. Because the employer establishes the working 
conditions of all its employees, it also possesses the evidence 
necessary to determine the extent to which the employees it seeks to 
add to the petitioned-for unit share a community of interest with 
the petitioned-for employees. See Specialty Healthcare, slip op. at 
9 n.19 (``It is highly significant that, except in situations where 
there is prior bargaining history, the community-of-interest test 
focuses almost exclusively on how the employer has chosen to 
structure its workplace. * * * * [M]ost of the facts at issue (lines 
of supervision, skill requirements wage rates, etc) are established 
by the employer,'' and the employer also typically draws ``the lines 
across which those facts are compared,'' such as the lines between 
``job classifications . . . , departments, functions, facilities, 
and the like.'').
    Employers also possess the evidence necessary to determine 
whether a union has petitioned for a fractured unit, such as when a 
union petitions for all employees occupying a nominally distinct 
classification, but when the employees in that classification do not 
in fact perform distinct work under distinct terms and conditions of 
employment. See id., slip op. at 13 & n.31.
    \331\ Comments about Specialty Healthcare are also discussed 
below in connection with Sec.  102.66.
---------------------------------------------------------------------------

    A number of comments also request exemptions from the time frames 
proposed in the NPRM for particular employers, industries, or types of 
petitions. We deal with these in turn.
1. Small Employers
    Many comments complain that the time frames are particularly 
unworkable for small employers because they may not have ready access 
to labor relations advice and have no experience with Board 
proceedings.\332\ Some of these comments, such as that filed by COSE, 
also complain that the amendments ``disproportionately harm[] small 
businesses,'' because they do not have large staffs, and the 
requirements will distract them from running their businesses.
---------------------------------------------------------------------------

    \332\ See, e.g., Chamber; Chamber II; ALG; Arizona Hospital and 
Healthcare Association; American Feed Industry Association; NAM; NAM 
II; CDW; Precision Fittings II; NGA II; INDA II; NFIB II.
---------------------------------------------------------------------------

    The Board declines to carve out an exemption for small employers in 
all cases. Prior to the NPRM, the Board did not have one set of best 
practices for cases involving small employers and a different set of 
best practices for cases involving large employers. Moreover, as shown, 
the timing of the pre-election hearing under these amendments will not 
be dramatically different from that which existed prior to the 
amendments. Small employers, no less than large employers, are 
intimately familiar with the factual subject matter of the Statement of 
Position form and the hearing. Thus, for example, they know their 
employees' terms and conditions of employment because they established 
those terms and conditions. As previously discussed, small employers, 
like large employers, may learn of the union drive prior to the 
petition, in which case they may well retain advisors before the filing 
of the petition. Even when the filing of the petition catches small 
employers by surprise, they may retain advisors in relatively short 
order. In some cases, they may well be solicited by firms providing 
labor relations advice. As we note above in connection with the section 
discussing the opportunity for free speech and debate, the well-
documented growth of the labor relations consulting industry undermines 
the contention that small businesses are unable to obtain advice 
quickly. And, small employers, like their larger counterparts, may be 
members of trade organizations which provide assistance in responding 
to the petition and in locating counsel. Testimony of Sencer on behalf 
of Weinberg Roger & Rosenfeld II; Testimony of Maciel on behalf of NGA 
II. As a former examiner commented, it was his experience that small

[[Page 74377]]

employers, like their larger counterparts, were able to retain counsel 
in short order. Pearson supplemental statement; Testimony of Pearson. 
The rule also provides that parties may move that the opening of the 
hearing be postponed up to 2 business days based on special 
circumstances and may move that the hearing be postponed for an even 
longer period of time based on extraordinary circumstances.\333\
---------------------------------------------------------------------------

    \333\ In the case of a very small employer with only ``one 
boss'' who is scheduled to be away on business or a pre-planned 
vacation on the date of the hearing (CNLP), the employer remains 
free under the amendments to file a motion for postponement setting 
forth such matters as the precise nature of the conflict, the harm 
caused by rescheduling the other matter, and the length of the 
postponement requested. The same holds true if the only person in 
charge is away when the notice of hearing issues. We note in this 
regard that small business owners may be away or have conflicts when 
notices of hearing are served under the current rules.
    RILA suggests that the time frames are inappropriate if the 
petition is filed during ``holiday season'' when retail stores are 
busy. The Board is confident that regional directors will continue 
to exercise their discretion appropriately in the event a retail 
employer files a motion to postpone a pre-election hearing. We note 
in this regard that a petition filed just before Christmas 
concerning the employees of a small, ``mom and pop'' retail store 
would appear to raise different considerations than a petition filed 
at the same time concerning the employees of a large department 
store.
    We also reject Elizabeth Milito's testimony that the time frames 
are unfair because small employers ``wouldn't have a clue'' what to 
do after they receive an election petition. Just as was the case 
under the prior rules, employers and their advisors may communicate 
with the Board agent assigned to the representation case and may 
consult the Board's Web site which features links to a variety of 
useful information, including the Casehandling Manual. Moreover, as 
set forth above, the amendments provide that all employers will be 
served, along with the petition, documents describing Board 
representation procedures and providing information about their 
responsibilities and employee rights. The Statement of Position form 
will also guide the parties' preparation for any hearing that must 
be held. We believe that, as a result of these amendments, employers 
will have more guidance about ``what to do'' than they had under the 
prior rules.
---------------------------------------------------------------------------

    In the final analysis, however, the Board believes that small 
employers, like their larger counterparts, will be able to 
appropriately respond to the filing of a petition. Congress deemed it 
appropriate to grant Section 7 rights to employees, notwithstanding any 
resulting distractions to employers, even those of relatively small 
size. The Board is confident that small employers can locate competent 
advisors, should they choose to do so, within the time frames set forth 
in the rule.
    Nevertheless, the Board emphasizes that the final rule fully 
protects small employers with respect to the two issues that, in our 
experience, most concern small employers. First, even if a small 
employer fails to complete a Statement of Position form, the small 
employer will be able to challenge the Board's statutory jurisdiction 
at any time. Second, even if a small employer fails to complete a 
Statement of Position form, it will be able to challenge the 
eligibility of a particular individual at the polls. See amended Sec.  
102.66(d). Accordingly, we reject as mistaken comments such as the 
National Meat Association's that argue that a small employer would 
waive ``even objections to [statutory] jurisdiction'' if they did not 
raise the issue in a Statement of Position.
2. Faculty Managerial Cases
    ACE argues that the Board should exempt institutions of higher 
education from the Statement-of-Position and hearing time frames. As 
justification, ACE stresses the difficulty of adequately preparing in 
such a short period for a hearing to determine whether petitioned-for 
faculty are employees entitled to the protection of the NLRA or 
managers without Section 7 rights to organize and bargain collectively. 
ACE II. The Board declines to carve out a generalized exemption because 
the parties may be able to complete the Statement of Position form and 
adequately prepare for hearing in that time frame. For example, where 
the Board has previously found the faculty at issue to be statutory 
employees and the faculty are seeking to decertify the union currently 
representing them, the Board believes that the 7-day Statement of 
Position, 8-day hearing time frame would be appropriate.
    However, the Board recognizes that petitions concerning faculty may 
sometimes present unusually complex issues prompting regional directors 
on their own initiative--or upon a party's motion--to set the opening 
of the hearing beyond the normal time frame. The legal test for 
determining the managerial status of college faculty involves 
consideration of ``a long list of relevant factors'' (LeMoyne-Owen 
College v. NLRB, 357 F.3d 55, 57 (D.C. Cir. 2004)); requires ``an 
exacting analysis of the particular institution and faculty at issue * 
* * [which] is made more difficult by the fact * * * that the Act is 
not easily applied to labor relations in the university setting'' 
(Point Park University v. NLRB, 457 F.3d 42, 48 (D.C. Cir. 2006)); and 
has met with some criticism in recent years. See id. at 47-51; LeMoyne-
Owen College v. NLRB, 357 F.3d at 57, 61. In addition, the 
nonpetitioner bears the burden of proving that the petitioned-for 
faculty are managers, and such cases typically involve large units. 
Accordingly, while the Board declines to carve out an exemption for all 
faculty managerial cases, the Board recognizes that cases involving 
numerous or complex factual or legal issues may require additional time 
and the rules provide a process by which the regional director on the 
director's own initiative may grant more time as well as a process by 
which the parties themselves can request additional time.
3. Construction Industry
    Some comments argue that the Board should exempt construction 
industry employers from the time frames governing the hearing and 
Statement of Position. For example, AGC appears to argue that there is 
no need to more expeditiously resolve questions concerning 
representation in the construction industry because, in contrast to 
typical representation cases, the petitioned-for construction industry 
unit may already be covered by a collective-bargaining agreement 
pursuant to Section 8(f) of the NLRA.\334\
---------------------------------------------------------------------------

    \334\ Section 8(f) of the NLRA (29 U.S.C. 158(f)) permits a 
construction industry employer and a union to enter into a 
collective-bargaining agreement even though a majority of the 
employees have never designated the union to be their collective-
bargaining representative. By contrast, it is unlawful for a 
nonconstruction industry employer to enter into a collective-
bargaining agreement with a minority union. See American Automatic 
Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 214 (4th Cir. 1998).
---------------------------------------------------------------------------

    The Board disagrees for several reasons that it should carve out an 
exemption for cases involving construction industry employers. By 
definition, AGC's argument has no force whatsoever in those cases where 
the petitioned-for unit is not already covered by an 8(f) collective-
bargaining agreement. Moreover, there are important reasons to 
expeditiously resolve questions concerning representation even in those 
cases where the petitioned-for employees are already covered by an 8(f) 
collective-bargaining agreement. Section 8(f) imposes no enforceable 
obligations in the absence of a collective-bargaining agreement. Allied 
Mechanical Services, Inc., 351 NLRB 79, 83 (2007), enforced, 668 F.3d 
758, 761, 771 (D.C. Cir. 2012). Accordingly, as soon as the 8(f) 
collective-bargaining agreement expires, the employer is free to 
unilaterally change the existing terms and conditions of employment and 
withdraw recognition from the union as the representative of its 
employees. By contrast, an employer that has a Section 9(a) 
relationship with a union is obligated to maintain the status quo even 
after expiration of its collective-bargaining agreement. See American 
Automatic Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 211, 214-15 
(4th

[[Page 74378]]

Cir. 1998). In short, because a Section 9(a) relationship provides much 
greater protection to the unit employees than a Section 8(f) 
relationship, a union and the unit employees it represents pursuant to 
Section 8(f) have ample reason to desire a prompt resolution of the 
union's 9(a) status through a Board-conducted election. See M&M Backhoe 
Service, Inc. v. NLRB, 469 F.3d 1047, 1048-50 (D.C. Cir. 2006). 
Similarly, employees already covered by an 8(f) collective-bargaining 
agreement may wish to rid themselves of union representation entirely 
or change their representative. Indeed, it may be especially important 
to expeditiously resolve questions concerning representation in the 
construction industry because construction industry work can be of 
short duration.
    In addition, the Board finds it highly significant that 
construction industry employers frequently perform services on a common 
job site alongside many other employers and groups of employees. The 
Board is all too aware of how quickly labor strife between one employer 
and a union on a common site can spill over and embroil neutral 
employers, employees, and the public. See, e.g., NLRB v. Denver 
Building & Construction Trades Council, 341 U.S. 675, 677-80, 688-92 
(1951); NLRB v. International Union of Elevator Constructors, 902 F.2d 
1297, 1303-05 (8th Cir. 1990). Accordingly, the Board is unable to 
conclude that the public has less of an interest in the expeditious 
resolution of questions concerning representation in construction 
industry cases than it does in cases arising outside the construction 
industry.
    Alternatively, AGC, AGC II, ABC, ABC II, and many others argue that 
the time frames are simply not feasible for construction industry 
employers because of the complexity of issues arising in that industry 
and the industry's unique nature.\335\ For example, ABC argues that it 
will not be possible in the allotted time for them to produce the lists 
of employees in the petitioned-for unit and in their alternative units, 
because there is a special eligibility formula in the construction 
industry that requires analysis of 2-years worth of payroll 
records.\336\
---------------------------------------------------------------------------

    \335\ See also C.J.M. Services, Inc. II; Sundt Construction II; 
Knife River Materials.
    \336\ As discussed above in connection with Sec.  102.62, that 
formula, commonly known as the Daniel/Steiny formula, provides that, 
in addition to those eligible to vote in Board conducted elections 
under the standard criteria (i.e., the bargaining unit employees 
currently employed), unit employees in the construction industry are 
eligible to vote if they have been employed for at least 30 days 
within the 12 months preceding the eligibility date for the election 
and have not voluntarily quit or been discharged, or have had some 
employment in those 12 months, have not quit or been discharged, and 
have been employed for at least 45 days within the 24-month period 
immediately preceding the eligibility date. See Steiny & Co. Inc. 
(``Steiny''), 308 NLRB 1323, 1326-27 (1992), and Daniel Construction 
Co., Inc. (``Daniel''), 133 NLRB 264, 267 (1961), modified, 167 NLRB 
1078, 1081 (1967).
---------------------------------------------------------------------------

    The Board disagrees. As the comment filed by The Building and 
Construction Trades Department, AFL-CIO (BCTD) notes, the amendments do 
not require the employer to produce a preliminary Daniel/Steiny 
eligibility list as part of its Statement of Position. Instead, it need 
only produce lists of the individuals employed at the time the petition 
is filed, and the employer will have 7 days notice of the due date for 
the Statement of Position. In a contested case, an eligibility list 
complying with the Daniel/Steiny formula need only be produced 2 
business days after an election is directed, which will be more than a 
week after service of the petition. ABC's and AGC's related comment--
that they cannot produce the final voter list within the allotted 
time--is addressed in the sections dealing with the voter list issues 
generally.
    Comments, such as those filed by AGC and ABC, also argue that such 
an early hearing is not feasible because petitions involving 
construction industry employees present complex matters, such as the 
appropriate unit, disappearing and expanding units, craft issues, and 
the supervisory status of working foremen. However, as BCTD notes, 
Board precedent on these issues generally is long-standing and settled. 
Individual supervisory issues may end up being deferred, because, as 
discussed below in connection with Sec. Sec.  102.64 and 102.66, 
disputes concerning individuals' eligibility to vote or inclusion in an 
appropriate unit ordinarily need not be litigated or resolved prior to 
the election. And the number and difficulty of the issues presented 
will vary from case to case. Thus, for example, the issues are likely 
to be fewer in cases where an incumbent union seeks to convert its 
relationship from 8(f) to 9(a).\337\ Accordingly, the Board disagrees 
that it should carve out a categorical exemption for all construction 
industry employers.
---------------------------------------------------------------------------

    \337\ Some comments, such as those filed by AGC also suggest 
that it will be difficult for construction industry employers to 
comply with the proposed time frames because they have decentralized 
workplaces. However, the Board is confident that, with modern 
methods of communication such as email, fax machines, and cell 
phones, the party responsible for responding to the Statement of 
Position can obtain the necessary information to complete the form 
in a timely manner notwithstanding the employer may operate at more 
than one location. For example, if the person responsible for 
completing the form needs records stored at a separate location, 
those records can be faxed (or scanned and then emailed) quickly.
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4. Businesses Whose Owners or Employees Speak Foreign Languages
    CNLP comments that the time frames are unworkable in those cases 
where English is the not the primary language of the employer or the 
petitioned-for employees. We decline to carve out a categorical 
exemption for all such cases. Employers operating in the United States 
are subject to the laws of this country whether English is the owner's 
primary language or not. Some business owners and employees can 
understand English even if English is not their primary language. Even 
if certain business owners do not understand English at all, they may 
have advisors or assistants who do. In any event, employers remain free 
to file motions for postponements based on their particular 
circumstances. Similarly, employers (and unions) remain free to request 
that Board notices and ballots be translated into foreign languages 
based on the needs of unit employees. Casehandling Manual Sections 
11315. In short, the Board is confident that regional directors will 
continue to reasonably exercise their discretion to accommodate the 
language needs of the public.
5. Other Industries
    A host of other comments argue that additional industries, such as 
the healthcare industry, require exemptions from the standard time 
frames, but they offer no persuasive justifications.\338\ For example, 
AHA complains that hospitals don't have the capability to focus solely 
on the completion of the Statement of Position for an entire week, that 
the rule will place putative supervisors and unit members under a week 
of scrutiny, and that the accelerated time frames will distract from 
the employers' primary goal of treating and caring for ill patients. 
However, they offer no specifics to support any of these assertions. 
For example, the comments do not show, and the Board does not believe, 
that hospitals will actually ask the medical professionals who provide 
direct patient care to complete the employee lists or decide what 
positions to take regarding a proposed bargaining unit. Nor does the 
Board believe that the Statement of Position and hearing will require 
an entire week of preparation that necessitates employer surveillance. 
The employer already knows what its employees do because it assigns 
those duties to them, and the employer

[[Page 74379]]

already knows their terms and conditions of employment because it 
established them. Indeed, AHA appears to take the position elsewhere in 
its comment that the Board's healthcare rule (29 CFR 103.30) eases the 
parties' task by setting forth the appropriate units for cases 
involving acute care hospitals.\339\
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    \338\ See, e.g., AHA; AHA II; CHA II; Con-way; Testimony of 
Robert Garbini on behalf of NRMCA.
    \339\ ALFA argues that the time frames are unworkable if the 
petition is filed when a facility ``is in the middle of a state 
audit.'' Suffice it to say that the Board believes that a small 
facility may be able to show special circumstances, and even 
extraordinary circumstances, for requesting a postponement of a pre-
election hearing if the hearing were scheduled during a state audit 
that required the administrator's attention, depending on the size 
and particular factors involved.
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6. Decertification Cases
    The SEIU argues that an exception should be created for 
decertification cases, because, in essence, the interest in expedition 
is not as strong where an employer is free to withdraw recognition 
without having to go through the election process. The Board disagrees. 
The Act makes no distinction as to the importance of expedition in 
these two situations, and we decline to do so here. Although employer 
agreement--whether by voluntary recognition, or withdrawal of 
recognition, or even by procedural election agreements--can eliminate 
delay in the effectuation of NLRA policies, as discussed elsewhere, 
this does not alter the NLRA policy in favor of timely representation 
procedures where no such agreement is forthcoming. The Board takes 
seriously its responsibility to expeditiously resolve questions 
concerning representation in the decertification context just as in an 
initial organizing context.
D. Mandatory Posting of Notice of Petition for Election
    The final rule adopts in amended Sec.  102.63(a)(1) the NPRM 
proposal that, along with the petition, notice of hearing, description 
of procedures in representation cases, and the Statement of Position 
form, the regional director will serve a revised version of the Board's 
Form 5492, currently headed Notice to Employees, on the parties. 79 FR 
7328.\340\ The revised form will bear the heading ``Notice of Petition 
for Election,'' (rather than the proposed heading ``Initial Notice to 
Employees of Election'') to reflect that, as discussed below, although 
such petitions seek Board-conducted elections, elections do not 
necessarily occur in all cases after the filing of such petitions. It 
will specify that a petition has been filed, as well as the type of 
petition, the proposed unit, and the name of the petitioner; briefly 
describe the procedures that will follow, and, just as it does 
currently, it will list employee rights and set forth in understandable 
terms the central rules governing campaign conduct. The notice will 
also provide employees with the Board's Web site address, through which 
they can obtain further information about the processing of petitions. 
Unlike current Form 5492, which has no posting requirement, the final 
rule requires employers to post the Notice of Petition for Election in 
conspicuous places, including all places where notices to employees are 
customarily posted,\341\ and employers who customarily communicate with 
their employees electronically will also be required to distribute the 
notice electronically. The final rule further requires that employers 
maintain the posting until the petition is dismissed or withdrawn or 
the Notice of Petition for Election is replaced by the Notice of 
Election. The Board has concluded that the Notice of Petition for 
Election will provide useful information and guidance to employees and 
the parties.
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    \340\ As discussed above in connection with Sec.  102.60, the 
Board has concluded that service of the description of 
representation case procedures will aid non-petitioning parties' 
understanding of those procedures.
    \341\ The NPRM proposed that the employer post the proposed 
Initial Notice (which the final rule retitles as the ``Notice of 
Petition for Election'') where notices to employees are 
``customarily posted,'' and that the proposed final notice (which 
the final rule accordingly retitles as the ``Notice of Election'') 
be posted in ``conspicuous places.'' 79 FR 7354, 7359. Upon 
reflection, the Board has concluded that to help ensure wide 
dissemination of the important information contained therein, the 
``Notice of Petition for Election'' should be posted ``in 
conspicuous places, including all places where notices to employees 
are customarily posted,'' and amended Sec.  102.63(a)(2) so 
provides. The Board has decided to use similar language in amended 
Sec.  102.67(k) to describe where the ``Notice of Election'' should 
be posted.
---------------------------------------------------------------------------

    Baker & McKenzie question how soon the employer must post the 
notice to comply with the proposed requirement that the Employer 
``immediately'' post it. While we believe that most employers should be 
able to comply with this provision by posting the notice on the same 
day that it is received, the Board will not judge an employer to have 
failed to comply with this provision so long as the notice is posted 
within 2 business days of receipt, and, accordingly, the final rule 
states that the employer shall post the Notice of Petition for Election 
within 2 business days after service of the notice of hearing. We leave 
to future case by case adjudication whether some unforeseen set of 
factual circumstances might justify an employer taking a longer period 
of time to post the notice. Accordingly, amended Sec.  102.63(a)(2) 
further provides that the employer's failure properly to post or 
distribute the Notice of Petition for Election ``may be'' grounds for 
setting aside the election when proper and timely objections are filed. 
Just as is the case with respect to the election notice, a party may 
not object to the nonposting of notices if it is responsible for the 
nonposting, and likewise may not object to the nondistribution of the 
Notice of Petition for Election if it is responsible for the 
nondistribution.
    Baker & McKenzie also question whether an employer needs to 
electronically distribute the notice to all employees in the 
petitioned-for unit if the employer customarily communicates with only 
some of the employees through electronic means. If the employer 
customarily communicates with all the employees in the petitioned-for 
unit through electronic means, then the employer must distribute the 
Notice of Petition for Election electronically to the entire unit. If 
the employer customarily communicates with only some of the employees 
in the petitioned-for unit through electronic means, then the employer 
need only distribute the Notice of Petition for Election electronically 
to those employees.
    Few objections were expressed as to the merit of the mandatory 
posting requirement, and several comments emphasize the importance of 
timely informing employees of an impending representation proceeding 
and their related rights.\342\ Prompt posting of the Notice of Petition 
for Election will inform not only the employees whose representation is 
at issue but also the employer of the rights and protective 
requirements imposed by the NLRA in the representation context. Such 
posting will also assist employees in obtaining additional information 
on a timely basis.
---------------------------------------------------------------------------

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

    However, GAM expresses concern that the requirement to distribute 
the notice electronically if the employer customarily communicates with 
its employees electronically could lead to additional grounds for 
filing objections to the election and subsequent litigation. The 
possibility was also raised of unequal treatment of potential voters, 
since some will have electronic access and some will not.
    The Board recognizes that electronic distribution to employees does 
not, in itself, guarantee that all eligible voters will receive the 
Notice of Petition for Election. However, electronic

[[Page 74380]]

distribution will act in conjunction with the posting of paper notices 
in conspicuous places, including all places where notices to employees 
are customarily posted. Unless the employer can be shown to have 
departed from its customary practice in electronic distribution, there 
will be no basis for an objection and the requirement will only 
increase the desired flow of information to employees.
    ALFA suggests that the notice should warn employees that final 
decisions have not been made regarding the unit and whether an election 
will be conducted. The Board agrees that such warnings would accurately 
describe the reality when the regional director furnishes the notice to 
the employer for posting and distribution. Accordingly, the final rule 
provides in Sec.  102.63(a)(2) that the Notice of Petition for Election 
shall indicate that no final decisions have been made yet regarding the 
appropriateness of the petitioned-for bargaining unit and whether an 
election shall be conducted.
    ALFA and the ACC complain that the Board should have included a 
copy of the proposed Notice in the NPRM to permit the public to comment 
on it. However, as discussed in the NPRM, it has long been the Board's 
practice to ask the employer to voluntarily post a generic notice of 
employee rights--Form 5492--upon the filing of a petition; the NPRM 
described how the Board proposed to modify the contents of that notice, 
such as by including a description of the proposed unit and the name of 
the petitioner (79 FR 7324, 7328); and that notice was available to the 
public. Accordingly, the Board rejects any suggestion that the public 
was unable to comment on the proposal to require the employer to post a 
notice after the filing of a petition but before an election is agreed 
to by the parties or is directed by the regional director.\343\ As it 
has in the past, the Board will use due care in crafting the notices, 
the notices will be consistent with the regulations the agency has 
promulgated, and the notices will comply with all existing laws and 
regulations governing notices utilized by Federal agencies, including 
the Paperwork Reduction Act as separately analyzed. Should a party feel 
there is any error in a notice as promulgated, it can bring that to the 
attention of the Board.\344\
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    \343\ The Chamber II notes that the District of Columbia Circuit 
and the Fourth Circuit struck down a Board rule requiring all 
employers subject to the NLRA to post a notice of employee rights in 
the workplace. The rule also noted that the failure to post could be 
found to be an unfair labor practice. 76 FR 54006 (August 30, 2011). 
The Board rejects any suggestion that the litigation over that rule 
calls into question the validity of the proposal to require an 
employer to post a notice upon the filing of a representation 
petition. As the text of amended Sec.  102.63 makes clear, an 
employer will only be required to post the Notice of Petition for 
Election if it is the subject of a pending representation petition, 
and the failure to post the notice will not constitute an unfair 
labor practice. See Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 959 
n.19 (D.C. Cir. 2013) (``Our conclusion here does not affect the 
Board's rule requiring employers to post an election notice (which 
similarly contains information about employee rights) before a 
representation election[.] Because the failure to post the required 
election notice does not constitute an unfair labor practice but may 
be a basis for setting aside the election, see id. Sec.  103.20(d) 
[of the Board's prior rules], the rule does not implicate Sec.  
8(c).'') overruled in part, American Meat Institute v. U.S. Dep't of 
Agriculture, 760 F.3d 18, 22 (D.C. Cir. 2014) (en banc). And the 
Fourth Circuit specifically distinguished the rule, which applied 
regardless of the pendency of an NLRA proceeding, from instances in 
which representation petitions have been filed with the Board. See 
Chamber of Commerce v. NLRB, 721 F.3d 152, 154, 156, 161, 163 (4th 
Cir. 2013).
    \344\ For much the same reasons, the Board likewise rejects the 
Chamber's complaint that the Board should have included the proposed 
Statement of Position form in the NPRM. As discussed, the NPRM set 
forth at length the specific information that the proposed form 
would solicit. 79 FR 7328-7329. Indeed, the Chamber concedes that 
``the substantive information to be supplied by the employer for the 
Statement of Position Form is described in the proposed 
amendments.'' The numerous detailed comments that were submitted on 
the Statement of Position proposal belie any suggestion that the 
failure to provide the form itself in the NPRM deprived any party of 
the ability to comment on the proposal. The Board similarly rejects 
the Chamber's additional complaint that the Board should have 
published the proposed description of representation case procedures 
in the NPRM. As the NPRM indicated, this description is a substitute 
for and an expanded version of Form 4812--and serves to inform 
interested parties of their rights and obligations in relation to 
the representation proceeding. 79 FR 7326, 7328, 7329. Form 4812 was 
publicly available during the comment period.
---------------------------------------------------------------------------

Sec. 102.64 Conduct of Hearing
    As explained in the NPRM, the proposed amendments to Sec.  102.64 
were intended to ensure that the pre-election hearing is conducted 
efficiently and is no longer than necessary to serve the statutory 
purpose of determining if there is a question of representation. 79 FR 
at 7329. The final rule largely embodies the proposed amendments.
    In amended Sec.  102.64(a), the Board expressly construes Section 
9(c) of the Act, which specifies the purpose of the pre-election 
hearing. The statutory purpose of the pre-election hearing is to 
determine if there is a question of representation.\345\ A question of 
representation exists if a proper petition has been filed concerning a 
unit appropriate for the purpose of collective bargaining or concerning 
a unit in which an individual or labor organization has been certified 
or is being currently recognized by the employer as the bargaining 
representative.\346\ If the regional director concludes, based on the 
record created at the hearing, that such a question of representation 
exists, the regional director should direct an election in order to 
resolve the question.\347\
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    \345\ Thus, Section 9(c)(1)(A) of the Act provides that the 
Board must provide for a hearing if it has ``reasonable cause to 
believe that a question of representation affecting commerce 
exists,'' and that the Board must direct an election if it finds, 
based on the record of that hearing, that ``such a question of 
representation exists.''
    \346\ A proper petition cannot be filed under Section 9(c)(1) 
and a question of representation cannot arise under the Act unless 
the employees in the unit are employed by an employer covered by the 
Act. Thus, if any party contests the Board's statutory jurisdiction 
or contends that the Board has declined to exercise its full, 
statutory jurisdiction over the employer, the regional director must 
resolve the resulting dispute based on the record of the pre-
election hearing. A proper petition cannot be filed under Section 
9(c)(1) and a question of representation cannot exist under the Act 
if there is a bar to an election, so the regional director must rule 
on the existence of a bar prior to directing an election if any 
party raises the issue. Similarly, a proper petition can be filed by 
``an employee or group of employees or any individual or labor 
organization.'' Thus, if a petition is filed by an entity and any 
party contends that the entity is not a labor organization, the 
regional director must resolve the resulting dispute based on the 
record of the pre-election hearing. Moreover, the final rule ensures 
that the nonemployer parties will have the opportunity to present 
evidence on these issues even if the employer declines to take a 
position on them. Thus, amended Sec.  102.66(b) makes clear that 
even if the employer declines to take a position on issues such as 
the appropriateness of a petitioned-for unit that is not 
presumptively appropriate, the regional director has discretion to 
direct the receipt of evidence concerning any issue, such as the 
appropriateness of the proposed unit, as to which the director 
determines that record evidence is necessary.
    \347\ The hearing officer will retain authority to develop the 
record relevant to any such contention using the ordinary procedures 
already in use, which are designed to avoid burdening the record 
with unnecessary evidence. For example, current rules give the 
hearing officer discretion to require a party to make an offer of 
proof before admitting evidence.
---------------------------------------------------------------------------

    Amended Sec.  102.64(a) makes clear that, as discussed in the NPRM 
(79 FR at 7322, 7329), resolution of disputes concerning the 
eligibility or inclusion of individual employees ordinarily is not 
necessary in order to determine if a question of representation exists, 
and therefore disputes concerning individual employees' eligibility to 
vote and inclusion in the unit ordinarily need not be litigated or 
resolved before an election is conducted. Such disputes can be raised 
through challenges interposed during the election, if the disputed 
individuals cast a ballot, and such disputes can be both litigated and 
resolved, if necessary, post-election. The proposed rule provided in 
Sec.  102.64(a) (79 FR at 7356):

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

[[Page 74381]]

of representation exists and there is no bar to an election, he 
shall direct an election to resolve the question and, subsequent to 
that election, unless specifically provided otherwise in these 
rules, resolve any disputes concerning the eligibility or inclusion 
of voters that might affect the results of the election.

The final rule provides in Sec.  102.64(a):

    Disputes concerning individuals' eligibility to vote or 
inclusion in an appropriate unit ordinarily need not be litigated or 
resolved before an election is conducted. If, upon the record of the 
hearing, the regional director finds that a question of 
representation exists, the director shall direct an election to 
resolve the question.

The change in language is due to the final rule not adopting the ``20-
percent rule'' as discussed below in relation to Sec.  102.66. For that 
reason, the language, ``unless specifically provided otherwise in these 
rules,'' has been removed. As more fully explained in relation to Sec.  
102.66 below, the amendment expressly preserves the regional director's 
discretion to resolve or not to resolve disputes concerning 
individuals' eligibility to vote or inclusion in the unit until after 
the election. It also grants the hearing officer authority to exclude, 
at the regional director's direction, evidence concerning such disputes 
on the grounds that such evidence is not relevant to the existence of a 
question of representation. In addition, because a question of 
representation cannot exist under the Act if there is a bar to an 
election, see, e.g., Deluxe Metal Furniture Co., 121 NLRB 995, 1007 
(1958) (contract bar); Randolph Metal Works, Inc., 147 NLRB 973, 974-75 
(1964) (election and contract bars); Seven Up Bottling Co., 222 NLRB 
278, 279 (1976) (certification bar), the Board has concluded that it is 
superfluous for the regulatory text to refer to both the existence of a 
question of representation and the absence of a bar. Accordingly, the 
final rule provides that if the regional director finds that a question 
of representation exists, the director shall direct an election to 
resolve the question. See Section 9(c)(1) of the Act (``If the Board 
finds upon the record of such hearing that such a question of 
representation exists, it shall direct an election by secret ballot and 
shall certify the results thereof.'')
The proposed rule provided in Sec.  102.64 (b) (79 FR 7356):

    Subject to the provisions of Sec.  102.66 of this subpart, it 
shall be the duty of the hearing officer to inquire fully into all 
genuine disputes as to material facts in order to obtain a full and 
complete record upon which the Board or the regional director may 
discharge their duties under Section 9(c) of the Act.

The final rule provides in Sec.  102.64(b):

    Subject to the provisions of Sec.  102.66 of this subpart, it 
shall be the duty of the hearing officer to inquire fully into all 
matters and issues necessary to obtain a full and complete record 
upon which the Board or the regional director may discharge their 
duties under Section 9(c) of the Act.

    The Board has removed the ``genuine disputes as to material-facts'' 
language drawn from Federal Rule of Civil Procedure 56 in order to 
avoid the confusion evident in some comments concerning the role of the 
hearing officer. Therefore, amended Sec.  102.64(b) will provide, 
``Subject to the provisions of Sec.  102.66 of this subpart, it shall 
be the duty of the hearing officer to inquire fully into all matters 
and issues necessary to obtain a full and complete record upon which 
the Board or the regional director may discharge their duties under 
Section 9(c) of the Act.'' However, amended Sec.  102.64(a) more 
clearly specifies the Board's or regional director's ``duties under 
Section 9(c) of the Act,'' and thus gives clear guidance to hearing 
officers concerning what evidence is and is not necessary to develop a 
``full and complete record'' upon which the Board or regional director 
can discharge those duties.
    Few comments address the proposed amendments to Sec.  102.64(a) and 
(b). Those that do, question our construction of Section 9(c) of the 
Act in Sec.  102.64 on the grounds that litigation of disputes 
concerning individual employees' eligibility to vote and inclusion in 
the unit should be permitted pre-election. These comments are addressed 
below in relation to Sec.  102.66.
    The Board's current rules provide that the hearing officer may, in 
the officer's discretion, continue the hearing from day to day or 
adjourn it to a later date. Although, as noted above, there was a great 
deal of comment about the proposal to open the pre-election hearing 7 
days from service of the notice absent special circumstances, there 
were few comments about the proposal that the hearing continue day to 
day until completed absent extraordinary circumstances. 79 FR at 7356. 
The AFL-CIO and AFSCME submitted comments in support of this change. 
The AFL-CIO argues that ``[t]his requirement is critical because the 
current process, under which a 3-day hearing may extend over several 
weeks, presents opportunities for manipulating the timing of the 
election and maximizing the delay before any election is conducted.'' 
AFSCME adds that the amendment should not be controversial and benefits 
all parties by injecting certainty into the election process. The AFL-
CIO also points out that the proposed amendment would merely codify a 
``best practice'' listed in the General Counsel's 1997 ``Report of Best 
Practices Committee--Representation Cases.'' \348\
---------------------------------------------------------------------------

    \348\ See also Section 11082.3 of the Casehandling Manual, which 
provides that parties should be advised ``that the hearing, once 
commenced, will be conducted on consecutive days, until completed, 
unless the most compelling circumstances warrant otherwise.''
---------------------------------------------------------------------------

    However, the AFL-CIO suggests that the Board should require parties 
to meet a stricter standard when seeking a continuance. Thus, the AFL-
CIO suggests that instead of requiring that hearings be conducted on 
consecutive days ``absent extraordinary circumstances,'' the Board 
adopt the language ``unless the most compelling circumstances warrant 
otherwise,'' which is used in Section 11082.3 of the Board's 
Casehandling Manual. In its reply to the AFL-CIO's comment, the Chamber 
requests (Reply) at a minimum that the Board not abandon the 
``extraordinary circumstances language.'' However, the Chamber also 
urges the Board to temper the requirement of consecutive day hearings. 
Thus, it suggests that the Board merely require a moving party to 
demonstrate ``good cause'' for a hearing's continuance. According to 
the Chamber (Reply), employers and their counsel will need to 
reschedule other matters in order to comply with the 7-day hearing and 
statement-of-position provisions, which will increase the chances of 
scheduling conflicts if the hearing runs more than 1 day.
    After careful consideration, the Board has decided to adopt the 
proposed amendment with one change in amended Sec.  102.64(c) to make 
clear that the regional director, rather than the hearing officer, will 
make the determination in question. The Board concludes that continuing 
the pre-election hearing from day to day until completed (absent 
extraordinary circumstances) will remove unnecessary barriers to the 
expeditious resolution of questions concerning representation because, 
absent an election agreement, the election that is designed to answer 
the question of representation cannot be held until the pre-election 
hearing is completed. Thus, eliminating unnecessary delay in concluding 
the pre-election hearing helps eliminate unnecessary delay in resolving 
questions of representation. The amendment also allows the Board, 
rather than the parties, to control the hearing schedule, and renders 
hearing scheduling more transparent and uniform across regions.
    The Board declines to adopt the Chamber's suggestion--that the 
Board adopt a good-cause standard for granting

[[Page 74382]]

continuances--as largely being unnecessary in light of the final rule's 
adoption of revised language in Sec.  102.63 regarding the scheduling 
of the pre-election hearing and the changes to Sec.  102.64 and Sec.  
102.66 regarding the conduct of the hearing. As set forth in amended 
Sec.  102.63, except in cases presenting unusually complex issues, the 
pre-election hearing will be scheduled to open 8 days from service of 
the notice, but parties may request that the hearing be postponed up to 
2 business days for special circumstances, and for more than 2 business 
days for extraordinary circumstances. Moreover, the amendments to Sec.  
102.64(a), clarifying the purpose of the hearing and that disputes 
concerning individuals' eligibility to vote or inclusion in an 
appropriate unit ordinarily need not be litigated or resolved before an 
election is conducted, and the amendments to Sec. Sec.  102.63 and 
102.66, providing for Statements of Position and responses to the 
Statements of Positions, should serve to streamline the hearing, making 
it less likely that the hearing will continue over several days.
    The Board likewise declines to adopt the AFL-CIO's suggestion. Once 
the hearing opens, the Board expects that the hearing will continue 
from day to day until completed. In the Board's view, the 
``extraordinary circumstances'' language does not differ significantly 
from the existing Casehandling Manual guidance of ``the most compelling 
circumstances,'' and in any event, is more widely used and easily 
understood by parties who are new to Board processes.
    However, the Board has concluded that just as the regional director 
is the one who decides when the pre-election hearing will open, the 
regional director, rather than the hearing officer, should be the one 
to decide whether a pre-election hearing that requires more than 1 day 
should continue day to day until completed or should be adjourned to a 
later date. Accordingly, amended Sec.  102.64(c) provides that the 
hearing will continue from day to day until completed unless the 
regional director concludes that extraordinary circumstances warrant 
otherwise.\349\
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    \349\ The proposed amendment to Sec.  102.64 (b) also omitted 
pre-existing language providing that the hearing officer also has 
discretion to adjourn the hearing ``to a different place, by 
announcement thereof at the hearing or by other appropriate 
notice.'' Upon reflection, the Board has decided to reject the 
proposed amendment, as hearings sometimes need to be relocated. 
However, consistent with the amendment vesting the regional 
director, rather than the hearing officer, with the authority to 
decide whether a hearing that requires more than a day to complete 
should continue day to day or whether it should be adjourned to a 
later date, the final rule also provides in amended Sec.  102.64(c) 
that the regional director has discretion to adjourn the hearing to 
a different location by appropriate notice.
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Sec. 102.65 Motions; Intervention; Appeals of Hearing Officer's Rulings
    Consistent with the effort to avoid piecemeal appeals, the NPRM 
proposed to narrow the circumstances under which a request for special 
permission to appeal would be granted. More specifically, the NPRM 
proposed that such an appeal would only be granted under extraordinary 
circumstances when it appears that the issue will otherwise evade 
review. To further discourage piecemeal appeals, the NPRM proposed that 
a party need not seek special permission to appeal in order to preserve 
an issue for review post-election. Consistent with current practice, 
the NPRM provided that neither the filing of a request for special 
permission to appeal nor the grant of such a request would stay an 
election or any other action or require impounding of ballots unless 
specifically ordered by the Board. The NPRM also proposed that neither 
a regional director nor the Board would automatically delay any 
decision or action during the time permitted for filing motions for 
reconsideration, rehearing, or to reopen the record. 79 FR at 7329, 
7356-7357.
    Upon reflection, the Board has decided not to adopt the proposed 
narrower standard to govern requests for special permission to appeal 
rulings of a hearing officer to the regional director. In the pre-
election hearing, the hearing officer is developing a record upon which 
the regional director can make a decision. Moreover, the relation 
between hearing officers and regional directors is, in practice, more 
informal than that between a trial and appellate court or between a 
regional director and the Board, with hearing officers not infrequently 
seeking advice from the regional director during a hearing. For these 
reasons, the final rule does not apply the proposed narrower standard 
to requests for special permission to appeal rulings of hearing 
officers to the regional director. However, to discourage such 
piecemeal appeals, the final rule makes clear in amended Sec.  
102.65(c) that a party need not seek special permission to appeal in 
order to preserve an issue for later. Consistent with current practice, 
the amendments provide that the filing of a request for special 
permission to appeal will not stay the proceedings unless otherwise 
ordered by the regional director.
    Consistent with the interpretation of Section 3(b) of the Act that 
our colleagues advanced in their dissent to the NPRM (79 FR at 7343 & 
n.108), the Board has also decided to substitute the request for review 
procedure, as modified as described below in connection with Sec.  
102.67, for the request for special permission to appeal procedure that 
the NPRM proposed to apply with respect to rulings made by the regional 
director prior to the close of a hearing in proceedings governed by 
Subpart C of Part 102. Accordingly, the Board has decided to amend 
Sec. Sec.  102.65 and 102.67 to clarify that any party may request 
Board review of any action taken by the regional director under to 
Section 3(b) of the Act except where the Board's rules provide 
otherwise.\350\
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    \350\ For example, if a party enters into an agreement pursuant 
to Sec.  102.62(c) of this subpart, providing for final regional 
determination of both pre- and post-election disputes, a party may 
not file a request for review of any regional director action.
---------------------------------------------------------------------------

