[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Rules and Regulations]
[Pages 69524-69600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26920]



[[Page 69523]]

Vol. 84

Wednesday,

No. 243

December 18, 2019

Part III





National Labor Relations Board





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





29 CFR Part 102





Representation-Case Procedures; Final Rule

  Federal Register / Vol. 84 , No. 243 / Wednesday, December 18, 2019 / 
Rules and Regulations  

[[Page 69524]]


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

NATIONAL LABOR RELTATIONS BOARD

29 CFR Part 102

RIN 3142-AA12


Representation-Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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

SUMMARY: The National Labor Relations Board has decided to issue this 
final rule for the purpose of carrying out the provisions of the 
National Labor Relations Act (the 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 modify them to permit 
parties additional time to comply with various pre-election 
requirements instituted in 2015, to clarify and reinstate some 
procedures that better ensure the opportunity for litigation and 
resolution of unit scope and voter eligibility issues prior to an 
election, and to make several other changes the Board deems to be 
appropriate policy choices that better balance the interest in the 
expeditious processing of questions of representation with the 
efficient, fair, and accurate resolution of questions of 
representation.

DATES: This rule is effective April 16, 2020.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half Street SE, 
Washington, DC 20570-0001, (202) 273-2917 (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 
employees should be represented for purposes of collective bargaining, 
Section 9 of the Act, 29 U.S.C. 159, gives the Board the authority to 
resolve the question of representation. The Supreme Court has 
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).
    Representation case procedures are set forth in the statute, in 
Board regulations, and in Board caselaw.\1\ The Board's General Counsel 
has also prepared a non-binding Casehandling Manual describing 
representation case procedures in detail.\2\
---------------------------------------------------------------------------

    \1\ The Board's binding rules of representation procedure are 
found primarily in 29 CFR part 102, subpart D. 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 Act itself sets forth only the basic steps for resolving a 
question of representation. First, a petition is filed by an employee, 
a labor organization, or an employer. Second, the Board investigates a 
petition and, if it has reasonable cause to believe that a question of 
representation exists, provides an appropriate hearing upon due notice, 
unless the parties agree that an election should be conducted and agree 
concerning election details. Hearing officers may conduct such pre-
election hearings, but they may not make any recommendations with 
respect to them. Third, if, based on the record of the hearing, the 
Board finds that a question of representation exists, an election by 
secret ballot is conducted in an appropriate unit. Fourth, the results 
of the election are certified. The Act permits the Board to delegate 
its authority to NLRB regional directors. The Act also provides that, 
upon request, the Board may review any action of the regional director, 
but such review does not, unless specifically ordered by the Board, 
operate as a stay of any action taken by the regional director.
    Within this general framework, ``the 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. In promulgating and applying representation rules and 
regulations, the Board, the General Counsel \3\ and the agency's 
regional directors have, in addition to seeking efficient and prompt 
resolution of representation cases, sought to guarantee fair and 
accurate voting, to achieve transparency and uniformity in the Board's 
procedures, and to update them in light of technological advances. See, 
e.g., 79 FR 74308 (Dec. 15, 2014).
---------------------------------------------------------------------------

    \3\ The General Counsel administratively oversees the regional 
directors. 29 U.S.C. 153(d).
---------------------------------------------------------------------------

    From time to time, the Board has revised its representation 
procedures to better effectuate these various purposes. In 2014, the 
Board promulgated a broad revision to those procedures, making 25 
amendments in existing rules that, among other things, imposed a 
variety of new procedural requirements on the parties, limited the 
scope of pre-election hearings, and significantly contracted the 
timeline between the filing of a petition and the election. Certain of 
these amendments were controversial at the time and have remained 
subjects of frequent criticism since their implementation. For example, 
various of the Board's stakeholders have expressed concern that the 
current default timeframe from the filing of a petition to the pre-
election hearing is too short a time in which to meet the various new 
obligations triggered by the filing of a petition while also adequately 
preparing for the hearing; that the current procedures' encouragement 
of deferral of disputes concerning unit scope and voter eligibility 
results in less fair and informed votes; and that parties may only 
submit post-hearing briefs when the regional director permits them to 
do so. Based on these concerns, as well as our independent review of 
the 2014 amendments, the final rule modifies those amendments in 
several respects--and makes further refinements that the Board believes 
will further clarify and improve representation case procedures--as 
discussed below.