    Few comments were submitted on the proposed amendments to Sec.  
102.65. AHCA contends that the Board provides no examples of issues 
that would meet the standard for ``otherwise evades review.'' Constangy 
argues that limiting appeals to extraordinary circumstances, combined 
with preventing regional directors from staying proceedings to consider 
motions for reconsideration, will effectively result in the total 
preclusion of review of pre-election rulings, preventing appeal of 
legitimate disputes. AHCA and ALFA argue that special permission to 
appeal serves little purpose because it will not stay proceedings. The 
Board need not address these comments at length because, as shown, the 
Board is not adopting the proposed narrower standard to govern requests 
for special permission to appeal hearing officer rulings to the 
regional director; the Board likewise has rejected the proposed 
narrower standard to govern appeals (to the Board) of regional director 
rulings made prior to the close of the hearing; and, as discussed below 
in connection with Sec.  102.67, the Board has decided to permit 
parties to request review of a regional director's post-hearing 
decision and direction of election prior to the election. Moreover, the 
final rule does not preclude the regional director or the Board from 
granting a stay. Rather the final rule merely provides in amended Sec.  
102.65(c) and amended Sec.  102.67(c) that such filings will not result 
in an automatic stay.
    The final rule adopts the proposed amendments to Sec.  
102.65(e)(3). The Casehandling Manual provides in Section 11338.7 that 
a Board agent should exercise discretion in deciding whether to allow a 
vote under challenge

[[Page 74383]]

when a party claims that changed circumstances justify a challenge to 
voters specifically excluded, or included, by the decision and 
direction of election. Accordingly, the final rule adopts the proposal 
in the NPRM that if a motion for reconsideration based on changed 
circumstances or to reopen the record based on newly discovered 
evidence states with particularity that the granting thereof will 
affect the eligibility to vote of specific employees, the Board agent 
shall have discretion to allow such employees to vote subject to 
challenge even if they are specifically excluded in the direction of 
election and to challenge or to permit the moving party to challenge 
the ballots of such employees even if they are specifically included in 
the direction of election in any election conducted while such motion 
is pending.\351\
---------------------------------------------------------------------------

    \351\ Upon reflection, the Board has concluded that Board agents 
should have discretion to challenge individuals who are explicitly 
included in the direction of election when a party has filed a 
motion as set forth above instead of having to rely on the moving 
party.
---------------------------------------------------------------------------

    The final rule makes a few additional amendments to Sec.  102.65. 
Under the Board's prior rules, the regional director could rule on 
motions to intervene and to amend petitions or could refer such motions 
to the hearing officer. 29 CFR 102.65(a), (b) (2010). As discussed 
below in connection with Sec.  102.66, the Board received a number of 
comments criticizing the authority of the hearing officer at the pre-
election hearing. Upon reflection, the Board has decided to amend Sec.  
102.65(a) and (b) to provide that the hearing officer shall rule on 
motions to intervene and to amend petitions only as directed by the 
regional director. Thus, the amendments make clear that it will be the 
regional director who decides whether a party may intervene and whether 
a petition may be amended. The final rule also moves a sentence about 
the record from Sec.  102.65(c) into amended Sec.  102.65(a). The final 
rule's other amendments to Sec.  102.65 conform the provisions of this 
section to the remainder of the amendments.\352\
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    \352\ Because as discussed below in connection with Sec.  
102.67, the Board has decided to eliminate the transfer procedure, 
the final rule also omits references to the transfer procedure that 
previously appeared in Sec.  102.65. The final rule also omits the 
now outdated references to ``carbon copies'' in this and other 
sections, and provides that extra copies of electronically-filed 
papers need not be filed with the Board. These amendments update the 
Board's representation case rules to reflect modern methods of 
communication.
---------------------------------------------------------------------------

    The NPRM also proposed that any person desiring to intervene in a 
representation case be required to complete a Statement of Position. 79 
FR 7329, 7356. Upon reflection, the Board has decided to reject the 
proposed amendment. Intervention happens in a wide variety of 
circumstances and so regional directors should have discretion to 
follow the procedure that best facilitates development of the record in 
a particular case.
Sec. 102.66 Introduction of Evidence: Rights of Parties at Hearing; 
Preclusion; Subpoenas; Oral Argument and Briefs
    In the NPRM, the Board proposed a number of amendments to Sec.  
102.66. The proposed amendments were designed to ensure that issues in 
dispute would be more promptly and clearly identified and that hearing 
officers could limit the evidence offered at the pre-election hearing 
to that which is necessary for the regional director to determine 
whether a question of representation exists. As explained below, the 
final rule adopts only some of the proposals.
    The NPRM proposed that hearing officers limit the evidence offered 
at hearings to that evidence which is relevant to a genuine dispute as 
to a material fact. The proposed amendments further provided that if, 
at any time during the hearing, the hearing officer determined that the 
only genuine issue remaining in dispute concerned the eligibility or 
inclusion of individuals who would constitute less than 20 percent of 
the unit if they were found to be eligible to vote, the hearing officer 
would close the hearing, and the director would permit those 
individuals to vote subject to challenge.
    The NPRM proposed that hearing officers would follow a specified 
process to identify relevant issues in dispute. Thus, the NPRM provided 
that the hearing officer would open the hearing by reviewing, or 
assisting non-petitioning parties to complete, statements of position, 
and then would require the petitioner to respond to any issues raised 
in the statements of positions, thereby joining the issues. The NPRM 
further proposed that after the issues were joined, the hearing officer 
would require the parties to make offers of proof concerning any 
relevant issues in dispute, and would not proceed to take evidence 
unless the parties' offers created a genuine dispute concerning a 
material fact.
    The Board proposed that a party would be precluded from raising any 
issue that it failed to raise in its timely statement of position or to 
place in dispute in response to another party's statement, subject to 
specified exceptions.
    The Board proposed in the NPRM that parties be permitted to file 
post-hearing briefs only with the permission of the hearing officer.
    Finally, the NPRM proposed, consistent with existing practice, that 
a party that has been served with a subpoena may be required to file or 
orally present a motion to quash prior to the 5 days provided in 
Section 11(1) of the Act.
A. Rights of Parties at Hearing; Disputes Concerning Less Than 20 
Percent of the Unit
    Section 101.20(c) of the Board's pre-NPRM Statement of Procedures 
provided in pertinent part, ``The parties are afforded full opportunity 
[at the pre-election hearing] to present their respective positions and 
to produce the significant facts in support of their contentions.'' And 
the Board's pre-NPRM rules provided in Sec.  102.66(a):

    Any party shall have the right to appear at any hearing in 
person, by counsel, or by other representative, and any party and 
the hearing officer shall have power to call, examine, and cross-
examine witnesses and to introduce into the record documentary and 
other evidence. Witnesses shall be examined orally under oath. The 
rules of evidence prevailing in courts of law or equity shall not be 
controlling. Stipulations of fact may be introduced in evidence with 
respect to any issue.

As discussed in more detail below, these provisions had been 
interpreted to give parties a right to produce evidence about issues 
that are not relevant to whether there is a question of representation.
    The NPRM proposed to eliminate Sec.  101.20 (and the rest of 
Subpart C of Part 101) and to amend Sec.  102.66(a) to state as 
follows:

    Any party shall have the right to appear at any hearing in 
person, by counsel, or by other representative, and any party and 
the hearing officer shall have power to call, examine, and cross-
examine witnesses and to introduce into the record documentary and 
other evidence relevant to any genuine dispute as to a material 
fact. The hearing officer shall identify such disputes as follows:
* * * * *
The Board also proposed to require the hearing officer to bar 
litigation of disputes concerning the eligibility or inclusion of 
individuals comprising less than 20-percent of the unit (the so-called 
``20-percent rule''). Thus, Sec.  102.66(d) of the NPRM provided:

    (d) Disputes concerning less than 20 percent of the unit. If at 
any time during the hearing, the hearing officer determines that the 
only issues remaining in dispute concern the eligibility or 
inclusion of individuals who would constitute less than 20 percent 
of the

[[Page 74384]]

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


    \353\ The NPRM also proposed in Sec.  102.67(a) that ``[i]f the 
hearing officer has determined during the hearing, or the regional 
director determines after the hearing that the only issues remaining 
in dispute concern the eligibility or inclusion of individuals who 
would constitute less than 20 percent of the unit if they were found 
to be eligible to vote, the regional director shall direct that 
those individuals be permitted to vote subject to challenge.''
---------------------------------------------------------------------------

The proposed amendments were designed to maximize procedural efficiency 
by ensuring that hearing officers could limit the evidence offered at 
the pre-election hearing to that which is necessary for the regional 
director to determine whether a question of representation exists. As 
discussed in the NPRM, whether or not a particular individual falls 
within an appropriate unit and is eligible to vote is not ordinarily 
relevant to whether a question of representation exists. 79 FR at 7322. 
The NPRM expressed the Board's ``preliminary view * * * that deferring 
both the litigation and resolution of eligibility and inclusion 
questions affecting no more than 20 percent of all eligible voters 
represents a reasonable balance of the public's and parties' interest 
in prompt resolution of questions concerning representation and 
employees' interest in knowing precisely who will be in the unit should 
they choose to be represented.'' 79 FR at 7331.
    As noted below in connection with Part 101, the final rule adopts 
the proposal to eliminate Subpart C of Part 101, which contained Sec.  
101.20(c). The final rule also amends Sec.  102.66(a) to provide:

    Any party shall have the right to appear at any hearing in 
person, by counsel, or by other representative, to call, examine, 
and cross-examine witnesses, and to introduce into the record 
evidence of the significant facts that support the party's 
contentions and are relevant to the existence of a question of 
representation. The hearing officer shall also have power to call, 
examine, and cross-examine witnesses and to introduce into the 
record documentary and other evidence. Witnesses shall be examined 
orally under oath. The rules of evidence prevailing in courts of law 
or equity shall not be controlling. Stipulations of fact may be 
introduced in evidence with respect to any issue.\354\


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

Rather than the proposed standard ``genuine dispute as to a material 
fact,'' the Board has adopted the standard ``significant facts that 
support the party's contentions and are relevant to the existence of a 
question of representation.'' The proposed standard, which had been 
borrowed from Federal Rule of Civil Procedure 56, suggested that the 
hearing officer would be responsible for summary judgment, which struck 
commenters as a signal that the hearing officer's role would change in 
a way that was likely to pose administrative and statutory problems. 
The standard of ``significant facts'' adopted in the final rule comes 
from current 101.20(c), and preserves the hearing officer's essential 
role. However, unlike current regulations, the final rule makes clear 
that the ``significant facts'' that support the party's contentions 
must also be ``relevant to the existence of a question of 
representation.'' \355\ As discussed below, paragraph (d) of proposed 
Sec.  102.66 is deleted because the final rule does not adopt the 20-
percent rule provisions, which would have required the hearing officer 
to exclude evidence regarding individual eligibility or inclusion 
issues involving less than 20 percent of the unit (and the regional 
director to defer deciding individual eligibility or inclusion 
questions involving less than 20 percent of the unit and to vote such 
disputed individuals subject to challenge). See 79 FR at 7332.
---------------------------------------------------------------------------

    \355\ Although parties also have the right to litigate at the 
pre-election hearing whether an election is barred, the Board has 
concluded that it is not necessary to specify this in the regulatory 
text because a question of representation cannot exist under the Act 
if there is such a bar. Accordingly, evidence that is relevant to a 
bar is also relevant to the existence of a question of 
representation.
---------------------------------------------------------------------------

    The final rule's amendment of Sec.  102.66(a) together with the 
modification of the language which previously appeared in Sec.  
101.20(c) removes the basis of the Board's holding in Barre National, 
Inc., 316 NLRB 877 (1995), that a hearing officer must permit full 
litigation of all eligibility issues in dispute prior to a direction of 
an election, even though the regional director and the Board need not 
resolve the issues prior to the election. Together with the amendment 
of Sec.  102.64(a), the amendment of Sec.  102.66(a) makes clear that, 
while the regional director must determine that a proposed unit is 
appropriate in order to find that a question of representation exists, 
the regional director can defer litigation of individual eligibility 
and inclusion issues that need not be decided before the election.
    In its comment, Baker & McKenzie questioned how a hearing officer 
would determine whether proffered evidence was relevant to voter 
eligibility or voter inclusion as opposed to unit appropriateness. The 
same question arises under current procedures when both the regional 
director and the Board defer ruling on eligibility or inclusion 
questions until after the election. Thus, existing case law in which 
both regional directors and the Board have deferred deciding individual 
eligibility and inclusion questions until after an election will 
provide considerable guidance to hearing officers and regional 
directors.\356\ Generally, individual eligibility and inclusion issues 
concern either (1) whether an individual or group is covered by the 
terms used to describe the unit, or (2) whether an individual or group 
is within a particular statutory exclusion and cannot be in the unit. 
For example, if the petition calls for a unit including ``production 
employees'' and excluding the typical ``professional employees, guards 
and supervisors as defined in the Act,'' then the following would all 
be eligibility or inclusion questions: (1) Whether production foremen 
are supervisors, see, e.g., United States Gypsum Co., 111 NLRB 551, 552 
(1955); (2) whether production employee Jane Doe is a supervisor, see, 
e.g., PECO Energy Co., 322 NLRB 1074, 1083 (1997); (3) whether workers 
who perform quality control functions are production employees, see, 
e.g., Lundy Packing Co., 314 NLRB 1042 (1994); and (4) whether Joe 
Smith is a production employee, see, e.g., Allegany Aggregates, Inc., 
327 NLRB 658 (1999).
---------------------------------------------------------------------------

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

    One exception concerns professional employees. The regional 
director must address whether there are any professional employees in 
an otherwise appropriate unit containing nonprofessionals. Under 
Section 9(b)(1) of the Act, any professionals in a unit containing both 
professional and nonprofessional employees must be given the choice of 
whether they wish to be represented in such a mixed unit. Because this 
requires special balloting procedures, see Sonotone Corp., 90 NLRB 1236 
(1950), the question of whether any employees included in the otherwise 
appropriate unit are professionals must be answered prior to the 
election.\357\ Similarly, if a party

[[Page 74385]]

contends that, under Board precedent, an eligibility standard different 
than the Board's ordinary standard \358\ should be used, the hearing 
officer may take such evidence as may be necessary to resolve that 
question since its resolution is a prerequisite to the conduct of the 
election.
---------------------------------------------------------------------------

    \357\ On the other hand, if the unit description expressly 
excludes professional employees, then no Sonotone balloting question 
would be presented, and the issue would not have to be addressed. If 
any party contends that an individual is a professional, and if the 
individual wishes to vote, he or she can be permitted to vote 
subject to challenge and the question can be resolved after the 
election.
    Although some comments similarly argue that the question of 
whether any employees in a unit containing non-guards are guards 
must be decided prior to the election, the Board disagrees. The Act 
does not require any special election procedures for guards 
equivalent to what Section 9(b)(1) requires for professionals. While 
Section 9(b)(3) precludes the Board from finding that a ``mixed 
unit,'' i.e., one containing both guards and nonguards, is 
appropriate, if any party contends that an individual in an 
otherwise appropriate unit of nonguards is a guard, the regional 
director can find the unit ``excluding guards'' appropriate and, if 
the individual attempts to cast a ballot, he or she can be permitted 
to vote subject to challenge and the question can be resolved after 
the election.
    \358\ For example, in the entertainment industry, given that 
employees may work intermittently with no expectation of continued 
employment with a particular employer, the Board may apply a 
different eligibility standard. See Kansas City Repertory Theatre, 
Inc., 356 NLRB No. 28 (2010); see also Alaska Salmon Industry, 61 
NLRB 1508, 1511-12 (1945) (changing eligibility formula for seasonal 
industries).
---------------------------------------------------------------------------

    Some comments on the proposed amendments argue that limiting 
evidence to that which is relevant to whether a question of 
representation exists is inconsistent with the statute's requirement 
that, absent an election agreement, the Board must hold an 
``appropriate hearing'' prior to conducting an election.\359\ The Board 
disagrees. Section 9(c)(1) of the Act provides that the Board must 
provide for a hearing if it has ``reasonable cause to believe that a 
question of representation affecting commerce exists,'' and that the 
Board must direct an election if it finds, based on the record of that 
hearing, that ``such a question of representation exists.'' Thus, as 
explained above in relation to Sec.  102.64, the statutory purpose of 
the pre-election hearing is to determine whether a question of 
representation exists. The amendments to Sec. Sec.  102.64(a) and 
102.66(a) are entirely consistent with Section 9(c)'s requirement that 
``an appropriate hearing'' be held before the election is conducted. 
The two amendments are consistent with Section 9(c) because both permit 
parties to introduce evidence at the pre-election hearing that is 
relevant to whether a question of representation exists. Indeed, the 
amendment to Sec.  102.66(a) expressly vests parties with a right to 
present evidence of the significant facts that support the party's 
contentions and are relevant to the existence of a question of 
representation. Nothing in Section 9(c) or any other section of the Act 
requires the Board to permit parties to introduce evidence at a pre-
election hearing that is not relevant to whether a question of 
representation exists.
---------------------------------------------------------------------------

    \359\ See, e.g., ALG; Constangy; NGA II. Other comments argue 
generally that Section 9(c) requires the Board to conduct a pre-
election hearing on issues concerning eligibility and inclusion. See 
GAM; AHA; ALFA; COLLE; CDW; Testimony of Homer Deakins on behalf of 
COLLE II.
---------------------------------------------------------------------------

    The final rule's amendment of Sec. Sec.  102.64(a) and 102.66(a) is 
also consistent with the final sentence of current Sec.  102.64(a), 
which the final rule does not amend, though the sentence will now 
appear in Sec.  102.64(b). That sentence provides that the hearing 
officer's duty is ``to inquire fully into all matters and issues 
necessary to obtain a full and complete record upon which the Board or 
the regional director may discharge their duties under Section 9(c) of 
the Act.'' (Emphasis added.) A hearing officer ensures ``a full and 
complete record upon which the Board or the regional director may 
discharge their duties under Section 9(c) of the Act'' when he or she 
permits parties to present evidence of significant facts relevant to 
the existence of a question of representation. The Board's duty under 
Section 9(c) is to conduct a hearing to determine if a question of 
representation exists and, if such a question exists, to direct an 
election to answer the question and to certify the results. The final 
rule expressly allows the hearing officer to create a record permitting 
the regional director to do precisely that.
    In short, the effect of the amendments is simply to permit the 
hearing officer, acting at the behest of the regional director, to 
prevent the introduction of evidence that is not needed in order to 
determine if a question of representation exists. By definition, if the 
hearing officer excludes evidence that is not relevant to whether a 
question of representation exists, the hearing officer is not impeding 
the ability of the regional director or the Board to discharge their 
respective duties under Section 9(c) of the Act.
    SHRM, among others, cites Barre-National, Inc., 316 NLRB 877 (1995) 
for the proposition that both current rules and Section 9(c) of the 
statute compel litigation of these matters. The Barre-National Board 
cited both Sec. Sec.  102.66(a) and 101.20(c) in holding that 
litigation was required. In support of its conclusions that the hearing 
officer erred by excluding the evidence and the regional director erred 
by permitting the disputed employees to vote subject to challenge, the 
Board quoted the portion of Sec.  102.66(a), which then read:

    Any party shall have the right to appear at any hearing in 
person, by counsel, or by other representative, and any party and 
the hearing officer shall have power to call, examine, and cross 
examine witnesses and to introduce into the record documentary and 
other evidence.

The Board also quoted the portion of Sec.  101.20(c), which then read:

    The parties are afforded full opportunity to present their 
respective positions and to produce the significant facts in support 
of their contentions.

Based on its reading of those two provisions, the Board reasoned that, 
``Section 102.66(a) of the Board's Rules and Section 101.20(c) of the 
Board's Statements of Procedure entitle parties at such hearings to 
present witnesses and documentary evidence in support of their 
positions.'' 316 NLRB at 878. The Barre-National Board went on to hold 
that, ``Under all the circumstances, the pre-election hearing held in 
this case did not meet the requirements of the Act and the Board's 
rules and Statements of Procedures.'' Id. Because of the use of the 
conjunctive ``and'' rather than the disjunctive ``or'' and the fact 
that nothing in Section 9(c) of the Act can possibly be understood to 
give parties a right to litigate questions of individual eligibility or 
inclusion prior to an election, as discussed further below, Barre-
National cannot be read to rest on a construction of the Act. Rather, 
the Barre-National Board based its holding on its reading of Sec. Sec.  
102.66(a) and 101.20(c). In light of the regulatory changes made today, 
that reliance is no longer relevant.\360\
---------------------------------------------------------------------------

    \360\ Reliance on NLRB v. S.W. Evans & Son, 181 F.2d 427 (3d 
Cir. 1950), by CDW is similarly mistaken. The Third Circuit 
expressly limited its holding to an interpretation of the extant 
regulatory language--in this case regulatory language from 1945 
which is long gone today. 181 F.2d at 429-430; see 10 FR 14498 et 
seq. (November 28, 1945).
---------------------------------------------------------------------------

    In addition, as explained in the NPRM, the result in Barre-National 
is not administratively rational. The Board in that case recognized 
that an entitlement to litigate issues at the pre-election hearing is 
distinct from any claim of entitlement to a decision on all issues 
litigated at the hearing, acknowledging that ``reviewing courts have 
held that there is no general requirement that the Board decide all 
voter eligibility issues prior to an election.'' Id. at 878 n.9. The 
Board has concluded that it serves no statutory or administrative 
purpose to require the hearing officer to permit pre-election 
litigation of issues that both the regional director and the Board are 
entitled to, and often do, defer deciding until after the election and 
that are often rendered moot by the election results. It serves no 
purpose to require the hearing officer at a pre-election hearing to 
permit parties to present evidence that relates to matters that need 
not be addressed in order for the hearing to fulfill its statutory 
function of creating a record upon which the regional director can

[[Page 74386]]

determine if a question of representation exists. In other words, it is 
administratively irrational to require the hearing officer to permit 
the introduction of irrelevant evidence. The final rule eliminates such 
wholly unnecessary litigation that serves as a barrier to the 
expeditious resolution of questions of representation.
    Thus, the central question is whether Congress intended that the 
term ``appropriate hearing'' in Section 9(c) compel pre-election 
litigation of matters that would not be decided before the election--
and likely would never need to be decided by the regional director. 
Commenters, most notably CDW II, argue that the answer is yes. We 
disagree.
    The term ``appropriate hearing'' comes from the original 1935 
Wagner Act. As stated by the Supreme Court: ``The section is short. Its 
terms are broad and general * * *. Obviously great latitude concerning 
procedural details is contemplated.'' Inland Empire Council v. Millis, 
325 U.S. 697, 706-710 (1945). Although the hearing should provide 
parties a ``full and adequate opportunity to present their 
objections,'' \361\ nothing in Inland Empire suggests that the Board 
must give a hearing to matters which will not be decided. To the 
contrary, the phrase ``an appropriate hearing'' was intended to 
``confer[] broad discretion upon the Board as to the hearing 
[required],'' so as to avoid unnecessary litigation delays. Id.\362\ In 
1947, when Congress revised the Act to ensure that a hearing was held 
before the election, it left this essential language intact.\363\ 
Despite the many comments on this matter, no one has identified any 
case in any legal or administrative context in which litigation was 
required regarding issues that were not being decided--except Barre-
National.
---------------------------------------------------------------------------

    \361\ In this regard, the rules continue to require the hearing 
officer ``to inquire fully into all matters and issues necessary to 
obtain a full and complete record.'' Sec.  102.64(b).
    \362\ Inland Empire held that the Board could hold the hearing 
after the election. This was changed by the Taft-Hartley amendments, 
as discussed. Notably, however, the language ``appropriate hearing'' 
was not changed, and thus Inland Empire's discussion of the broad 
discretion given by the language remains relevant. Moreover, it 
should be noted that, in Inland Empire, the Board had ``afforded the 
opportunity [to raise issues] in the proceedings to show cause held 
prior to the election,'' but the parties ``brought forward nothing 
which required [the Board] to hold a further hearing for the taking 
of evidence.'' Id. at 708-709. The Court expressly declined to 
address whether this process ``would have been adequate or 
`appropriate.' '' Id.
    \363\ After the vote on the Taft-Hartley amendments in 1947, 
Senator Taft placed in the record a ``Supplementary Analysis of the 
Labor Bill as Passed.'' 93 Cong. Rec. 6858, 6860 (June, 12, 1947). 
In that analysis, Senator Taft explained that the Conference 
Committee had revised the amendments of Section 9(c)(4) of the Act 
to eliminate a provision permitting ``pre-hearing elections.'' Id. 
at 6860. The Supplementary Analysis then stated, ``That omission has 
brought forth the charge that we have thereby greatly impeded the 
Board in its disposition of representation matters. We have not 
changed the words of existing law providing a hearing in every case 
unless waived by stipulation of the parties. It is the function of 
hearings in representation cases to determine whether an election 
may properly be held at the time, and if so, to decide questions of 
unit and eligibility to vote.'' Id. (emphasis added). CDW cites to 
the language ``decide questions of unit and eligibility to vote'' as 
support, but the problems with this approach are manifest. First of 
all, this is the statement of a single legislator, made after the 
dispositive vote, describing a term that he expressly admits the Act 
does not change. This cannot be used to alter the meaning of the 
language. The same flaw applies to CDW's discussion of still later 
legislative history of marginal relevance. Second, Senator Taft said 
``decide questions of unit and eligibility to vote''--not 
``litigate''--and where it is undisputed that the Board does not 
need to ``decide'' the question, Senator Taft's subsequent remarks 
cannot be read to compel litigation.
---------------------------------------------------------------------------

    Even assuming that the Barre-National Board did look to Section 
9(c)--a point previously debated at length, see 76 FR 80165; 77 FR 
25550-51; 77 FR 25562-63--the statutory analysis in Barre-National is 
essentially non-existent. There is no meaningful discussion of the 
statutory language, no analysis of the legislative history or the plain 
language of Section 9(c), and no explanation for why it would make 
sense to require litigation of issues that will not be decided--in 
short, nothing whatsoever to substantively support its supposed 
interpretation of the statute. On the contrary, the Board, for the 
reasons discussed above, believes that the legislative history shows 
the Board is not required to allow pre-election litigation of issues 
that will not be decided pre-election. It is beyond dispute that 
``reviewing courts have held that there is no general requirement that 
the Board decide all voter eligibility issues prior to an election.'' 
Barre-National, 316 NLRB at 878 n.9. Put plainly, ``deferring the 
question of voter eligibility until after an election is an accepted 
NLRB practice.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir. 
1994).\364\ This has been so since the early days of the Act. Brown & 
Sharp Mfg., 70 NLRB 709, 709 (1946); Humble Oil, 53 NLRB 116, 126 
(1943). As the Supreme Court expressly held in NLRB v. AJ Tower Co., 
329 U.S. 324, 330-35 (1946), the Board has authority to resolve voter 
eligibility through the election-day challenge procedure.\365\ As 
discussed below in relation to the rejected ``20-percent rule,'' this 
rule does not change which issues will be decided.
---------------------------------------------------------------------------

    \364\ The United States Court of Appeals for the Second Circuit 
similarly held that ``the determination of a unit's composition need 
not be made before the election.'' Sears, Roebuck & Co. v. NLRB, 957 
F.2d 52, 55 (2d Cir. 1992). As stated in the NPRM, the Board has 
consistently sustained regional directors' decisions to defer 
resolution of individual employees' eligibility to vote until after 
an election (in which the disputed employees may cast challenged 
ballots). See, e.g., Sears, Roebuck, 957 F.2d at 54-55. The Second 
Circuit has explained that the regional director has ``the 
prerogative of withholding a determination of the unit placement of 
[a classification] of employees until after the election.'' Id. at 
56. In Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004), the 
Board characterized this procedure as the ``tried-and-true `vote 
under challenge procedure.' '' See also HeartShare Human Services of 
New York, Inc., 320 NLRB 1 (1995), enforced, 108 F.3d 467 (2d Cir. 
1997). Even when a regional director resolves such a dispute pre-
election, the Board, when a request for review is filed, often 
defers review of the resolution, permitting the disputed individuals 
to vote subject to challenge. See, e.g., Silver Cross Hospital, 350 
NLRB 114, 116 n.10 (2007); Medlar Elec., Inc., 337 NLRB 796, 796 
(2002); Interstate Warehousing of Ohio, LLC, 333 NLRB 682, 682-83 
(2001); Orson E. Coe Pontiac-GMC Truck, Inc., 328 NLRB 688, 688 n.1 
(1999); American Standard, Inc., 237 NLRB 45, 45 (1978).
    \365\ Again, as noted above, the legislative history of the 1947 
amendments shows that Congress did not intend to require the Board 
to allow litigation of voter eligibility matters prior to conducting 
elections.
---------------------------------------------------------------------------

    Therefore, in light of the broad discretion accorded by Section 9, 
and the express purpose of ensuring that litigation does not 
unnecessarily delay the proceeding, we do not find the interpretation 
of Section 9(c) posited by SHRM and CDW, or that of the Barre-National 
Board, to be persuasive. In our considered view, Section 9 does not 
give parties a right to litigate questions of individual eligibility or 
inclusion at the pre-election hearing if the regional director will not 
decide those questions prior to the election. For these reasons, the 
Board hereby overrules Barre-National, together with cases resting 
solely upon its holding such as North Manchester Foundry, Inc., 328 
NLRB 372 (1999).
    The Board also concludes that without clear regulatory language 
giving the regional director authority to limit the presentation of 
evidence to that relevant to the existence of a question of 
representation, the possibility of using unnecessary litigation to gain 
strategic advantage exists in every case.\366\ That specter, sometimes 
articulated as an express threat according to some comments,\367\ hangs 
over all negotiations of pre-election agreements. In other words, 
bargaining takes place in the shadow of the law, and so long as the 
law, as embodied in the Board's

[[Page 74387]]

regulations, does not limit parties to presenting evidence relevant to 
the existence of a question of representation, some parties will use 
the threat of protracted litigation to extract concessions concerning 
the election details, such as the date, time, and type of election, as 
well as the definition of the unit itself. Comments by the UFCW, LIUNA, 
AFT, NELP, and Retired Field Examiner Michael D. Pearson all point to 
the impact of that specter of unnecessary litigation on negotiations of 
pre-election agreements. Some commenters specifically stressed that the 
current rules have the effect of disenfranchising statutory employees. 
According to these commenters, instead of resolving bargaining unit 
issues on their merits, election agreements are driven by the threat of 
a hearing devoted to the litigation of unnecessary issues.\368\
---------------------------------------------------------------------------

    \366\ See generally Testimony of Roger King on behalf of SHRM II 
regarding which issues should be litigated at the pre-election 
hearing (``Yes, there is maneuvering on both sides. We all know 
that. Good lawyers use procedures to their clients' advantage. You 
could call it delay. I don't agree with that. My union colleagues 
take every advantage of the blocking charge procedure. That's their 
right at this point.'').
    \367\ See AFT; IBEW; LIUNA.
    \368\ See CWA II; BCTD; Testimony of Brenda Crawford II; UNAC/
UHCP II.
---------------------------------------------------------------------------

    The temptation to use the threat of unnecessary litigation to gain 
such strategic advantage is heightened by both the right under the 
current rules to take up to 7 days to file a post-hearing brief (with 
permissive extensions by hearing officers of up to 14 additional days) 
and the 25-day waiting period, both of which are triggered 
automatically when a case proceeds to hearing. Every experienced 
participant in the Board's representation proceedings who wishes to 
delay the election in order to gain strategic advantage knows that 
under the current rules, once the hearing opens, at least 32 days (7 
days after the close of the hearing and 25 days after a decision and 
direction of election) will pass before the election can be conducted. 
The incentive to insist on presenting evidence, even though there are 
no disputes as to facts relevant to the existence of a question of 
representation, is thus not simply the delay occasioned by the hearing 
process, but also the additional mandatory 32-day delay, not to mention 
the amount of time it will take the regional director to review the 
hearing transcript and write a decision--a task that has added a median 
of 20 days to the process over the past decade. Accordingly, the 
bargaining units and election details agreed upon in the more than 90% 
of representation elections that are currently conducted without pre-
election litigation are unquestionably influenced by the parties' 
expectations concerning what would transpire if either side insisted 
upon pre-election litigation.
    Of course, distinct aspects of the final rule eliminate the 25-day 
waiting period and the default position of allowing 7 and up to an 
additional 14 days to file a post-hearing brief. Yet in the Board's 
preliminary view at the NPRM stage (79 FR 7331), even without these 
collateral delays, there remained no persuasive reason to allow parties 
to lengthen the hearing and decisional process by unnecessarily 
litigating individual eligibility issues that are not relevant to the 
question concerning representation.\369\ We did not, and do not, view 
permitting the litigation of individual eligibility issues as a cost-
free proposition. Every non-essential piece of evidence that is adduced 
adds time that the parties and the Board's hearing officer must spend 
at the hearing, and simultaneously lengthens and complicates the 
transcript that the regional director must analyze in order to issue a 
decision. The Board expects that if irrelevant litigation at the pre-
election hearing were reduced, then not only would hearings be shorter 
(with attendant savings to the parties), but also that regional 
directors would correspondingly have to spend less time writing pre-
election decisions, and be able to issue those decisions in less time 
than the current 20-day median. Thus, the Board viewed its mandatory 
proposal of barring litigation or resolution of individual eligibility 
issues regarding less than 20% of a petitioned-for unit as an overall 
benefit to agency efficiency, in addition to being a reasonable balance 
of the public's and parties' interest in prompt resolution of questions 
concerning representation and in employees' interest in knowing who 
would be in the unit should they choose to be represented.
---------------------------------------------------------------------------

    \369\ Some commenters challenge the premise that litigation of 
individual eligibility issues causes delay. For example, Homer 
Deakins testified on behalf of COLLE II that he could count on one 
hand the number of times a hearing has gone into the second day 
because of litigation of a supervisory issue. However, even if in 
some cases litigation of an individual eligibility issue would not 
add an extra day or days to the pre-election hearing, we are not 
persuaded that such litigation would not unnecessarily delay the 
election in those cases. After all, as shown, during the last decade 
it has taken regional directors a median of 20 days to issue their 
decisions following a pre-election hearing. Moreover, litigation of 
irrelevant issues that the regional director need not resolve 
imposes unnecessary costs on the parties and the government.
---------------------------------------------------------------------------

    There is certainly reason to believe that the 20% figure proposed 
in the NPRM--and upon which the Board has historically relied in terms 
of deferring resolution of individual eligibility issues--is indeed an 
administratively appropriate balance. For example, more than 70% of 
elections in FY 2013 were decided by a margin greater than 20% of all 
unit employees, suggesting that deferral of up to 20% of potential 
voters in those cases (and thus allowing up to 20% of the potential 
bargaining unit to vote via challenged ballots, segregated from their 
coworkers' ballots) would not have compromised the Board's ability to 
immediately determine election results in the vast majority of 
cases.\370\ Thus, had any thorny litigation issues concerning 
individual eligibility been deferred in those cases, it would likely 
have saved significant party and agency resources in that the pre-
election hearings would have been shorter, the director's decisions 
issued quicker and with less effort, and the representation dispute 
resolved sooner, all without necessitating another post-election 
hearing to resolve those issues because they would have been proven by 
the tally of ballots to be non-determinative of the election outcome. 
And in the comparatively smaller percentage of cases in which the 
election margin required resolution of the challenged voters' ballots, 
the regional director could have committed resources to developing and 
analyzing the relevant evidence in a post-election hearing with full 
confidence that the effort would not be wasted.\371\
---------------------------------------------------------------------------

    \370\ In addition, post-election litigation of these challenges 
will only take place where the proponent of the challenge is winning 
after the unchallenged ballots are tallied--otherwise the challenge 
can simply be withdrawn. This should result in mooting about half of 
the remaining litigation, even in those cases where the vote margin 
is narrow. Thus, at most, only 15% of deferred issues will ever have 
to be addressed.
    To be clear, the union win rate is irrelevant because both 
unions and employers could be contesting the relevant matters. We 
also wish to emphasize that this does not mean that 15% of all 
elections will have outcome determinative challenges: This is the 
maximum number reached by assuming that every election will defer 
20% of voter eligibility questions. In reality, the vast majority of 
cases will involve far fewer such disputes, either because they are 
resolved by stipulation or because they are never contested at the 
pre-election hearing.
    \371\ In this regard we reject the testimony of Elizabeth Milito 
on behalf of NFIB II who claimed that the Board should abandon the 
20% rule because many small business owners would ``concede defeat'' 
and not be able to afford to litigate deferred individual 
eligibility issues in a post-election hearing. As shown, deferring 
individual eligibility issues should reduce pre-election costs for 
all parties participating in pre-election hearings--including small 
employers--and in the vast majority of cases, there should never be 
a need to incur the extra costs of a post-election proceeding to 
determine the individual's eligibility to vote because the ballots 
cast by individuals permitted to vote subject to challenge are 
likely to be nondeterminative. In any event, the final rule grants 
discretion to the regional director to permit the litigation of 
individual eligibility issues, and parties are free to make whatever 
arguments they wish as to why the director should do so.

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

[[Page 74388]]

    Nevertheless, the Board is mindful that a one-size-fits-all 
approach may not be the most desirable or necessary method to 
accomplish the gains in efficiency sought by the proposed 20-percent 
rule. Specifically, the changes to 102.64 and 102.66(a) provide 
regional directors with the tools to defer unnecessary litigation, and 
it may produce a better outcome on a case-by-case basis if regional 
directors retain discretion to apply those tools or to provide for 
litigation and resolution of discrete issues as the regional directors 
deem appropriate.\372\ For example, the regional director may be able 
to quickly discern that certain eligibility issues--presented by the 
parties in their offers of proof--could be quickly and easily disposed 
of, in which case little would be gained from deferring the issue. 
Moreover, given the mandatory language of the proposed 20-percent rule, 
parties could argue that elections should be set aside based solely on 
the ground that the hearing officer and director made a minor 
computational error in concluding that the individual eligibility or 
inclusion issues they were deferring involved less than 20 percent of 
the unit. In our view, having to set aside elections merely because of 
computational errors (such as deferral of individual eligibility 
questions involving 21--rather than 20--percent) would be particularly 
unfortunate when the addition of the disputed employees to the unit 
would not be unfair to the voters (because it would not materially 
change the character or scope of the unit). We further conclude that 
the mandatory proposal could perversely encourage parties to raise 
frivolous individual eligibility issues that they otherwise would not 
have raised just so the 20-percent ceiling was breached.
---------------------------------------------------------------------------

    \372\ Keeping discretion in the hands of the regional directors 
is sensible in that it is the directors who are responsible for 
issuing decisions and directions of elections following pre-election 
hearings, and it is directors who directly supervise the hearing 
officers in their conduct of the hearings. Moreover, under the final 
rule it is the directors who must resolve determinative challenges.
---------------------------------------------------------------------------

    Accordingly, the Board has decided to preserve the discretion that 
regional directors enjoyed even before the NPRM to defer resolving 
disputes concerning individuals' eligibility to vote or inclusion in 
the unit until after the election or to decide such disputes before the 
election in the decision and direction of election. In the final rule, 
rather than require hearing officers to bar parties from introducing 
evidence regarding individual eligibility or inclusion issues involving 
less than 20 percent of the unit, the Board has decided to grant 
hearing officers the authority, on the instruction of the regional 
director, to exclude evidence concerning such disputes. However, the 
regional director is free to direct that such evidence be admitted if 
the director resolves to decide prior to the election the individual 
eligibility questions at issue, or if the director is uncertain about 
whether to decide an issue. In sum, while we continue to believe that 
individual eligibility disputes ordinarily need not be litigated at the 
pre-election hearing or resolved in a direction of election, we no 
longer adhere to the preliminary view expressed in the NPRM that 
adoption of a bright-line, mandatory 20-percent deferral rule best 
serves the interests of the parties and the employees as well as the 
public interest in the effective administration of the representation 
case process.\373\
---------------------------------------------------------------------------

    \373\ The effect of our decision to reject the proposed 20-
percent rule coupled with the amendments leaving to the director's 
discretion whether to defer litigation and resolution of individual 
eligibility or inclusion issues until after the election, means that 
the final rule does not establish any bright-line ceiling beyond 
which litigation and resolution of individual eligibility or 
inclusion issues cannot be deferred. We note, however, that the 
Board has uniformly held that a change affecting no more than 20 
percent of the unit does not require a new election. On occasion, 
the Board has also permitted regional directors to defer resolution 
of the eligibility of an even higher percentage of potential voters, 
though we have recognized that allowing 25 percent of the electorate 
to vote subject to challenge is not optimal. See, e.g., cases cited 
at 79 FR at 7331& n.54. We are confident that directors will 
consider that precedent in exercising their discretion under the 
final rule, and strongly believe that regional directors' discretion 
would be exercised wisely if regional directors typically chose not 
to expend resources on pre-election eligibility and inclusion issues 
amounting to less than 20 percent of the proposed unit. And, as with 
any other issue that comes before us, we will consider relevant case 
precedent in evaluating the merits of objections to the regional 
director's direction of election, the regional director's conduct of 
the election or the hearing officer's handling of the pre-election 
hearing. We would further expect regional directors to typically 
exercise their discretion in favor of approving parties' stipulated 
election agreements in which up to 20% of the unit is to be voted 
under challenge.
---------------------------------------------------------------------------

    Several comments criticize the proposed 20-percent rule on policy 
grounds. For example, some comments argue that it is unfair to defer 
resolution of supervisory status questions, because employers need to 
know who their supervisors are so they know who they can require to 
campaign against employee representation.\374\ Similarly, comments 
argue that employers need to know which employees are eligible to vote 
so they know whom to address concerning the question of 
representation.\375\ Numerous comments additionally express the 
position that deferral of eligibility questions under the 20-percent 
rule would impair employee rights. More specifically, many comments 
assert that deferral would deprive employees of knowledge about the 
precise parameters of the bargaining unit, thereby depriving them of 
the right to cast an informed ballot\376\ or impeding their ability to 
determine whether they share a community of interest with the other 
voters.\377\ Similarly, a number of comments express the view that 
deferral of eligibility issues would engender confusion among the 
voting employees.\378\ Other comments generally suggest that the 
deferral of eligibility issues would increase the likelihood that 
disputed individuals would refrain from voting in an election. For 
example, a number of comments express the position that employees, 
faced with the prospect of having their votes challenged, might simply 
refrain from voting,\379\ some as a result of a concern that-
particularly in smaller units-they could be easily identified as the 
individuals whose votes determined the outcome of the election.\380\ 
Finally, with respect to the deferral of supervisory status questions, 
several comments generally express concern that employees with disputed 
supervisory status would not know whether they could appropriately 
speak in favor of or against union representation, attend union 
meetings, or sign authorization cards,\381\ and SHRM asserts that 
employees would be

[[Page 74389]]

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

    \374\ See, e.g., Seyfarth Shaw; COSE; Indiana Chamber; U.S. 
Poultry II; CDW II. SHRM also suggests that deferring resolution of 
supervisory status questions might somehow threaten attorney-client 
communications if counsel communicates with an individual the 
employer believes is a supervisor who is later held not to be a 
supervisor. This same concern exists under the current procedures as 
explained above. Moreover, the test the Board uses to determine who 
is a supervisor under the Act is not and need not be the same as the 
various tests used to determine if attorney communications to an 
individual employed by the attorney's client are privileged.
    \375\ See, e.g., PIA.
    \376\ See, e.g., Testimony of Michael Lotito on behalf of IFA 
II; AEM II; GAM; Constangy; NRF; Baker & McKenzie. IBEW, in 
contrast, states that, in its experience, employee voters are 
motivated primarily by whether they desire representation and not by 
precisely which employees will be in the unit. See also Testimony of 
Gina Cooper on behalf of IBEW II (``My experience is that employees 
are voting for union representation and the unit issue never comes 
into their decision.'')
    \377\ See, e.g., Associated Oregon Industries; COSE; Seyfarth 
Shaw; Kuryakyn; John Deere Water.
    \378\ See, e.g., NGA II; Leading Age II; SHRM; ACE; AHA.
    \379\ See, e.g., SHRM II; Pinnacle Health Systems; Arizona 
Hospital and Healthcare Association.
    \380\ See, e.g., LRI; Anchor Planning Group; Bluegrass 
Institute.
    \381\ See, e.g., Seyfarth Shaw; ACE; Sheppard Mullin II.
---------------------------------------------------------------------------

    However, in this final rule the Board has determined not to adopt 
the 20-percent rule, but rather, to retain the existing discretion of 
regional directors to defer deciding such questions until after the 
election. Prior to the amendments, regional directors were free to 
decide individual eligibility and inclusion questions prior to the 
election if they wished to do so or to defer such decisions until after 
the election and direct that disputed individuals vote subject to 
challenge. The same is true under the final rule. Although the 
amendments permit the hearing officer, at the direction of the regional 
director, to exclude evidence that is not relevant to determining 
whether a question of representation exists--and thereby permit the 
hearing officer to exclude evidence regarding some eligibility and 
inclusion questions--the regional director is free to direct that such 
evidence be admitted if the director resolves to consider the 
eligibility questions at issue.
    In any event, the Board is not persuaded by the policy argument 
that it should permit litigation of all individual supervisory status 
questions--even though such questions are ordinarily irrelevant to the 
statutory purpose of the hearing--on the grounds that resolution of 
such questions is necessary for an employer to effectively campaign 
against union representation. \382\ Most fundamentally, while the 
question of whether particular individuals are supervisors as defined 
in the Act has generated considerable litigation, the question exists 
only at the margin. In the Board's experience, in virtually every case, 
even where there is uncertainty concerning the supervisory status of 
one or more individual employees, the employer nevertheless has in its 
employ managers and supervisors whose status is not disputed and is 
undisputable.\383\
---------------------------------------------------------------------------

    \382\ To be sure, it is not the purpose of the pre-election 
hearing to determine employers' spokespersons in the ongoing 
representation campaign.
    \383\ See, e.g., McAlester General Hospital, 233 NLRB 589, 589-
90 (1977) (noting that even without considering employees whose 
supervisory status was in dispute, employer employed one supervisor 
for every eight unit employees and, if the employer filled open 
supervisory positions, it would employ one supervisor for every 
three unit employees).
---------------------------------------------------------------------------

    The policy argument contained in these comments is also based on a 
set of faulty premises. First, as explained above and in the NPRM, 
employers have no right to a pre-election decision concerning 
individual eligibility under the current rules. Second, even under the 
current rules, a regional director cannot issue a decision on any 
eligibility question until well after the filing of the petition 
because a hearing must be noticed (no sooner than 5 business days after 
the notice), the hearing must be completed, and the regional director 
must issue a decision. Thus, even where the regional director resolves 
the individual eligibility issue in the decision and direction of 
election, the employer will not have the benefit of the decision for a 
substantial part of any campaign, including a substantial part of the 
``critical period'' between the filing of the petition and the 
election.\384\ Third, under the current rules, even if the regional 
director issues a decision concerning an individual eligibility 
question, the decision is subject to a request for review by the Board. 
The Board rarely rules on such requests until shortly before the 
election and, sometimes, not until after the election. See, e.g., 
Mercedes-Benz of Anaheim, Case 21-RC-21275 (May 18, 2011) (day before 
the election); Caritas Carney Hospital, Case 1-RC-22525 (May 18, 2011) 
(after the election); Columbus Symphony Orchestra, Inc., 350 NLRB 523, 
523 n.1 (2007) (same); Harbor City Volunteer Ambulance Squad, Inc., 318 
NLRB 764, 764 (1995) (same); Heatcraft, Div. of Lennox Indus., Inc., 
250 NLRB 58, 58 n.1 (1980) (same). Fourth, the problem identified by 
the employer comments is even more acute for unions, which must obtain 
a showing of interest prior to filing a petition. If the union asks 
employees to help gather a showing of interest and the employees are 
later determined to be supervisors, the Board may find that the showing 
of interest is tainted and overturn election results favoring union 
representation on that ground. See Harborside Healthcare Inc., 343 NLRB 
906 (2004). That problem cannot possibly be solved through any form of 
post-petition, pre-election hearing. Fifth, under the Act itself, even 
if a regional director's decision and final Board decision are issued 
prior to an election, the Board decision is potentially subject to 
review in the courts of appeals and the court of appeals' decision 
cannot be issued pre-election. See 29 U.S.C. 159(d) and 160(e); Boire 
v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).\385\ Thus, the 
uncertainty with which the comments are concerned, which affects all 
parties, exists under the current rules and cannot be fully eliminated.
---------------------------------------------------------------------------

    \384\ Additionally, as the AFL-CIO II points out in its reply 
comment, the extant period of uncertainty under the current rules is 
extended still further when employers begin their campaigns--as they 
often do--prior to a petition's filing.
    \385\ FMI II and INDA II, among others, express concern that if 
an alleged supervisor is permitted to vote subject to challenge, the 
results of the election might be set aside pursuant to an objection 
citing the presence of a supervisor in the polling area if the 
individual is found to be a supervisor after a post-election 
hearing. As explained above, this scenario can arise under the 
current procedures. See, e.g., Sorenson Lighted Controls, 286 NLRB 
969, 989 (1987). The Board is not aware of any case holding such 
conduct per se objectionable under these circumstances, and the 
existence of the new rules would be a factor the Board would 
consider if such an objection arises in the future.
---------------------------------------------------------------------------

    Nor does the Board agree that the proposed amendments improperly 
deprive employees of the ability to make an informed choice in the 
election. As explained above, under the amendments, as under the 
current rules, the regional director must determine the unit's scope 
and appropriateness prior to the direction of the election. 
Accordingly, at the time they cast their ballots, the voting employees 
will be fully informed (via the Notice of Election) as to the 
description of the unit, and will be able to assess the extent to which 
their interests may align with, or diverge from, other unit employees. 
Although the employees may not know whether particular individuals or 
groups ultimately will be deemed eligible or included and therefore a 
part of the bargaining unit, that is also the case under the Board's 
current rules, because, as explained above, regional directors were 
free to defer deciding individual eligibility or inclusion questions 
prior to directing an election (and parties were free to agree to 
permit disputed employees to vote subject to challenge in the election 
agreement context). In addition, as pointed out by SEIU, a similar 
choice has confronted voters in mixed professional/non-professional 
units since 1947, when Congress amended the Act to provide that a 
majority of the professional employees must vote separately for 
inclusion with a bargaining unit of non-professional employees and the 
results of that separate vote, which takes place simultaneously with 
the vote in the non-professional unit, are not known when any of the 
employees cast their ballots. See Section 9(b)(1); Sonotone Corp., 90 
NLRB at 1241-42. In that context, the Board has held: ``Such a 
procedure * * * presents the employees with an informed choice.'' Pratt 
& Whitney, 327 NLRB 1213, 1218 (1999).
    Many comments cite the courts of appeals' decisions in NLRB v. 
Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir. 
1997) (unpublished per curiam opinion), and NLRB v. Parsons School of 
Design, 793 F.2d 503 (2d Cir. 1986). As explained in the

[[Page 74390]]

NPRM, those two decisions represent the minority view in the courts, 
and the Board continues to disagree with them. The majority of the 
courts of appeals have upheld the Board's vote-under-challenge 
procedures and upheld election results even when the eligibility or 
inclusion of certain employees was not resolved until after the 
election.\386\ Moreover, under the final rule, the regional director 
has discretion to permit litigation and to resolve eligibility and 
inclusion questions, and we expect regional directors to permit 
litigation of, and to resolve, such questions when they might 
significantly change the size or character of the unit, thus addressing 
the courts' concerns in both Beverly and Parsons. In addition, as 
explained in the NPRM, the courts' concern in both of those cases was 
that voters were somehow misled when the regional director defined the 
unit in one way prior to the election and the Board revised the 
definition after the election. The final rule would actually help 
prevent exactly that form of change in unit definition from occurring 
by codifying regional directors' discretion to defer deciding 
individual eligibility or inclusion questions until after the election 
and by providing in amended Sec.  102.67(b) that where the director 
does defer deciding such questions, the Notice of Election will inform 
employees prior to the election that the individuals in question ``are 
neither included in, nor excluded from, the bargaining unit, inasmuch 
as the regional director has permitted them to vote subject to 
challenge,'' and that their unit placement ``will be resolved, if 
necessary, following the election.'' Thus, employees will not in any 
manner be misled about the unit. Rather, they will cast their ballots 
understanding that the eligibility or inclusion of a small number of 
individuals in the unit has not yet been determined. The Board views 
this alteration to the election notice as meeting the concerns raised 
by the Beverly court and as specifically countenanced by the Second 
Circuit in Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992) 
(regional director permitted employees in one classification to vote 
subject to challenge and included section in notice which ``detailed 
the special voting posture of the automotive floor sales employees and 
the circumstances for including their votes'').\387\
---------------------------------------------------------------------------

    \386\ See, e.g., Sears, Roebuck & Co. v. NLRB, 957 F.2d 52 (2d 
Cir. 1992); Nightingale Oil Co. v. NLRB, 905 F.2d 528, 533-34 (1st 
Cir. 1990); NLRB v. Clark Distributing, 917 F.2d 24 (6th Cir. 1990) 
(unpublished); Prudential Ins. Co. of America v. NLRB, 832 F.2d 857, 
861 (4th Cir. 1987).
    \387\ CDW II questions how the proposed 20-percent rule can be 
reconciled with such final notice language because if individual 
eligibility or inclusion issues need not be identified in the 
Statement of Position or litigated at the hearing, then the regional 
director will presumably be unaware of them when the final notice is 
prepared. As explained above, however, the Board is not adopting the 
proposed 20-percent rule. Accordingly, because regional directors 
have discretion to allow individual eligibility issues to be 
litigated, parties may seek to put the regional director on notice 
of such issues through their statement of position and at the 
hearing. While it is true that there may also be election-day 
challenges that could not have been anticipated in advance by the 
regional director, this is the case currently, and it is not the 
situation that concerned the courts in Beverly or Parsons.
---------------------------------------------------------------------------

    PIA and Bluegrass Institute suggest that deferring resolution of 
individual eligibility questions until after the election threatens the 
secrecy of the ballot and that employees who are permitted to vote 
subject to challenge are less likely to vote because they fear that the 
parties will learn how they voted. However, the Board is not persuaded 
that the final rule threatens the secrecy of the ballot or voter 
turnout. The courts have upheld the Board's current practice of 
deferring individual eligibility questions under most circumstances. 
Moreover, the ballots cast by the employees directed to vote subject to 
challenge are not counted if they are not determinative.\388\ 
Accordingly, ballot secrecy is preserved in those cases. Even if 
challenged ballots are determinative, the ballots are not counted if 
the employees who cast them are ultimately found to be ineligible after 
the post-election hearing. And, even if the challenged ballots are 
determinative and a post-election hearing results in the individuals 
who cast them being found eligible, the ballots are not opened and 
counted one-by-one, but rather the ballots of all individuals found to 
be eligible are ``thoroughly mixed'' before being opened and counted. 
See Casehandling Manual Section 11378. Accordingly, the Board believes 
that it is only in cases where there is just one determinative 
challenge, or where all of the potentially determinative challenged 
ballots are marked in the same way, that the parties will learn how the 
employees voted. However, that is both rare and unavoidable in any 
system that permits challenges, including the current system. Thus, 
even if regional directors were prohibited from deferring individual 
eligibility issues, which is not the case currently, parties would 
still have a right to challenge voters for good cause at the polls and 
the commenters' concern would remain.\389\
---------------------------------------------------------------------------

    \388\ As shown above, deferral of up to 20% of eligible voters 
would have left the challenged ballots non-determinative in more 
than 70% of all representation elections conducted in FY 2013. If 
there were no need to defer as many as 20% of the eligible voters 
because not that many individual voter eligibility issues were 
contested, then the percentage of elections where challenged ballots 
would be non-determinative of the election's outcome would be 
greater still. For example, in FY 2013 more than 85% of elections 
had margins greater than 10% of the eligible voters.
    \389\ The Board also notes that to the extent the amendments do 
result in more individuals casting challenged ballots than under the 
current rules, the amendments may well have the effect of making it 
less likely that parties will be able to discover how particular 
individuals voted because the pool of determinative ballots would be 
larger.
---------------------------------------------------------------------------

    The Board is also unaware of any evidence of significant 
differences between the turnout of employees whose eligibility to vote 
has not been disputed or has been resolved prior to the election and 
employees permitted to vote subject to challenge. The case law 
demonstrates that even in cases where only a single individual is 
permitted to vote subject to challenge, the individual is not 
necessarily deterred from voting. See, e.g., NLRB v. Cal-Western 
Transport, 870 F.2d 1481, 1483, 1486 (9th Cir. 1989) (regional director 
permitted single employee to vote subject to challenge and he did so); 
NLRB v. Staiman Brothers, 466 F.2d 564, 565 (3d Cir. 1972) (deciding 
vote cast by single employee permitted to vote subject to challenge by 
agreement of the parties).
    Nor is the Board persuaded by SHRM II's attempt to analogize to 
scholarly criticism of states' voter challenge laws in political 
elections as evidence that the Board's challenged ballot procedure does 
or would lead to reduced participation in NLRB elections. The Board 
agrees with the AFL-CIO II (Reply) that the significant differences 
between the political challenge process and the NLRB challenge process 
undermine SHRM's attempted analogy. In particular, during political 
elections, voters' veracity is challenged, and they are often subject 
to questioning and required to swear an oath before voting; whereas 
during NLRB elections, voters will know in advance via the election 
notice that although their eligibility to vote--through no fault of 
their own--has not yet been determined with finality, they will be 
permitted to cast ballots, they will be advised as to the procedure for 
their voting, and they will be invited to contact a Board agent with 
any questions that they may have in advance of the election about the 
challenge process. The Board also agrees with SEIU II (Reply) that the 
additional structural safeguards in a Board election--including its 
supervision by a Board agent, the presence of observers

[[Page 74391]]

for both sides, and the Board agent's duty to disallow argument 
concerning the merits of the challenge and to explain to the voter the 
measures that will be taken to protect the secrecy of the challenged 
ballot\390\--make it unlikely that challenged voters in NLRB elections 
would decide not to cast a ballot. Furthermore, as both the AFL-CIO and 
SEIU point out, SHRM cites no evidence of voter suppression in NLRB 
elections resulting from our longstanding challenge procedures,\391\ 
nor does SHRM attempt to grapple with the differences between the 
challenge processes in political elections and NLRB elections.
---------------------------------------------------------------------------

    \390\ See Casehandling Manual Section 11338.6.
    \391\ SHRM II also fails in its attempts to use the results of a 
2014 FOIA response from the Board to show that the Board's current 
use of the challenge ballot procedure is ``limited'' by arguing that 
in the 1,763 elections conducted during FY 2011-13 in which ballots 
were challenged, there were ``only 4.5 [challenged ballots] per 
election.'' Considering that the median size of bargaining units 
ranged from 24-28 employees over that same period of time, the 
statistics cited by SHRM do not appear to support the implication 
that the number of challenged ballots under the final rule (which 
does not include a mandatory 20-percent rule) would be radically 
different than under the Board's current practice. Indeed, in reply 
to SHRM, the AFL-CIO II (Reply) cites to research showing use of 
challenged ballots in 40% of NLRB elections conducted between 1972 
and 2009.
---------------------------------------------------------------------------

    Finally, balanced against any asserted employer or employee 
interests in pre-election litigation of individual eligibility or 
inclusion questions is the statutory interest in prompt resolution of 
questions of representation. As explained above and in the NPRM, 
permitting the litigation of such matters imposes serious costs, and no 
comments on the NPRM convinced the Board otherwise. It plainly 
frustrates the statutory goal of expeditiously resolving questions of 
representation, and it frequently imposes unnecessary costs on the 
parties and the government. As explained in the NPRM, it often results 
in unnecessary litigation and a waste of administrative resources as 
the eligibility of potential voters is litigated (and in some cases 
decided), even when their votes end up not affecting the outcome of the 
election. If a majority of employees votes against representation, even 
assuming all the disputed votes were cast in favor of representation, 
the disputed eligibility questions become moot. If, on the other hand, 
a majority of employees chooses to be represented, even assuming all 
the disputed votes were cast against representation, the Board's 
experience suggests that the parties are often able to resolve the 
resulting unit placement questions in the course of bargaining once 
they are free of the tactical considerations that exist pre-election 
and, if they cannot do so, either party may file a unit clarification 
petition to bring the issue back before the Board. See New York Law 
Publishing Co., 336 NLRB No. 93, slip op. at 2 (2001) (``The parties 
may agree through the course of collective bargaining on whether the 
classification should be included or excluded. Alternatively, in the 
absence of such an agreement, the matter can be resolved in a timely 
invoked unit clarification petition.''). As the Eighth Circuit 
observed, ``The NLRB's practice of deferring the eligibility decision 
saves agency resources for those cases in which eligibility actually 
becomes an issue.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir. 
1994). The Sixth Circuit similarly found that ``[s]uch a practice 
enables the Board to conduct an immediate election.'' Medical Center at 
Bowling Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir. 1983).
    NRTWLDF argues that application of the 20-percent rule at the 
hearing might cast into question the regional office's earlier, 
administrative determination that the petition was accompanied by an 
adequate showing of interest. Whether or not that is the case, the 
final rule does not adopt the 20-percent rule. Moreover, the concern 
expressed in the comment could equally be expressed about the current 
procedures under which regional directors and the Board routinely defer 
ruling on eligibility questions without revisiting the adequacy of the 
showing of interest. Furthermore, the required showing of interest is 
purely an internal administrative matter, as explained in current Sec.  
101.18(a): ``it being the Board's experience that in the absence of 
special factors the conduct of an election serves no purpose under the 
statute unless the petitioner has been designated by at least 30 
percent of the employees.'' The adequacy of the showing is non-
litigable, as discussed in connection with Part 101 below. The Borden 
Co., 101 NLRB 203, 203 n. 3 (1952) (``the question[] of the sufficiency 
of the showing of interest * * * [is a matter] for administrative 
determination and not subject to litigation by the parties); 
Casehandling Manual Section 11028.3.
    In a related vein, Jonathan Fritts on behalf of CDW II raised a 
series of thoughtful questions concerning exactly how the proposed 20-
percent rule would be implemented in the context of several possible 
hearing contingencies. Of course, the 20-percent rule is not being 
adopted. Nevertheless, given our expectation that regional directors 
will consider the relative percentage as a significant factor in 
deciding whether to decide or defer an issue, we address those 
questions below.
    CDW's first three questions concern how the choice to take evidence 
would interact with the proposed 20-percent threshold. Specifically, 
CDW asks:

    If, at the outset of the hearing, there are eligibility and 
inclusion issues that affect more than 20% of the bargaining unit, 
will the hearing officer take evidence on all of those issues?
    Or will the hearing officer take evidence on only ``just 
enough'' issues so that the remaining eligibility issues fall below 
20%? If so, how will the hearing officer decide which issues to take 
evidence on in these situations?

As explained more thoroughly in connection with the offer of proof 
proposal below, the discretion to determine which issues will be 
deferred or decided will reside with the regional director. Recognizing 
that there is no mandatory 20-percent rule, if the regional director 
wished to defer deciding individual eligibility or inclusion questions 
involving 20% of the unit, the regional director would simply identify 
a subset of the issues which impacted 20% of the unit and defer them, 
and would take evidence on the rest. This exercise of discretion is 
analogous to what currently happens in post-election proceedings 
involving determinative challenges, where there is a known margin 
before challenged ballots are opened, and regional directors sometimes 
decide to resolve only a few of the challenged ballot issues and open 
the resolved ballots in order to see whether the new tally obviates 
having to resolve the remaining challenges.\392\ We expect that the 
regional director would consider many of the same factors that the 
regional directors currently consider in deciding whether to rule on 
all determinative challenges or just a few. For example, the regional 
director might consider how long it would take the parties to present 
their evidence on the disputed individuals, and then decide to take 
evidence on the individuals who require the least amount of time and 
defer the remainder. The regional director might also instruct the 
hearing officer to see whether the parties can agree on which 
individuals' eligibility should be litigated in order to leave a 
smaller percentage to be deferred. The regional director might also 
consider offers of proof and decide which issues would be easiest to 
resolve or whether a common issue would resolve the eligibility status 
of multiple individuals, and take evidence accordingly. In sum, 
regional directors will not be mandated to follow

[[Page 74392]]

any particular course of decision-making as to the taking of evidence 
on individual eligibility issues, but will instead retain discretion to 
use their judgment as to what evidentiary structure will result in the 
most efficient use of party and agency resources.
---------------------------------------------------------------------------

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

    CDW next questions how 20% of the unit would be measured if the 
size of the unit is in dispute, asking specifically:

    If the appropriateness of the bargaining unit is in dispute, how 
will the 20% be measured? Will it be 20% of the petitioned-for unit?
    If the employer asserts that the only appropriate unit is a 
larger unit, will the rule be applied based on 20% of that larger 
unit?

If there are significant differences in the sizes of the parties' 
preferred bargaining units, then regional directors should evaluate the 
individual eligibility and inclusion issues in dispute relative to the 
petitioned-for unit, and any other unit in which the petitioner is 
willing to proceed to an election. For example, if the petitioner 
asserts at hearing that it would be unwilling to proceed to an election 
concerning an employer's alternative unit that is larger than the 
petitioned-for unit, then the regional director need not take into 
account the employer unit's size in evaluating individual eligibility 
or inclusion issues to be deferred, because there will either be an 
election in the petitioned-for unit--if found appropriate by the 
regional director--or no election at all. If, on the other hand, the 
petitioner is willing to proceed to an election in a significantly 
larger unit as proposed by the employer, then the regional director 
will retain discretion to decide the most efficient means of 
structuring the litigation of potential individual eligibility issues. 
In such a situation, the regional director may, of course, consider the 
relative percentage of individual eligibility issues presented in each 
of the proposed units. Each such case will present its own 
complications, and there is no particular litigation structure mandated 
by the final rule.
    CDW also questions whether and how unit appropriateness issues 
might be deferred under the final rule. The primary answer to these 
questions is that under the final rule, as under the Board's current 
regulations, the regional director must always decide on the 
appropriateness of the unit before directing or conducting an election. 
So, a regional director will not defer taking evidence or resolving 
individual eligibility or inclusion issues whose resolution could 
render inappropriate an otherwise appropriate unit.
    However, under the final rule, as under the Board's current 
regulations, and completely apart from the 20-percent proposal in the 
NPRM, a hearing officer will be free to require an offer of proof 
concerning any unit appropriateness arguments raised by an 
employer.\393\ If the evidence sought to be introduced would be 
insufficient to sustain the employer's position--for example, whether 
to overcome a presumptively appropriate unit or to show an overwhelming 
community of interest between petitioned-for classifications and 
excluded classifications--then the regional director would direct the 
hearing officer not to allow the evidence to be received.\394\ This is 
distinct from deferring a question to the challenge process: as has 
always been the case under Board rules only ``significant facts'' can 
be litigated, and if a party's contentions are meritless they are never 
entitled to litigate them, nor can these voters be challenged without 
good cause. Thus, although regional directors cannot defer 
consideration of unit appropriateness issues under the final rule, they 
will continue to enjoy discretion to instruct hearing officers to deny 
the introduction of evidence to ``protect the integrity of [the 
Board's] processes against unwarranted burdening of the record and 
unnecessary delay.'' Laurel Associates d/b/a Jersey Shore Nursing and 
Rehabilitation Center, 325 NLRB 603, 603 (1998).
---------------------------------------------------------------------------

    \393\ In fact, the Board's pre-NPRM regulations permitted 
hearing officers, on their own volition, to allow or prevent 
litigation of issues based on offers of proof. But in practice, 
hearing officers faced with such a decision typically chose to seek 
guidance from the regional director and we think that this is the 
better practice. See Testimony of Caren Sencer on behalf of 
Weinberg, Roger & Rosenfeld II and Gabrielle Semel of behalf of CWA 
II (discussing current practice of hearing officers pausing to 
consult with regional directors when necessary).
    \394\ In this regard, the Board rejects the suggestion of the 
IBEW II that we create a mechanism to automatically defer litigation 
challenges to presumptively appropriate units. Rather, in the 
circumstances that IBEW describes, we would expect hearing officers 
to typically require an offer of proof from an employer arguing 
against the appropriateness of a unit considered presumptively 
appropriate under Board caselaw. If the employer's proffered 
evidence would be insufficient to rebut the presumption, then it 
would be appropriate for the regional director to foreclose receipt 
of the evidence without regard to the proposed 20% rule.
---------------------------------------------------------------------------

    CDW then poses a follow-up question running to whether certain 
classifications of employees--excluded from the petitioned-for unit by 
virtue of a legally insufficient offer of proof made by their 
employer--will nevertheless be eligible to vote in the election, 
subject to challenge. Generally, no, but the answer will vary from case 
to case. Thus, the rules do not require the casting of challenged 
ballots in such circumstances and the Board's policy continues to be 
that when a regional director has specifically ruled on an employee's 
inclusion in or exclusion from the unit, then it would generally not be 
appropriate to vote that employee, even subject to challenge. However, 
as discussed below in connection with Sec.  102.67, the final rule 
contains a procedure for requesting segregation and impoundment of 
ballots, and so challenged ballots concerning unit appropriateness 
issues may be permitted in a particular case.
    Some comments criticize the 20-percent rule on the grounds that it 
will lead to more post-election litigation and result in more elections 
being set aside as a result of post-election rulings concerning the 
eligibility of employees.\395\ Similarly, at least two comments raise 
the concern that because the bargaining obligation attaches at the time 
of the tally, employers will be required to invest time and money in 
bargaining with a union that has questionable representative 
status.\396\ These comments misunderstand the proposals. As under the 
current rules, if decisions concerning individuals' eligibility or 
inclusion are deferred until after the election, the individuals will 
vote subject to challenge. If their votes are not potentially outcome 
determinative, the matter will not be litigated, thus decreasing the 
total amount of litigation. If their votes are potentially outcome 
determinative, their eligibility may be litigated and the resolution 
may affect the results of the election, but it will not lead to the 
results of the election being set aside. As under the current 
procedures, post-election proceedings concerning challenged ballots 
will proceed and conclude promptly at the regional level. As explained 
above and below in relation to Sec. Sec.  102.62(b) and 102.69, any 
Board review of the disposition will be expedited by the final rule.
---------------------------------------------------------------------------

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

    Finally, a few comments argue that deferral of voter eligibility 
questions will create more issues for the parties to address during 
first contract negotiations.\397\ AHA makes the related claim that 
``leaving the individuals' inclusion or exclusion from the unit to be 
used as a bargaining chip is unfair to employees and disrespectful of 
their Section 7 rights and counter to the Act's purposes of promoting 
labor peace[.]''

[[Page 74393]]

As explained above, this already happens under the current rules, when 
the regional director or the Board defers decision on the questions and 
does not decide them post-election because the votes of the disputed 
individuals were not potentially outcome determinative. The Board does 
not believe addressing such questions will complicate bargaining, 
particularly when the parties can file a timely unit clarification 
petition if they are unwilling or unable to resolve the matter.\398\ 
Neither does the Board believe that negotiations between the parties 
concerning employees' inclusion in or exclusion from the bargaining 
unit is substantively different, vis-[agrave]-vis their Section 7 
rights, whether the parties are negotiating a first contract or a 
stipulated election agreement. Both are inherently acceptable 
mechanisms under the Board's extant procedures, and AHA does not 
suggest, for example, that the Board cease accepting party stipulations 
concerning the parameters of proposed bargaining units in deference to 
employees' Section 7 rights.\399\ In any event, we would reject such a 
suggestion for the same reason that we reject AHA's instant comment: 
the fundamental design of the Act is to encourage agreement between the 
parties as much as possible and not to interject the Board's judgments 
in place of collectively-negotiated terms.\400\ So long as parties 
negotiate terms regarding which individuals or classifications to 
include in a bargaining unit that do not contravene the Act's 
provisions or settled Board policies, then it would be inappropriate 
for the Board to disallow their agreements.\401\ In relation to AHA's 
concerns about the promotion of labor peace, the Board believes that 
labor peace is more likely if parties are permitted to voluntarily 
resolve their differences.
---------------------------------------------------------------------------

    \397\ See, e.g., Testimony of Doreen Davis on behalf of RILA II; 
SHRM II; CDW II.
    \398\ As SEIU observes:
    If the union wins, the parties can negotiate unit inclusion 
issues through the collective bargaining process, when both parties 
have an eye towards the appropriate composition of the bargaining 
unit (rather than maneuvering to exclude or include particular 
workers to skew the election results). Indeed, in our experience, 
the unit placement of workers permitted to vote under challenge is 
almost always resolved, after certification, without the necessity 
of returning to the Board for clarification.
    See also Testimony of Semel on behalf of CWA II.
    \399\ Indeed, some commenters claim that petitioning unions 
under the current rules are compelled to modify the parameters of 
their preferred unit solely to avoid the delay associated with 
litigating the voter eligibility of certain individuals or 
classifications--a context that would seem no less ``unfair'' to 
employees as the post-election negotiations posited by AHA. See, 
e.g., Testimony of Brenda Crawford II; Testimony of Martin Hernandez 
on behalf of UFCW II.
    \400\ Cf. H.K. Porter Co. v. NLRB, 397 U.S. 99, 106 (1970) 
(``the Board may not, either directly or indirectly, compel 
concessions or otherwise sit in judgment upon the substantive terms 
of collective bargaining agreements'').
    \401\ See, e.g., Micro Pacific Development, Inc. v. NLRB, 178 
F.3d 1325, 1335-36 (D.C. Cir. 1999).
---------------------------------------------------------------------------

    Many comments additionally challenge the proposed amendments to 
102.66 by arguing against the aggregated effects of the various 
proposed changes, including the mandatory 20-percent rule. For example, 
comments question: the hearing officer's role in administering the 
changed pre-election hearing; whether hearings under the proposed 
amendments would result in an inadequate record for subsequent appeals; 
and whether the hearings under the proposed amendments would be 
inconsistent with Section 9(c) of the Act. We respond to each of these 
groups of commentary below in connection with the changes regarding 
joinder and offers of proof.
B. Identification of Issues in Dispute; Discretionary Offers of Proof; 
Preclusion
    In the NPRM, the Board proposed a number of amendments to Sec.  
102.66 which were designed to ensure that issues in dispute would be 
more promptly and clearly identified and that hearing officers could 
limit the evidence offered at the pre-election hearing to that which is 
necessary for the regional director to determine whether a question of 
representation exists. 79 FR 7329-32. The NPRM proposed that hearing 
officers would follow a specified process to identify relevant issues 
in dispute. Thus, the NPRM provided that the hearing officer would open 
the hearing by reviewing, or assisting non-petitioning parties to 
complete, Statements of Position, and then would require the petitioner 
to respond to any issues raised in the Statements of Positions, thereby 
joining the issues. The NPRM further proposed that after the issues 
were properly joined, the hearing officer would require the parties to 
make offers of proof concerning any relevant issues in dispute, and 
would not proceed to take evidence unless the parties' offers created a 
genuine dispute concerning a material fact, a standard derived from 
Rule 56 of the Federal Rules of Civil Procedure.
    The Board also proposed that a party would be precluded from 
raising any issue, or presenting any evidence or argument about any 
issue, that it failed to raise in its timely Statement of Position or 
to place in dispute in response to another party's Statement. However, 
any party would be permitted to present evidence as to the Board's 
statutory jurisdiction, and the petitioner would be permitted to 
present evidence as to the appropriateness of the unit if the 
nonpetitioning parties declined to take a position on that issue. In 
addition, consistent with the proposed amendments' intent to defer both 
litigation and consideration of disputes concerning the eligibility or 
inclusion of individual employees until after the election, no party 
would be precluded from challenging the eligibility or inclusion of any 
voter during the election on the grounds that no party raised the issue 
in a Statement of Position or response thereto. 79 FR 7329-30.
    The Board received a great number of comments about these 
proposals. As discussed at length in relation to Sec.  102.63, the 
Board has decided to adopt the proposal requiring nonpetitioners to 
complete Statements of Position, but has revised the due date for the 
completion of the Statements so that the Statements can serve their 
intended purposes of facilitating entry into election agreements and 
narrowing the scope of pre-election hearings in the event the parties 
do not enter into such agreements. Thus, amended Sec.  102.63(b) 
requires nonpetitioners to file and serve their Statements of Position 
such that they are received by the regional director and all parties 
identified in the petition by noon on the business day before the 
scheduled opening of the pre-election hearing.
    After careful consideration of the comments, and as more fully 
discussed below, the Board has decided to require, in amended Sec.  
102.66(b), the other parties to respond to each issue raised in a 
Statement of Position. The same paragraph expressly authorizes the 
regional director to permit Statements of Position, as well as 
responses, to be amended in a timely manner for good cause.\402\ It 
then provides that ``[t]he hearing officer shall not receive evidence 
concerning any issue as to which parties have not taken adverse 
positions.'' We believe that this amendment will help the Board 
maximize hearing efficiency by eliminating unnecessary litigation, 
expeditiously resolve questions of representation and make Board 
procedures more transparent and uniform across regions. As discussed in 
relation to Sec.  102.63, although parties currently are asked to 
provide much of the information requested by the

[[Page 74394]]

Statement of Position form, they are not required to do so, and some 
parties do not disclose the information even though it is needed to 
ensure efficient hearings and to expeditiously resolve questions of 
representation. Similarly, parties are not currently required to 
respond to positions taken by other parties on issues that need to be 
determined by the regional director. The required Statements of 
Position and responses will enable the hearing officer and the parties 
to ascertain at the outset of the hearing the issues in dispute and, 
conversely, those that are not in dispute. As to the latter, it follows 
as a matter of administrative efficiency and common sense that 
litigation would unjustifiably waste the time and resources of the 
Board and the parties. Thus, the amendment will prevent wasteful 
litigation of matters that are not in dispute.\403\ It also helps to 
streamline the hearing and ensure that the hearing proceeds in an 
orderly fashion if parties are precluded from raising issues that they 
did not raise in their Statements of Position or place in dispute in 
response to another party's Statement. Absent good cause, parties 
should not be permitted to raise new issues just prior to the close of 
the hearing.\404\
---------------------------------------------------------------------------