II. List of Amendments

    This list provides a concise statement of the ways in which this 
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.'' \4\ As this list shows, the amendments constitute discrete

[[Page 69525]]

modifications responding to particularized problems and concerns.\5\ 
All of these matters are discussed in greater detail below.
---------------------------------------------------------------------------

    \4\ S. Rep. No. 752, at 225 (1945).
    \5\ 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 timelines set forth in Sec.  102.63 below. For 
this reason, the amendments are severable. They are also independent 
of other representation case procedure amendments addressing 
election protection issues that have been proposed in a separate 
Notice of Proposed Rulemaking. See Representation-Case Procedures: 
Election Bars; Proof of Majority Support in Construction Industry 
Collective-Bargaining Relationships, 84 FR 39930 et seq. (proposed 
Aug. 12, 2019).
---------------------------------------------------------------------------

    1. The pre-election hearing will generally be scheduled to open 14 
business days from notice of the hearing, and regional directors will 
have discretion to postpone the opening of the hearing for good cause. 
Under the prior rules, pre-election hearings were generally scheduled 
to open 8 calendar days from the notice of hearing. The additional time 
will permit parties to more easily manage the obligations imposed on 
them by the filing of a petition and to better prepare for the hearing, 
thus promoting orderly litigation. The additional time is also 
necessary to accommodate changes to the Statement of Position 
requirement (summarized below); in conjunction with those changes, the 
additional time will also help facilitate election agreements and 
further promote orderly litigation.
    2. The employer will now be required to post and distribute the 
Notice of Petition for Election within 5 business days after service of 
the notice of hearing. The prior rules required posting and 
distribution within 2 business days. The additional time will permit 
employers to balance this requirement with the other obligations 
imposed on them by the filing of a petition, and--in conjunction with 
the additional time between the notice and opening of the hearing--will 
guarantee that employees and parties have the benefit of the Notice of 
Petition for Election for a longer period of time prior to the opening 
of the hearing than is currently the case.
    3. Non-petitioning parties are now required to file and serve the 
Statement of Position within 8 business days after service of the 
notice of hearing, and regional directors will have the discretion to 
permit additional time for filing and service for good cause. Non-
petitioning parties were formerly required to file and serve the 
Statement of Position 1 day before the opening of the pre-election 
hearing (typically 7 calendar days after service of the notice of 
hearing). The additional time will permit non-petitioning parties more 
time to balance this requirement with the other obligations imposed on 
them by the filing of a petition, and it will also permit them slightly 
more time to prepare the Statement of Position, which will in turn 
promote orderly litigation.
    4. The petitioner will also be required to file and serve a 
Statement of Position on the other parties responding to the issues 
raised by any non-petitioning party in a Statement of Position. The 
responsive Statement of Position will be due at noon 3 business days 
before the hearing is scheduled to open (which is also 3 business days 
after the initial Statement(s) of Position must be received). Timely 
amendments to the responsive statement may be made on a showing of good 
cause. The prior rules required the petitioner to respond orally to the 
Statement(s) of Position at the start of the pre-election hearing. 
Requiring the response in writing prior to the hearing will facilitate 