    \402\ We have thereby adopted the Chamber's suggestion that the 
regulatory text explicitly provide that parties may timely amend 
their Statements of Position for good cause, as discussed above in 
relation to Sec.  102.63(b). Accordingly, we have also explicitly 
provided in the regulatory text for required responses to any 
amendments to a Statement of Position.
    \403\ The sentence--providing that the hearing officer shall not 
receive evidence concerning any issue as to which the parties have 
not taken adverse positions--includes an exception that preserves 
the regional director's discretion to permit the introduction of 
evidence relating to an issue that is necessary for the director to 
address even if the parties have not taken adverse positions. For 
example, if an employer declines to complete a statement of position 
in a case where the petitioned-for unit is not presumptively 
appropriate, the director must still determine whether the 
petitioned-for unit is appropriate in order to determine whether a 
question of representation exists. Accordingly, the final rule 
permits the director to instruct the hearing officer to take 
evidence on this issue. Similarly, if an employer takes no position 
regarding the Board's jurisdiction over it, the final rule permits 
the director to instruct the hearing officer to take evidence on 
that issue as well. In particular, the regional director must find 
that the Board has statutory jurisdiction over the employer before 
the director may conduct an election. However, under the final rule, 
the Board will continue its longstanding practice of presuming that 
an employer satisfies the Board's discretionary jurisdictional 
standards when the employer refuses to voluntarily provide 
information requested by the Board in order to apply those 
standards. See, e.g., Seaboard Warehouse Terminals, Inc., 123 NLRB 
378, 382-83 (1959); Tropicana Products, Inc., 122 NLRB 121, 123-24 
(1958).
    The Board declines to adopt some provisions of a similar proviso 
that was contained in Sec. Sec.  102.66(a)(1), (2), and (3) of the 
proposed rule. With respect to supplementing the record as to issues 
relating to the appropriateness of the unit that no party has placed 
in dispute, the proposed proviso called for the petitioner to supply 
the evidence. It also specifically provided for the use of secondary 
evidence, such as sworn statements or declarations. We see no need 
to specify the petitioner or any other party as responsible for 
supplementing the record in this regard; the means and manner of 
insuring the adequacy of the record should remain within the 
discretion of the regional director, or the hearing office on the 
director's behalf, where it currently resides. Similarly, hearing 
officers already enjoy discretion to receive secondary evidence in 
appropriate circumstances, and we see no need to limit that 
discretion or predetermine the form of evidence that might be 
appropriate for this purpose.
    \404\ Moreover, as previously discussed, one purpose of 
requiring the Statement of Position in advance of the hearing is to 
narrow the scope of the pre-election hearing by alerting the 
petitioner as to issues the nonpetitioner is seeking to litigate in 
the hearing on the petitioner's petition. This will avoid a 
situation where one party is not prepared to proceed because they 
did not believe that certain issues required litigation. For all the 
foregoing reasons, the Board rejects the notion that parties should 
be able to amend their Statements of Position even in the absence of 
good cause.
---------------------------------------------------------------------------

    The Board declines to adopt the proposed rule's use of the term 
``joinder'' in connection with the requirement of responses to issues 
raised in a Statement of Position. While, as explained above, the 
important concept of identifying the issues in dispute and precluding 
litigation of undisputed matters is retained in the final rule, the 
term ``joinder'' is not necessary to describe the concept and might 
give rise to a mistaken belief that the body of law concerning civil 
pleading requirements was intended to be imported and applied to our 
representation-case proceedings. We believe that would be inappropriate 
for the relatively informal administrative hearings governed by this 
rule. The Board has also eliminated the duplicative numbered 
subdivisions of Sec.  102.66(a), consolidating their provisions, as 
modified, as Sec.  102.66(b).
    The Board adopts in all material respects the ``Preclusion'' 
paragraph of the proposed rule, numbered here as Sec.  102.66(d). This 
complements Sec. Sec.  102.63(b) and 102.66(b), and helps achieve an 
important objective of those provisions. As explained above, the 
requirements of the Statement of Position and responses, permitting 
identification of the issues in dispute, together with the preclusion 
of evidence of issues not timely raised, substantially improves the 
Board's procedures by saving the parties and the Board the time and 
expense of wasteful litigation. As also discussed here and in 
connection with Sec.  102.63, hearing officers working under the prior 
rules often sought to obtain this result by soliciting the positions of 
the parties in order to narrow the issues and avoid unnecessary 
litigation. However, parties sometimes failed or refused to provide the 
necessary information, thereby frustrating those efforts. Section 
102.66(d) supplies the incentive for parties to comply with the 
requirements of Sec. Sec.  102.63(b) and 102.66(b), consistent with 
Board precedent discussed above, by precluding parties from litigating 
issues as to which they have failed to take positions required either 
as part of a Statement of Position or in response to a Statement of 
Position. Put another way, Sec.  102.66(d) constitutes the enforcement 
mechanism for Sec. Sec.  102.63(b) and 102.66(b), in a way that tracks 
Board precedent. It includes an exception for litigation of the issue 
of statutory jurisdiction, and it expressly exempts from the preclusive 
effect of the paragraph a party's ability to challenge the eligibility 
of any voter during the election.
    Upon reflection, the Board has decided not to adopt the proposed 
mandatory offer-of-proof procedure. Under the proposal, once the issues 
raised in a party's statement of position were properly responded to by 
the petitioner, the hearing officer would require the parties to make 
offers of proof concerning any relevant issues in dispute, and would 
not proceed to take evidence unless the parties' offers created a 
genuine dispute concerning a material fact. Thus, the proposed rule 
provided, in relevant part:

    (b) Offers of proof; discussion of election procedure. After 
identifying the issues in dispute pursuant to paragraph (a) of this 
section, the hearing officer shall solicit offers of proof from the 
parties or their counsel as to all such issues. The offers of proof 
shall take the form of a written statement or an oral statement on 
the record identifying each witness the party would call to testify 
concerning the issue and summarizing the witness' testimony. The 
hearing officer shall examine the offers of proof related to each 
issue in dispute and shall proceed to hear testimony and accept 
other evidence relevant to the issue only if the offers of proof 
raise a genuine dispute as to any material fact. . . .

79 FR at 7358 (Sec.  102.66(b)). The final rule provides with respect 
to offers of proof (emphasis added):

    (c) Offers of proof. The regional director shall direct the 
hearing officer concerning the issues to be litigated at the 
hearing. The hearing officer may solicit offers of proof from the 
parties or their counsel as to any or all such issues. Offers of 
proof shall take the form of a written statement or an oral 
statement on the record identifying each witness the party would 
call to testify concerning the issue and summarizing each witness's 
testimony. If the regional director determines that the evidence 
described in an offer of proof is insufficient to sustain the 
proponent's position, the evidence shall not be received.

See amended Sec.  102.66(c).
    The final rule thus makes clear that hearing officers will not 
require parties to make offers of proof raising genuine disputes as to 
material facts before

[[Page 74395]]

proceeding to hear testimony and accept other evidence. Instead, 
consistent with pre-existing practice, the Board has decided to leave 
it to the hearing officer's discretion whether to require parties to 
submit offers of proof on disputed issues. The Board has also removed 
the language drawn from Federal Rule of Civil Procedure 56. The 
substitute language makes clear that in the event the hearing officer 
decides to require parties to make an offer of proof, the evidence will 
not be received if the regional director determines that the evidence 
described in the offer of proof is insufficient to sustain the 
proponent's position.
    The Board believes that codifying hearing officers' discretion to 
require offers of proof (and regional directors' discretion to 
determine that the evidence described therein is insufficient to 
sustain the proponent's position and thus that it will not be received) 
will help the Board to avoid unnecessary litigation and expeditiously 
resolve questions of representation in a manner that fully protects the 
rights of all parties. As discussed above, subject to the provisions of 
Sec.  102.66, the hearing officer has a duty ``to inquire fully into 
all matters and issues necessary to obtain a full and complete record 
upon which the Board or the regional director may discharge their 
duties under Section 9(c) of the Act.'' Amended Sec.  102.64(b) (which 
was formerly Sec.  102.64(a)). However, as the Hearing Officer's Guide 
has long recognized, the hearing officer ``also [has a] duty . . . to 
keep the record as short as is commensurate with its being complete.'' 
Hearing Officer's Guide at 1. Thus, the Board has a concomitant ``duty 
to protect the integrity of its processes against unwarranted burdening 
of the record and unnecessary delay.'' Laurel Associates, Inc. d/b/a 
Jersey Shore Nursing & Rehabilitation Center, 325 NLRB 603, 603 (1998). 
See Casehandling Manual Section 11188.1 (``The hearing officer should . 
. . exclude irrelevant and cumulative material.'').
    In order to protect against unwarranted burdening of the record and 
unnecessary delay, the Board has long sanctioned a hearing officer's 
authority to require a party to submit an offer of proof summarizing 
and explaining its proffered evidence as well as a hearing officer's 
authority to rule on the offer of proof. See Laurel Associates, Inc., 
325 NLRB at 603; Mariah, Inc., 322 NLRB 586, 586 (1996). Indeed, 
because offers of proof can be an effective tool for controlling and 
streamlining the hearing and achieving an uncluttered record free of 
irrelevant and cumulative material, the Hearing Officer's Guide 
expressly encourages the hearing officers to utilize offers of proof. 
Hearing Officer's Guide at 6, 38 (``the hearing officer should . . . 
utilize offers of proof in order to achieve an uncluttered record.''). 
See Casehandling Manual Section 11185, 11188.1. But, we no longer 
believe that we need insist on a rigid formality by mandating that 
offers of proof be taken on every potential issue before any evidence 
is introduced. We think that hearing officers will continue to be 
capable of judging when offers of proof are likely to be helpful in 
safeguarding the record, and will continue to require them as 
appropriate, without removing their discretion to let the hearing 
proceed organically where pro forma offers of proof might burden, 
rather than streamline, the hearing record. However, given protests in 
the comments concerning the hearing officers' role (as discussed 
below), out of an abundance of caution we clarify that hearing officers 
must seek the regional director's determination as to whether to 
receive proffered evidence relating to an issue that the regional 
director determined should be litigated. This ensures that discretion 
to foreclose litigation resides with the statutorily appropriate agent 
of the Board. This comports with current best practices, where hearing 
officers briefly adjourn hearings to communicate with regional 
directors to ensure that the record is developed consistent with the 
regional director's view of the case.\405\
---------------------------------------------------------------------------

    \405\ See Testimony of Caren Sencer on behalf of Weinberg, Roger 
& Rosenfeld II and Gabrielle Semel on behalf of CWA II (discussing 
current practice of hearing officers pausing to communicate with 
regional directors when necessary).
---------------------------------------------------------------------------

    In sum, amended Sec.  102.66(c) does no more than reaffirm and 
codify the authority of the hearing officer to require parties to make 
offers of proof if the hearing officer believes it would be useful to 
do so. See Laurel Associates, Inc., 325 NLRB at 603 & n.1 (hearing 
officer properly required employer to make an offer of proof in support 
of its claim that the presumptively appropriate petitioned-for unit was 
not in fact appropriate and then properly rejected it); Mariah, Inc., 
322 NLRB at 586 n.1, 588 (hearing officer properly permitted employer 
to make, and then properly rejected, an offer of proof regarding the 
eligibility of strikers because such matters are decided post election 
if necessary); Franklin Hospital Medical Center, 337 NLRB 826, 826-27 & 
n.2 (2002) (hearing officer properly rejected employer's offer of proof 
regarding alleged supervisor status of certain individuals); Colgate-
Palmolive Co., 120 NLRB 1567, 1568 & n.2 (1958) (hearing officer 
properly rejected proffered evidence because it was not material); W.B. 
Willet, 85 NLRB 761, 761 n.2 (1949) (hearing officer properly rejected 
offer of proof in support of party's contract bar claim, because it 
could not have constituted a bar to the proceeding).
    A number of comments criticize the role of, and the authority 
assigned to, the hearing officer under the proposed rule. Of those 
comments, several suggest that the Board's proposed procedures 
represent an unprecedented expansion of the hearing officer's role and 
vest the hearing officer with too much discretion.\406\ Similarly, some 
comments express the view that the statute prohibits hearing officers 
from making decisions such as whether disputed issues relate to a 
material fact, or whether offers of proof are sufficient to establish 
the existence of a genuine dispute as to a material fact, as Section 
9(c) prohibits hearing officers from even making recommendations with 
respect to the representation hearing.\407\ In addition, several 
comments note that not all hearing officers are attorneys,\408\ and 
numerous comments questioned the competency of hearing officers--
particularly in the absence of guidance from the Board--to assess the 
parties' position statements and offers of proof and to apply the legal 
standards embodied in Federal civil procedure to make judgments as to 
what constitutes a disputed issue of material fact.\409\ According to 
several comments, the likely result of such required judgments--which 
may not be made in a uniform manner among hearing officers--will be an 
increase in post-election litigation and post-certification 
challenges.\410\
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    \406\ See, e.g., SHRM; Bluegrass Institute; ACC; CDW II. In that 
regard, Baker & McKenzie asserts that the proposed rule changes the 
role of the hearing officer from that of fact gatherer to 
gatekeeper/judge, a role for which the hearing officer does not have 
the requisite experience or training.
    \407\ See, e.g., ALFA;Testimony of Roger King on behalf of SHRM 
II; COLLE II.
    \408\ See, e.g., ACE; SHRM II; Bluegrass Institute; GAM; York 
SHRM.
    \409\ See, e.g., SHRM; CNLP; AHCA; National Mining Association; 
ACE; Bluegrass Institute. AHA further asserts that, should the Board 
adopt the proposed procedures, it should engage in an open dialogue 
regarding the standards that the hearing officers would apply, and 
should invite comments on proposals that provide for more detailed 
and comprehensive descriptions of the process to be followed by the 
hearing officers.
    \410\ See, e.g., National Mining Association; Baker & McKenzie; 
GAM; NAM II.
---------------------------------------------------------------------------

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

[[Page 74396]]

already exercise under current Board procedures, as hearing officers 
have always been responsible for controlling the hearing, assuring that 
there is a complete record, and excluding evidence that is not material 
to the case.\411\ In addition, SEIU asserts that the proposed rules do 
not suggest that hearing officers are to weigh the proffered evidence 
of the parties, or to ascertain whether assertions made in position 
statements are accurate or reliable; rather, the hearing officer is to 
examine the position statements and offers of proof to ascertain 
whether there is conflicting evidence as to any material fact.
---------------------------------------------------------------------------

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

    Many comments also focus on the use of language similar to that 
used in Rule 56. The AFL-CIO supports the proposal claiming that it 
will appropriately eliminate the ability of a party to strategically 
delay the election by forcing the litigation of undisputed or 
immaterial issues and provide the hearing officer with the authority to 
prevent an ``empty show'' hearing, while simultaneously ensuring that 
the parties are provided the opportunity to present their positions on 
all issues and to present evidence or offers of proof on all material 
factual issues. In addition, the AFL-CIO contends that ``most major 
agencies in the Federal system have opted to make available procedures 
for the summary disposition of adjudicatory matters,'' and that such 
procedures are particularly appropriate in the context of an ``informal 
and nonadversarial'' pre-election hearing. Similarly, several comments 
assert that the offer-of-proof procedure is consistent with both the 
Board's current post-election practice and civil litigation in Federal 
and state courts.\412\
---------------------------------------------------------------------------

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

    Conversely, several comments express the position that the 
mandatory offer-of-proof procedure inappropriately deprives the parties 
of the opportunity to develop a full and complete record.\413\ Other 
comments assert that the procedures proposed in 102.66 deny employers 
the due process protections to which they are entitled,\414\ and that 
they are inconsistent with the statutory requirement that the Board 
provide an ``appropriate hearing'' prior to the election. In the latter 
regard, several comments argue that Section 9(c) of the Act requires a 
pre-election evidentiary hearing at which the parties are afforded the 
opportunity to present their evidence and positions, and cross-examine 
witnesses.\415\
---------------------------------------------------------------------------

    \413\ See, e.g., SHRM; ACE; AHA; CDW II. Moreover, SHRM asserts 
that the incomplete record resulting from the hearing officer's 
decision regarding the offers of proof, together with the 
possibility that the Board might exercise its discretion to deny 
post-election review, will result in more frequent remands to the 
Board from the Federal courts of appeals, as the courts will not 
have an adequate record for review.
    \414\ See, e.g., SHRM; ACE; U.S. Poultry II.
    \415\ See, e.g., SHRM; CNLP; AHCA II; CDW II.
---------------------------------------------------------------------------

    Several responsive comments dispute the claims that the Board's 
proposed procedures are violative of due process guarantees.\416\ These 
comments assert that there is a notable absence of support for the 
claim that due process requires the Board to expend resources in 
connection with the litigation of issues that are neither material nor 
in dispute, and that due process requires ``something less than a full 
evidentiary hearing.'' Similarly, several comments express support for 
the Board's preliminary view in the NPRM that the statutorily-
prescribed ``appropriate hearing'' does not mean an evidentiary hearing 
when there are no issues in dispute or the parties fail to submit an 
offer of proof demonstrating a genuine dispute as to a material 
fact.\417\ The comments additionally assert that, pursuant to the 
Supreme Court's interpretation of Section 9(c) of the Act, the Board 
has discretion to determine the appropriate parameters of the 
investigatory representation hearing.
---------------------------------------------------------------------------

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

    In addition to challenging the Board's proposed limitations on the 
hearing as inconsistent with due process and statutory requirements, 
many of the comments in opposition to the proposed procedures express 
the view that, contrary to the Board's suggestion in the NPRM, the 
summary procedures are not analogous to the summary judgment framework 
established by Rule 56 of the Federal Rules of Civil Procedure. More 
specifically, a number of comments contend that a fundamental 
distinction between the Board's proposed procedures and Rule 56 is the 
fact that summary judgment under the Federal rule takes place only 
after the parties have had the opportunity to conduct discovery.\418\ 
According to comments from SHRM and ACE, non-petitioning parties cannot 
reasonably be expected to articulate and substantiate their positions 
through an informal summary judgment process in the absence of a full 
record or, at a minimum, access to all of the relevant evidence. SHRM, 
ACE, and AHA additionally contend that the Board's analogy to Rule 56 
is inapt in that summary judgment procedures are utilized to resolve 
legal questions only after the facts have been established to the point 
where no material facts are in dispute; the summary judgment procedure 
has never been used to determine whether to receive and evaluate 
evidence.
---------------------------------------------------------------------------

    \418\ See, e.g., AHA; ALFA; SHRM; NAM; ACE; National Mining 
Association. CNLP additionally asserts that when a summary judgment 
motion is filed as an answer under Rule 56, the non-moving party may 
request time for additional discovery to provide a response.
     In response, a reply comment from the SEIU asserts that, in 
contrast to Federal court proceedings, the employer in a 
representation proceeding before the Board has access to, and 
exclusive control over, all of the relevant information and, 
accordingly, does not have the same need for discovery.
---------------------------------------------------------------------------

    A comment from NAM II additionally asserts that, as the Board's 
proposal requires the non-moving party to identify issues, submit an 
offer of proof, marshal arguments, and introduce evidence supporting 
its position, it completely reverses the burden of proof applicable 
under Rule 56. In addition, unlike the Federal rule, the Board's 
procedures do not afford the parties the opportunity for oral argument.
    In response to the comments criticizing the Board's reliance on 
Rule 56, the SEIU (Reply) counters that, under the Board's proposed 
rules, ``employers may force hearings by producing far less than a 
litigant must produce under Rule 56, and may easily meet its burden 
without the discovery that often precedes summary judgment motions.'' 
Indeed, argues the SEIU, employers would be subjected to a much lower 
bar than that necessary to overcome a summary judgment motion; whereas 
a non-moving party under Rule 56 cannot rest on its pleadings, but must 
submit significant probative evidence in support of its claims, a party 
seeking to introduce evidence at a representation hearing need only 
raise an issue in its position statement and, subsequently, submit an 
offer of proof identifying its likely witnesses and summarizing their 
anticipated testimony. See FRC.P. 56(e).
    We agree with the criticism of the proposed rule's use of Rule 56 
of the Federal Rules of Civil Procedure as a model for the procedural 
rules governing representation cases, based on the substantial 
differences between the different kinds of proceedings. The Federal 
Rules are designed for formal judicial actions before a Federal judge 
or magistrate judge that may address any issue raised in connection 
with almost the full range of claims cognizable under Federal or state 
statutory or common law. The Board's representation cases, by contrast, 
involve informal administrative proceedings that address a narrow 
subset of the issues arising under a single Federal statute. The range 
of issues is even narrower in pre-election

[[Page 74397]]

proceedings. The cases are presided over and decided by hearing 
officers and regional directors, respectively, some of whom are not 
lawyers, and it is more common than in district court for parties not 
to be represented by counsel. We agree that it makes little sense to 
burden an informal proceeding that performs a simple, narrow function 
with trappings of full-dress Federal litigation. We therefore have 
declined to adopt the language of proposed Sec.  102.66(c) that was 
drawn from Rule 56. Similarly, in Sec. Sec.  102.64(b) and 102.66(a) we 
have rejected proposed language imported from Rule 56, and in Sec.  
102.66(a) we have eliminated the proposed ``joinder'' nomenclature in 
connection with the identification of disputed issues through the 
responses to statements of position.
    It is important to recognize, however, that Sec.  102.66 of the 
final rule, Rule 56, and many other rules governing adjudication of 
disputes are animated by a common principle of economy and common 
sense: A tribunal need not permit litigation of a fact that will not, 
as a matter of law, affect the result, or as to which the party that 
seeks to litigate the fact cannot identify evidence that would sustain 
its position. For example, suppose that a party asserts, concerning a 
petition for a unit including all dispatchers, that dispatchers are 
supervisors, and suppose that even if all of its witnesses testify 
credibly as it says they will testify and all of the documents it 
proposes to introduce show what it says they will show, the party's 
testimonial and documentary evidence will not, as a matter of law, 
establish that dispatchers are supervisors. Under such circumstances, 
there is no need for an evidentiary hearing on the issue. There is no 
need to require the hearing officer to try the factual issue to find 
out whether the party's witnesses might by some chance testify to 
something different from what the party said they would. That would be 
the definition of unnecessary litigation, and the formalities of 
summary judgment under Rule 56 are not needed to reach the obvious 
conclusion that the issue should not be tried.
    The Board is confident that hearing officers are fully capable of 
performing their role under the final rule, including asking 
petitioners to respond to each position taken by the nonpetitioners and 
administering the preclusion provision. Put simply, we believe that the 
amendments to Sec.  102.66(b) codify nothing more than what hearing 
officers are supposed to do currently. The Hearing Officer's Guide has 
long provided that at the outset of the hearing, the hearing officer 
should have the parties clearly state their positions on each issue. 
Hearing Officer's Guide at 6, 13, 14, 16. Casehandling Manual Sections 
11187 and 11188 likewise provided long before the NPRM that the hearing 
officer should guide, direct and control the hearing, seek responses to 
issues raised by the parties, and take an active role in exploring all 
potential areas of agreement and narrowing the issues that remain to be 
litigated. Similarly, hearing officers have experience precluding 
parties from presenting evidence relating to an issue if the parties 
have not taken a position on that issue. See Bennett Industries, Inc., 
313 NLRB 1363, 1363 (1994). See also Casehandling Manual Section 11217 
(the hearing officer should advise a party that refuses to state its 
position on an issue that it may be foreclosed from presenting evidence 
on that issue). Accordingly, we believe that hearing officers are 
capable of determining when parties are seeking to present evidence 
about issues they did not raise in their Statements of Position or in 
response thereto.\419\
---------------------------------------------------------------------------

    \419\ In any event, Sec.  102.66(b) also vests authority in the 
regional director to permit parties' timely amendments to their 
Statements of Position or response thereto under a good cause 
standard, mooting some of the concerns parties had concerning the 
hearing officer's proposed role.
---------------------------------------------------------------------------

    Nor would the Board be persuaded by any claim that hearing officers 
are incapable of administering the amended offer-of-proof procedure. As 
discussed above, amended Sec.  102.66(c) does not expand the hearing 
officer's role beyond that which existed under the Board's prior rules; 
rather, it merely confirms that the hearing officer--in the interests 
of protecting the record from being burdened by cumulative or unhelpful 
evidence and preventing unnecessary delay--has the discretion to 
require the parties to submit an offer of proof. Thus, the hearing 
officer's role is limited to the traditional one of ``guid[ing], 
direct[ing], and control[ling] the hearing, excluding irrelevant and 
cumulative material, and not allowing the record to be cluttered with 
evidence submitted `for what it's worth.' '' Hearing Officer's Guide at 
6, 38. See Casehandling Manual Section 11188.1. As shown, prior to the 
NPRM, hearing officers had discretion to require parties to submit 
offers of proof. Under the final rule, hearing officers continue to 
have discretion to require offers of proof, subject to the 
clarification that it is the regional director who will make the 
ultimate decision on the offer's sufficiency. Nothing in the amendments 
denies parties the ability to argue orally about whether a particular 
offer of proof should be rejected. In our experience, hearing officers 
have been fully capable of requesting offers of proof and seeking 
direction from regional directors on whether to allow evidence to be 
received, and there is no reason to think that the amendments will 
change that.\420\
---------------------------------------------------------------------------

    \420\ Regional directors assign either field attorneys or field 
examiners to serve as hearing officers. Field attorneys must possess 
a J.D. degree and be an active member of a bar. Field examiners must 
possess a B.A. degree. The Board has traditionally provided written 
guidance to hearing officers as well as periodic training. Hearing 
officers also participate in a video training program that covers 
the subject of conducting a hearing as well as relevant professional 
development programs. There is also a lengthy publication entitled 
Guide for Hearing Officers in NLRB Representation and Section 10(K) 
Proceedings, which is periodically updated and made available to 
hearing officers (and the public on the Board's Web site). Hearing 
officers are also routinely given feedback on their conduct of 
hearings by the staff members assigned to assist the regional 
director in drafting the resulting decision as well as by the 
regional director. The Board intends to continue to provide these 
types of assistance, feedback, and training. Finally, the 
qualifications of hearings officers are not set by statute or 
regulation. To the extent the regional directors or the Board find 
that the existing hearing officers cannot competently perform the 
role assigned them under the final rule, the Board will provide 
necessary training or alter the qualifications for service as a 
hearing officer.
---------------------------------------------------------------------------

    There will be adequate evidence on the record to decide the 
relevant issues. To be sure, prior to the NPRM, the Board had construed 
its rules as granting parties the right to litigate individual 
eligibility or inclusion questions, whereas the final rule provides 
that disputes concerning individuals' eligibility to vote or inclusion 
in the unit found appropriate ordinarily need not be litigated or 
resolved before an election is conducted. The Board has concluded that, 
although this provision may operate to exclude evidence from the record 
concerning individuals' eligibility to vote or inclusion in the unit 
found appropriate, such evidence is not relevant to the existence of a 
question of representation. As such, it would be administratively 
irrational to require that parties be permitted to litigate such issues 
at the pre-election hearing if the regional director will not be 
deciding those issues prior to the election. But, under the final rule, 
regional directors are free to direct that evidence regarding 
individuals' eligibility to vote or inclusion in the unit be admitted 
if the director resolves to consider the individual eligibility 
question at issue prior to the election.\421\
---------------------------------------------------------------------------

    \421\ We also disagree with the suggestion of the IBEW II that 
the process would be improved if the hearing officer took control of 
the hearing by subpoenaing witnesses and becoming the primary 
questioner to develop the record. To say nothing of the hearing 
officer being the individual least suited to determine, as an 
initial matter, which witnesses would be best situated to provide 
the necessary evidence, we are also guided by the principal that the 
hearing officer is not an advocate for either side and must be 
impartial in developing the record. As the Casehandling Manual 
cogently explains, the hearing officer should avoid the appearance 
of providing undue assistance to one party or another and ``should 
also exercise self-restraint, should give the parties prior 
opportunity to develop points, and should refrain from needlessly 
taking over.'' 11188.1. We think that the tools provided in the 
final rule will allow the hearing officer and the regional director 
to adequately control development of the record without taking 
steps--as suggested by IBEW--that could lead their impartiality to 
be called into question.

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[[Page 74398]]

    Contrary to some of the comments, the hearing officer's 
determination to require a party's offer of proof and seeking a ruling 
from the regional director on whether to receive the described evidence 
does not constitute a ``recommendation'' or decision for purposes of 
Section 9(c)(1) of the Act. Thus, in deciding whether to require an 
offer of proof, and presenting that offer to the regional director, the 
hearing officer is not recommending, or deciding, whether a question of 
representation exists or whether an election should be directed to 
resolve that question. See Casehandling Manual Section 11185 (``The 
hearing officer's role is to guide, direct, and control the 
presentation of evidence at the hearing [but] [t]he hearing officer 
does not make any recommendations or participate in any phase of the 
decisional process.'') \422\ Moreover, as discussed above, the final 
rule makes clear in amended Sec.  102.66(c) that it is the regional 
director, not the hearing officer, who will determine the issues to be 
litigated and whether evidence described in an offer of proof will be 
admitted.
---------------------------------------------------------------------------

    \422\ Indeed, hearing officers have long been charged with 
passing on the admissibility of evidence, and ruling on petitions to 
revoke subpoenas that are filed after the hearing opens. See 
Sec. Sec.  102.64, 102.65, 102.66, 102.68 (2009); Hearing Officer's 
Guide at 1, 22, 29, 33-39; Casehandling Manual Sections 11188.1, 
11185, 11194; 11204, 11207, 11212.
---------------------------------------------------------------------------

    We would also find unpersuasive any claim that the amendments 
deprive parties of their right to an ``appropriate'' pre-election 
hearing under Section 9(c) of the Act. Section 9(c)(1) of the Act 
states that the Board must provide for ``an appropriate hearing'' if it 
has ``reasonable cause to believe that a question of representation 
affecting commerce exists,'' and that the Board must direct an election 
if it finds, based on the record of that hearing, that ``such a 
question of representation exists.'' Thus, the statutory purpose of the 
pre-election hearing is to determine whether a question of 
representation exists.\423\ In the absence of an election agreement, 
the Board's duty under Section 9(c) of the Act is to conduct a hearing 
to determine if a question of representation exists and, if such a 
question exists, to direct an election to answer the question and to 
certify the results.
---------------------------------------------------------------------------

    \423\ As noted, a question of representation exists if a proper 
petition has been filed concerning a unit appropriate for the 
purpose of collective bargaining or concerning a unit in which an 
individual or labor organization has been certified or is being 
currently recognized by the employer as the bargaining 
representative. However, a proper petition cannot be filed under 
Section 9(c)(1) of the Act, and a question of representation cannot 
arise under the Act, unless the employees in the unit are employed 
by an employer covered by the Act. Thus, the regional director must 
determine that a proper petition has been filed in an appropriate 
unit in order to find that a question of representation exists.
---------------------------------------------------------------------------

    Amended Sec.  102.66 does not deprive parties of their right to 
``an appropriate [pre-election] hearing'' under Section 9(c) of the 
Act. After all, as explained above, amended Sec.  102.66(a) expressly 
provides that parties have the right to introduce evidence ``of the 
significant facts that support the party's contentions and are relevant 
to the existence of a question of representation.'' Codifying hearing 
officers' discretion to require parties to make offers of proof in 
Sec.  102.66(c) likewise does not deprive parties of their right to 
``an appropriate [pre-election] hearing'' or their right to litigate 
relevant issues. To the contrary, offers of proof are a recurring 
feature of pre-election hearings under the NLRA (and of administrative 
and state and Federal court hearings across the land). An offer of 
proof is simply a tool to enable the regional director to determine 
whether it is appropriate to receive the evidence a party wishes to 
introduce. See Hearing Officer's Guide at 38. Thus, for example, if the 
proffered evidence is not relevant to whether a question of 
representation exists and the offer is rejected, parties have not been 
deprived of their right to a pre-election hearing, because parties have 
no right--under the NLRA, the APA, or the due process clause of the 
United States Constitution--to present evidence that is not relevant to 
the statutory purpose of the pre-election hearing.\424\ Indeed, as 
shown, hearing officers had authority under the Board's prior rules to 
seek responses to party positions and to require parties to make offers 
of proof.
---------------------------------------------------------------------------

    \424\ See Mariah, Inc., 322 NLRB at 586 n.1 (hearing officer 
acted consistent with his role in ensuring that the record is both 
complete and concise in refusing to permit the introduction of 
irrelevant evidence at the pre-election hearing); National Mining 
Ass'n v. DOL, 292 F.3d 849, 873-74 (D.C. Cir. 2002) (the APA 
``empowers agencies to `exclu[de] * * * irrelevant, immaterial, or 
unduly repetitive evidence' as `a matter of policy''') (citation 
omitted); U.S. v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001) (although 
a criminal defendant ``has a wide-ranging right to present a 
defense, * * * this does not give him a right to present irrelevant 
evidence''); U.S. v. Vazquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008) 
(same). Accordingly, parties have no right to present irrelevant 
evidence at a pre-election hearing, which is not governed by the 
APA's formal adjudication provisions. See 5 U.S.C. 554 (a)(6); In re 
Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir. 
1979) (representation case proceedings exempt from APA formal 
adjudication requirements); NLRB v. Champa Linen Service Co., 437 
F.2d 1259, 1262 (10th Cir. 1971) (same).
    We also wish to reiterate that if pursuant to the regional 
director's direction, a hearing officer prevents receipt of evidence 
regarding an individual eligibility or inclusion question (on the 
grounds that the proffered evidence is not relevant to determining 
whether a question of representation exists,) the party remains free 
to present such evidence at a post-election hearing if that 
individual casts a determinative challenged ballot. Similarly, if 
the disputed votes are not determinative, parties can bring the 
issue back before the Board through a timely filed unit 
clarification petition if the union wins the election and they 
cannot resolve the issues through collective bargaining. Thus, the 
amendments do not limit any party's right to present such evidence, 
but merely give the regional director discretion to defer 
introduction of such evidence until after the election.
---------------------------------------------------------------------------

    Moreover, because offers of proof are part of the record as 
discussed below in connection with amended Sec.  102.68, parties' 
rights are preserved even if the evidence is rejected in error. Thus, 
the offer of proof is in the record for the regional director (or the 
Board or a reviewing court) to review, and if the director (or the 
Board or a reviewing court) concludes that the evidence was rejected in 
error and that the error prejudiced the party making the offer, then 
the director (or the Board or a reviewing court) can order that the 
record be reopened and the evidence taken. Hearing Officer's Guide at 
38.\425\
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    \425\ As noted, hearing officers have long had discretion to 
require offers of proof at the pre-election hearing. The courts of 
appeals have not remanded a significant number of cases because of 
erroneous hearing officer rulings regarding offers of proof, and we 
see no reason for this to change as a result of the final rule. If 
anything, the requirement that regional directors determine whether 
evidence described in the offer of proof should be received lessens 
the chance of erroneous rulings.
---------------------------------------------------------------------------

    Nor will the preclusion provisions prevent development of an 
adequate record upon which the regional director can determine whether 
there is an appropriate unit in which the Board may properly conduct an 
election. As explained in the NPRM, hearing officers had authority 
under the Board's prior rules to preclude parties from presenting 
evidence when they refused to take positions on issues. See 79 FR 7329-
30; Bennett Industries Inc., 313 NLRB 1363, 1363 (1994) (hearing 
officer properly refused to allow employer to introduce evidence 
regarding

[[Page 74399]]

supervisory status of leadpersons and quality control inspectors 
because employer refused to take a position regarding their status and 
their inclusion or exclusion from the unit); Allen Health Care 
Services, 332 NLRB 1308 (2000); Casehandling Manual Section 11217. Even 
if the hearing officer exercises the authority to limit an employer's 
presentation of evidence when the employer fails to take a position 
regarding the appropriateness of a petitioned-for unit, the regional 
director will retain the discretion to direct the receipt of evidence 
needed to make the required determination concerning a petitioned-for 
unit which is not presumptively appropriate. That evidence may include 
testimony adduced from the employer's owners, managers, or supervisors 
as witnesses, called under subpoena or otherwise, and documents 
obtained from the employer.
    Thus, for example, amended Sec.  102.66(b) contains an exception 
which explicitly provides that ``this provision shall not preclude the 
receipt of evidence regarding the Board's jurisdiction over the 
employer or limit the regional director's discretion to direct the 
receipt of evidence concerning any issue, such as the appropriateness 
of the proposed unit, as to which the regional director determines that 
record evidence is necessary.'' \426\ And amended Sec.  102.66(a) 
provides that the hearing officer ``shall also have the power to call, 
examine, and cross-examine witnesses and to introduce into the record 
documentary and other evidence.'' The Board has concluded that 
employers who are unable or unwilling to take a position concerning the 
appropriateness of a proposed unit of their own employees are unlikely 
to provide assistance to the hearing officer in the development of an 
adequate record upon which to address that question. And we reiterate 
our further conclusion that not vesting hearing officers with clear 
authority to limit such employers' participation in the hearings under 
those circumstances threatens the hearing officer's ability to control 
the proceedings and avoid burdening the record.
---------------------------------------------------------------------------

    \426\ The NPRM proposed a slightly different version of this 
language, keyed only to the need for petitioner to adduce evidence 
concerning the appropriateness of the petitioned-for unit when the 
employer refused to take a position on the issue. See 79 FR 7357. 
However, the Board was persuaded in part by the comment of the AFL-
CIO II that the Board's proposed language should be modified to 
include a reference to evidence concerning jurisdiction, and a catch 
all covering any issue concerning which record evidence is necessary 
for those circumstances in which the record might lack other 
necessary evidence concerning issues that are neither contested, nor 
stipulated. For example, a petitioner's status as a labor 
organization could be such an issue in certain cases.
---------------------------------------------------------------------------

    In short, if the parties do not enter into an election agreement, 
there will be a pre-election hearing. But Section 9(c) does not require 
a full evidentiary hearing in every case. Rather, it requires ``an 
appropriate hearing.'' The Board concludes that a hearing where 
irrelevant evidence must be introduced is an inappropriate hearing. 
Thus, if the parties come to the hearing and the regional director 
determines that there are no disputes that must be resolved prior to 
the election (because, for example, all parties agree on the record 
that the Board has jurisdiction and that the only dispute concerns the 
supervisory status of one individual in a 10-person unit that all 
parties agree on the record is appropriate), an appropriate hearing 
does not require introduction of further evidence. See United States v. 
Storer Broadcasting, 351 U.S. 192, 205 (1956); accord American 
Airlines, Inc. v. Civil Aeronautics Board, 359 F.2d 624, 628 (en banc), 
cert. denied, 385 U.S. 843 (1966). On the other hand, if, as discussed 
above, the petitioned-for unit is not presumptively appropriate and the 
employer refuses to take a position on the appropriateness of the unit, 
then although the amendments to Sec.  102.66 preclude the employer from 
presenting evidence and argument about the appropriateness of the unit, 
the amendments allow the petitioner to demonstrate the appropriateness 
of the unit at the hearing, or adduce evidence concerning any other 
issue for which record evidence is necessary. See Sec.  102.66(b). 
Thus, the amendments are consistent with Allen Health Care Services, 
332 NLRB 1308, 1308-09 (2000), where the Board held that if the 
employer refuses to take a position on a unit that is not presumptively 
appropriate, the hearing officer must take evidence sufficient to allow 
the regional director to find that the unit is appropriate before the 
director may direct an election in that unit.\427\ Similarly, unless 
the employer concedes the Board has jurisdiction, evidence must be 
taken on the Board's statutory jurisdiction to process the petition. 
Indeed, amended Sec.  102.66(b) provides that receipt of evidence 
regarding the Board's jurisdiction will not be precluded even if the 
employer takes no position on this issue, and amended Sec.  102.66(d) 
contains language that expressly provides that ``no party shall be 
precluded from * * * presenting evidence relevant to the Board's 
statutory jurisdiction to process the petition.''
---------------------------------------------------------------------------