election agreements or result in more orderly litigation by narrowing 
and focusing the issues to be litigated at the pre-election hearing.
    5. Although acknowledging that the primary purpose of the pre-
election hearing is to determine whether there is a question of 
representation, disputes concerning unit scope and voter eligibility--
including issues of supervisory status--will now normally be litigated 
at the pre-election hearing and resolved by the regional director 
before an election is directed. The parties may, however, agree to 
permit disputed employees to vote subject to challenge, thereby 
deferring litigation concerning such disputes until after the election. 
The prior rules provided 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.'' The 
final rule represents a return to the Board's procedures prior to the 
2014 amendments, and it will promote fair and accurate voting as well 
as transparency by better defining the unit in question prior to the 
election. Further, by encouraging regional directors to resolve issues 
such as supervisory status prior to directing an election, the final 
rule will give better guidance to the employees and parties and will 
help avoid conduct that may give rise to objections or unfair labor 
practices. At the same time, expressly permitting the parties to agree 
to defer litigation on such issues continues to honor the Act's 
fundamental interest in encouraging agreement between parties where 
possible, which promotes promptness and efficiency. The choice is 
theirs, not mandated by the Board.
    6. The right of parties to file a post-hearing brief with the 
regional director following pre-election hearings has been restored and 
extended to post-election hearings as well. Such briefs will be due 
within 5 business days of the close of the hearing, although hearing 
officers may grant an extension of up to 10 additional business days 
for good cause. Under the prior rules, such briefs were permitted only 
upon special permission of the regional director. Permitting such 
briefs as a matter of right after all hearings will enable parties more 
time to craft and narrow their arguments, which will in turn assist the 
regional director (and the hearing officer, in post-election 
proceedings) in focusing on the critical facts, issues, and arguments, 
thereby promoting orderly litigation and more efficient resolution of 
disputes. Extending the right to file post-hearing briefs to post-
election proceedings also promotes uniformity.
    7. The regional director's discretion to issue a Notice of Election 
subsequent to issuing a direction of election is emphasized. The prior 
rules provided that regional directors ``ordinarily will'' specify 
election details in the direction of election. Reemphasizing the 
regional directors' discretion in this area will eliminate confusion 
that may have led to unnecessary litigation and may facilitate faster 
issuance of decisions and directions of election in some cases, 
although the Board anticipates that regional directors will still 
``ordinarily'' include the election details in the direction of 
election.
    8. The regional director will continue to schedule the election for 
the earliest date practicable, but--absent waiver by the parties--
normally will not schedule an election before the 20th business day 
after the date of the direction of election. As explained in item nine 
below, this period will permit the Board to rule upon certain types of 
requests for review prior to the election. The prior rules simply 
provided that the regional director ``shall schedule the election for 
the earliest date practicable.'' The final rule is largely consistent 
with Board procedures prior to the 2014 amendments, which provided that 
the regional director would normally schedule an election 25 to 30 days 
after the issuance of the direction of election. Permitting the Board 
to rule on disputes prior to the election will reduce the number of 
cases in which issues remain unresolved at the time of the election, 
thereby promoting orderly litigation,

[[Page 69526]]

transparency, and fair and accurate voting.
    9. Where a request for review of a direction of election is filed 
within 10 business days of that direction, if the Board has not ruled 
on the request, or has granted it, before the conclusion of the 
election, ballots whose validity might be affected by the Board's 
ruling on the request or decision on review will be segregated and all 
ballots will be impounded and remain unopened pending such ruling or 
decision. A party may still file a request for review of a direction of 
election more than 10 business days after the direction, but the 
pendency of such a request for review will not require impoundment of 
the ballots. This represents a partial return to the Board's procedures 
prior to the 2014 amendments, which removed the provision for automatic 
impoundment. By reinstating automatic impoundment in these narrow 
circumstances, the final rule promotes transparency by removing the 
possibility for confusion if a tally of ballots issues but is then 
affected by the Board's subsequent ruling on the pending request for 
review. Consistent with the 2014 amendments, however, parties remain 
free to wait to file a request for review until after the election has 
been conducted and the ballots counted. By preserving this option, 
which encourages parties to wait to see whether the results of the 
election moot the issues for which they would otherwise seek review, 
the final rule also continues to promote efficiency.
    10. Formatting and procedural requirements for all types of 
requests for reviews have been systematized. All requests for review 
and oppositions thereto are now subject to the same formatting 
requirements. Oppositions are now explicitly permitted in response to 
requests for review filed pursuant to Sec.  102.71. And the practice of 
permitting replies to oppositions and briefs on review only upon 
special leave of the Board has been codified. All of these provisions 
are consistent with the Board's longstanding practice and promote 
transparency and uniformity.
    11. A party may not request review of only part of a regional 
director's action in one request for review and subsequently request 
review of another part of that same action. The prior rule was not 
clear whether parties were permitted to proceed in such a fashion. 
Disallowing such a piecemeal approach promotes orderly litigation, 
administrative efficiency, and more expeditious resolution of disputes.
    12. The employer now has 5 business days to furnish the required 
voter list following the issuance of the direction of election. Under 
the prior rule, the employer had only 2 business days to provide the 
list. Permitting additional time for the voter list will increase the 
accuracy of such lists, promoting transparency and efficiency at the 
election and reducing the possibility of litigation over the list.
    13. In selecting election observers, whenever possible a party will 
now select a current member of the voting unit; when no such individual 
is available, a party should select a current nonsupervisory employee. 
The prior rules simply provide that parties may be represented by 
observers. Providing guidance for the selection of observers promotes 
uniformity and transparency and will reduce litigation over parties' 
choices of observers and thus promote administrative efficiency.
    14. The regional director will no longer certify the results of an 
election if a request for review is pending or before the time has 
passed during which a request for review could be filed. Under the 
prior rules, regional directors were required to certify election 
results despite the pendency or possibility of a request for review; 
indeed, in cases where a certification issued, requests for review 
could be filed up until 14 days after the issuance of the 
certification. As a result, a certified union would often demand 
bargaining and file unfair labor practice charges alleging an unlawful 
refusal to bargain even as the Board considered a request for review 
that, if granted, could render the certification a nullity. By 
eliminating the issuance of certifications until after a request for 
review has been ruled on, or until after the time for filing a request 
for review has passed, the final rule eliminates confusion among the 
parties and employees and promotes orderly litigation of both 
representation and consequent unfair labor practice cases. To promote 
transparency and uniformity, the final rule also provides a definition 
of ``final disposition.''
    15. The final rule also makes a number of incidental changes in 
terminology, and updates internal cross-references, consistent with 
earlier changes that were effective on March 6, 2017. See 82 FR 11748. 
In addition, for the sake of uniformity and transparency within the 
representation case procedures, the Board has converted all time 
periods in subpart D to business days, and it has also updated Sec.  
102.2(a) to define how business days are calculated (including 
clarification that only federal holidays are implicated in time period 
calculations).

III. General Matters

    Before explaining the specific provisions of the final rule, the 
Board addresses several general issues: (a) The Board's rulemaking 
authority and the need to amend the regulations generally; (b) the 
decision to implement the final rule without notice and comment; (c) 
the length of the timeline for processing of contested cases that will 
result from the final rule; and (d) global changes made in the 
representation case procedures, including the recasting of all time 
periods in terms of business days.

A. The Board's Rulemaking Authority and the Desirability of the Final 
Rule

    Congress delegated both general and specific rulemaking authority 
to the Board. 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 Supreme Court unanimously held in American Hospital Association 
v. NLRB, 499 U.S. 606, 609-610 (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 
charges the Board to ``promulgate rules and regulations in order that 
employees' votes may be