    \427\ Likewise, because, as the IFA points out, current Board 
law holds that employees who are jointly employed by two entities 
cannot be included in the same bargaining unit with employees who 
are solely employed by one of those entities without the consent of 
both entities (Oakwood Care Center, 343 NLRB 659 (2004)), the Board 
may not find such a ``mixed unit'' to be appropriate merely on the 
basis that neither entity submits a Statement of Position. At the 
same time, it would be inappropriate to dismiss the petition simply 
based on the failure of the two entities to file Statements of 
Position, as for example, both entities could consent at the 
hearing. The petitioner could also amend its petition and seek to 
represent only the employees who are jointly employed by both 
employers (see id. at 662, 666 (a joint employer unit consisting 
solely of the jointly-employed employees is appropriate, even absent 
the employers' consent)), or the union could amend its petition and 
seek to represent just the employees who are solely employed by one 
of the two entities.
---------------------------------------------------------------------------

    Many comments specifically claim that the rule's preclusion 
provision is unfair, biased, or too severe a consequence for an 
employer's failure to raise an issue in its position statement, 
particularly in light of the abbreviated period of time permitted for 
its preparation; \428\ one such comment (ACC) additionally questions 
the Board's authority to preclude litigation of significant issues 
based on an inadvertent omission from the position statement. In 
addition, a number of comments argue that the short-time frame will 
lead employers to file ``pro forma'' position statements and may cause 
employers to put forward every argument rather than risk 
preclusion.\429\ We have already explained above in relation to Sec.  
102.63 why we disagree with the claim that the Statement of Position 
form due date and the pre-election hearing scheduling provisions render 
preclusion unfair. We have likewise explained above why we disagree 
with the notion advanced in some comments that the preclusion proposal 
will lengthen pre-election hearings and therefore will be 
counterproductive.
---------------------------------------------------------------------------

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

    We also disagree with the comments that appear to challenge the 
very notion of preclusion itself as well as the Board's authority to 
preclude parties from raising issues that they did not raise in their 
Statements or in response to another party's Statement. Thus, the fact 
of the matter is that, as discussed above, prior to the NPRM, parties 
were required to raise contentions at specified times in the process or 
face preclusion. Indeed, as shown, Casehandling Manual Section 11217 
provided that the hearing officer should advise parties that they may 
be

[[Page 74400]]

foreclosed from presenting evidence on issues if they refuse to take a 
position on those issues. Prior to the NPRM, the Board had held that a 
hearing officer may preclude an employer from introducing evidence 
regarding the supervisory status of employees in certain job 
classifications if the employer refuses to take a position on their 
status and their inclusion or exclusion from the unit. Bennett 
Industries, Inc., 313 NLRB 1363, 1363 (1994). Similarly, under the 
rules in effect prior to the NPRM, a party could ``not [in a request 
for review of a regional director's decision and direction of election] 
raise any issue or allege any facts not timely presented to the 
regional director.'' 29 CFR 102.67(d) (2010). Moreover, Sec.  
102.65(e)(1) of the prior rules provided that motions for 
reconsideration or to reopen the record needed to be based on 
extraordinary circumstances, and that neither the regional director nor 
the Board would entertain a motion for reconsideration or to reopen the 
record with respect to any matter which could have been but was not 
raised pursuant to any other section of the Board's rules. Accordingly, 
even under the Board's prior rules, if a party failed to present facts 
or take a position before the hearing officer at a hearing which opened 
and closed within 7-days of the notice, it could not do so later 
regardless of whether the failure was inadvertent. In addition, as 
discussed above in connection with Sec.  102.63 (and Sec.  102.66), we 
have explicitly provided that parties may seek to amend their 
Statements of Position either before or during the hearing in a timely 
manner for good cause.
    In view of the foregoing, we categorically reject those comments 
that contend that we lack authority to impose preclusion, and that 
preclusion is too severe a consequence, for a party's failure to 
complete the Statement of Position form. We likewise reject Professor 
Estreicher's suggestion that the preclusive effect of failing to take a 
position required by the Statement of Position form should not extend 
beyond the pre-election period. Put simply, the Board believes, for 
example, that permitting parties to raise unit appropriateness issues 
after the election even if they did not raise those issues before the 
election would be inconsistent with the Board's goal of expeditiously 
resolving questions of representation, and would thwart the Board's 
interest in certainty and finality of election results. Moreover, as 
shown, the Board's prior rules already required parties to raise 
certain issues before the election in order to preserve their ability 
to raise those issues subsequent to the election.
    Contrary to comments of GAM, the amendments do not operate to 
preclude challenges to the eligibility of an individual voter at the 
polls merely because the party seeking to challenge the voter at the 
polls failed to provide the initial lists of employees as part of its 
Statement of Position or failed to raise the issue of that individual's 
eligibility at the hearing. Amended Sec.  102.66(d) merely provides 
that the employer ``shall be precluded from contesting * * * the 
eligibility or inclusion of any individuals at the pre-election 
hearing'' if it fails to furnish the lists of employees as part of its 
Statement of Position. (emphasis added). Similarly, amended Sec.  
102.66(d) explicitly provides that ``no party shall be precluded, on 
the grounds that a voter's eligibility or inclusion was not contested 
at the pre-election hearing, from challenging the eligibility of any 
voter during the election.'' In short, as noted above, even if an 
employer fails to complete a Statement of Position form, it will 
generally be able to challenge the eligibility of a particular 
individual at the polls, unless, of course, the regional director 
specifically ruled on that individual's eligibility prior to the 
election. Cf. Casehandling Manual Section 11338.7 (``Persons in job 
classifications specifically excluded by the Decision and Direction of 
the Election should be refused a ballot, even under challenge, unless 
there have been changed circumstances.'') GAM argues that the 
provisions are confusing, but does not provide suggested language for 
clarifying the provisions. The Board does not view the language as 
confusing, and thus has determined that no change is necessary.
    SHRM argues that the preclusive effect of the rules is unfair 
because it operates primarily against the employer. We disagree. The 
preclusion provisions do not just apply in RC cases where the employer 
is the nonpetitioner and must complete the Statement of Position form. 
Rather, under amended Sec.  102.66(b) and (d), the preclusion 
provisions apply in all cases, without distinction, including RD 
(decertification cases) as well as RM cases, where the individual or 
labor organization currently representing employees, or seeking to 
represent employees, is the nonpetitioner and is responsible for 
completing a Statement of Position form. Moreover, where a labor 
organization is the petitioner, amended Sec.  102.66(b) and (d) 
preclude it from seeking to introduce evidence concerning any issue 
that it did not place in dispute in response to another party's 
Statement of Position. We also reiterate that, contrary to SHRM's 
contentions that the amendments favor unions and impose one-sided 
burdens, if the employer refuses to take a position regarding the 
appropriateness of a petitioned-for unit that is not presumptively 
appropriate (or claims that the unit is not appropriate but fails to 
specify the classifications, locations, or other employee groupings 
that must be added to or excluded from, the petitioned-for unit to make 
it an appropriate unit), the petitioner cannot simply rest, but must 
demonstrate the appropriateness of the petitioned-for unit. Similarly, 
evidence must be taken as to the Board's statutory jurisdiction to 
process the petition if the employer refuses to concede jurisdiction 
and fails to provide the commerce information in its Statement of 
Position form. See amended Sec.  102.66(b). This is so even though the 
nonpetitioner employer unquestionably has greater access to the 
relevant information relating to those issues, as the employer 
established its employees' terms and conditions of employment and knows 
the extent of the connection between its business and interstate 
commerce.
C. Subpoenas
    The final rule does not adopt the proposed amendment to Sec.  
102.66(c) specifying that a party that has been served with a subpoena 
may be required to file or orally present a motion to quash prior to 
the 5 days provided in Section 11(1) of the Act. The Board had proposed 
to codify the existing practice noted in the Casehandling Manual, which 
provides that case authority ``holds that the 5-day period is a maximum 
and not a minimum.'' Section 11782.4.\430\ Upon reflection, however, 
the Board does not feel that it would be appropriate to codify the 
limited caselaw in this area, and instead prefers to allow the 
continued development of best practices among the Board's regional 
directors and its administrative law judges concerning motions to quash 
subpoenas. \431\
---------------------------------------------------------------------------

    \430\ Accord Hearing Officer's Guide at 22; NLRB Administrative 
Law Judge Bench Book Section 8-220 (2010) (``[T]o avoid unnecessary 
delay, a party seeking to revoke a subpoena may be required to 
respond in less than 5 days'').
    \431\ Because the final rule does not codify any particular 
practice, Klein II's complaint that the Board is reducing the time 
for motions to quash is no longer relevant to the final rule.
---------------------------------------------------------------------------

D. Discussion of Election Details
    The NPRM proposed that prior to closing the hearing, the hearing 
officer would inform the parties what their obligations under these 
rules would be

[[Page 74401]]

if the regional director directs an election. The NPRM also proposed 
that the hearing officer would solicit all parties' positions on the 
type, dates, times, and location of the election, and the eligibility 
period. However, the NPRM also made clear that although parties would 
be solicited to provide their positions on the election details in 
their statements of position and at the hearing, the resolution of 
these issues would remain within the discretion of the regional 
director, and the hearing officer would not permit them to be 
litigated. 79 FR at 7330, 7358.
    The Board has decided to adopt these proposals in amended Sec.  
102.66(g), which provoked little comment. The Board believes that 
parties to a representation proceeding will be provided with useful 
guidance if the hearing officer advises them what their obligations 
will be if the director directs an election.
    In addition, as noted above in relation to Sec.  102.63, the Board 
believes that the solicitation of the parties' positions regarding the 
election details will help the Board to expeditiously resolve questions 
of representation. Because the parties will have fully stated their 
positions on the election details either in their statements of 
position or at the hearing, the regional director will be able to take 
the parties' positions on those matters into account and ordinarily 
will be able to specify the election details in the direction of 
election, instead of needing a series of unnecessary phone calls or 
emails with the parties to discuss election details after the decision. 
And, because the director ordinarily will specify the election details 
in the direction of election, the director ordinarily will be able to 
issue the Notice of Election simultaneously with the direction. This 
will avoid unnecessary delay, because the election cannot be conducted 
until the details of the election are set, and the Notice of Election 
advises the employees of when, where, and how they may vote. And by 
enabling the director to let the employees vote sooner, the amendment 
will help the Board to more expeditiously resolve questions of 
representation.
    As discussed above in connection with Sec.  102.63, the Chamber 
claims that it is not possible for a party to state its position 
regarding the election details until the regional director determines 
the unit. We find this objection unpersuasive in this context as well. 
Thus, parties are free at the hearing to present their positions on 
election details in the alternative if they believe that the parties' 
various unit positions would impact their views on the election 
details. Moreover, given the small size of bargaining units in 
representation cases in recent years, the Board anticipates that it 
will be the exceptional case rather than the norm where differences 
between the petitioned-for unit and any other unit would cause the 
employer to feel the need to take such alternative positions regarding 
the election details. Finally, a regional director has discretion to 
contact the parties to ascertain their positions regarding the election 
details if the director ultimately chooses to direct an election in a 
unit that is materially different from that proposed by either party at 
the hearing.\432\
---------------------------------------------------------------------------

    \432\ According to Casehandling Manual Sections 11842.3(a) and 
(b), the regional director should provide to both the parties and 
their designated representatives the election notice to be posted by 
the employer as well as the decision and direction of election. The 
final rule clarifies in Sec.  102.66(g)(2) that the hearing officer 
will solicit the name, address, email address, facsimile number, and 
phone number of the employer's on-site representative, which will 
aid the regional director in complying with that practice. The final 
rule also clarifies in Sec.  102.66(g)(3) that the hearing officer 
will inform the parties that the director will transmit the decision 
and direction of election to both the parties and their designated 
representatives.
---------------------------------------------------------------------------

    GAM questions whether the Board intends to abandon its current 
practice of taking into account the parties' positions on the election 
details. The answer is ``no.'' The very purpose of soliciting the 
parties' positions on these details in the Statement of Position and at 
the hearing is so the regional director can consider them in setting 
the election. Contrary to the comment, parties remain free under the 
final rule to explain the background reasons for their positions 
regarding the details of the election even though the issue is not 
litigable at the pre-election hearing. The Board points out, however, 
that even prior to the NPRM, the Board was not bound by the parties' 
preferences. See, e.g., Casehandling Manual Section 11302. Accordingly, 
contrary to GAM, the Board does not believe that the amendment will 
decrease the likelihood that parties will enter into election 
agreements. To the contrary, just as was the case prior to the 
amendments, one of the reasons why parties may want to enter into an 
election agreement and waive a pre-election hearing is to gain 
certainty over the election details.
E. Oral Argument and Briefs
    The NPRM proposed amending Sec. Sec.  102.67 and 102.66(h) to vest 
the hearing officer with discretion to control the filing, subjects, 
and timing of any post-hearing briefs. The final rule amends this 
proposal to vest the regional director with discretion to grant a 
request to file a post-hearing brief in amended Sec.  102.66(h).
    The NPRM explained that, given the often recurring and 
uncomplicated legal and factual issues arising in pre-election 
hearings, briefs are not necessary in every case to permit the parties 
to fully and fairly present their positions or to facilitate prompt and 
accurate decisions. Yet under existing Sec. Sec.  102.67(a) and 
101.21(b), in nearly all cases parties are afforded a right to file 
briefs at any time up to 7 days after the close of the hearing, with 
permissive extensions granted by hearing officers of up to 14 
additional days.\433\ By exercising that right or even by simply 
declining to expressly waive that right until after the running of the 
7-day period, parties could potentially delay the issuance of a 
decision and direction of election and the conduct of an election 
unnecessarily.
---------------------------------------------------------------------------

    \433\ Despite the current regulations, the Board has denied 
review of a direction of election when one argument made by the 
party requesting review was that the hearing officer had refused to 
permit post-hearing briefs. Unifirst Corp., Case 5-RC-15052 (Aug. 
16, 2000). The Board reasoned that the party had showed no prejudice 
and was able to fully present its substantive argument in the 
request for review. Id. at n.1.
---------------------------------------------------------------------------

    Various comments, including those of SHRM, AHA, AHA II, AHCA II and 
ALFA, oppose the proposed amendment on the ground that briefs are 
needed to sum up the evidence presented at the pre-election hearing. 
SHRM, ACE, and AHA point out that this cannot be done as effectively in 
oral argument at the close of the hearing because the full transcript 
is not yet available and parties need time to conduct research and 
formulate legal arguments. Bruce E. Buchanan argues that briefs serve 
to narrow the issues in dispute and identify relevant case law. The 
AFL-CIO points out that the current Casehandling Manual recognizes that 
briefs are not necessary or even of assistance in every case. Section 
11242 provides, ``Before the close of the hearing, the hearing officer 
should encourage the parties to argue orally on the record rather than 
to file briefs.'' \434\
---------------------------------------------------------------------------

    \434\ A preference for oral argument in lieu of briefing was 
among the ``best practices'' identified by the Board's General 
Counsel in a 1997 report. See G.C. Memo. 98-1, ``Report of Best 
Practices Committee--Representation Cases December 1997'', at 10, 28 
(``It is considered a best practice that the hearing officer should 
solicit oral argument in lieu of briefs in appropriate cases since 
in some cases briefs are little, if any, assistance to the Regions 
and may delay issuance of the decision.'').
---------------------------------------------------------------------------

    Curt Kirschner opposed the proposed amendment on the ground that 
hearing officers are not authorized to control briefing under Section 
9(c)(1). Testimony on behalf of AHA II. And numerous other comments 
argue that

[[Page 74402]]

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

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

    Having considered these comments, the Board has concluded that 
post-hearing briefing is not required or even helpful in every case. In 
this regard, it is important to note that amended Sec.  102.66(h) does 
not prevent parties from filing post-hearing briefs. Rather, as 
amended, the final rule simply vests the regional director with 
discretion to permit or not permit such filings and to otherwise 
control the content and timing of any post-hearing briefs. Vesting the 
regional director with the authority and discretion to decide whether 
post-hearing briefs are necessary in a particular case eliminates any 
concerns that hearing officers are not permitted to control briefing 
under Section 9(c)(1). In addition, where complex issues arise, parties 
can argue to the regional director why briefing is necessary in that 
particular case. In the majority of representation cases, where 
briefing is not necessary, the final rule will eliminate unnecessary 
delay. Moreover, there is no denial of due process because in every 
case, parties aggrieved by a decision of the regional director will 
have a right to file a brief in support of their request for review. 
Thus, in every representation case that proceeds to a pre-election 
hearing, a party aggrieved by a ruling of a hearing officer or decision 
of the regional director will have had the opportunity to file at least 
one and sometimes two briefs before the close of the case. Finally, in 
relation to the need for a transcript before parties can adequately sum 
up the evidence, the Board notes that the typical pre-election hearing 
lasts for one day or less.
    It also bears mentioning that, even under the current rules, 
parties do not enjoy a right to file post-hearing briefs in certain 
kinds of representation cases. For example, the Board's current rules 
do not permit the filing of briefs absent ``special permission'' after 
a pre-election hearing conducted under Sections 8(b)(7) and 9 of the 
Act. See 29 CFR 101.23(c). Similarly, there is no right to file post-
hearing briefs after a hearing on challenges or objections. See 
Casehandling Manual Section 11430; Hearing Officer's Guide at 167 (``In 
a hearing on objections/challenges, the parties do not have a right to 
file briefs. To the extent that briefs are not necessary and would 
interfere with the prompt issuance of a decision, they should not be 
permitted.'').
    Regarding the arguments that the proposal denies due process, the 
Board points out that the final rule does not deny any party's right to 
file at least one post-hearing brief with the Board before the close of 
the representation proceeding. Moreover, the rule permits the filing of 
a post-hearing brief with the regional director if such a request is 
granted. Combined with the right to file a pre-hearing brief or to file 
a hearing brief before the close of the hearing and to present closing 
oral argument in every case, the opportunities for the filing of post-
hearing briefs provided in the final rule do not deprive any party of 
due process nor are they inconsistent with the statutory requirement of 
an ``appropriate hearing.'' In Morgan v. United States, 298 U.S. 468 
(1936), the Supreme Court considered the essential element of the 
``full hearing'' required by the Packers and Stockyards Act, 7 U.S.C. 
310. The Court held that the requirement of a full hearing was not met 
if the decision-maker was an individual ``who has not considered 
evidence or argument.'' Id. at 481. However, the Court also made clear 
that the ``requirements are not technical,'' that ``[e]vidence may be 
taken by an examiner,'' and that [a]rgument may be oral or written.'' 
Id. See also Abbott Laboratories v. NLRB, 540 F.2d 662, 665 n.1 (4th 
Cir. 1976) (``With respect to proceedings before the hearing officer, 
the Board ruled that its hearing officer was not required, either by 
statute or the due process clause, to accept posthearing briefs since 
the parties had the opportunity to express their views in writing both 
before and after the case was referred to the hearing officer * * * We 
see no error of fact or law in these rulings.''); Lim v. District of 
Columbia Taxicab Commission, 564 A.2d 720, 726 (DC App. 1989) (``there 
exists no due process right * * * to file a brief'').
    The APA and its legislative history contain evidence of Congress's 
intent not to require that the Board permit post-hearing briefing after 
every pre-election hearing. Enacted in 1946, Section 8 of the APA, 5 
U.S.C. 557(c), provides, in pertinent part, that in formal agency 
adjudication ``parties are entitled to a reasonable opportunity to 
submit * * * proposed findings and conclusions * * * and supporting 
reasons for the * * * proposed findings or conclusions.'' But Section 
5(6) of the APA, 5 U.S.C. 554(a)(6), specifically exempts from the 
category of formal adjudication those cases involving ``the 
certification of worker representatives.'' The courts have held that 
this exemption applies to both pre- and post-election hearings. See In 
re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir. 
1979); NLRB v. Champa Linen Service Co., 437 F.2d 1259, 1262 (10th Cir. 
1971). The Senate Committee Report explained that the exemption was 
inserted into the APA because the Board's ``determinations rest so 
largely upon an election or the availability of an election.'' S. Rep. 
No. 752, at 202 (1945). The committee also pointed to ``the simplicity 
of the issues, the great number of cases, and the exceptional need for 
expedition.'' Senate Committee on the Judiciary Comparative Print on 
Revision of S. 7, 79th Cong., 1st Sess. 7 (1945).
    Congress did not revisit this decision in 1947 when Section 9 of 
the NLRA was amended, and the APA continues to exempt representation 
cases from its formal adjudication requirements. In fact, between 1964 
and 1966, Congress considered removing all the exceptions contained in 
Section 5 from the APA, but decided not to do so. In 1965, the Board's 
Solicitor wrote to the Chairman of the Senate Subcommittee on 
Administrative Practice and Procedure objecting strenuously to removal 
of the exemption for representation cases. The Solicitor specifically 
objected that ``election case handling would be newly freighted and 
greatly retarded by * * * [s]ubmission to the hearing officer of 
proposed findings of fact and conclusions of law.'' Administrative 
Procedure Act: Hearings on S. 1663 Before the Subcomm. on Admin. 
Practice and Procedure of the Comm. on the Judiciary, 88th Cong., 2d 
Sess. 532 (1964) (letter submitted by William Feldesman, NLRB 
Solicitor, May 11, 1965). The Solicitor concluded, ``After Congress has 
done so much to help speed the processing of election cases to avoid 
the dangers of delay, this would hardly be the time to inaugurate 
procedural changes which serve dilatory ends and have the potential to 
cause that bottleneck the Board has for years been attempting to 
prevent.'' Id. at 534. In 1966, the Senate Committee on the Judiciary 
reported out a bill containing a provision, not ultimately enacted, 
that would have removed all the exemptions. But the Committee Report 
carefully explained, ``It should be noted, however, that nonadversary 
investigative proceedings which Congress may have specified must be 
conducted with a hearing, are not to be construed as coming within the 
provisions of section 5(a) because of the deletion of the exemptions. 
An example of such a proceeding would be certification of employee 
representatives proceedings conducted by the National Labor Relations 
Board.'' S. Rep. No. 1234, 89 Cong., 2d Sess. 12-13 (1966). This 
history demonstrates that Congress's intent in the APA was to

[[Page 74403]]

ensure that written briefing was not required in representation cases 
because of the interest in expedition. Congress has steadfastly 
maintained this view, and has expressly rejected any written briefing 
requirement in representation cases whenever the matter has arisen. The 
change is therefore consistent with the requirements of the law and the 
intent of Congress.
    SEIU suggests amending the proposed rule to require that any 
briefing be completed within 14 days of the close of the hearing. The 
Board has considered this suggestion and decided that the regional 
director who will be writing the decision and considered the parties' 
request to file a post-hearing brief is in the best position to 
determine if briefing should be permitted, what subjects any briefing 
should address, and when briefs should be filed. Accordingly, we 
decline to set a 14-day limit on post-hearing briefing.
Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; 
Action by the Regional Director; Appeal From Actions of the Regional 
Director; Statement in Opposition; Requests for Extraordinary Relief; 
Notice of Election; Voter List
    The NPRM proposed a number of amendments to Sec.  102.67, 
addressing matters such as the regional director's discretion to 
transfer a case to the Board before issuing a decision, the contents of 
the pre-election decision, the final election notice, the voter list, 
and the pre-election request for review procedure and the accompanying 
25-day waiting period. 79 FR at 7332-33, 7358-60. As discussed below, 
after careful consideration, the Board has decided to adopt some of the 
amendments as originally proposed, to adopt modified versions of other 
proposals, and to reject the remainder.
A. Elimination of Transfer Procedure
    In the NPRM, the Board proposed to eliminate the regional 
director's authority to transfer a case at any time to the Board for 
decision. 79 FR at 7333. This authority has rarely been used and, when 
it has been used, has led to extended delays in the disposition of 
petitions. See, e.g., Centurion Auto Transport, Inc., 329 NLRB 394 
(1999) (transferred December 1994, decided September 1999); Roadway 
Package System, Inc., 326 NLRB 842 (1998) (transferred May 1995, 
decided August 1998); PECO Energy Co., 322 NLRB 1074 (1997) 
(transferred October 1995, decided February 1997); Johnson Controls, 
Inc., 322 NLRB 669 (1996) (transferred June 1994, decided December 
1996). The Board did not receive any significant comments regarding 
this proposal, and the final rule adopts it. Accordingly, the final 
rule eliminates, for example, Sec. Sec.  102.67 (h), (i), and (j) of 
the current rules which referenced the transfer procedure, and 
reletters various subparts of Sec.  102.67.\436\
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    \436\ Because Sec.  102.67(j) of the current rules also 
addressed Board action regarding issues raised by a party's request 
for review (in addition to Board action regarding issues that had 
been referred to it by a regional director via the transfer 
procedure), amended Sec.  102.67(h) clarifies (consistent with 
current Sec.  102.67(j)) that upon granting a request for review, 
the Board may provide for oral argument or further hearing, and 
shall make such disposition of the request for review as it deems 
appropriate.
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B. The 20-Percent Rule
    As discussed above in connection with Sec.  102.66, the Board has 
decided to reject the proposed 20-percent rule which in relevant part 
would have required the hearing officer to close the hearing if the 
only issues remaining in dispute concerned the eligibility or inclusion 
of individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote. 79 FR at 7330. The Board has 
likewise decided to reject the portion of the proposed 20-percent rule 
which would have required the regional director to defer deciding 
individual eligibility or inclusion questions involving less than 20 
percent of the unit. 79 FR at 7332. Instead, for the reasons discussed 
above in connection with Sec.  102.66, the Board has decided to 
preserve the discretion regional directors enjoyed even before the NPRM 
to defer resolving disputes concerning individuals' eligibility to vote 
or inclusion in the unit until after the election or to decide such 
disputes before the election in the decision and direction of election. 
However, the final rule adopts in Sec.  102.67(b) the NPRM proposal 
that, in the event a regional director defers deciding individual 
eligibility or inclusion questions until after the election, the Notice 
of Election shall explain that the individuals in question ``are 
neither included in, nor excluded from, the bargaining unit, inasmuch 
as the regional director has permitted them to vote subject to 
challenge,'' and the procedures through which their eligibility will be 
resolved. 79 FR at 7332, 7359.\437\ The Board concludes that this 
provision will ensure that employees will not in any manner be misled 
about the unit. Rather, they will cast their ballots understanding, if 
applicable, that the eligibility or inclusion of a small number of 
individuals in the unit has not yet been determined. The amendment 
thereby provides guidance to employees and the parties and renders 
Board procedures more transparent.
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    \437\ The final rule provides for this in Sec.  102.67(b), 
rather than in Sec.  102.67(a) as proposed in the NPRM, and retitles 
the proposed ``Final Notice to Employees of Election'' as the 
``Notice of Election,'' in light of the final rule's retitling the 
proposed ``Initial Notice to Employees of Election'' as the ``Notice 
of Petition for Election.'' The final rule also states in Sec.  
102.67(a), rather than in Sec.  102.67(b), that the decision by the 
regional director shall set forth the director's findings, 
conclusions, and order or direction.
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    GAM asserts that the inclusion in the election notice of an 
explanation that individuals whose eligibility has not been determined 
will be permitted to vote subject to challenge precludes employees from 
``know[ing] the voting unit,'' and that this violates the Act and due 
process pursuant to the reasoning in the Fourth Circuit's unpublished 
decision in NLRB v. Beverly Health and Rehabilitation Services, 120 
F.3d 262 (4th Cir. 1997). However, under the amendments, as under the 
prior rules, the regional director must determine the unit's scope and 
appropriateness prior to directing the election, and employees will be 
informed of the unit via the Notice of Election. Accordingly, as noted 
in connection with Sec.  102.66, at the time they cast their ballots, 
the voting employees will be fully informed as to the scope of the 
unit, and will be able to fully assess the extent to which their 
interests may align with, or diverge from, other unit employees. 
Although the employees may not know whether particular individuals 
ultimately will be deemed eligible or included and therefore a part of 
the bargaining unit, that was also the case under the Board's current 
rules, as explained above, because regional directors and the Board 
have long had the discretion to defer deciding individual eligibility 
or inclusion questions until after the election, and parties could 
agree to permit disputed employees to vote subject to challenge. 
Indeed, Section 11084.3 of the Casehandling Manual in effect prior to 
the NPRM provided that where the parties agree that certain 
classifications of employees should vote subject to challenge, the 
notice of election ``should indicate the classifications that will vote 
subject to challenge.''
    Moreover, the court's concern in Beverly was that voters were 
somehow misled when the regional director defined the unit in one way 
prior to the election and the Board revised the definition after the 
election. The final rule would actually help prevent exactly that form 
of change in unit definition from occurring by codifying regional 
directors' discretion to defer deciding individual eligibility or 
inclusion questions until after the election and by

[[Page 74404]]

providing in amended Sec.  102.67(b) that if the direction of election 
provides for individuals to vote subject to challenge because their 
eligibility has not been determined, the Notice of Election shall so 
state, thereby advising employees prior to the election that the 
individuals in question ``are neither included in, nor excluded from, 
the bargaining unit, inasmuch as the regional director has permitted 
them to vote subject to challenge,'' and that their unit placement 
``will be resolved, if necessary, following the election.'' As already 
explained, the Board views this alteration to the Notice of Election as 
meeting the concerns raised by the Beverly court and as specifically 
countenanced by the Second Circuit in Sears, Roebuck & Co. v. NLRB, 957 
F.2d 52, 55 (2d Cir. 1992).
C. Direction of Election With Statement of Reasons to Follow
    In the NPRM, the Board proposed to grant the regional director 
discretion to issue a direction of election without simultaneously 
providing a statement of reasons so long as the director provided his 
findings and statement of reasons prior to tallying the ballots. The 
Board expressed its tentative view that granting such discretion to the 
regional director would avoid unnecessary delay in the conduct of 
elections. 79 FR at 7332.
    SEIU praised the proposal, claiming it could be instrumental in 
facilitating a timely election. On the other hand, GAM claims that the 
proposed amendment would be unfair because, without knowing the basis 
for the direction of election, parties could not evaluate whether to 
request review of the regional director's direction of election. 
Negative comments also claimed, among other things, that the proposal 
would lead to poor decision-making by the regional directors (Fox, 
GAM); could give rise to unhelpful suspicion regarding the basis for 
the direction of election (Testimony of Curt Kirschner on behalf of AHA 
II); and could cause regional directors to set later election dates in 
complex cases (Fox).
    Upon reflection, the Board has decided to reject the proposal. The 
NPRM set forth the Board's tentative view that the proposal to permit 
the regional director to direct an election without simultaneously 
providing a statement of reasons would not prejudice any party in light 
of another proposed amendment which would defer parties' right to 
request Board review of pre-election rulings until after the ballots 
cast in the election were tallied. 79 FR at 7332. In other words, no 
party would be prejudiced by the proposal because the regional director 
would be required to furnish his statement of reasons before the 
ballots were tallied and because the time for filing a request for 
review of the direction of election would not start to run until after 
the tally of ballots. However, as discussed below, the Board has 
decided to reject that other proposal that would have deferred all 
parties' right to request review of the regional director's pre-
election rulings until after the election. Because, under the final 
rule, a party may file a request for review of a direction of election 
prior to the election, the Board has likewise decided to reject the 
proposal that would have permitted the regional director to direct the 
election without simultaneously providing a statement of reasons. 
Rejection of this proposal will not create a new source of delay in 
conducting elections because the pre-NPRM rules already require 
regional directors to set forth their findings and conclusions in the 
decision and direction of election. 29 CFR 102.67(b) (2010).\438\ 
Moreover, upon reflection, we conclude, in agreement with the testimony 
of Kirschner II that the time savings that would have been achieved by 
adopting the proposal would have been relatively modest because they 
would have represented only the time it would have taken for the 
regional director to memorialize the decision. Thus, even under the 
proposal, the director could not have directed an election without 
first concluding that a question of representation did indeed exist in 
the unit in which an election was being directed.
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    \438\ As noted above, the final rule moves this requirement from 
Sec.  102.67(b) to Sec.  102.67(a).
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D. Specification of Election Details in Direction of Election; 
Scheduling of Election
    In the NPRM, the Board proposed that in the event the regional 
director directs an election, the direction of election ``shall 
specify'' the type, date, time, and place of the election, and the 
eligibility period. 79 FR at 7359. Under prior practice, these details 
were resolved after the hearing and decision in sometimes lengthy phone 
consultations and negotiations with the various parties. As one 
commenter noted, ``It is really frustrating when you go back to a 
bargaining unit and say, `We have your decision and direction of 
election, and now we'll start the negotiation process about when your 
election is actually going to be held.' * * * [The rule] eliminates one 
of the choke points later on in getting to an election in a timely 
manner * * *.'' Testimony of Gabrielle Semel on behalf of CWA II.
    Instead of requiring the regional director to specify the election 
details in every direction of election, the Board has decided to 
provide in Sec.  102.67(b) of the final rule that the direction of 
election ``ordinarily will'' specify the election details.\439\ 
Because, as discussed above in connection with Sec. Sec.  102.63 and 
102.66, the parties will have stated their positions on the election 
details in their petitions, in their Statements of Position and at the 
hearing, the regional director ordinarily will not need to solicit 
their positions on the election details yet again after issuing the 
direction of election, and therefore ordinarily will be able to specify 
the election details in the direction of election. And, because the 
director ordinarily will specify the election details in the direction 
of election, the director ordinarily will be able to issue the Notice 
of Election for the employer to post and distribute simultaneously with 
the direction, and amended Sec.  102.67(b) so provides. These 
amendments will enable the regional director to let the employees vote 
sooner, because the election cannot be conducted until the details of 
the election are set and the Notice of Election advises the employees 
of when, where, and how they may vote. In sum, by enabling the regional 
director to conduct the election without unnecessary delay, the 
amendments will help the Board to more expeditiously resolve questions 
concerning representation.
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    \439\ The Board has changed the language because there may be 
situations where the regional director concludes that it is 
appropriate to consult with the parties regarding election details 
after issuing the direction of election, notwithstanding the prior 
solicitation of the parties' positions regarding those details.
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    GAM suggests that some employers might refuse to allow elections on 
their premises if the regional director simply sets the election 
details in the direction of election instead of first contacting the 
employer. This comment misunderstands the rule. The Board hearing 
officer will ``contact'' the employer at the hearing itself, and there 
is no reason to think that contact at that time would be less 
efficacious in obtaining employer consent than contact after the 
decision.\440\ The change

[[Page 74405]]

will obviate the need for a wasteful post-decision consultation process 
in favor of more efficient consultations during the hearing itself. 
Given that all parties will be present at the pre-election hearing, it 
seems eminently reasonable to solicit the parties' positions at that 
time, rather than have the Board agent attempt to solicit input 
individually after the direction issues. In any event, as shown, the 
final rule leaves the director free to consult with the parties yet 
again after issuing a direction of election if the director concludes 
that it is appropriate to do so. For example, if the regional director 
directs an election in a unit significantly different from the union 
petitioner's proposed unit and the employer's alternative unit, the 
regional director should consult with the parties concerning the 
election details. Moreover, contrary to the suggestion in the comment, 
regional directors were not bound by the parties' preferences regarding 
the election details prior to the NPRM. See Casehandling Manual Section 
11302.\441\
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    \440\ Thus, when hearing officers solicit the parties' 
positions, they can tell the parties the approximate time frame in 
which the regional director expects to issue the decision, and 
parties can reference that time frame in stating their positions. 
This is analogous to what happens now when Board agents contact 
parties after the decision issues and solicit their positions 
concerning the details of an election which cannot be held for at 
least 25 days pursuant to Sec.  101.21(d).
    \441\ GAM asks what will happen if the employer refuses to 
comply with the direction of election. The short answer is that, 
consistent with current practice, if the employer refuses to comply 
with the direction of election, then the Board will conduct the 
election by mail or offsite.
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    The final rule also adopts in Sec.  102.67(b) the NPRM proposal 
that in the event the regional director directs an election, the 
director ``shall schedule the election for the earliest date 
practicable consistent with these rules.'' 79 FR at 7332, 7359. Many 
comments object to the NPRM proposals, claiming (incorrectly) that the 
Board improperly focused on the need to expeditiously resolve questions 
concerning representation to the exclusion of other factors. In fact, 
as discussed above in connection with the need for the rule and the 
opportunity for free speech and debate, the Board did not focus 
exclusively on the statutory goal of expeditiously resolving questions 
concerning representation. The Board likewise categorically rejects the 
notion that the proposed language, which the final rule adopts, 
constitutes a sea change from the Board's practice which existed prior 
to the NPRM. In fact, it represents no change. Thus, the Casehandling 
Manual in effect prior to the NPRM already provided that ``[a]n 
election should be held as early as is practical[,]'' Casehandling 
Manual Section 11302.1.\442\ The language in the final rule is 
virtually identical to the Casehandling Manual language which predated 
the NPRM, going back decades. See, e.g., Casehandling Manual Section 
11302.1 (1975). The Board takes this opportunity to reassure the public 
that, as noted above in connection with the opportunity for free speech 
and debate, the regional director will continue to consider the various 
policies protected by the Act--as well as operational considerations 
and the relevant preferences of the parties--in selecting an election 
date. Id.\443\ Thus, for example, the regional director should avoid 
scheduling the election on dates on which past experience indicates 
that the rate of attendance will be low. Id. At the same time, just as 
was the case prior to the NPRM, the regional director is not bound by 
the parties' desires concerning the election date. Casehandling Manual 
Section 11302.\444\ The Board intends to leave the precise scheduling 
of elections to the discretion of the regional directors under the 
supervision of the General Counsel.
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    \442\ And the Casehandling Manual in effect prior to the NPRM 
also referenced the Board's prior Statements of Procedures in 
determining when the election should be scheduled. Thus, it cited 
the 25-day waiting period provided in Sec.  101.21(d) and stated, 
``When the Regional Director directs an election, the election 
normally should not be scheduled prior to the 25th day thereafter, 
unless the right to file a request for review has been waived, nor 
later than the 30th day thereafter Sec 101.21(d), Statements of 
Procedure.'' Casehandling Manual Section 11302.1.
    \443\ We reject Vigilant's claim that the scheduling language 
will result in the Board having to conduct more mail ballot 
elections because ``it will be nearly impossible to * * * have a 
Board agent conduct the election in person'' under the ``compressed 
election time frame[s].'' Just as was the case prior to the NPRM, 
regional directors will continue to take operational considerations 
(including Board agent availability) into account in setting the 
election date. Moreover, the final rule sets no rigid timetables for 
conducting elections.
    \444\ We have previously addressed the complaints that the 
amendments deprive employers of an effective opportunity to campaign 
against union representation or otherwise interfere with employee 
free choice.
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E. Regional Director Transmission of Direction of Election and Notice 
of Election; Posting and Distribution of Notice of Election
    In the NPRM, the Board proposed that both the decision and 
direction of election and the election notice be electronically 
transmitted to the parties' designated representatives when the parties 
have provided the relevant email addresses to the regional office or 
the documents would be transmitted by facsimile.\445\ If a party 
provides neither an email address nor a facsimile number, the regional 
director would transmit the direction of election and the election 
notice via overnight mail. 79 FR at 7332, 7359. The final rule adopts 
these proposals in Sec.  102.67(b). The final rule also provides in 
Sec.  102.67(b) that those documents will also be transmitted in the 
same manner to the parties themselves. This is consistent with 
Casehandling Manual Section 11842.3, which provides that the regional 
director furnish both the parties and their representatives with 
election notices and representation case decisions. And, because, as 
discussed above, the director ordinarily will specify the election 
details in his direction of election, the final rule likewise provides 
that the Notice of Election will ordinarily be transmitted 
simultaneously with the direction of election. These amendments permit 
the Board to use modern methods of communication to transmit important 
representation case documents and to expeditiously resolve questions of 
representation in a more cost-efficient manner as electronic mail is 
cheaper and quicker than more traditional means of transmitting 
documents.
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    \445\ As discussed above, the final rule retitles the proposed 
``Final Notice to Employees of Election'' as the ``Notice of 
Election.''
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    Section 103.20 of the Board's current rules addresses the posting 
of the election notices. The NPRM proposed to eliminate Sec.  103.20, 
the only section of part 103 of the regulations governing procedures in 
representation proceedings, and to integrate its contents into part 
102, as modified in proposed Sec.  102.67. 79 FR at 7334. The final 
rule adopts this proposal which should make it easier for parties to 
comply with their obligations by describing the obligations in one 
place.
    The NPRM proposed that employers be required to post copies of the 
election notice ``in conspicuous places,'' but that the notice to be 
posted upon the filing of the petition (before an election is agreed to 
by the parties or directed by the regional director) be posted where 
notices to employees are customarily posted. 79 FR at 7354, 7359. Upon 
reflection, the Board has concluded that to help ensure wide 
dissemination of the important information contained in the Notice of 
Election, it should be posted ``in conspicuous places, including all 
places where notices to employees in the unit are customarily posted,'' 
and the final rule so provides in amended Sec.  102.67(k). This 
amendment parallels the final rule's amendment to Sec.  102.63(a)(2) 
concerning the ``Notice of Petition for Election.''
    The NPRM also proposed to require the employer to electronically 
distribute the election notice if it customarily communicates with its 
employees electronically. 79 FR at 7359-7360. The final rule adopts 
this proposal in Sec.  102.67(k), which parallels the amendments to 
Sec.  102.63(a)(2) regarding the Notice of Petition for Election. Thus, 
if the employer customarily