[[Page 69527]]

recorded accurately, efficiently and speedily.'' Id. at 331. 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 the 
Board stated in a prior rulemaking, the interests to be balanced in 
effectuating the purposes of the Act include timeliness, efficiency, 
fair and accurate voting, transparency, uniformity, and adapting to new 
technology. 79 FR 74315-74316.
    Agencies have the authority to reconsider past decisions and rules 
and to retain, revise, replace, and rescind decisions and rules. See, 
e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-515 
(2009); Motor Vehicle Manufacturers Ass'n of U.S., Inc. v. State Farm 
Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1983); National Ass'n 
of Home Builders v. EPA, 682 F.3d 1032, 1038-1039, 1043 (D.C. Cir. 
2012). As indicated above, the Act expressly contemplates that the 
Board will, from time to time, amend (or even rescind) its rules and 
regulations. 29 U.S.C. 156. In keeping with this congressional mandate, 
the Board has a ``longstanding practice of incrementally evaluating and 
improving its processes'' and, in keeping with that practice, has 
repeatedly amended its representation case procedures in a continuing 
effort to improve them. 79 FR 74310, 74314. ``Past improvements do not 
and should not preclude the Board's consideration and adoption of 
further improvements.'' Id. at 74316-74317. Of course, revisions to 
existing rules should not and cannot be undertaken for arbitrary 
reasons; an agency must show that procedural changes constitute a 
rational means for achieving the changes' stated objectives and must 
fairly account for any benefits that may be lost as a result of the 
change. See Citizens Awareness Network, Inc. v. U.S., 391 F.3d 338, 
351-352 (1st Cir. 2004) (citing State Farm, 463 U.S. 29, 43-44).
    This final rule is therefore being undertaken pursuant to the 
Board's clear regulatory authority to change its own representation 
case procedures and is firmly rooted in the Board's longstanding 
practice of evaluating and improving its representation case 
procedures. In particular, the final rule seeks to improve upon the 
most recent amendments to the representation case procedures, which 
were adopted on December 15, 2014, and became effective April 14, 2015. 
79 FR 74308 et seq. Beginning with the responses to the 2011 Notice of 
Proposed Rulemaking, which ultimately led to the adoption of the 2014 
amendments,\6\ and continuing to the present, certain provisions of the 
amendments have generated much controversy, spawning tens of thousands 
of comments (ranging from sharply critical to glowingly positive) and a 
series of dissenting opinions in both rulemaking and adjudicative 
proceedings.\7\ Among the most controversial aspects of the 2014 
amendments were:
---------------------------------------------------------------------------

    \6\ The 2014 amendments were the result of a lengthy 
deliberative process that commenced with a Notice of Proposed 
Rulemaking issued on June 22, 2011. 76 FR 36812 et seq. Following 
the 2011 comment period, which included a public hearing and public 
deliberations by the Board regarding whether to draft and issue a 
final rule, a final rule was issued on December 22, 2011. 76 FR 
80138 et seq. A Federal court later held that the Board had lacked a 
quorum in issuing the 2011 final rule. See Chamber of Commerce of 
the U.S. v. NLRB, 879 F.Supp.2d 18, 28-30 (D.D.C. 2012). A properly-
constituted 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. Following another comment period, 
on December 15, 2014, a final rule issued. 79 FR 74308 et seq. The 
2014 amendments were upheld in the face of Constitutional and 
statutory challenges to its facial validity. See Associated Builders 
and Contractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 
2016); Chamber of Commerce of the United States of America v. NLRB, 
118 F.Supp.3d 171 (D.D.C. 2015). We note that our revisions to some 
of those amendments do not rely in any way on the arguments rejected 
by the courts, particularly the due process and First Amendment 
arguments made by petitioners in those proceedings.
    \7\ See 76 FR 36829-36833 (dissenting view of Member Brian E. 
Hayes); 79 FR 7337-7349 (dissenting views of Members Philip A. 
Miscimarra and Harry I. Johnson III); 79 FR 74430-74460 (dissenting 
views of Members Philip A. Miscimarra and Harry I. Johnson III); 
Brunswick Bowling Products, LLC, 364 NLRB No. 96 (2016) (then-Member 
Miscimarra, concurring in part and dissenting in part); Yale 
University, 365 NLRB No. 40 (2017) (then-Acting Chairman Miscimarra, 
dissenting); European Imports, Inc., 365 NLRB No. 41 (2017) (then-
Acting Chairman Miscimarra, dissenting); UPS Ground Freight, Inc., 
365 NLRB No. 113 (2017) (Chairman Miscimarra, dissenting in part).
---------------------------------------------------------------------------

     The substantial reduction of time between the filing of a 
petition and the conduct of the pre-election hearing in contested cases 
owing to the mandate that hearings usually open 8 days after the 
issuance of a notice of hearing;
     the requirement that the non-petitioning party or parties 
file a detailed Statement of Position at noon on the business day 
before the opening of the pre-election hearing (on pain of waiving any 
arguments not raised in the Statement of Position);
     the dramatic curtailment of the scope of pre-election 
hearings occasioned by the provision that disputes concerning 
individuals' eligibility to vote or inclusion in an appropriate unit 
ordinarily need not be litigated and resolved before an election;
     the elimination of the right of parties to file post-
hearing briefs following pre-election hearings;
     the elimination of the 25 to 30 day period between a 
decision and direction of election and the conduct of the election, 
which previously permitted the Board to rule on requests for review of 
the decision and direction of election prior to the conduct of the 
election, along with the automatic impoundment of ballots that resulted 
when the Board had not yet ruled on, or had granted, a request for 
review before the conduct of the election;
     the reduction of the time for an employer to produce the 
required voter list from 7 days to 2 business days; and
     the implicit provision that, in virtually all cases, 
regional directors would issue a certification of results (including, 
where appropriate, a certification of representative) notwithstanding 
that a request for review was pending before, or could still be timely 
filed with, the Board.
    As explained in more detail below, the Board has concluded that 
each of the foregoing provisions should be modified in order to strike 
a better balance among the competing interests the Board's 
representation procedures are designed to serve.\8\
---------------------------------------------------------------------------

    \8\ We recognize that the procedural issues addressed here are 
not the only controversial aspects of the 2014 amendments and that 
it may be appropriate to address others separately in future 
proceedings, including the contents of the voter list.
---------------------------------------------------------------------------

    It should be stated here, at the outset, that the Board is not 
rescinding the 2014 amendments in their entirety. Indeed, for the most 
part the final rule leaves many of the 2014 amendments undisturbed, 
including some that were the subject of considerable debate prior to 
and after their enactment. Rather, the final rule very much follows in 
the footsteps of the 2014 amendments by making targeted revisions 
designed to address specific, identified concerns and problems. 
Further, although many of the concerns and problems the final rule 
addresses are inextricably linked to the 2014 amendments, many others 
are entirely unrelated to the 2014 amendments. In this regard, the 
final rule also clarifies imprecisions in the wording of the 
regulations that predate the 2014 amendments, resolves asymmetries 
between related provisions that prior rulemakings have apparently 
overlooked, and introduces several

[[Page 69528]]

entirely new innovations that the Board believes will facilitate more 
fairness,\9\ accuracy, orderly litigation, and efficiency in case 
processing.
---------------------------------------------------------------------------

    \9\ We emphasize that our references to ``fairness'' throughout 
this document are not to be confused with the legal concept of 
minimum ``due process.'' Clearly, the Board's discretion to provide 
a balanced regulatory scheme for the conduct of representation 
elections is not limited to assuring only the minimal procedural 
access that the Constitution requires.
---------------------------------------------------------------------------

    In sum, this final rule is well within the Board's ``wide degree of 
discretion[ary]'' \10\ authority to set procedural rules for 
representation elections. The Board has determined that now is the 
proper time not only to address problems and concerns related to the 
2014 amendments, but also to address other issues unrelated to the 2014 
amendments. And each change set forth in this document is part of the 
Board's ongoing process of continually evaluating and improving its 
procedures to better effectuate the purposes of the Act.
---------------------------------------------------------------------------

    \10\ A.J. Tower, 329 U.S. at 330.
---------------------------------------------------------------------------