[[Page 74406]]

communicates with employees in the unit by emailing them messages, it 
will need to email them the Notice of Election. Similarly, if the 
employer customarily communicates with its employees by posting 
messages on an intranet site, it will need to do that. The Board 
concludes that the amendment will facilitate wider dissemination of the 
important information in the Notice of Election, thereby providing 
greater guidance to the employees.
    The proposal to require the employer to electronically distribute 
the election notice was received with little controversy in the 
comments. Some comments, such as those filed by GAM and U.S. Poultry 
II, express concern that the requirement to distribute the election 
notice to employees electronically if the employer customarily 
communicates with its employees electronically could lead to additional 
grounds for filing objections to the election and subsequent 
litigation, particularly if some intended recipients do not receive the 
transmission. Unless an employer can be shown to have departed from its 
customary practice in electronic distribution, there will be no basis 
for an objection. The Board views the possibility of litigation delays, 
where an employer fails to comply with the final rule's electronic 
distribution requirement, as outweighed by the expected benefit of more 
effective distribution of the election details to eligible voters.
    GAM also speculates that employees are likely to print and 
distribute the notices to each other, but it is unclear why it would be 
objectionable if employees merely distributed copies of the actual 
election notice. GAM expresses concern that employees may modify the 
sample ballots on the notice which will lead to objections, but just as 
was the case prior to the NPRM, the Notice of Election will warn 
employees that the notice must not be defaced by anyone, that any 
markings on any sample ballot or on the notice were made by someone 
other than the National Labor Relations Board, and that the National 
Labor Relations Board ``does not endorse any choice in the election.'' 
Form 707. In any event, the possibility of employees marking up the 
sample ballot on the election notice existed under the prior rules 
because the employer was required to physically post the notices in 
``conspicuous places.'' See 29 CFR 103.20(a)(2010).
    The NPRM also proposed to reduce the minimum time for posting of 
the notice of the election from 3 to 2 working days, because of the 
provisions for the mandatory posting of a more detailed initial notice 
of election, for manual and electronic posting of the final notice by 
employers, and, to the extent practicable, for electronic transmission 
of the final notice of election to affected employees by the regional 
director. 79 FR at 7332. However, as discussed below, under the final 
rule, the regional director will not be transmitting the Notice of 
Election directly to the affected employees. Accordingly, the Board has 
decided to maintain the current 3 working-day posting requirement, 
rather than reduce it to 2 days. The final rule preserves in amended 
Sec.  102.67(k) the relevant language about the time for posting that 
previously appeared in Sec.  103.20(a) and (b).\446\
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    \446\ However, because of the potential unfairness of 
conclusively presuming that the employer received the notice if it 
does not inform the region to the contrary within 5 work days, the 
final rule also adopts the NPRM proposal (79 FR at 7332) to 
eliminate the provision creating such a conclusive presumption in 
Sec.  103.20(c) of the prior rules.
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    Consistent with the pre-NPRM version of Sec.  103.20(c), and (d), 
the final rule also provides in Sec.  102.76(k) that the employer's 
failure properly to post (or distribute) the election notices shall be 
grounds for setting aside the election whenever proper and timely 
objections are filed. However, just as was the case prior to the NPRM, 
the final rule also provides that a party is estopped from objecting to 
the nonposting if it is responsible for the nonposting, and likewise is 
estopped from objecting to the nondistribution of notices if it is 
responsible for the nondistribution.
    The NPRM also proposed that the regional director would 
electronically transmit the notice to the affected employees to the 
extent practicable. 79 FR at 7359. Thus, if the employer provided 
employee email addresses to the regional director, the regional 
director would transmit the notice to those employees. 79 FR at 7332.
    The AFL-CIO praises this proposal as a positive contribution to 
information-sharing. Some comments, such as those filed by ALFA and GAM 
object on the grounds that it could cause an increase in the number of 
objections being filed if, for example, the Board fails to serve 
employees or the Board's attempts at service are blocked by the 
recipients' spam filter. Moreover, Ms. Kutch (relying on her background 
in online organizing and bulk email delivery) explained that navigating 
spam filters to ensure high rates of bulk email deliverability to the 
individuals at issue would likely be beyond the agency's technological 
capacity (or our foreseeable budgetary restrictions). Testimony of Jess 
Kutch on behalf of Coworker.org II. ALFA also implies that direct 
notification by the regional office is unnecessary since the NPRM would 
still require the employer to post paper copies of any election notice.
    Upon reflection, the Board has decided to reject the proposal that 
the regional director transmit the election notice to employees to the 
extent practicable. Under the final rule, an employer must post the 
Notice of Election in paper form in conspicuous places, including all 
places where notices to employees in the unit are customarily posted 
for at least 3 full working days. In addition, as discussed above, if 
the employer customarily communicates with its employees by emailing 
them messages, it will need to email the Notice of Election to them as 
well. Similarly, if the employer customarily communicates with its 
employees by posting messages on an intranet site, it will need to post 
the notice on its intranet site as well. So any transmission by the 
Board in those circumstances would be largely duplicative. Moreover, 
given Jess Kutch's testimony that email providers can, and often do, 
block bulk emails (even if the intended recipients would like to 
receive the emails in question), it seems highly speculative that 
regional directors could effectively transmit the Notice of Election to 
unit employees electronically. In any event, the regional director will 
not have the information necessary to transmit the Notice of Election 
to employees at work under the final rule, because the final rule does 
not require the employer to furnish either the work email addresses or 
work phone numbers to the regional director. As for personal email 
addresses, if the employer customarily communicates with its employees 
via their personal email addresses, it will be required to distribute 
the notices that way as well under the final rule. And because the 
employer must furnish the nonemployer parties to the case with the 
available personal email addresses of its employees, the nonemployer 
parties will be able to transmit the Notice of Election themselves if 
they care to do so (even if the employer does not customarily 
communicate with them via personal email addresses). Accordingly, the 
Board declines to adopt the proposal to require the regional director 
to electronically transmit the final election notice to employees.
F. Voter List
    The final rule makes the same changes with respect to the content, 
timing, format and service of the list of eligible voters that the 
employer must file after a direction of election as were

[[Page 74407]]

described above in relation to Sec.  102.62 after entry into any form 
of consent or stipulated election agreement. In addition, Sec.  
102.67(l) provides that the employer shall also include in a separate 
section of the list the voter list information for those individuals 
who, according to the direction of election, will be permitted to vote 
subject to challenge, including, for example, individuals in 
classifications or other groupings that will be permitted to vote 
subject to challenge. The Board concludes that this requirement will 
serve the goal of ensuring that employee votes are recorded accurately 
and efficiently and help the Board to expeditiously resolve questions 
of representation. Thus, if the names of such disputed individuals are 
put in a separate section of the list, it makes it more likely that the 
Board agent (and the parties' observers) will realize which employees 
who show up to vote were directed to vote subject to challenge, and 
therefore makes it more likely that those employees will be instructed 
to put their ballots in challenged ballot envelopes before placing them 
in the ballot box. See Casehandling Manual Sections 11338.2(b), 
11338.3.\447\ This provision will reduce the chances of objections 
being filed on the grounds that disputed employees' ballots were 
comingled with other employees' ballots. This provision is also 
consistent with the amendments providing that in the event a regional 
director chooses to defer deciding individual eligibility or inclusion 
questions until after the election, the Notice of Election shall 
explain that such individuals are being permitted to vote subject to 
challenge and what that means.
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    \447\ As was the case prior to the NPRM, the Board agent must 
challenge anyone who has been permitted by the regional director to 
vote subject to challenge. Casehandling Manual Section 11338.2(b).
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G. Requests for Review of the Regional Director's Decision and 
Direction of Election
    In the NPRM, the Board proposed amendments to the current pre-
election request-for-review procedure. Under the current rules, the 
parties are required to request Board review within 14 days of a 
regional director's decision and direction of election or be deemed to 
have waived any arguments that were or could have been made concerning 
rulings at the pre-election hearing or in the decision and direction of 
election. Sec.  102.67(b), (f); see, e.g., A.S. Horner, Inc., 246 NLRB 
393, 394-95 (1979). But elections were scheduled no sooner than 25 days 
after the direction of election, and thus, as a practical matter, 
parties were required to file a request for review of the direction of 
election prior to the election. This was the only opportunity for Board 
review of this decision.
    The Board proposed to eliminate the pre-election request-for-review 
procedure in the NPRM and instead permit parties to file any such 
request after the election, when it could be consolidated with any 
request for review of the director's disposition of post-election 
disputes arising out of challenges or objections. The Board explained 
that the proposed consolidation of Board review would eliminate 
unnecessary litigation because many issues raised through pre-election 
requests for review are either rendered moot by the election results or 
are resolved by agreement of the parties post-election. In addition, 
the Board explained, permitting parties to consolidate, in a single 
filing, requests that the Board review pre- and post-election rulings 
would result in efficiencies for the parties and the Board. 79 FR at 
7329, 7333.
    Comments praising the proposal to eliminate the current pre-
election request for review procedure point out that it would conform 
Board procedures with the ordinary rules in both Federal and state 
courts, which generally disfavor interlocutory appeals as wasteful, 
piecemeal litigation that can cause delay and which therefore generally 
require parties to conclude all litigation in a case before filing an 
appeal or seeking review. See, e.g., AFL-CIO II; Supplemental Testimony 
of Thomas Meikeljohn; Testimony of Brian Petruska on behalf of LIUNA 
MAROC II. There is a great deal of force to this argument, which is 
consistent with sound judicial and administrative policy developed over 
centuries, and is in the best interest of all parties to representation 
cases.\448\
---------------------------------------------------------------------------

    \448\ As Justice Story stated, ``causes should not come up here 
in fragments, upon successive appeals. It would occasion very great 
delays, and oppressive expenses.'' Canter v. Am. Ins. Co., 28 U.S. 
307, 318 (1830). ``Trial court errors become moot if the aggrieved 
party nonetheless obtains a final judgment in his favor, and 
appellate courts need not waste time familiarizing themselves anew 
with a case each time a partial appeal is taken.'' Mitchell v. 
Forsyth, 472 U.S. 511, 544 (1985) (Brennan, J., concurring in part). 
The final judgment rule was adopted by the common law English courts 
from at least the 1300s, and in America was enshrined in the 
Judiciary Act of 1789 and retained in every subsequent revision of 
the judicial code. See C.M. Crick, The Final Judgment Rule as a 
Basis for Appeal, 41 Yale L.J. 539, 539-552 (1932); see also T.D. 
Frank, Requiem for the Final Judgment Rule, 45 Texas L. Rev. 292, 
292-93 (1966) (``[The rule] effectuates, in general, an efficient 
utilization of judicial manpower and permits the initial stage of 
the litigation to operate in a smooth, orderly fashion without 
disrupting appeals.'').
---------------------------------------------------------------------------

    However, Section 3(b) states that ``upon the filing of a request 
therefor with the Board by any interested person, the Board may review 
any action of a regional director delegated to him under this 
paragraph, but such a review shall not, unless specifically ordered by 
the Board, operate as a stay of any action taken by the regional 
director.'' The argument has been presented that this provision grants 
parties a right to request interlocutory review.\449\ Although we do 
not agree that the statute compels this result,\450\ we have concluded 
that the Board's objectives are better served by amending the rules in 
a manner that preserves the opportunity to request review of ``any 
action of a regional director delegated to him under Section 3(b)'' at 
any time, and, where necessary, to request a stay.
---------------------------------------------------------------------------

    \449\ See Dissenting Views of Members Miscimarra & Johnson to 
NPRM, 79 FR at 7343 & n.108 (the NPRM proposal is ``directly 
contrary to Section 3(b) of the Act,'' and the proposed request-for-
special-permission-to-appeal ``is qualitatively different from what 
Section 3(b) requires.''); see also, e.g., COLLE II; Chamber II; 
Testimony of Curt Kirschner on behalf of AHA II.
    \450\ The statute does not expressly state that parties are 
entitled to request review of a regional director's pre-election 
decision before the election. Moreover, Section 3(b) clearly gives 
the Board discretion to deny review, see Magnesium Casting Co. v. 
NLRB, 401 U.S. 137, 142 (1971), and, just as the Board can exercise 
its discretion to decide hospital units ``in each case'' by a single 
rule, see Am. Hosp. Assn., 499 U.S. at 606, 610-613, it seems to us 
that the Board could also deny review of entire categories of cases 
by rule. The proposed rule would have merely delayed, rather than 
denied, review, and logically the greater power should include the 
lesser.
---------------------------------------------------------------------------

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

    Upon the filling of a request therefor with the Board by any 
interested person, the Board may review any action of a regional 
director delegated to him under Section 3(b) of the Act except as 
the Board's rules provide otherwise, but such a review shall not, 
unless specifically ordered by the Board, operate as a stay of any 
action taken by the regional director.

The emphasized language is the only alteration from the text of the 
statute, and its purpose is primarily to clarify that parties which 
waive the right to Board review in an election agreement under Sec.  
102.62(a) or (c), or under Sec.  102.67(g) are no longer entitled to 
request review under this provision.\451\ The rule then goes on to 
state that: ``The request for review may be filed at any

[[Page 74408]]

time following the action until 14 days after a final disposition of 
the proceeding by the regional director. No party shall be precluded 
from filing a request for review of the direction of election within 
the time provided in this paragraph because it did not file a request 
for review of the direction of election prior to the election.'' 
Finally, a number of other changes are made to carry out and clarify 
the essential amendments here.
---------------------------------------------------------------------------

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

1. The Parties Will Have Greater Latitude to Choose When to File a 
Request for Review
    The first notable change is that the due date for filing requests 
is relaxed. The Board's current practice of requiring parties to seek 
such review of directions of election before the election--or be deemed 
to have waived their right to take issue with the decision and 
direction of election--not only encourages unnecessary litigation, but 
actually requires parties to conduct unnecessary litigation. Thus, in 
the Board's experience, many pre-election disputes are either rendered 
moot by the election results or can be resolved by the parties after 
the election and without litigation once the strategic considerations 
related to the impending elections are removed from consideration.\452\ 
For example, if the regional director rejects an employer's contention 
that a petitioned-for unit is inappropriate and directs an election in 
the unit sought by the union, rather than in the alternative unit 
proposed by the employer, the Board's current rules require the 
employer to request review of that decision prior to the election or be 
precluded from contesting the unit determination at any time 
thereafter. But if the union ends up losing an election, even though it 
was conducted in the union's desired unit, the employer's disagreement 
with the regional director's resolution becomes moot (because the 
employer will not have to deal with the union at all), eliminating the 
need for litigation of the issues at any time. The current rules thus 
impose unnecessary costs on the parties by requiring them to file pre-
election requests for review in order to preserve issues.
---------------------------------------------------------------------------

    \452\ For this reason, the Board disagrees with comments which 
contend that the proposed rule would not have expedited commencement 
of bargaining, but would simply shift review until after the 
election. See, e.g., Testimony of Michael Prendergast on behalf of 
Holland & Knight; AHA; Seyfarth Shaw.
---------------------------------------------------------------------------

    Accordingly, the Board has decided to amend the current pre-
election request for review procedure and to provide that any party may 
request review of a regional director decision to direct an election 
either before the election or after the election. Thus, the final rule 
provides that the request for review of the direction of election may 
be filed at any time after the direction of election issues until 14 
days after a final disposition of the proceedings by the regional 
director. Under the amendments, a party can choose to file a request 
for review of the regional director's decision to direct an election 
before the election or can choose to wait to file the request for 
review until after the election.\453\ We conclude that this amendment, 
which relieves parties of the burden of requesting pre-election review 
in order to preserve issues that may be mooted by the election results, 
will further the goal of reducing unnecessary litigation because, in 
our view, rational parties ordinarily will wait to file their requests 
for review until after the election, to see whether the election 
results have mooted the basis for such an appeal. The amendment should 
also reduce the burdens on the other parties to the case and the 
government, by avoiding the need for the other parties to file 
responsive briefs and for the Board to rule on issues which could well 
be rendered moot by the election results.
---------------------------------------------------------------------------

    \453\ The final rule does not change the standard for granting 
requests for view. Just as was the case prior to the NPRM, the Board 
will grant a request for review ``only where compelling reasons 
exist therefor.''
---------------------------------------------------------------------------

    Some comments also raise policy arguments which could apply to the 
final rule's provision permitting parties to file requests either 
before or after the election. For example, SHRM, AHA, and ACE generally 
commented that in cases where review would otherwise have been granted, 
the proposed rule would result in elections being run unnecessarily, 
causing both the Board and the parties to incur unnecessary expense. 
The comments pose the example of a regional director failing to find a 
bar to the conduct of an election, and thereby erroneously directing an 
election. But this example aptly illustrates the flaw in the argument. 
Even under the current rules, if a regional director finds no contract 
bar and directs an election, and a party files a request for review 
that the Board ultimately grants, the election is regularly held anyway 
and the ballots impounded prior to Board resolution of the issue. See, 
e.g., VFL Technology Corp., 329 NLRB 458, 458 (1999); Western Pipeline, 
Inc., 328 NLRB 925, 925 n.1 (1999). Thus, the same expenses may be 
unnecessarily incurred under current procedures. See, e.g., Mercy 
General Health Partners Amicare Homecare, 331 NLRB 783, 785-86 (2000) 
(Board directed that impounded ballots not be counted and that second 
election be held after ruling on pre-election request for review post-
election). Moreover, given the small number of requests for review 
filed each year, and the extraordinarily small percentage of regional 
directors' decisions that are ultimately reversed,\454\ the number of 
cases of the type described in these comments is likely to be very 
small. In any event, under the final rule, a party may still file a 
request for review before the election.
---------------------------------------------------------------------------

    \454\ Out of the 6686 RC, RM, and RD elections held from FY10 to 
FY13, there were only 14 cases in which regional director decisions 
were reversed.
    Relatedly, some comments argue that deferring review of issues 
that were previously raised in a pre-election request for review 
until after the election will result in the Board addressing more 
issues subsequent to the opening of the ballots. See, e.g., PIA; 
COLLE; ACE. This point is true but not significant because less 
overall litigation will be required, and because, as discussed, 
requests for review are so rarely found meritorious by the Board.
---------------------------------------------------------------------------

    AHA comments that the Board's own failings in timely processing 
requests is not a basis for eliminating the right of parties to review. 
This point is no longer applicable because parties will retain the 
right to seek pre-election review. In addition, the Board is entitled 
to and must consider its own adjudicative and administrative capacities 
and past performance in evaluating its procedural rules. The 
elimination of the requirement that parties file pre-election requests 
for review should, as explained above, reduce the number of disputes 
reaching the Board. The Board will, therefore, be able to dispose of 
those disputes that do reach it more promptly.
    Other comments suggest that limiting pre-election review will mean 
that the parties will be unsure who is a supervisor during the pre-
election campaign.\455\ This objection is addressed at length above in 
relation to Sec.  102.66. The current pre-election review procedures do 
not entitle the parties to a final Board determination on such matters 
prior to the election and rarely result in such a determination. In 
addition, under current procedures, even in the very rare cases where 
the Board both grants review and rules on the merits prior to the 
election, as explained above, the ruling typically is issued only days 
before the election, i.e., well into the critical period between 
petition and election, and thus does not serve the purpose the comments 
suggest

[[Page 74409]]

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

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

    We also reject any suggestion that the final rule will increase the 
number of technical 8(a)(5) cases by denying parties ``the palliative 
of Board review'' of the regional director's pre-election 
determinations. Chamber II. Under the final rule, parties retain the 
right to request review of the regional director's decision to direct 
an election. The change is only that rather than being required to file 
the request for review prior to the election, parties may request such 
review either before or after the election, if the election results 
have not rendered the basis for such an appeal moot. As for parties 
being able to seek Board review of a regional director's post-election 
determinations, that issue has been addressed above in connection with 
Sec.  102.62.
2. Ballots Will No Longer Be Automatically Impounded While a Request 
for Review is Pending
    Second, the final rule eliminates the automatic impound procedure. 
The amendments thereby codify the statute's approach to stays, which 
will not take place ``unless specifically ordered by the Board.'' The 
current rules contain the following language on stays:

    The Regional Director shall schedule and conduct any election 
directed by the decision notwithstanding that a request for review 
has been filed with or granted by the Board. The filing of such a 
request shall not, unless otherwise ordered by the Board, operate as 
a stay of the election or any other action taken or directed by the 
Regional Director: Provided, however, That if a pending request for 
review has not been ruled upon or has been granted ballots whose 
validity might be affected by the final Board decision shall be 
segregated in an appropriate manner, and all ballots shall be 
impounded and remain unopened pending such decision.

    In amending the rules to codify Section 3(b) as written, the 
amendments eliminate the segregation and impoundment proviso of the 
former rules, which appear nowhere in the statute. As Section 3(b) 
contemplates, the regional director will continue to schedule and 
conduct elections notwithstanding that a request for review has been 
filed with or granted by the Board; however, the voting and counting of 
ballots will now also proceed notwithstanding the request for review, 
unless the Board specifically orders otherwise. This is consistent with 
the purpose of Section 3(b) to prevent delays in the Board's processing 
from impacting regional Section 9 proceedings.
    As discussed above, some comments argue that the proposed rule 
would result in unnecessarily re-running elections. Of course, 
impoundment, standing alone, could not and did not prevent rerunning 
elections. Rather, comments argue that prior procedures for segregating 
ballots might permit the Board to issue a decision on review which 
would obviate the need for a rerun, and by postponing requests for 
review until after the election the proposed amendments-eliminate that 
possibility. However, as discussed below, the final rule contains a 
procedure for requesting segregation and impoundment, as well as a pre-
election request for review, and so the Board will still have the 
option to segregate and impound where necessary in a particular case. 
In addition, if, as discussed above, a regional director has chosen to 
defer deciding an individual eligibility or inclusion question and to 
permit such individuals to vote subject to challenge, then those 
employees will indeed cast challenged ballots and their ballots will be 
segregated and impounded. Finally, the possibility of reruns is 
minimized further because the Board rarely reverses the regional 
director.
3. Motions for Expeditious Consideration, Stays, and Impoundment May Be 
Filed
    Finally, in light of the references in the rules to requests for a 
stay, a new paragraph (j) in Sec.  102.67 is created. This paragraph 
states that parties may separately move the Board for expedited 
consideration; a stay; or impoundment and/or segregation of ballots. 
The paragraph also clarifies, however, that ``[t]he pendency of a 
motion does not entitle a party to interim relief, and an affirmative 
ruling by the Board granting relief is required before the action of 
the regional director will be altered in any fashion.'' Id. As 
discussed above, the current rules stated that stays would not be 
granted ``unless otherwise ordered by the Board,'' and the final rules 
continue and expand this prohibition of stays ``unless specifically 
ordered by the Board'' in conformity with the statutory text. And yet, 
notwithstanding this implicit reference to orders by the Board on 
stays, the current rules provided no specific procedural mechanism for 
filing a motion for such a stay. In cases where such relief was sought, 
parties generally cited a catchall ``special permission to appeal'' 
procedure.
    The final rule makes explicit the right to request a stay, or 
related forms of immediate Board relief such as expeditious 
consideration, or segregation or impoundment of ballots. This is not 
intended to reflect any change in the current practice or standards for 
moving for or granting such relief; however, in light of the changes to 
the Board's existing automatic impoundment process discussed above, we 
recognize that this provision is likely to be of increased significance 
to some parties seeking interlocutory review of regional director 
actions.
    Two additional points should be addressed. First, under current 
practice, these motions are very rarely granted, and we expect that 
this will remain true, particularly in light of the strong statutory 
and regulatory policy against unnecessary stays or litigation delays 
expressed above. The requirement of a ``clear showing that it is 
necessary under the particular circumstances of the case'' will not be 
routinely met.
    Second, although we expect that motions under this paragraph will 
generally be acted upon in a timely fashion, we emphasize that, as is 
the case with motions more generally, ``the pendency of a motion does 
not entitle a party to interim relief, and an affirmative ruling by the 
Board granting relief is required before the action of the regional 
director will be altered in any fashion.'' Thus, filing a motion for a 
stay is not the same as having a motion granted, and the proceeding 
will continue unless and until any such motion is granted.
H. The 25 Day Waiting Period
    The Board also proposed eliminating the 25-day waiting period 
because, even under the current rules, it serves little purpose in 
light of the vote-and-impound procedure, and its stated purpose would 
be eliminated by the elimination of the pre-election request for 
review. 79 FR at 7333.
    The Board's current Statements of Procedures provide that elections 
``normally'' are delayed for a period of at least 25 days after the 
regional director directs that an election should be conducted, in 
order to provide the Board with an opportunity to rule on any request 
for review that may be filed:

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

[[Page 74410]]

issuance of a notice of election. However, unless a waiver is filed, 
the Director will normally not schedule an election until a date 
between the 25th and 30th days after the date of the decision, to 
permit the Board to rule on any request for review which may be 
filed.

29 CFR 101.21(d) (2010).

    The final rule adopts the proposal to eliminate the 25-day waiting 
period. 79 FR at 7333. Elimination of the 25-day waiting period 
eliminates an unnecessary barrier to the fair and expeditious 
resolution of questions concerning representation. By definition, the 
waiting period delays the election, which is designed to answer the 
question of representation. The 25-day waiting period--which 
effectively stays the election in every contested case for 25 days--is 
in tension with Congress' instruction in Section 3(b) of the Act that 
even the grant of review of a regional director's action ``shall not, 
unless specifically ordered by the Board, operate as a stay of any 
action taken by the regional director.'' Although the 25-day waiting 
period by its terms only applies to contested cases, the waiting period 
also has the effect of delaying elections in stipulated-election cases. 
As discussed above in connection with Sec.  102.66, bargaining takes 
place in the shadow of the law, and some parties use the threat of 
insisting on a pre-election hearing--and the resulting 25 day waiting 
period--to extract concessions concerning election details, such as the 
date of the election and the unit itself. The 25-day waiting period 
also serves little purpose under the existing rules. The stated purpose 
of the 25-day period is merely ``to permit the Board to rule on any 
request for review which may be filed.'' 29 CFR 101.21(d) (2010). 
However, such requests are filed in a small percentage of cases, are 
granted in an even smaller percentage,\456\ and result in orders 
staying the conduct of elections in virtually no cases at all. Thus, if 
the Board has not yet ruled on the request at the time of the election, 
as is not infrequently the case, the election is held and the ballots 
impounded until the Board can rule. Even if the Board grants the 
request, the Board almost never stays the election and the same vote-
and-impound procedure is used.\457\ Finally, there is even less reason 
for the waiting period under the final rule, which should reduce the 
number of requests for review filed before elections by virtue of the 
amendment permitting parties to file such requests after the election.
---------------------------------------------------------------------------

    \456\ A comparison of the total number of elections to the total 
number of grants of review (including grants of review after 
petitions were dismissed) during the period 2004 to 2013 reveals 
that review was granted in less than 1 percent of all representation 
cases in which an election was conducted and in approximately 15 
percent of those cases in which a request was filed. See NLRB Annual 
Reports (Fiscal Years 2004-2009) and NLRB Office of the General 
Counsel, Summaries of Operations (Fiscal Years 2004-2012). Data for 
2010-2013, after publication of the Annual Reports was discontinued, 
was produced from the NLRB's electronic case processing system.
    \457\ Accordingly, the Board would adopt the proposal to 
eliminate the 25-day waiting period even if the Board did not make 
any change to the request-for-review procedure.
---------------------------------------------------------------------------

    Very few comments specifically object to the elimination of the 25-
day waiting period. Indeed, there is near consensus that this period 
serves little purpose.\458\ In support of the proposed rule, several 
comments observe that parties typically do not use the waiting period 
to request review and that a single post-election review process 
eliminates use of the Board's processes to achieve tactical 
delays.\459\
---------------------------------------------------------------------------

    \458\ See Testimony of Professor Samuel Estreicher; SEIU reply; 
Testimony of Arnold Perl on behalf of TN Chamber II (``I think the 
blocking charge policy is one of those areas, like the 25 day rule 
you were just discussing eliminating in the request for review 
procedure, that the Board could and should as a matter of policy 
deal with, because you're targeting specific problem areas rather 
than an overall reformulation or representation policies that's 
contained in the notice of proposed rulemaking.'').
    \459\ See Professor Joel Cutcher-Gershenfeld; Senior Member 
Miller and Democratic House Members; IBEW; Thomas Meiklejohn.
---------------------------------------------------------------------------

    Some comments, such as the hearing testimony of Jay P. Krupin on 
behalf of NGA, maintain that the 25-day period serves an important 
purpose because the ``rules of the game'' are not set until the 
decision and direction of election, so the parties are not sure which 
voters they need to persuade or which employees can speak on behalf of 
the employer until the decision issues. However, the stated purpose of 
the 25-day period is not to give parties an opportunity to campaign. 
Section 101.21(d) states only that the 25-day waiting period is ``to 
permit the Board to rule on any request for review which may be 
filed.'' Moreover, the concern raised in this comment is addressed at 
length above in Sec.  102.66. Finally, the regional director retains 
discretion to consider any significant changes in the scope of the unit 
that result from the decision and direction of election in setting the 
election date.
    A few comments observe that the waiting period serves a purpose in 
the small minority of cases where the Board finds that a request for 
review has merit. These comments suggest that a waiting period would be 
appropriate where a pre-election request for review is actually filed. 
AHCA and ALFA suggest an alternative to the proposed rule, whereby the 
Board would ask parties whether they intend to file a request for 
review. If they answer affirmatively, then and only then would the 
regional director wait at least 25 days to hold the election. However, 
their proposal would create a perverse incentive for parties to file a 
request for review solely to delay the election. Moreover, in many 
cases, the delay would still be wholly unnecessary when the issue 
raised in the pre-election request for review is rendered moot by the 
election results. Under current procedures, even where a request for 
review is granted and eventually found to have merit, there is little 
reason that the request should be filed pre-election or that the 
election should be delayed so that the Board can consider it, because 
the election almost always proceeds using the vote-and-impound 
procedures before the Board's decision on the merits issues.
    Some comments argue that the elimination of the 25-day waiting 
period, combined with other proposed amendments, interferes with 
employers' right to free speech under Section 8(c) of the Act and the 
First Amendment and undermines the free discussion of the question of 
representation essential to employee free choice. However, the statute 
does not provide for a 25-day waiting period, and the 25-day waiting 
period provided by the Board in the current rules was not intended to 
give parties an opportunity to campaign. Instead, once again, the 
stated purpose of the 25-day waiting period was merely to give the 
Board an opportunity to rule on any request for review which might be 
filed. The more general point is addressed at length above in 
connection with the opportunity for free speech and debate.
Sec.  102.68 Record in Pre-Election Proceeding; What Constitutes; 
Transmission to Board
    The proposed amendments to Sec.  102.68, which currently defines 
the record in a proceeding conducted pursuant to Sec.  102.67, were 
quite minor as they were designed merely to conform its contents to the 
proposed amendments to other sections. First, the Board clarified that 
Statements of Position would be part of the record. While many comments 
objected to the requirement that parties make a binding statement of 
position on various issues, there were no significant comments 
concerning the proposal to make the Statement of Position a part of the 
record. Second, the proposed amendment deleted references to the 
transfer procedure, because the Board proposed eliminating the ability 
of regional directors to transfer a case to the Board before deciding 
it. The Board

[[Page 74411]]

received no significant comments regarding that proposed change either. 
The final rule in Sec.  102.68 adopts those portions of the proposal. 
The final rule also amends Sec.  102.68 to make responses to Statements 
of Position part of the record. In the NPRM, the Board also proposed 
adding language to state that Sec.  102.68 would define the record in 
proceedings conducted pursuant to Sec.  102.69. Although no significant 
comments were filed concerning this proposed change, the Board has 
considered the matter and is now of the view that the proposed addition 
is unnecessary, because Sec.  102.69(d)(1) defines the record in 
proceedings conducted pursuant to Sec.  102.69.
    GAM and U.S. Poultry II complain that there is no express provision 
that the record also includes written offers of proof. Prior to the 
amendments, there was no express provision that the pre-election 
hearing record include written offers of proof. Yet, prior to the 
amendments, offers of proof, whether written or oral, could be part of 
the record of the pre-election hearing. Thus, if the offer of proofs 
were in written form, they could be received as ``exhibits;'' if oral, 
they could be part of ``the stenographic report of the hearing.'' In 
response to the comment, however, the final rule explicitly provides in 
Sec.  102.68 that offers of proof made at the pre-election hearing are 
part of the record.
Sec. 102.69 Election Procedure; Tally of Ballots; Objections; 
Certification by the Regional Director; Hearings; Hearing Officer 
Reports on Objections and Challenges; Exceptions to Hearing Officer 
Reports; Regional Director Decisions on Objections and Challenges
    The proposed amendments to Sec.  102.69 dealt with a variety of 
matters including the filing and service of objections, the procedure 
to be used by the regional director when faced with election objections 
or determinative challenges, post-election hearing scheduling and 
procedure, and appeals of decisions and directions of elections and 
decisions on objections and challenged ballots.
A. Simultaneous Service of Objections on Parties; Simultaneous Filing 
of Offer of Proof With Election Objections
    In the NPRM, the Board proposed to amend Sec.  102.69 to require 
that a party filing objections simultaneously file a written offer of 
proof supporting the objections as described above in relation to Sec.  
102.66(c) and serve the objections, but not the offer of proof, on the 
other parties. After carefully considering the proposal in light of the 
commentary, the Board has decided to adopt it with one modification, 
which would grant regional directors discretion to permit additional 
time for filing the offer of proof upon a showing of good cause. The 
Board has concluded that the amendments will provide the parties with 
the earliest possible notice of the pendency of election objections, 
reduce unnecessary litigation, and help the Board to more expeditiously 
resolve election objections, and thereby help it more expeditiously 
resolve questions of representation.
    The Board's prior rules did not require a party filing objections 
to simultaneously serve a copy of its objections on the other parties, 
just as the Board's prior rules did not require a party filing a 
representation petition to simultaneously serve a copy of its petition 
on the parties named in the petition. Requiring a party that files 
election objections to simultaneously serve a copy of its objections on 
the other parties to the representation case provides the other parties 
with the earliest possible notice of the pendency of the election 
objections, just as amended Sec.  102.60's new requirement--that every 
petitioner simultaneously serve a copy of its representation petition 
when it files it with the Board--gives the other parties the earliest 
possible notice of the pendency of the petition.
    The final rule maintains the current time period (7 days after the 
tally) for the filing of objections to the conduct of the election or 
to conduct affecting the results of the election. The final rule also 
maintains the current requirement that a party's objections contain a 
short statement of the reasons therefor. However, the final rule 
eliminates the extra 7-day period parties currently enjoy to file 
evidence in support of their objections.\460\
---------------------------------------------------------------------------

    \460\ The amendments also codify existing practice permitting 
parties to file, but not serve, evidence in support of objections. 
Amended Sec.  102.69(a) also preserves the pre-existing practice of 
having the regional director furnish a copy of the objections to 
each of the other parties to the case.
---------------------------------------------------------------------------

    Many employer comments complain that 7 days is an insufficient time 
both to investigate objections and provide an offer of proof.\461\ The 
Board is not persuaded by these comments. Under the Board's prior 
rules, a party had only 7 days to file election objections, and those 
objections had to contain a short statement of the reasons therefor. 29 
CFR 102.69(a) (2010). The only change concerns the time to produce the 
offer of proof in support of the objections. The change is based on the 
view that objections to a secret-ballot election should not be filed by 
any party lacking factual support for the objections and, therefore, a 
filing party should be able to describe the facts supporting its 
objections at the time of filing. The Board notes in this regard that 
objections may be filed concerning events that occurred before the 
election and events that occurred during the election. The Board 
presumes that a party that becomes aware of objectionable conduct 
before the election will note such misconduct and begin gathering 
evidence relating to the misconduct immediately. Accordingly, a party 
often has more than 7 days to prepare the offer of proof regarding such 
misconduct. As to misconduct that occurs during the election in the 
polling area, parties are commonly represented by an equal number of 
observers, and the parties typically speak with their observers 
immediately after the election before the tally of ballots even begins. 
For this reason, the Board believes that parties generally should be 
aware of both the misconduct and possible witnesses to it shortly after 
the balloting ends. Accordingly, the Board finds unpersuasive the 
complaints that 7 days ordinarily will be an insufficient amount of 
time to produce evidence in support of objections.
---------------------------------------------------------------------------

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

    Moreover, the amendment furthers the goal of expeditiously 
resolving questions concerning representation. For example, a question 
of representation cannot be answered until the election results are 
certified, which cannot occur until objections and determinative 
challenges are resolved. And a regional director cannot evaluate the 
objections until it receives the objecting party's supporting evidence. 
Because requiring the evidence in support of objections at the same 
time the objections are filed serves the goal of timely certifications, 
SEIU supports the proposed amendment even though it believes that the 
amendment poses a greater burden on unions than employers, who have 
greater access to the workforce. The amendment is also consistent with 
the policy articulated in Casehandling Manual Section 11360.1, that 
``the prompt resolution of challenges and/or objections should be given 
priority attention [because] certification of the employees' choice in 
the election is delayed by challenges and/or objections.''
    The AFL-CIO suggests, however, that the Board provide that a party 
may move for additional time to file the offer of proof in support of 
its objections in ``unusual circumstances,'' such as when a union finds 
it difficult to locate and

[[Page 74412]]

contact witnesses in a large unit. The Chamber (Reply) opposes the 
amendments reducing the period of time to file offers of proof, but 
argues that if an exception is to be provided, it should be for ``good 
cause'' rather than ``unusual circumstances.''
    Upon reflection, the Board has decided to amend Sec.  102.69(a) to 
provide that a regional director may extend the time for filing the 
written offer of proof in support of the election objections upon 
request of a party showing good cause, as the Chamber suggests. As 
noted, the Board believes that ordinarily parties should be able to 
file their offers of proof in support of their election objections 
simultaneously with the objections. Indeed, the Board concludes that 
the amendments to Sec. Sec.  102.62(d) and 102.67(l)--requiring the 
employer to include the available personal phone numbers and personal 
email addresses, of the employees on the voter list--makes this likely. 
However, as noted above in connection with Sec.  102.62, some comments 
claim that some employers may not maintain records of their employees' 
personal phone numbers and email addresses, which would require that 
unions use slower forms of communication to contact potential witnesses 
to prepare the offers of proof, which in turn could make it more 
difficult to submit the offer of proof simultaneously with the election 
objections in some cases. In addition, depending upon the severity of 
the alleged objectionable misconduct, it may be difficult for a union 
or employer to persuade employees with knowledge of the relevant facts 
to come forward. The Board also notes that although the current rules 
afford parties an additional 7 days to produce the supporting evidence 
after they file their objections, regional directors have discretion to 
grant still more time. See 29 CFR 102.69(a) (2010) (``Within 7 days 
after the filing of objections, or such additional time as the Regional 
Director may allow, the party filing objections shall furnish * * * the 
evidence * * * to support the objections.''); Casehandling Manual 
Section 11392.6. Accordingly, the Board has concluded that a regional 
director should have discretion to grant additional time for filing the 
offer of proof when good cause is shown, and amended Sec.  102.69(a) so 
provides.
    In sum, requiring the objecting party to simultaneously serve a 
copy of its objections on the other parties and to simultaneously file 
an offer of proof with its election objections will provide the other 
parties with the earliest possible notice of the objections and help 
the Board to expeditiously resolve questions of representation because 
the election results cannot be certified until objections and 
determinative challenges are resolved. The amendment will also reduce 
unnecessary litigation and conserve resources for the Agency and the 
nonobjecting party by reducing the likelihood that a party will file 
objections that it cannot support. At the same time, when a party has 
allegedly engaged in conduct which has destroyed a fair election, the 
alleged abuse of workers' rights should not be disregarded merely 
because a party justifiably needs additional time to furnish its offer 
of proof. Accordingly, the final rule provides a good-cause exception 
to the simultaneous offer-of-proof requirement.
B. Uniform Procedure for Handling Objections and Potentially 
Determinative Challenges and Requests for Review of Regional Director 
Post-Election Determinations in Stipulated and Directed Elections
    The final rule adopts the NPRM proposals to (1) codify the regional 
director's discretion to dispose of both determinative challenges and 
objections through an investigation without a hearing when they raise 
no substantial and material factual issues, (2) establish a uniform 
procedure when a hearing is conducted, and (3) make Board review of 
regional directors' post-election dispositions discretionary in 
stipulated and directed elections. 79 FR at 7333-34, 7361.
    The final rule codifies existing practice permitting the regional 
director to investigate determinative challenges and objections by 
examining evidence offered in support thereof to determine if a hearing 
is warranted.\462\ The final rule also creates a uniform procedure in 
those cases in which there are potentially outcome-determinative 
challenges or objections which the regional director determines raise 
substantial and material factual issues that require a hearing. 
Adopting the procedure currently contained in Sec.  102.69(d) and (e), 
the final rule provides that, in such cases, the regional director 
shall provide for a hearing before a hearing officer who shall, after 
such hearing, issue a report containing recommendations as to the 
disposition of the issues.\463\ Within 14 days after issuance of such a 
report, any party may file exceptions with the regional director and 
the regional director will dispose of the exceptions. If no exceptions 
are filed to such report, the regional director decides the matter upon 
the expiration of the period for filing such exceptions. Consistent 
with the changes described above in relation to Sec.  102.62(b), the 
final rule makes Board review of regional directors' resolutions of 
post-election disputes discretionary in cases involving directed 
elections as well as those involving stipulated elections, unless 
challenges and objections are consolidated with unfair labor practice 
charges for hearing before an administrative law judge.\464\ The Board 
anticipates that this change will leave a higher percentage of final 
decisions concerning disputes arising out of representation proceedings 
with the Board's regional directors.
---------------------------------------------------------------------------

    \462\ At least one comment argues that the amendments improperly 
permit regional directors to administratively dismiss objections 
without a hearing, thereby denying parties the right to a hearing 
and the ability to create a record for subsequent review. However, 
regional directors may administratively dismiss objections and 
challenges without a hearing under the current rules where they do 
not raise substantial and material issues that would warrant setting 
aside the election. 29 CFR 102.69(d) (2011). This well-settled 
practice avoids wasteful litigation, is no different from a trial 
court granting a motion to dismiss, and has been approved by the 
courts of appeals. See NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th 
Cir. 1967); NLRB v. Air Control Products of St. Petersburg, Inc., 
335 F.2d 245, 249 (5th Cir. 1964); Puerto Rico Aqueduct & Sewer 
Auth. v. EPA, 35 F. 3d 600, 605-06 (1st Cir. 1994) (``To force an 
agency fully to adjudicate a dispute that is patently frivolous, or 
that can be resolved in only one way, or that can have no bearing on 
the disposition of the case, would be mindless * * *.''); Fenn C. 
Horton III, The Requirements of Due Process in the Resolution of 
Objections to NLRB Representation Elections, 10 J. Corp. L. 493, 
495-509 (1985). The amendments specify in Sec.  102.69(d) what 
constitutes the record in such no-hearing cases, just as they 
specify what constitutes the record in cases that proceed to a 
hearing.
    \463\ Matters such as the scheduling of the post-election 
hearing and procedure at the post-election hearing are addressed 
below.
    \464\ The final rule clarifies that when objections and 
challenges have been consolidated with an unfair labor practice 
proceeding for purposes of hearing and the election was conducted 
pursuant to a stipulated election agreement or a direction of 
election, (1) the provisions of Sec.  102.46 shall govern with 
respect to the filing of exceptions or an answering brief to the 
exceptions to the administrative law judge's decision; and (2) a 
request for review of the regional director's decision and direction 
of election shall be due at the same time as the exceptions to the 
administrative law judge's decision are due. The final rule also 
clarifies that if the election was conducted pursuant to a consent 
or full consent agreement, and the objections and challenges have 
been consolidated with an unfair labor practice proceeding for 
purposes of hearing, the administrative law judge shall, after 
issuing a decision, sever the representation case and transfer it to 
the regional director for further processing, as is done currently.
    The final rule uses the single term, ``decision,'' to describe 
the regional director's disposition of challenges and/or objections 
in place of the two terms, ``report'' and ``decision,'' used in the 
current rules.
---------------------------------------------------------------------------

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

[[Page 74413]]

The Board will not address nondeterminative challenge ballots at a 
post-election hearing, though parties may bring the matter to the Board 
by filing a timely unit clarification petition if they are unable to 
resolve the resulting question of whether particular employees are in 
the bargaining unit (``unit placement'' questions) by agreement. See, 
e.g., Orson E. Coe Pontiac-GMC Truck, Inc., 328 NLRB 688, 688 n.1 
---------------------------------------------------------------------------
(1999):

    Under standard Board practice, when a classification of 
employees votes under challenge and their challenged ballots would 
not be determinative of the election results, the ensuing 
certification contains a footnote to the effect that they are 
neither included nor excluded. Casehandling Manual Section 11474. 
Even though there was no occasion to resolve the issue in a ballot 
challenge hearing, the issue need not stay unresolved. If the 
parties do not subsequently agree on whether to add the car prep/
finisher technician to the unit, the matter can be resolved in a 
timely invoked unit clarification proceeding. See Kirkhill Rubber 
Co., 306 NLRB 559 (1992); NLRB v. Dickerson-Chapman, Inc., 964 F.2d 
493, 496-497, 500 fn. 7 (5th Cir. 1992).