B. The Decision To Implement the Final Rule Without Notice and Comment

    The 2014 amendments resulted from a deliberative process that 
included two Notices of Proposed Rulemaking, that accepted comments on 
those proposals for a total of 141 days, and that conducted two public 
hearings over a total of 4 days.\11\ This process yielded tens of 
thousands of comments and more than a thousand transcript pages of oral 
commentary. Much of the preamble to the 2014 amendments is devoted to 
summarizing and responding to these comments.
---------------------------------------------------------------------------

    \11\ Of course, the overall length of proceedings and volume of 
evidence adduced was the unintended consequence of the judicial 
invalidation of the 2011 Final Rule. See fn. 6 supra.
---------------------------------------------------------------------------

    The Board has elected to take a different approach in this 
proceeding. First, the final rule is procedural as defined in 5 U.S.C. 
553(b)(A), and is therefore exempt from notice and comment. Second, 
although foregoing notice and comment deviates from the process used in 
2014, it is consistent with the Board's general approach in this area. 
As the explanation for the 2014 amendments itself observed, ``the Board 
has amended its representation case procedures more than three dozen 
times without prior notice or request for public comment,'' and never 
before 2011 had the Board engaged in notice and comment rulemaking on 
representation case procedures. 79 FR 74310-74311. Third, despite 
having used notice-and-comment rulemaking, the explanation for the 2014 
amendments was at pains to emphasize that this process was not required 
by law. See 79 FR 74310-74313. Fourth, the fact that the final rule 
modifies certain of the 2014 amendments that were adopted after notice-
and-comment rulemaking in no way requires notice-and-comment rulemaking 
now. The Board observed in 2014 that ``[a]gencies are not bound to use 
the same procedures in every rulemaking proceeding. Otherwise, agencies 
could neither learn from experience . . . nor adopt procedures suited 
to the precise question at stake,'' 79 FR 74313, and the Supreme Court 
has stated that if ``an agency is not required to use notice-and-
comment procedures to issue an initial . . . rule, it is also not 
required to use those procedures when it amends or repeals that . . . 
rule.'' Perez v. Mortgage Bankers Association, 135 S.Ct. 1199, 1206 
(2015). As such, the Board finds that notice and public procedure on 
this final rule are unnecessary.\12\
---------------------------------------------------------------------------

    \12\ 5 U.S.C. 553(b)(A). We note here that on December 14, 2017, 
the Board issued a Request for Information inviting information as 
to whether the 2014 amendments should be retained without change, 
retained with modifications, or rescinded. 82 FR 58783 et seq. We 
emphasize here that we are not treating the responses to the 2017 
Request for Information as notice-and-comment rulemaking. As the 
Request for Information itself emphasized, the Board was merely 
seeking information; it was not engaged in rulemaking. None of the 
procedural changes that we make today are premised on the responses 
to the Request for Information; indeed, we would make each of these 
changes irrespective of the existence of the Request for 
Information.
---------------------------------------------------------------------------

C. The Lengthened Timeline in Contested Cases

    For contested cases, several provisions of the final rule will, 
both individually and taken together, result in a lengthening of the 
median time from the filing of a petition to the conduct of an 
election. As noted above, the Supreme Court has identified speed in 
recording employees' votes as one interest the Board's representation 
procedures are bound to serve. This interest in speed or promptness has 
long been reflected by both the Board's and Congress's emphasis on the 
need for expedition in representation cases.\13\ Promoting prompt 
elections by reducing unnecessary delay was also among the primary 
concerns underlying the 2014 amendments, and many of those amendments 
worked individually and in conjunction with one another to reduce the 
time between the filing of a petition and the conduct of an election. 
This is not to suggest, as have some critics of the 2014 amendments, 
that the 2014 amendments were solely concerned with speed; to the 
contrary, the Board in 2014 clearly sought to serve and balance many 
different interests.\14\
---------------------------------------------------------------------------

    \13\ See, e.g., Northeastern University, 261 NLRB 1001, 1002 
(1982), enforced, 707 F.2d 15 (1st Cir. 1983); 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)).
    \14\ A cursory inspection of the supplementary information for 
the 2014 amendments demonstrates that speed was not the sole 
interest with which the Board was concerned in that proceeding. See, 
e.g., 79 FR at 74315-74316.
---------------------------------------------------------------------------