AHA argues that permitting parties to resolve such issues in bargaining 
is ``disrespectful'' of employee Section 7 rights because it makes 
eligibility a ``bargaining chip.'' This contention has been addressed 
above in relation to Sec.  102.66.
    Many comments criticize the proposal to make Board review of 
regional directors' post-election determinations discretionary in cases 
involving directed elections. These comments are fully addressed above 
in relation to Sec.  102.62, which also addresses discretionary Board 
review of the regional director's post-election determinations in 
stipulated election cases.
    Bluegrass Institute suggests, however, that the 20-percent rule 
renders discretionary Board review of the regional directors' post-
election determinations inappropriate. It argues that the Board's 
current rules guarantee parties Board review of eligibility questions 
deferred in the pre-election decision, and therefore the provision 
making Board review of the director's post-election determinations 
discretionary constitutes a material change. However, the final rule 
does not adopt the proposed 20-percent proposal. To the extent the 
commenter would raise the same objections to the final rule, the Board 
would find them unpersuasive. Under the final rule, if eligibility 
disputes are deferred using the vote-and-challenge procedures, the 
hearing officer's recommendations on determinative challenges will in 
all cases be subject to exceptions to the director, and a party may 
thereafter file a request for review with the Board. This parallels how 
such matters are handled under the current rules when a hearing 
officer's recommendations go to the director. Thus, Section 11366.2 of 
the Board's Casehandling Manual provides with respect to challenges to 
voters in the context of a directed election, ``If the Regional 
Director directs that the hearing officer's recommendations be made to 
the Regional Director, then exceptions to the hearing officer's report 
will be filed with him/her * * *. The Regional Director must thereafter 
rule in a supplemental decision upon the hearing officer's report and 
such exceptions as may be filed. The Regional Director's supplemental 
decision is subject to a request for review to the Board.'' \465\ 
Moreover, under the current rules, if a regional director resolves 
eligibility questions on the merits in his or her decision and 
direction of election, the parties are able to challenge the decision 
only by filing a request for review with the Board. The comment does 
not explain why a party should have a greater right to Board review if 
the regional director decides eligibility questions after the election 
than if the regional director decides them prior to the election, and 
the final rule corrects this anomaly.
---------------------------------------------------------------------------

    \465\ It is only when regional directors direct that hearing 
officer reports go to the Board that parties currently have the 
right to Board review. See Casehandling Manual Section 11366.2.
---------------------------------------------------------------------------

    Citing Member Hayes' dissent to the original NPRM, PIA and others 
argue that the deferral of litigation from the pre-election phase to 
the post-election phase is likely to lengthen the period between the 
election and final certification, which will lengthen the period during 
which the employer is uncertain whether it can unilaterally change its 
employees' working conditions. See Mike O'Connor Chevrolet, 209 NLRB 
701, 703 (1974). As shown, however, the Board believes that the final 
rule will not simply shift litigation from before the election to after 
the election. Rather, the Board believes that the amendments will 
significantly reduce the total amount of litigation, because the 
current rules require parties to litigate issues that are often 
rendered moot by the election results. Moreover, the Board anticipates 
that permitting it to deny review of regional directors' resolution of 
post-election disputes, i.e., when a party's request raises no 
compelling grounds for granting such review, will eliminate the most 
significant source of administrative delay in the finality of election 
results. The Board anticipates that the final rule will thus reduce the 
period of time between the tally of votes and certification of the 
results and thus the period during which employers are uncertain about 
their duty to bargain.
    A number of other amendments to this section conform its provisions 
to the remainder of the amendments. For example, the NPRM proposed to 
address the procedure for requesting review of the direction of 
election in Sec.  102.69(b) in line with the proposed amendment 
deferring all parties' rights to request review of the decision and 
direction of election until after the election. 79 FR at 7333, 7360. 
However, as discussed above in connection with Sec.  102.67, the Board 
has decided to reject that proposal and instead to permit parties to 
request review of the direction of election prior to the election if 
they choose to do so. Accordingly, the procedure for filing such 
requests appears in Sec.  102.67 of the final rule, rather than in 
Sec.  102.69(b) as proposed in the NPRM. And because parties will not 
be filing requests for review of the regional director decisions and 
directions of elections pursuant to proposed Sec.  102.69(b), there is 
no need for this final rule to provide (as the December 22, 2011 final 
rule provided (76 FR at 80174, 80188)) in Sec.  102.69(e)(1)(ii)) that 
the decision and direction of election and the record previously made 
as defined in Sec.  102.68 will also be part of the record in a 
proceeding pursuant to Sec.  102.69 in which no hearing is held. In 
other words, just as was the case prior to the NPRM, under the final 
rule, the record in a proceeding pursuant to Sec.  102.69 in which no 
hearing is held will not include the decision and direction of election 
and the record previously made as defined in Sec.  102.68.
    Similarly, prior to the NPRM, Sec.  102.69(b) provided, ``If no 
objections are filed within the time set forth above, if the challenged 
ballots are insufficient in number to affect the results of the 
election, and if no runoff election is to be held pursuant to Sec.  
102.70, the regional director shall forthwith issue to the parties a 
certification of the results of the election, including certification 
of representative where appropriate, with the same force and effect as 
if issued by the Board, and the proceeding will thereupon be closed.'' 
The final rule rejects the NPRM proposal to restyle this paragraph 
``Sec.  102.69(c) and to include a reference to no request for review 
being filed (proposals which the December 22, 2011 final rule adopted).

[[Page 74414]]

79 FR at 7360-7361; 76 FR at 80187.\466\ In cases where the election is 
conducted pursuant to one of the three types of election agreements, 
there is, by definition, no decision and direction of election about 
which a party can possibly seek review.\467\ And where there are no 
objections, determinative challenges, or runoffs, the regional director 
should issue to the parties a certification of the results of the 
election, including certification of representative where appropriate, 
notwithstanding the possibility that a party may still file a request 
for review of any decision and direction of election previously issued. 
This is not unlike what happened under the prior rules in directed 
election cases. Casehandling Manual Section 11472.3 (In directed 
election cases, the regional director's supplemental decision based on 
an administrative investigation, a hearing or both, ``should include 
the certification; issuance of the certification should not be delayed 
until after the expiration of the time for filing a request for review 
[of that decision].'') Similarly, certifications are issued under the 
current rules, notwithstanding parties may challenge the validity of 
the representation case decisions in a technical 8(a)(5) proceeding in 
the courts of appeals. However, the final rule makes one small change 
to the text of pre-existing Sec.  102.69(b) by deleting the reference 
to the closure of proceedings. Because under the final rule a party may 
choose to wait to file its request for review of the decision and 
direction of election until after the election, a proceeding cannot 
necessarily be considered closed in the absence of the election 
objections, determinative challenges or a runoff election.
---------------------------------------------------------------------------

    \466\ The NPRM had proposed to restyle paragraph (b) as (c) 
because, as discussed above, the NPRM had also proposed adding a new 
Sec.  102.69(b) to address requests for reviews of regional director 
decisions and directions of elections. Because the final rule does 
not add that new paragraph (b) to Sec.  102.69, the Board has 
decided to leave the text in question in Sec.  102.69(b) of this 
final rule.
    \467\ Thus, when the election is conducted pursuant to a consent 
election agreement or a stipulated election agreement, the regional 
director does not issue any pre-election decision at all. See 
Sec. Sec.  102.62(a) and (b). Although the regional director does 
issue a pre-election decision when the parties enter into a full 
consent election agreement, the parties waive their right to request 
review of that decision in their agreement. See Sec.  102.62(c).
---------------------------------------------------------------------------

C. Post-Election Hearing Scheduling
    The NPRM proposed that any post-election hearing on objections and 
challenged ballots would open within 14 days of the tally of ballots or 
as soon thereafter as practicable. 79 FR at 7333.
    The Board received a number of comments about the proposed 
scheduling of the post-election hearing. The AFL-CIO supports the 
hearing-scheduling amendment, noting that Casehandling Manual Sections 
11365.3 and 11395.4 already provide that ``[s]ince postelection matters 
are to be resolved with the utmost dispatch, * * * the hearing should 
be scheduled at the earliest practical date.'' SEIU likewise supports 
the amendment outside the context of decertification elections because 
timely post-election hearings are necessary for timely certifications, 
which in turn are necessary for labor relations stability. Professor 
Cutcher-Gershenfeld also supports the amendment, noting that the 
proposal ``minimizes the risk of process delays being used by either 
side for tactical advantage,'' and that establishment of consistent 
timing across regions comports with good administrative practice.
    However, many employer comments complain about the time frame for 
post-election hearings, claiming the proposed schedule provides 
insufficient preparation time for both the party that filed the 
election objections and the nonobjecting party.\468\ For example, some 
comments, such as those filed by ACC and AHCA II, complain that 14 days 
is not sufficient time for the aggrieved party to prepare for a hearing 
on its objections because it must also prepare its request for review 
of the decision and direction of election during this same time period. 
According to these comments, the proposed post-election procedure 
simply requires ``too much, too soon.'' Other comments, such as those 
filed by SHRM, complain that 14 days is insufficient time to prepare 
for the post-election hearing because, in addition to having to prepare 
to present evidence regarding the objections, parties may also be 
required to present evidence regarding the eligibility of employees who 
were permitted to cast challenged ballots pursuant to the proposed 20 
percent rule. Buchanan complains that the proposed post-election 
hearing schedule raises due process issues because the nonobjecting 
party will have such a short time to prepare for the objections 
hearing. Buchanan also claims, along with the AHA, that the amendment 
will be counterproductive because it will leave regional directors with 
insufficient time to weed out frivolous objections. Thus, Buchanan 
posits that instead of eliminating wasteful litigation, the amendments 
will have precisely the opposite effect.
---------------------------------------------------------------------------

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

    After careful consideration of the comments, the Board has decided 
to modify its proposal regarding the scheduling of the post-election 
hearing to provide (in amended Sec.  102.69(c)(1)(ii)) that, unless the 
parties agree to an earlier date, the post-election hearing on 
objections and determinative challenges should open 21 days--rather 
than 14 days--from the tally of ballots or as soon as practicable 
thereafter, thereby affording all parties an additional 7 days between 
the due date for the filing of election objections and the opening of 
the post-election hearing. We believe that providing an additional 
week's time is appropriate. If a party took the full 7 days to which it 
is entitled to file its objections under Sec.  102.69(a), the 
nonobjecting party would receive at most 7 days notice of the hearing 
if the hearing opened 14 days from the tally of ballots as proposed in 
the NPRM. Moreover, if a party filed its election objections at the 
close of business on the 7th day following the tally, the regional 
director might not be able to issue a notice of hearing until the 8th 
day following the tally. If the hearing in such a case opened on the 
14th day following the tally as provided in the proposal, that would 
mean that the nonobjecting party received less than 7 days notice of 
the hearing. Accordingly, we believe that providing an additional 
week's time is responsive to the concerns raised in some of the 
comments about parties needing more than 14 days from the tally of 
ballots (and 7 days from the filing of objections) to prepare for the 
post-election hearing.\469\
---------------------------------------------------------------------------

    \469\ Admittedly, our decision to require that post-election 
hearings be scheduled to open 21 days from the tally (and 14 days 
from the filing of objections) depends, in part, on the 
implementation of the new requirement that parties filing objections 
simultaneously file their offers of proof supporting those 
objections with the regional director. Ordinarily, the regional 
director cannot evaluate whether a hearing is necessary until the 
director receives the objecting party's offer of proof, which the 
pre-NPRM version of Sec.  102.69(a) gave parties an extra 7 days to 
provide. Accordingly, without the amendment requiring the 
simultaneous filing of offers of proof with the objections, the 
offer of proof would not be due until 14 days from the tally, in 
which case a regional director could have no choice but to give 
parties less than 7 days notice of the post-election hearing in 
order to meet the 21-day post-election hearing scheduling goal. And 
that would give rise to the same concerns which our revised post-
election timetable seeks to allay.
---------------------------------------------------------------------------

    Providing that the post-election hearing open 21 days from the 
tally (and 14 days from the filing of the objections) is also 
responsive to the criticism that the proposal might not provide enough 
time for the regional directors to weed out frivolous objections. By 
providing

[[Page 74415]]

that the post-election hearing should open 21 days from the tally of 
ballots or as soon as practicable thereafter, we provide the regional 
directors with additional time to evaluate the objections and 
accompanying offers of proof--particularly in cases where they are not 
filed until the close of the 7th day following the tally, where the 
objections are voluminous, or where the regional director grants 
parties more time to file their supporting offers of proof--but still 
well within a time frame when the directors can issue notices of 
hearing in compliance with Board practice. And, just as was true under 
the Board's prior rules, directors may cancel previously scheduled 
hearings if subsequent developments render the hearing unnecessary.
    In sum, we conclude that the revised 21-day post-election hearing 
schedule takes into account the critical comments in a manner that 
serves the goals of eliminating unnecessary litigation and 
expeditiously resolving questions of representation. In addition, the 
amendments should help make the scheduling of post-election hearings 
more uniform across regions and provide transparency to the parties.
    To the extent that the authors of those critical comments would 
object that setting the post-election hearing to open 21 days from the 
tally of ballots (and 14 days from the filing of the objections) is 
still unfair to the nonobjecting party, the Board would find them to be 
unpersuasive. In cases where the objections allege that the election 
should be set aside because of employer misconduct, the union has to 
prove that the employer was responsible for the misconduct. Under the 
revised schedule, even if the notice of hearing issues 1 or more days 
after the objections are filed, the nonobjecting party should still 
have close to 2 weeks to investigate the objections and prepare its 
response unless, of course, the parties agree to an earlier hearing 
date. Thus, under the amendments, as under the prior rules and case law 
that the amendments leave undisturbed, the party seeking to overturn 
the election must file its objections within 7 days of the tally, and 
the objections must contain a specific, nonconclusory statement of the 
reasons therefor so as to provide notice of the alleged objectionable 
conduct. The nonobjecting party will promptly learn of the filing of 
objections, because the objecting party will now be required to 
simultaneously serve a copy of its objections on all parties when it 
files its objections with the regional director (and the regional 
director will continue the practice of furnishing a copy as well). 
Sec.  102.69(a); Casehandling Manual Sections 11392.5 and 11392.9.
    Accordingly, the nonobjecting party need not wait until the notice 
of the post-election hearing actually issues to begin investigating the 
objections and preparing its response, but instead can do so as soon as 
it is served with a copy of the objections, which will be at least 14 
days before the opening of the post-election hearing, unless the 
parties agree to an earlier date. In most cases, given the relatively 
small median bargaining unit size in recent years, there is likely to 
be only a relatively limited number of potential witnesses with 
knowledge of the relevant facts. The employer should have ready access 
to its supervisors, managers, and agents. And even prior to the 
amendments, nonobjecting parties were sometimes requested to produce 
their evidence opposing the objections just 7 days after the objections 
were filed and, along with the objecting parties, were sometimes 
advised that the post-election hearing could open 14 days from the 
filing of objections (i.e. 21 days from the tally of ballots).\470\ It 
also bears mentioning that because the hearing on objections only 
occurs after the election, parties desiring a labor attorney or 
consultant to represent them in connection with the post-election 
objections hearing in all likelihood will have retained the attorney or 
consultant before the objections will have even been filed, in contrast 
to the pre-election scenario painted by some comments of unrepresented 
employers being taken by surprise by the filing of a representation 
petition and having to scramble to retain an attorney or 
consultant.\471\
---------------------------------------------------------------------------

    \470\ For example, the December 1997 Report of the Best 
Practices Committee indicates that some regions requested that all 
parties (both objecting parties and nonobjecting parties) submit 
their evidence within 7 days of the filing of objections. G.C. Memo. 
98-1,``Report of Best Practices Committee--Representation Cases 
December 1997'' at 22. And a sample letter attached to the Best 
Practices Committee Report provided for the objections hearing to 
open 5-to-7 days after the due date for filing evidence in support 
of objections, which, under the rules then in effect, was 7 days 
from the filing of the objections. See Attachment J 1-3 (objections 
filed August 16; evidence in support of (and in opposition to) 
objections due not later than August 23; objections hearing 
tentatively scheduled for the period August 28, 29, or 30'').
    \471\ In our experience, those parties who use attorneys or 
consultants to represent them in connection with post-election 
hearings frequently use the same attorneys or consultants that they 
retained to represent them in connection with the pre-election 
hearings or the negotiation of the election agreements.
---------------------------------------------------------------------------

    To the extent that ACC and AHCA would claim that a 21-day post-
election hearing schedule is still unfair to the objecting party 
because the objecting party has to prepare its request for review of 
the direction of election at the same time it must prepare for the 
objections hearing, the Board would find such claims unpersuasive. In 
the Board's view, such claims would reflect a misunderstanding of the 
amendments. Amended Sec.  102.67(c) makes clear that the request for 
review of the direction of election is not due until after the regional 
director disposes of election objections and determinative challenges. 
Accordingly, parties preparing for a post-election hearing on 
objections and or challenged ballots will not need to simultaneously 
prepare their requests for review of the decision and direction of 
election. Moreover, even if no objections are filed, a party seeking to 
file a request for review of the decision and direction of election 
will have more time to do so under the final rule than it has under the 
current rules.
    The Board also finds unpersuasive the claim that the revised 21-day 
post-election hearing schedule is unfair because, in addition to having 
to prepare to present evidence regarding the objections, parties may 
also be required to present evidence regarding the eligibility of 
employees who were permitted to cast challenged ballots pursuant to the 
20 percent rule. First of all, the Board has not adopted the 20 percent 
rule. Thus, the final rule grants the regional director discretion to 
instruct hearing officers to permit litigation of individual 
eligibility issues if the director resolves to consider them prior to 
the election. Accordingly, parties are free under the final rule to 
request that they be permitted to litigate individual eligibility 
issues at the pre-election hearing. By definition, if a party requests 
at the pre-election hearing that it be permitted to litigate an 
individual's eligibility or inclusion, that means that the party has 
prepared to litigate it at the pre-election hearing. The comments do 
not explain just why a party that has prepared to litigate an issue at 
the pre-election hearing should need substantial additional time to 
prepare to litigate the identical issue at a post-election hearing. And 
if in the direction of election, the regional director directs that 
particular individuals be permitted to vote subject to challenge, the 
parties are on notice that the status of such individuals is 
unresolved, and so they may begin to investigate the facts surrounding 
the individuals' eligibility at that time even before the election 
occurs.
    Even in cases where election-day challenges take one of the parties 
by surprise, all parties can begin preparing their cases with respect 
to the determinative challenges immediately after the tally of ballots, 
because the

[[Page 74416]]

parties know who cast challenged ballots no later than the tally of 
ballots.\472\ Indeed, informing all parties at the election that they 
must present their evidence regarding determinative challenges by the 
date objections are due was labeled a best practice in 1997. See G.C. 
Memo. 98-1, ``Report of Best Practices Committee--Representation Cases 
December 1997,'' at 23. And, as was noted in connection with the 
scheduling of the pre-election hearing, the facts surrounding 
individual eligibility or inclusion questions are peculiarly within the 
employer's knowledge and control, because the employer established its 
employees' terms and conditions of employment. Accordingly, we would 
firmly reject any suggestion that 21 days is generally an insufficient 
amount of time to prepare for a hearing on objections, simply because 
the employer might also have to prepare to present evidence regarding 
challenges. We also note that the amendments grant the regional 
director discretion to open the hearing at a later date in an 
appropriate case.\473\
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    \472\ Thus, parties typically are represented by an equal number 
of observers at the polls; the parties' observers are the ones who 
either challenge the voters or who observe one of the other parties 
or the Board agent challenge the voters; and the parties, who 
usually attend the count, discuss any challenges that were made 
before the ballots are counted in an attempt to resolve them. See 
Casehandling Manual Sections 11338.2, 11338.3, 11340.2, 11340.3, 
11340.9(a).
    \473\ Thus, the amendments to Sec.  102.69(c)(1)(ii) do not 
require that the hearing open 21 days from the tally (and 14 days 
from the filing of objections) in all cases. Instead, the amendments 
merely require the director to set the hearing for 21 days from the 
tally ``or as soon as practicable thereafter.''
---------------------------------------------------------------------------

    Finally, it bears emphasis that even prior to the NPRM, the post-
election hearing could involve both objections and challenge issues. 
Thus, the regional director has long had discretion to defer deciding 
eligibility issues until after an election, and parties could always 
challenge voters for cause at the election.
    Retired Field Examiner Michael Pearson suggests (Pearson 
Supplemental Statement) that the Board should require that post-
election hearings on objections and challenged ballots, like pre-
election hearings, continue on consecutive days until completed in 
order to avoid situations where multi-day hearings turn into multi-week 
affairs. The NPRM proposed to do just that, albeit not explicitly. 
Thus, proposed Sec.  102.69(d)(1)(iii) provided that the post-election 
hearing be conducted in accordance with Sec.  102.64 insofar as 
applicable, and proposed Sec.  102.64(c) provided that the hearing 
should continue from day to day until completed absent extraordinary 
circumstances. However, to avoid any possible confusion, the final rule 
provides in amended Sec.  102.69(c)(1)(iii) that the hearing on 
objections or on challenged ballots or on both shall continue from day 
to day until completed unless the regional director concludes that 
extraordinary circumstances warrant otherwise.\474\ This amendment is 
consistent with the policy set forth in Casehandling Manual Sections 
11365.3 and 11395.4, which provide that hearings on determinative 
challenges and objections ``should be held on consecutive days until 
completed.'' Conducting post-election hearings on consecutive days 
until completed serves the goal of expeditiously resolving questions 
concerning representation because in cases involving post-election 
hearings, the question concerning representation cannot be resolved 
until the hearing is completed. The amendment also renders Board 
procedures more transparent and uniform across regions.
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    \474\ As discussed above in connection with Sec.  102.64, we 
found unpersuasive the Chamber's objection to the proposal that pre-
election hearings continue on consecutive days until completed. We 
find equally unpersuasive any opposition to the amendment providing 
that post-election hearings will continue day to day until completed 
absent extraordinary circumstances. Indeed, we believe that a party 
and its attorney or consultant will have more lead time to rearrange 
their schedules, if necessary, to attend a multiday post-election 
hearing than they have with respect to the pre-election hearing, 
because under the amendments we are adopting the post-election 
hearing is supposed to open 21 days after the tally of ballots and 
14 days after the filing of objections. And, as noted previously, 
because the hearing on objections and determinative challenges only 
occurs after the election, many of the parties desiring labor 
attorneys or consultants to represent them in connection with the 
post-election hearings in all likelihood will have retained the 
attorneys and consultants before the objections will have been 
filed, in contrast to the pre-election scenario painted by some 
comments of unrepresented employers being taken by surprise by the 
filing of the representation petition and having to scramble to 
retain an attorney or consultant.
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D. Procedure at the Post-Election Hearing on Objections and Challenged 
Ballots
    The NPRM proposed that the post-election hearing would open with 
the parties stating their positions on any challenges and objections, 
followed by mandatory offers of proof as described in proposed Sec.  
102.66. 79 FR at 7333-34. SHRM complains that such an offer-of proof 
procedure would deprive parties of their right to a meaningful post-
election hearing.
    However, as discussed above in relation to Sec.  102.66, the Board 
has decided not to adopt the proposed mandatory offer-of-proof 
procedure at the pre-election hearing. The Board has likewise decided 
not to adopt the proposed mandatory offer-of-proof procedure at the 
post-election hearing. Instead, we have decided to codify hearing 
officers' discretion to require parties to make offers of proof and to 
permit hearing officers to rule on such offers.
    To the extent that SHRM would argue that such a discretionary 
offer-of proof procedure deprives parties of their right to a 
meaningful post-election hearing, we would find it unpersuasive. While 
parties have a right to a pre-election hearing under the NLRA, they 
have no right to a post-election hearing under the NLRA. See NLRB v. 
Hood Furniture Mfg. Co., 941 F.2d 325, 332 (5th Cir. 1991); NLRB. v. 
Metro-Truck Body, Inc., 613 F.2d 746, 751 (9th Cir. 1979), cert. 
denied, 447 U.S. 905 (1980). As discussed above even prior to the NPRM, 
regional directors could evaluate a party's objections and challenges 
and overrule them (without a hearing) if they did not raise substantial 
material issues. See also 29 CFR 102.69(d) (2009); Casehandling Manual 
Sections 11394.3, 11395.1. Moreover, hearing officers had discretion 
prior to the NPRM to require parties to make offers of proof before 
admitting evidence and to rule on the offers. See Casehandling Manual 
Section 11424.3(b); Hearing Officer's Guide at 38, 158 (``Offers of 
proof can be an effective tool for controlling and streamlining a 
hearing.''). As shown, an offer of proof is simply a tool to enable the 
hearing officer to determine whether it is appropriate to receive the 
evidence a party wishes to introduce. Thus, a party has no cause to 
complain if the hearing officer rejects proffered evidence that is not 
relevant to or probative of the matters to be determined at the post-
election hearing.
    Consistent with its complaints about the proposed offer-of-proof 
procedure to be used at the pre-election hearing, SHRM also complains 
that it is inappropriate for hearing officers, who may not even be 
attorneys, to administer a mandatory offer-of-proof procedure at the 
post-election hearing as well. Assuming that SHRM would argue that it 
is likewise inappropriate for hearing officers to administer the 
discretionary offer of proof procedure, we would find it unpersuasive. 
Indeed, the persuasive force of this contention is even weaker in this 
context than it was in the context of the pre-election hearing, because 
the statutory language regarding pre-election hearings is not 
controlling with respect to post-election hearings. While Section 
9(c)(1) of the NLRA gives parties a right to a pre-election hearing and 
provides that the hearing officer who

[[Page 74417]]

presides at the pre-election hearing shall make no recommendations with 
respect to the question the pre-election hearing is designed to answer, 
the NLRA contains no similar provisions regarding post-election 
hearings. Thus, prior to the amendments, hearing officers--whether 
field attorneys or nonattorney field examiners--could, and did, resolve 
credibility issues at the post-election hearing and could, and did, 
make recommendations regarding the ultimate disposition of the 
objections and determinative challenges. See 29 CFR 102.69(e) (2010) 
(``[U]pon the close of such a hearing, the hearing officer shall * * * 
prepare and caused to be served on the parties a report resolving 
questions of credibility and containing findings of fact and 
recommendations as to the disposition of the issues.''). And prior to 
the amendments, the courts regularly deferred to the hearing officer's 
evaluation of the evidence. See Amalgamated Clothing & Textile Workers 
Union v. NLRB, 736 F.2d 1559, 1562-63, 1564-65 (D.C. Cir. 1984) (``The 
Hearing Officer was uniquely well-placed to draw conclusions about 
credibility when testimony was in conflict[.]''). Accordingly, if, as 
was also true prior to the NPRM, the hearing officer is permitted to 
make findings of fact and to recommend the ultimate disposition of all 
issues in the case based on the record of the post-election hearing, we 
fail to see how it is inappropriate for a hearing officer to require, 
and rule on, offers of proof at the post-election hearing.\475\
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    \475\ As noted, the NPRM proposed that the post-election hearing 
would be conducted in accordance with Sec. Sec.  102.64, 102.65, and 
102.66, insofar as applicable. 79 FR at 7361. The final rule 
clarifies in amended Sec.  102.69(c)(1)(iii) that any party at the 
post-election hearing shall have the right to introduce into the 
record evidence of the significant facts that support the party's 
contentions and are relevant to the objections and determinative 
challenges that are the subject of the hearing. In contrast to 
amended Sec.  102.66(c), amended 102.69(c)(1)(iii) also makes clear 
that the hearing officer presiding over a post-election hearing may 
rule on offers of proof without consulting with the regional 
director. Prior to the NPRM, hearing officers presiding over post-
election hearings were not required to consult with regional 
directors before ruling on offers of proof. Moreover, as discussed 
above, hearing officers presiding over post-election hearings have 
greater authority than hearing officers presiding over pre-election 
hearings, because the former, unlike the latter have long been 
charged with making factual findings, credibility resolutions, and 
recommendations as to the ultimate disposition of the case. See, 
e.g., Casehandling Manual Section 11424.3(b). Furthermore, it will 
be clear to all parties prior to the opening of the post-election 
hearing which if any individual eligibility or inclusion questions 
will in fact be litigated at the post-election hearing. Thus, the 
post-election hearing, by definition, does not occur until after 
there are determinative challenges or objections, and the regional 
director sets the parameters for the post-election hearing on 
determinative challenges and objections prior to the opening of the 
post-election hearing. See, e.g., Casehandling Manual Section 
11428.1 (``The frame of reference for the hearing on objections/
challenges is the notice of hearing and order directing the hearing; 
the hearing officer must limit the hearing to the matters that the 
Regional Director has set for hearing.''). Similarly, amended Sec.  
102.69(c)(1)(iii) makes clear that briefs following the close of the 
post-election hearing shall be filed only upon special permission of 
the hearing officer and within the time and addressing the subjects 
permitted by the hearing officer. This is consistent with the pre-
NPRM practice. See Hearing Officer's Guide at 167.
---------------------------------------------------------------------------

    The amendment fully protects the rights of the parties. Offers of 
proof made at the post-election hearing are part of the record. See 
amended Sec.  102.69(d)(1)(i). Parties have a right to file exceptions 
to the hearing officer's decision with the regional director, and 
thereafter (in stipulated or directed election cases) to file a request 
for review with the Board. Sec.  102.69(c)(1)(iii), (2). Thus, if the 
regional director, or the Board, concludes that the hearing officer 
erred, the director or the Board is free to remand to case to the 
hearing officer to take additional evidence.
Sec. 102.71 Dismissal of Petition; Refusal To Proceed With Petition; 
Requests for Review by the Board of Action of the Regional Director
    The amendments to this section eliminate the now-outdated reference 
to carbon copies and clarify that extra copies of electronically-filed 
papers need not be filed.

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

    The amendments in these two subparts merely conform their 
provisions to amendments in Subpart C described above.\476\
---------------------------------------------------------------------------

    \476\ The final rule's amendments to these two subparts differ 
in some respects from the amendments made to these subparts by the 
December 22, 2011 final rule. In some instances, this is because the 
2011 final rule deferred for further consideration some of the 
proposed amendments that the Board has now decided to adopt. For 
example, because the 2011 final rule deferred for further 
consideration the proposal to eliminate the transfer procedure (76 
FR at 80171), the 2011 final rule did not delete the references to 
the transfer procedure in Sec. Sec.  102.77(b) and 102.86. 76 FR at 
80188-80189. Now that the Board has decided to eliminate the 
transfer procedure, the final rule deletes the references to the 
transfer procedure in Sec. Sec.  102.77(b) and 102.86. Similarly, 
the 2011 final rule deferred the proposals (79 FR at 7362-7363) to 
amend Sec. Sec.  102.83 and 102.84 to permit electronic filing of 
petitions and to require the simultaneous filing of the showing of 
interest with the petition. Now that the Board has decided to permit 
electronic filing of petitions and to require the simultaneous 
filing of the showing of interest, the final rule amends those 
sections to so provide. In other instances, the Board has concluded 
that certain amendments were not necessary. Because as discussed 
above in connection with Sec.  102.69, the Board has decided to 
reject the NPRM proposal (79 FR at 7360), which the 2011 final rule 
adopted (76 FR at 80187), to add a new paragraph (b) to Sec.  102.69 
addressing requests for review of regional director directions of 
elections, the final rule for example does not adopt the NPRM 
proposal (79 FR at 7363), which the 2011 final rule adopted (76 FR 
at 80189), to amend Sec.  102.86 to provide that in cases arising 
under Subpart E, posthearing procedure would be governed, insofar as 
applicable, by Sec. Sec.  102.63 through 102.69. Accordingly, just 
as was the case prior to the NPRM, the method of conducting the 
hearing and the procedure following the hearing in cases arising 
under Subpart E of part 102 will be governed, insofar as applicable, 
by Sec. Sec.  102.63 through 102.68. Because the Board has decided 
to reject the proposal to eliminate Subpart D of Part 101, it is not 
necessary to, and the final rule rejects the NPRM proposal (79 FR at 
7362) to, amend Sec.  102.77(b) to incorporate language from 
preexisting Sec.  101.23(e) to the effect that if a petition has 
been filed which does not meet the requirements for processing under 
Subpart D's expedited procedures, the regional director may process 
it under the procedures set forth in Subpart C. Under the final 
rule, that language remains in Sec.  101.23(e).
---------------------------------------------------------------------------

Subpart I--Service and Filing of Papers

Sec. 102.112 Date of Service; Date of Filing
    In the NPRM, the Board proposed to correct an omission concerning 
the effective date of service by electronic mail. The final rule 
provides that where service is made by electronic mail, the date of 
service shall be the date on which the message is sent. The Board did 
not receive any significant comments regarding this provision.
Sec. 102.113 Methods of Service of Process and Papers by the Agency; 
Proof of Service
    The final rule adds electronic mail as an approved method of 
service of Board papers other than complaints, compliance 
specifications, final decisions and orders in unfair labor practice 
cases, and subpoenas. The existing rules include regular mail, private 
delivery service and facsimile transmission (with consent), along with 
personal service and certified and registered mail. Related Sec.  
102.114 has provided for service of parties' papers by electronic mail 
since 2009. The amendment thus updates the Board's representation case 
procedures to reflect modern electronic communications technology.
    In general, there is little objection to adding electronic mail as 
an approved method of service. Of the few comments addressing these 
changes at all, PIA explicitly favors the service of Board documents by 
electronic mail,\477\ and

[[Page 74418]]

the Chamber raises no general objection to electronic service of 
representation case documents, with the exception of the voter 
list.\478\
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    \477\ PIA relatedly contends, however, that because electronic 
service of documents will speed the election process, there is no 
need to further speed the process by making other changes. The Board 
does not agree that just because electronic service will be an 
improvement, the other changes adopted in the final rule are 
unnecessary. Indeed, two improvements in efficiency are generally 
better than one. As discussed at greater length above, one of the 
goals of the final rule is to remove unnecessary barriers to the 
expeditious processing of representation cases. Permitting 
electronic service by itself plainly does not fully accomplish that 
goal.
    \478\ The Chamber's prediction of an electronic voter list 
inviting abuse is discussed in relation to Sec.  102.62.
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    AGC opposes electronic service because it might be defeated by spam 
filters and similar tools that are used to protect computer data and 
equipment. AGC surmises that this could lead to an increase in 
litigation surrounding the election process if parties fail to receive 
electronically-served documents, which could slow down the Board 
process. These concerns are, at best, speculative. Electronic service 
is very common, spam filters notwithstanding. The Board has yet to 
experience any dramatic increase in litigation due to spam filters 
intercepting parties' current electronic service of their papers in 
either representation or unfair labor practice proceedings. Moreover, 
the Board has received no significant complaints regarding spam filters 
in connection with its ongoing pilot program to electronically serve 
published Board and Division of Judges' decisions where parties have 
registered for such service. Thus, the Board has little reason to 
believe that spam filter problems will suddenly become pronounced when 
the Board itself begins serving representation case documents 
electronically.
    Indeed, parties will have provided their email addresses and 
fascimile numbers to the regional director when they filed their 
petitions and Statements of Positions and participated in a hearing 
pursuant to amended Sec. Sec.  102.61(a)(9), (b)(1), (c)(4), (d)(10), 
(e)(7); 102.63(b)(1-3)(ii); and 102.66(g)(2). At the time parties are 
providing this information, they may customize their email settings to 
ensure that the system does not inadvertently flag official documents 
as spam when they are sent by regional personnel from ``.gov'' 
domains.\479\ Furthermore, as already discussed in relation to Sec.  
102.60, any concerns about spam filters intercepting service of a 
petition will be mitigated by the practice of the regional offices to 
have a Board agent contact parties as soon as possible after the filing 
of a petition in order to facilitate the election process. See 
Casehandling Manual Section 11010. Upon implementation of this rule, 
the Board expects regional offices to additionally place follow up 
phone calls to all parties as soon as a decision and direction of 
election is sent by email or facsimile, to provide an added safeguard 
against delivery failures.
---------------------------------------------------------------------------

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

    In sum, the Board is not persuaded that spam filter interception 
will be such a significant problem that the agency should continue to 
use slower and more expensive means to transmit its documents to 
parties.
Sec. 102.114 Filing and Service of Papers by Parties; Form of Papers; 
Manner and Proof of Filing or Service; Electronic Filings
    The amendments to this section merely conform its provisions to 
certain amendments in Subpart C described above.
Sec. 103.20 Election Procedures and Blocking Charges; Filing of 
Blocking Charges; Simultaneous Filing of Offer of Proof; Prompt 
Furnishing of Witnesses
    Under the Board's prior rules, Sec.  103.20 was entitled ``Posting 
of election notices.'' As discussed above in connection with Sec.  
102.67, the final rule adopts the proposal to integrate its contents as 
modified into Sec.  102.67 of part 102.\480\ However, the NPRM also 
requested comment regarding the Board's blocking charge policy. 79 FR 
7334-35. As discussed below, the Board has decided to codify certain 
revisions to that policy here in Sec.  103.20. Accordingly, the final 
rule retitles Sec.  103.20 ``Election procedures and blocking charges; 
filing of blocking charges; simultaneous filing of offer of proof; 
prompt furnishing of witnesses.''
---------------------------------------------------------------------------

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

    The NPRM specifically asked for comments on various proposed 
revisions of the Board's blocking charge policy. As explained in the 
NPRM, the blocking charge policy is not codified in the current 
regulations. Rather, it is the product of adjudication and is described 
in the non-binding Casehandling Manual. See Casehandling Manual 
Sections 11730 to 11734.
    As explained in Section 11730 of the Casehandling Manual, ``The 
Agency has a general policy of holding in abeyance the processing of a 
petition where a concurrent unfair labor practice charge is filed by a 
party to the petition and the charge alleges conduct that would 
interfere with employee free choice in an election, were one to be 
conducted.'' This policy is designed to ensure that violations of the 
Act which interfere with employees' right to vote are remedied before 
any election is conducted. In other words, it ``blocks'' the election 
process until such time as a fair and free election can be held. 
Charges alleging conduct that is inherently inconsistent with the 
petition itself may also result in a petition being held in abeyance. 
See id. at Section 11730.3. However, there are significant exceptions 
to the general policy of having a charge ``block'' a petition. See id. 
at Section 11731. Accordingly, the filing of an unfair labor practice 
charge does not automatically cause a petition to be held in abeyance. 
Furthermore, ``the policy is not intended to be misused by a party as a 
tactic to delay the resolution of a question concerning representation 
raised by a petition.'' Id. at Section 11730.
    Some comments urge that the policy be maintained in order to ensure 
a free and uncoerced choice in selecting representatives for purposes 
of collective bargaining.\481\ In the view of these commenters, simply 
holding a rerun election will not fully and completely remedy the 
employer's unfair labor practices. As the AFL-CIO explains, this is so 
because there is a substantial risk that the tainted election will 
compound the effects of the unfair labor practices: an employee who 
voted against union representation under the influence of the 
employer's unlawful conduct is unlikely to reconsider the issue and 
change his or her vote in the rerun election. See NLRB v. Savair Mfg. 
Co., 414 U.S. 270, 277-78 (1973).\482\ Moreover, according to the AFL-
CIO, ``opening the ballots cast in a tainted election would only 
compound the effects of the unfair labor practices in the event that a 
majority votes against representation because it would create

[[Page 74419]]

the misimpression that the tally reflects the uncoerced choice of the 
voters.'' SEIU also asserts that holding a tainted election is an 
inherently coercive event separate and apart from the unfair labor 
practice giving rise to the taint, because it drills into the unit 
employees' minds the lesson that engaging in the election process is 
futile.
---------------------------------------------------------------------------

    \481\ See SEIU; AFL-CIO (Reply); UFCW; Testimony of Melinda 
Hensel on behalf of IUOE Local 150 II.
    \482\ SEIU (Reply) supports this observation by pointing out 
that it is grounded not only on its own long organizing experience, 
but also on social psychologists' research into the cognitive 
dissonance theory. According to SEIU, ``These experts have found 
that people will try to bring their attitudes in line with their 
actions, in order to reduce the dissonance in their minds.'' As Leon 
Festinger, the father of cognitive dissonance theory, explained, a 
classic example is when a person is forced to do something she may 
not support; ultimately, researchers have found that her attitude 
towards that issue becomes more positive than it otherwise would 
have been. See generally Leon Festinger, A Theory of Cognitive 
Dissonance (1957); Leon Festinger and James M. Carlsmith, Cognitive 
Consequences of Forced Compliance, Journal of Abnormal Psychology, 
Vol. 58, 203-210 (1959).
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    Other comments suggest changes in the blocking charge policy, 
including its elimination.\483\ Professor Samuel Estreicher suggests 
that application of the blocking charge policy be restricted to 
``unusual circumstances,'' because it is generally desirable to hold 
the election and defer consideration of contested matters to the post-
election stage. Other comments assert that the policy should be 
eliminated because it creates opportunities for needless delay of 
elections--particularly decertification elections.\484\ SHRM also 
points out that blocking charges can result in elections being delayed 
for many months, and asserts that blocking charges cause much of the 
significant election delays in representation cases.\485\ Some comments 
assert, specifically with respect to decertification elections, that 
experience shows that when unions have determined that they are likely 
to lose the upcoming election they will file unfair labor practice 
charges in order to block the election and frustrate the employees' 
efforts to end union representation.\486\
---------------------------------------------------------------------------

    \483\ Curiously, the IFA II claims a hindrance in being able to 
adequately respond to the solicitation for comments on the Board's 
blocking charge policy because the Board does not publish statistics 
including ``the number of blocking charges filed per year.'' Yet, 
the Board provided information to the IFA concerning elections held 
during the last 3 fiscal years that had previously been blocked for 
some period of time as part of a joint FOIA request during the 
comment period, along with the average and median number of days 
between petitions and election in cases in which blocking charges 
were filed. (We also provided similar information in response to a 
FOIA request from commenters in 2011, and additionally provided 
blocking charge information made publicly available by Professor 
Estreicher in his 2009 law review article referenced below.) We are 
thus not sympathetic to IFA's suggestion that lack of additional 
blocking charge statistics--statistics not included in their FOIA 
request--should cause the Board to extend the period of time to 
comment on potential changes to the blocking charge doctrine. In any 
event, IFA's initial position--that blocking charges delay 
elections--is unassailable based on the statistics provided to them, 
those analyzed by Professor Estreicher 5 years ago, and simple 
logic. We discuss below IFA's policy suggestions flowing therefrom.
    \484\ See, e.g., AHA II; COLLE; CDW; CNLP; PIA; NRMCA II.
    \485\ SHRM references a study conducted by Professor Estreicher 
of data pertaining to blocking charges filed in 2008, in which 
Professor Estreicher determined that the filing of blocking charges 
in a case increased the time to an election, on average, by 100 
days. Samuel Estreicher, Improving the Administration of the 
National Labor Relations Act Without Statutory Change, 25 ABA J. 
LAB. & EMP. L. 1, 9-10 (2009).
    \486\ See, e.g., NRTWLDF; Chamber II; COLLE.
---------------------------------------------------------------------------

    After careful consideration, the Board has decided to continue 
applying the blocking charge policy and to block elections in 
circumstances where unfair labor practice charges allege conduct that, 
if proven, would interfere with employee free choice in an election or 
would be inherently inconsistent with the petition itself, and no 
special circumstances are present that would warrant further processing 
the petition in the face of the charges. The Board is duty bound to 
ensure that employees can express their choice of representative free 
of unlawful coercion, and regional directors will therefore not 
generally process a petition through to an election in the face of a 
pending charge if they believe employee free choice is likely to be 
impaired. Furthermore, we agree that holding a tainted election results 
in damage beyond that caused by the employer's unfair labor practices, 
which damage cannot be fully remedied simply by conducting a rerun 
election. As the Fifth Circuit noted in Bishop v. NLRB, 502 F.2d 1024, 
1028 (5th Cir. 1974), the salutary purposes for imposing the blocking 
charge policy, a policy the Board has followed since 1937, ``do not 
long elude comprehension.''
    Nevertheless, the Board is sensitive to the allegation that at 
times, incumbent unions may abuse the policy by filing meritless 
charges in order to delay decertification elections.\487\ To that end, 
the Board notes that the General Counsel already has in place 
procedures requiring the expedited investigation of blocking charges in 
an effort to ensure that non-meritorious charges do not delay 
elections. Under the agency's Impact Analysis system for prioritizing 
the processing of cases, blocking charge cases are designated as 
Category III (Exceptional) cases, which have the highest priority and 
the shortest time goals for disposition. See Casehandling Manual 
Section 11740.
---------------------------------------------------------------------------

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

    The Board has also decided to codify several new practices to 
protect against abuse of the blocking charge policy by those who would 
use the unfair labor practice procedures to unnecessarily delay the 
conduct of elections. Parallel to the amendments to Sec.  102.61(a)(7), 
(b)(8) and (c)(8) providing for the simultaneous filing of the showing 
of interest with election petitions, and Sec.  102.69(a) providing for 
the simultaneous filing of offers of proof together with election 
objections, the Board's amendments to Sec.  103.20 will require any 
party to a representation proceeding that files an unfair labor 
practice charge together with a request that it block the processing of 
the petition to simultaneously file a written offer of proof. The offer 
of proof must provide the names of the witnesses who will testify in 
support of the charge, and a summary of their anticipated testimony. If 
the regional director determines that the party's offer of proof does 
not describe evidence of conduct that, if proven, would interfere with 
employee free choice in an election or would be inherently inconsistent 
with the petition itself, and thus would require that the processing of 
the petition be held in abeyance absent special circumstances,\488\ the 
regional director will continue to process the petition and conduct the 
election where appropriate. The party seeking to block the processing 
of the petition must also promptly \489\ make the witnesses identified 
in its offer of proof available to the regional director so that the 
director can promptly investigate the charge, as required by Section 
11740.1 of the Casehandling Manual.\490\ These practices will serve to 
provide the regional director with the information necessary to assess 
whether the unfair labor practice charges have sufficient support and 
involve the kind of

[[Page 74420]]

violations that warrant blocking an election, or whether the charges 
are filed simply for purposes of delay. This information will also be 
provided within a time frame that will assist the regional director in 
making a more expeditious decision on whether to hold the petition in 
abeyance. Of course, even after the initial decision to hold a petition 
in abeyance, if it is determined that a charge lacks merit, the 
regional director will resume processing the petition.
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    \488\ Our use of the term ``special circumstances'' is merely 
intended to recognize the longstanding reality that regional 
directors have discretion to continue to process petitions 
notwithstanding the pendency of charges that would otherwise result 
in a petition being held in abeyance. In this way, regional 
directors will continue to have discretion to engage in a balancing 
of relative hardships concerning the blocking of an election as 
requested by comments such as IFA II. See Section 11731.2 of the 
Casehandling Manual.
    \489\ Although the NPRM had used the descriptor ``immediately'' 
in describing when the filer of a blocking charge must make the 
witnesses identified in its offer of proof available to the regional 
director, the final rule uses the descriptor ``promptly'' to avoid 
the connotation that the filer must physically bring the witnesses 
along with them in order to file a blocking charge in one of the 
Board's regional offices. We think that the requirement of prompt 
witness availability will be adequate to ensure an avoidance of 
unnecessary delay in the investigation of blocking charges.
    \490\ Similarly, the final rule provides in amended Sec.  103.20 
that if a party files a petition after filing an unfair labor 
practice charge and then subsequently requests that its previously 
filed unfair labor practice charge block further processing of the 
petition, the party must likewise simultaneously file an offer of 
proof and also promptly make available to the regional director the 
witnesses identified in its offer of proof. The final rule likewise 
provides that even if a party requests that its previously filed 
unfair labor practice charge block further processing of the 
petition, the regional director should continue to process the 
petition and conduct the election where appropriate if the regional 
director determines that the party's offer of proof does not 
describe evidence that, if proven, would interfere with employee 
free choice in an election or would be inherently inconsistent with 
the petition itself.
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    Implementation of these new practices is supported by comments 
representing employer, employee and labor organization interests who 
agree that requiring simultaneous offers of proof and prompt witness 
availability will expedite the investigation of blocking charges.\491\ 
And expediting such investigations will necessarily remove an 
unnecessary barrier to the fair and expeditious resolution of questions 
concerning representation.
---------------------------------------------------------------------------

    \491\ See AHA II; NRTWLDF; AFL-CIO; NNU.
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    The only significant opposition to either the offer of proof 
requirement or the production of witnesses requirement was submitted by 
SEIU, which opposes the offer of proof requirement on the basis that 
parties are already obligated to cooperate with Board agents, and it is 
unclear whether SEIU's objection is simply that the requirement is 
redundant. The Casehandling Manual does generally require petitioners 
to cooperate with Board agents in processing petitions,\492\ and 
requires charging parties to cooperate with Board agents investigating 
unfair labor practice charges.\493\ We view, however, the addition of 
both the offer of proof requirement and the production of witnesses 
requirement to the Rules and Regulations as important explications of 
the duty to cooperate and not mere redundancies.
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    \492\ Casehandling Manual (Part Two) Representation Proceedings 
Section 11012.1.
    \493\ Casehandling Manual (Part One) Unfair Labor Practice 
Proceedings Section 10054.1.
---------------------------------------------------------------------------

    We decline to adopt the AFL-CIO's suggestion that the Board 
proclaim it presumptively appropriate to seek preliminary injunctive 
relief under 29 U.S.C. 160(j) to remedy an unfair labor practice charge 
that has blocked an election. Under the express language of Section 
10(j) of the Act, the issuance of a complaint is a necessary predicate 
to any decision to seek injunctive relief in the Federal district 
courts, and the General Counsel's discretion to issue complaints--and 
to accept pre-complaint settlements and post-complaint but pre-hearing 
informal settlements--is unreviewable by the Board. See NLRB v. UFCW, 
Local 23, 484 U.S. 112, 118-33 (1987).\494\ In addition, injunction 
litigation obviously involves the expenditure of significant resources 
by the agency, and obtaining a 10(j) injunction from a district court 
requires the court to engage in a case-specific inquiry.\495\ To be 
sure, since the 1950s, with limited exceptions, the Board has reserved 
to itself the privilege of approving any plans by the General Counsel 
to pursue Section 10(j) injunction proceedings,\496\ but no prior Board 
has sought to exercise greater control over the General Counsels' 
discretion, even in the face of widely varying use of the preliminary 
injunction as an enforcement tool.\497\ Thus, we decline the invitation 
to cabin the General Counsel's prosecutorial discretion in making the 
initial determination whether a particular complaint warrants the 
agency pursuing Section 10(j) injunctive relief. By declining, however, 
we do not mean to suggest that it would be inappropriate in a 
particular case for the General Counsel to seek injunctive relief to 
remedy unfair labor practices that have blocked an election.
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    \494\ In contrast, under the Board's existing regulations, 
parties have long enjoyed an opportunity to request Board review of 
a decision to hold a petition in abeyance under the blocking charge 
policy. See Sec.  102.71(b) (``Where the regional director * * * 
directs that the proceeding on the petition be held in abeyance, and 
such action is taken because of the pendency of concurrent 
unresolved charges of unfair labor practices, and the regional 
director, upon request, has so notified the parties in writing, any 
party may obtain a review of the regional director's action by 
filing a request therefor with the Board in Washington, DC . . .'').
    \495\ See Chester v. Grane Healthcare Co., 666 F.3d 87, 93-94 
(3d Cir. 2011) (cataloguing the varying standards employed by the 
circuit courts in deciding whether the facts of a particular unfair 
labor practice case warrant injunctive relief).
    \496\ See Frankl v. HTH Corp., 650 F.3d 1334, 1352 (9th Cir. 
2011).
    \497\ See Catherine L. Fisk & Deborah C. Malamud, The NLRB in 
Administrative Law Exile: Problems with its Structure and Function 
and Suggestions for Reform, 58 Duke L. J. 2013, 2030 tbl. 1 (2009) 
(demonstrating the range of 10(j) injunctions filed per year over 
the last several decades from a high of 78 in 1995 to a low of 10 in 
2004); see also NLRB Performance Accountability Report, 5, 38 
(Fiscal Year 2013) (reporting that 10(j) injunctions were authorized 
in 41 cases out of the 1,272 total complaints issued that year).
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    We further decline to adopt AHA II's preferred change to the 
blocking charge policy, that ``unless the regional director finds that 
there is probable cause to believe that an unfair labor practice was 
committed that requires that the processing of the petition be held in 
abeyance, the regional director shall continue to process the 
petition.'' 79 FR 7334. SEIU argues that implementing this change would 
improperly shift the presumption away from the one described in the 
Casehandling Manual, where a charge can serve to block the processing 
of a representation case unless the regional director finds that 
employees' exercise of free choice is possible notwithstanding the 
charge, to one where the petition is processed unless and until the 
regional director makes a further determination concerning the 
likelihood of a complaint issuing and the seriousness of the unfair 
labor practice involved. As described above, we believe that regional 
directors should generally continue to process petitions if the 
directors determine that the charging party's offer of proof does not 
describe sufficient evidence to warrant blocking an election. On the 
other hand, in situations where parties have raised sufficient offers 
of proof, we believe that the presumption should run in favor of 
holding in abeyance the processing of the petition absent special 
circumstances. In short, we cannot agree that reversing the presumption 
to one where the election proceeds in the face of a charge of unlawful 
conduct unless the regional director makes an additional probable cause 
determination would be a further improvement. Rather, such a standard 
could cause a regional director to conduct an election in circumstances 
where conduct has occurred that has a tendency to interfere with 
employee free choice, simply because the director was not yet able to 
make the requisite additional determination.\498\
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    \498\ For the same reason we reject IFA II's suggestion that the 
Board should require a ``charging party to establish a likelihood of 
success on the merits'' before a representation petition would be 
blocked.
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Part 101, Subpart C--Representation Cases Under Sec. 9(c) of the Act 
and Petitions for Clarification of Bargaining Units and for Amendment 
of Certifications Under Sec. 9(b) of the Act

    In the NPRM, the Board proposed to eliminate redundant sections of 
its regulations contained in Subpart C of Part 101 describing 
representation case procedures. The relevant sections of Subpart C of 
Part 101 currently include an essentially complete restatement of the 
representation case procedure established in Subpart C of Part 102. As 
the Board noted in the NPRM, ``Describing the same representation 
procedures in two separate parts of the regulations may create 
confusion.'' 79 FR at 7325.
    The final rule eliminates Subpart C of Part 101. A few, non-
redundant portions are moved into Part 102. For example, the 
description of the pre-election conference is moved to Sec.  102.69(a).

[[Page 74421]]

    The Board received no significant comments opposing this proposal. 
Comments from a variety of viewpoints supported the Board's effort to 
eliminate redundant regulations.
    As noted in the NPRM, Sec.  101.1 states that the purpose of Part 
101 is to provide the public with a statement of ``the general course 
and method by which the Board's functions are channeled and 
determined.'' \499\ The purpose of a separate statement of the general 
course ``is to assist the public in dealing with administrative 
agencies,'' but should not be ``carried to so logical an extreme as to 
inconvenience the public.'' \500\ The NPRM stated that codifying this 
statement in the Code of Federal Regulations risked confusing the 
public. Instead, the Board proposed to publish the statement in the 
Federal Register without codification. This accords with general 
administrative practice.\501\ The NPRM contained an uncodified 
statement of the general course, 79 FR at 7324-7325, and proposed that 
any final rule that might issue would also include an uncodified 
statement of the general course. A Statement of the General Course of 
Proceedings Under Section 9(c) of the Act is provided below.\502\
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    \499\ See 5 U.S.C. 552(a)(1)(B). The original language of this 
provision stated that the section would ``amplify and supplement 
the[] rules of procedure.'' 12 FR 5651 (August 22, 1947).
    \500\ Tom C. Clark, Attorney General's Manual on the 
Administrative Procedure Act, 17, 19 (August 27, 1947).
    \501\ See, e.g., 26 CFR 601.702(a)(1)(ii) (``[T[he Commissioner 
publishes in the Federal Register from time to time a statement, 
which is not codified in this chapter, on the organization and 
functions of the IRS.'').
    \502\ The Board will also continue to publish, update, and make 
available on its Web site the detailed statement of representation 
case procedures set forth in its Casehandling Manual.
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    Prior Sec.  101.18 provided, ``The evidence of representation 
submitted by the petitioning labor organization or by the person 
seeking decertification is ordinarily checked to determine the number 
or proportion of employees who have designated the petitioner, it being 
the Board's administrative experience that in the absence of special 
factors the conduct of an election serves no purpose under the statute 
unless the petitioner has been designated by at least 30 percent of the 
employees.'' ALFA submits that revised Sec.  102.61 should explicitly 
state that a proper showing of interest must include authorization 
cards or signatures from 30 percent of the employees in an appropriate 
unit. The Board declines to adopt this proposal. The Board's current 
Rules and Regulations set forth in Part 102 do not specify a precise 
threshold for the administratively required showing of interest. As 
explained in former Sec.  101.18, the purpose of the showing of 
interest on the part of labor organizations and individual petitioners 
that initiate or seek to participate in a representation case is merely 
to determine whether there is sufficient employee interest in 
selecting, changing or decertifying a representative to warrant the 
expenditure of the agency's time, effort, and resources in conducting 
an election. See also Casehandling Manual Section 11020. As such, the 
purpose of the showing of interest is purely an administrative one; the 
size of the showing of interest in support of certification and 
decertification petitions that the Board currently requires is not 
compelled by the Act. As an administrative matter it is not litigable. 
The Borden Co., 101 NLRB 203, 203 n.3 (1952); Casehandling Manual 
Section 11028.3. However, at this time, the Board has no intention of 
changing the size of the required showing of interest and the 
uncodified statement of the general course that follows states that the 
required showing remains 30 percent.\503\
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    \503\ The Board's form petition, Form NLRB 502 also states, and 
will continue to state, that the required showing of interest is 30 
percent (see Form section 6(b)).
    In response to comments that erroneously suggest that 30 percent 
is the threshold for resolving a question of representation, the 
Board reiterates here that if a question of representation exists, 
it is resolved by a majority of valid votes cast in an election.
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Part 101, Subparts D and E-- Unfair Labor Practice and Representation 
Cases Under Secs. 8(b)(7) and 9(c) of the Act and Referendum Cases 
Under Sec. 9(e)(1) and (2) of the Act

    In the NPRM, the Board also proposed to eliminate its statement of 
procedures contained in Subparts D and E of part 101. The Board 
received no significant comments regarding the proposal. Upon 
reflection, however, a unanimous Board has decided to reject the 
proposal to eliminate Subparts D and E of part 101. Unlike prior 
Subpart C of part 101, Subpart D of part 101 does not merely address 
representation case procedures. Rather, it also addresses unfair labor 
practice charges and procedures. Thus, Subpart D is entitled ``Unfair 
Labor Practice and Representation Cases Under Sections 8(b)(7) and 9(c) 
of the Act.'' (Emphasis added.) Although Subpart D of part 102 likewise 
discusses procedures for unfair labor practice and representation cases 
under Sections 8(b)(7) and 9(c) of the Act, the NPRM did not propose 
eliminating other subparts of part 101 setting forth statements of 
procedures for unfair labor practice cases, even though certain other 
subparts of part 102 address the same matters.\504\ Thus, the NPRM 
proposed amendments dealing with, and invited comment about, 
representation case procedures. The Board concludes that it would be 
more appropriate to consider eliminating Subpart D of part 101 at such 
time as the Board may consider eliminating any redundancies in those 
other subparts of part 101 and part 102 that address unfair labor 
practice matters. Accordingly, the Board has concluded that it should 
not eliminate Subpart D of part 101 at this time.
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    \504\ For example, while Subpart B of part 101 describes 
procedures for unfair labor practice cases under Section 10(a) to 
(i) of the Act, Subpart B of part 102 also addresses procedures 
under Section 10(a) to (i) of the Act for the prevention of unfair 
labor practices.
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    The Board has likewise unanimously decided not to eliminate Subpart 
E of part 101. Subpart C of part 101 chiefly deals with the Board 
procedures that govern the filing and processing of petitions to 
determine whether employees wish to become or remain represented for 
purposes of collective bargaining with their employer. Unlike Subpart C 
of part 101, Subpart E deals with a highly specialized type of case--
arising under Section 9(e)(1) and (2) of the Act--addressing the issue 
of whether the Board should conduct an election to determine whether 
the employees in a bargaining unit covered by an agreement between 
their employer and a labor organization that requires membership in the 
labor organization as a condition of employment, desire that such 
authority be rescinded. Regardless of the outcome of the election 
conducted pursuant to Subpart E, the unit employees remain represented 
vis-[agrave]-vis their employer. During fiscal years 2010-2013, parties 
filed fewer than 80 petitions per year of the type addressed in Subpart 
E of Part 101 and 102. Although Subpart E of part 102 likewise 
discusses procedures for referendum under Section 9(e) of the Act, the 
NPRM did not propose eliminating other subparts of part 101 setting 
forth statements of procedures for other specialized sets of cases that 
do not deal with ordinary representation case issues, even though other 
subparts of part 102 address the same matters.\505\ The Board has 
concluded that it would be more appropriate to consider eliminating 
Subpart E of part 101 at such time as the Board may consider

[[Page 74422]]

eliminating other redundancies in those other subparts of parts 101 and 
102 that address highly specialized sets of cases. Accordingly, the 
Board has concluded that it should not eliminate Subpart E of part 101 
at this time.
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    \505\ For example, the NPRM did not propose to eliminate Subpart 
F, which sets forth statements of procedures for jurisdictional 
dispute cases under Section 10(k) of the Act, even though Subpart F 
of part 102 also addresses procedures to hear and determine disputes 
under Section 10(k) of the Act.
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    The final rule conforms representation and referendum procedures in 
these two subparts as described therein to amendments set forth 
below.\506\
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    \506\ The final rule's amendments to these two subparts differ 
in some respects from the amendments made by the December 22, 2011 
final rule. In some instances, this is because the 2011 final rule 
deferred other proposals which the final rule now adopts. For 
example, the 2011 final rule deferred the proposal to eliminate the 
transfer procedure. Accordingly, the 2011 final rule did not amend 
Sec.  101.30(c) to delete the references to the transfer procedure. 
76 FR 80182. Now that the Board has decided to eliminate the 
transfer procedure, the final rule deletes the references to the 
transfer procedure in Sec.  101.30(c). In other instances, the Board 
has concluded that certain amendments to Subpart D were not 
necessary. For example, the 2011 final rule amended Sec.  101.23(b) 
to provide that if the regional director directed an election 
without first conducting a hearing, an aggrieved party should file a 
request for review of that action after the election. 76 FR 80181. 
However, the NPRM did not propose to amend, and the 2011 final rule 
did not amend, Sec.  102.80(c), which provides that if the regional 
director directs an election without first conducting a hearing in a 
proceeding arising under Subpart D, a party may file a request for 
special permission to appeal. Accordingly, the final rule preserves 
the ``special permission to appeal'' language in Sec.  101.23(b) 
from the pre-NPRM version of that section. The final rule also 
preserves the pre-existing language to the effect that the regional 
director's rulings on election objections and challenged ballots are 
final and binding unless the Board grants a party special permission 
to appeal from the regional director's rulings. The 2011 final rule 
provided in Sec.  101.30(c) that in cases arising under Subpart E of 
Part 101, post-hearing briefs could be filed only upon special 
permission of the hearing officer. 76 FR 80182. However, as 
discussed below in connection with Sec.  102.66, the Board has 
decided that the regional director, not the hearing officer, should 
be the one to decide whether parties may file posthearing briefs. 
Accordingly, the final rule amends Sec.  101.30(c) to so provide.
---------------------------------------------------------------------------

VI. Response to the Dissent

    In August 2013, for the first time in over 10 years, a full 
complement of five confirmed members of the National Labor Relations 
Board was sworn in to office. Soon afterward, the Board took up the 
long-delayed project of examining and revising its procedural rules for 
representation cases. With the issuance of this final rule, the project 
has been completed. At every stage, from establishing the framework for 
review of existing procedures, to structuring the public comment 
periods and the full-Board public hearing, to deliberations and voting 
on specific provisions and issues, to the exchange of drafts of the 
various parts of the final rule, the Board's work has been marked by 
the full and earnest engagement of each of the Board's members, and the 
frank and open exchange of ideas among all of the members. Combined 
with the extraordinary outpouring of detailed and insightful commentary 
from the public, during both the most recent comment period and the 
2011 period, in written comments and at the full-Board public hearings, 
the Board members' painstaking efforts have resulted in a remarkably 
thorough and thoughtful consideration of the proposed amendments. The 
care with which the issues have been considered is evident throughout 
the final rule, from the preamble, to the dissent, to the regulatory 
text itself.
    We wish that the Board could have been unanimous as to every 
amendment contained in the final rule. Perhaps it was inevitable, given 
the broad range of differing experiences and viewpoints represented on 
the Board that a full consensus as to every issue would not be reached. 
However, as to many of the features of the rule, listed below, there is 
no substantive disagreement among the Board members. Even more 
importantly, the deliberations, discussions and exchanges of ideas 
among Board members have proved the value of having a diversity of 
perspectives and backgrounds on the Board. The final rule differs from 
the proposed rule in many ways, both large and small, and in virtually 
every key aspect of the rule. Most of these departures from the 
original proposal, which are summarized below, were prompted by 
criticisms and concerns raised by our dissenting colleagues, as well as 
the public comments. The rule has been greatly improved as a result.
    Before we address the specific differences that remain among the 
Board members, we offer a general observation: The most significant 
remaining differences among the Board members stem from a difference in 
approach. The approach of the majority, as explained in the preamble 
and below, has been to address discrete problems with targeted 
solutions, while maintaining the essential elements of the existing 
process. These solutions variously advance the goals of efficiency, 
fair and accurate voting, transparency, uniformity, and adapting to new 
technology, totally apart from, or in addition to, fulfilling the Act's 
mandate of expeditious resolution of questions of representation. Much 
of the dissent, by contrast, focuses single-mindedly on one issue: the 
timeline from petition to election. The possible effect of each 
amendment on this timeline is the main concern of the dissent, to the 
virtual exclusion of the problem sought to be addressed. Indeed, the 
dissent proposes the creation of a mandatory timeline for the 
scheduling of elections. That is something that, over the nearly 80 
years of the Act's existence, both Congress and the Board have declined 
to do. We decline to do so as well. In just the past several years, the 
Board has conducted elections in units smaller than 5 employees and 
units of nearly 50,000 employees, in a vast multitude of different 
industries and geographic locations. To us, the imposition of a one-
size-fits-all timeline on our elections makes no sense. Instead, we 
think that the regional directors should continue to hold elections as 
soon as practicable in the circumstances of each case. Where there is 
no need to wait, the election should proceed; where there is a need to 
wait, the election should not proceed.
    This view, that elections should be scheduled for the ``earliest 
date practicable,'' \507\ reflects the settled view of the Board over 
the course of its history. The current Casehandling Manual states (at 
11302.1) that ``election[s] should be held as early as is practical,'' 
and the same statement is found in similar manuals dating back at least 
to the 1970s. And while the Act does not include that language, its 
very structure and relevant provisions demonstrate consistent and 
repeated support for that goal. Its terse and nontechnical description 
of procedures,\508\ its broad delegation of discretion regarding the 
``appropriate hearing,'' \509\ its prohibition of any court 
interference with or direct court review of election procedures,\510\ 
its purpose in authorizing the delegation of decision-making authority 
to regional directors,\511\ and its specific and unique exemption from 
APA adjudication procedures \512\ all manifest a consistent and 
powerful concern with the expeditious resolution of questions 
concerning representation, as has been recognized in Supreme Court 
opinions and in the relevant legislative history.\513\
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    \507\ Section 102.67(b).
    \508\ See Section 9(c) of the Act (29 U.S.C. 159(c)).
    \509\ See Id.; Inland Empire Council v. Millis, 325 U.S. 697, 
706-710 (1945).
    \510\ See Section 9(d) of the Act (29 U.S.C. 159(d)); Boire v. 
Greyhound Corp., 376 U.S. 473, 476-480 (1964).
    \511\ See Section 3(b) of the Act (29 U.S.C. 153(b)); Magnesium 
Casting Co. v. NLRB, 401 U.S. 137, 138, 141-142 (1971).
    \512\ See Section 5(6) of the APA (5 U.S.C. 554(a)(6)); S. Rep. 
No. 752, 79th Cong., 1st Sess. 16 (1945); Senate Committee on the 
Judiciary Comparative Print on Revision of S. 7, 79th Cong., 1st 
Sess. 7 (1945).
    \513\ Our colleagues note, as they did in their dissent to the 
NPRM (79 FR at 7341 n.92) that other Board doctrines impose lengthy 
delays before the Board permits employees to vote on questions of 
representation, and they contend that the Board is irrationally 
reformulating its representation case processing procedures for 
greater expedition in the initial election context only. However, in 
the circumstances identified by our colleagues, employees have 
already had at least one opportunity to choose whether they wish to 
be represented, and the delay in affording them another opportunity 
advances the interest in industrial peace and stability. See UGL-
UNICCO Service Co., 357 NLRB No. 76 (2011) (successor bar doctrine 
``clearly promotes collective bargaining'' and preserves 
``stability''); Lamons Gasket Co., 357 NLRB No. 72 (2011) voluntary 
recognition bar ``advance[s] the statutory purposes of preventing 
`industrial strife or unrest' and `encouraging the practice and 
procedure of collective bargaining' ''); Brooks v. NLRB, 348 U.S. 
96, 100-101 n.8 (1954) (Section 9(c)(3) provides that after a valid 
election has been conducted, the Board may not hold a second 
election in the same unit for 1 year ``in order to impress upon 
employees the solemnity of their choice . . . . ''); Auciello Iron 
Works, Inc. v. NLRB, 517 U.S. 781, 786-87 (1996) (``need for 
repose'' and ``industrial peace'' underly the presumption that a 
union is entitled to a conclusive presumption of majority status 
during the term of a collective-bargaining agreement of 3 years or 
less); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38-
39 (1987) (``develop[ing] stable bargaining relationships'' will 
``further industrial peace,'' considerations which underlie 
presumptions of majority support ``particularly * * * in the 
successorship situation''); Terrace Gardens Plaza, Inc. v. NLRB, 91 
F.3d 222, 227 (D.C. Cir. 1996) (contract-bar doctrine designed ``to 
stabilize existing employer-union relationships''). By contrast, in 
an initial organizing situation the interest of industrial peace is 
furthered by expedition rather than repose, and thus the Board's 
approach is rational and accords with statutory policy. Certainly, 
there is no support for our colleagues' implicit suggestion that the 
waiting periods were designed to afford employers an opportunity to 
campaign against union representation, and that the Board should 
therefore impose a waiting period in the initial election context as 
well.

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[[Page 74423]]

A. Building on a Sound Foundation

    The final rule does not change the essentials of the representation 
case process. As before, a petition starts the process; it must be 
supported by a sufficient showing of interest. Upon service of the 
petition by the regional office, employers are asked to post a notice 
of employee rights and to provide information in response to the 
petition. In the event the parties do not enter into an election 
agreement, there is a pre-election hearing. The hearing enables the 
regional director to determine whether there is a question of 
representation and, if so, determine the appropriate voting unit. The 
parties may seek Board review of the regional director's decision. 
Prior to the election, the employer provides the voters' contact 
information to the other parties and posts a notice of the election. 
The notice permits employees to know the unit in which the election 
will be conducted and when, where, and how they may vote. There is a 
secret-ballot election. There is a tally. Any determinative challenges 
or objections are litigated and resolved. The results are certified and 
Board review may be sought.
    Contrary to our dissenting colleagues, the final rule does not 
disturb these fundamental elements. Rather, the final rule is a 
collection of discrete, targeted changes to the technical details. Each 
of these changes serves a distinct set of purposes, including 
minimizing unnecessary barriers to the fair and expeditious resolution 
of questions concerning representation, eliminating unnecessary and 
duplicative litigation, simplifying representation case procedures and 
rendering them more transparent and uniform across regions, reducing 
the cost of such proceedings to the public and the agency, and 
modernizing the Board's processes, with a particular emphasis on the 
effective use of new technology. The Board has carefully examined and 
addressed a number of needed changes in a single rulemaking process in 
an effort to advance these various goals while preserving the essential 
steps of the representation case process.

B. Protecting Free Speech and Debate

    The final rule does not change any rules regarding speech. And just 
as existing procedures have never been criticized for limiting speech, 
we do not think this final rule will create any new free speech issues. 
Yet the dissent argues that speech, specifically employer speech, will 
be limited because the final rule will not give the employer enough 
time to mount an election campaign. But whenever a date for an election 
is fixed, a limit is necessarily placed on campaign speech. Bearing 
this fact in mind, the relevant question is whether the procedures will 
provide a meaningful opportunity for employer, employee and union 
speech. The preamble includes a far-ranging, thoughtful, and careful 
consideration of this question, and concludes that the rule provides a 
meaningful opportunity for campaign speech before the election. 
Advances in communications technology have made the dissemination of 
information not only faster, but also more effective and efficient. 
Also, the scope of the campaigns is often limited, as elections 
frequently involve small bargaining units of no more than a couple 
dozen employees. There are also pre-petition opportunities to speak, 
which the final rule does not affect at all; the parties often know of 
the campaign in advance.
    Regarding employer speech in particular: employers have near-
complete and continuous access to employees to engage in various forms 
of communications, including electronic, print, and in-person--in large 
and small groups and individually--and may require attention to such 
communications as a condition of employment.\514\ Finally, the regional 
director will retain discretion to consider these matters in selecting 
an election date.
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    \514\ The Board considered similar factors when it established 
the Excelsior rule, which requires that the employer provide the 
names and addresses of voters to the petitioning union at least 10 
days prior to the election. 156 NLRB 1236, 1239-41 (1966); see Mod 
Interiors, 324 NLRB 164, 164 (1997); Casehandling Manual Section 
11302.1. The Board considered this an adequate time period for 
previously unreachable voters to be exposed to the nonemployer party 
arguments concerning representation. That analysis remains relevant 
in considering employers' opportunity to campaign.
    The dissent is also mistaken in its claim that the rule does not 
consider employee opportunities to speak. The dissent overlooks the 
final rule's discussion of employee speech and debate. In any event, 
to the extent the preamble focuses on employer speech, such 
discussion is for the purpose of responding to relevant comments.
---------------------------------------------------------------------------

    We agree with the dissent that these opportunities for free speech 
and debate ``are part and parcel of every employment relationship.'' So 
much the better. Such structural opportunities for free speech and 
debate by employees and their employer--which are unique to the 
workplace environment--are especially persuasive evidence in support of 
our view that the final rule will not have the effect of creating 
``undue restrictions on protected speech'' in Board elections.\515\
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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.
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    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\
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    \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.
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    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\
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    \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.
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    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.
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    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\
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    \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.
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    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\
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    \525\ It should also be noted that parties are also free to 
submit affidavits supporting their proffers.
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    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.
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    \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 comme