    It does appear, however, that speed in the electoral process was a 
very important consideration and has been the main tangible effect of 
the more controversial 2014 amendments. In this regard, the Board's 
statistics demonstrate that the median time between the filing of a 
petition and the election has been significantly reduced since the 2014 
amendments became effective. This is true of both contested cases and 
those in which the parties reach an election agreement.\15\ In other 
respects, however, it appears that the 2014 amendments have not 
resulted in a significant departure from the pre-2014 status quo. In 
this regard, the overall rate at which parties reach election 
agreements remains more or less unchanged.\16\ So too the rate at which 
unions win elections.\17\ Based on this state of affairs, it is 
reasonable to consider whether these gains in speed have come at the 
expense of other

[[Page 69529]]

relevant interests. Based on our review of our current representation 
case procedures, Congressional policy, and concerns that have been 
previously and repeatedly voiced about the current procedures, we 
conclude that they have.
---------------------------------------------------------------------------

    \15\ In FY14, the last full fiscal year under the former rules, 
the median number of days from a petition to an election was 37 days 
in cases where the parties reached an election agreement, 59 days in 
contested cases, and 38 days overall; in FY16, the first full fiscal 
year in which the 2014 amendments were in effect, the median number 
of days from a petition to an election was 23 days in cases with an 
election agreement, 36 days in contested cases, and 23 days overall. 
The FY14 figures are consistent with data going back to FY09; the 
FY16 figures are consistent with FY17 and FY18. See ``Median Days 
from Petition to Election,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election.
    \16\ 91.3% of all elections were conducted pursuant to an 
election agreement in FY19. ``Percentage of Elections Conducted 
Pursuant to Election Agreements in FY19,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/percentage-elections-conducted-pursuant-election. According to data the Board 
supplied to Senator Murray and Representatives Sablan, Scott, and 
Norcross by letter dated February 15, 2018, prior to the 2014 
amendments taking effect the election agreement rate was 93% (7/6/12 
to 8/13/13), 91% (4/14/13 to 4/13/14), and 92% (4/14/14 to 4/13/15). 
After the amendments took effect, the stipulation rate was 92% (4/
14/15 to 4/13/16), 93% (4/14/16 to 4/13/17), and 92% (4/15/17 to 12/
31/17).
    \17\ See ``Representation Petitions--RC,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/representation-petitions-rc; ``Decertification Petitions--RD,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/decertification-petitions-rd; ``Employer-Filed Petitions--RM,'' 
https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/employer-filed-petitions-rm. Analyzing the data posted on 
these sites, the overall union win rate in FY09 was 63.7%; the 
overall union win rate in FY18 was a remarkably similar 65.0%. In 
between, the win rate ranged from a low of 60.5% in FY13 to a high 
of 68.4% in FY16.
---------------------------------------------------------------------------

    Our reasoning for modifying the individual provisions that 
cumulatively result in more time between the filing of the petition and 
the conduct of the election in contested cases is set forth in our 
explanation for each individual change, but we emphasize here that we 
are not expanding this time period for its own sake. To the contrary, 
this is simply an incident of our conclusion that other fundamental 
interests and purposes of the Act can and should be served by modifying 
these provisions. As previously noted, beyond the interest in speed, 
the Board's interests include efficiency, fair and accurate voting, and 
transparency and uniformity, among others. The provisions instituted in 
this document that will expand the time between petition and election 
serve each of these interests.
    For example, more time will promote fair and accurate voting. As 
noted earlier, the Eleventh Circuit has interpreted the accurate and 
efficient recording of employee votes to include ``certainty and 
finality of election results.'' Certainteed Corp., supra at 1053. By 
permitting the parties--where they cannot otherwise agree on resolving 
or deferring such matters--to litigate issues of unit scope and 
employee eligibility at the pre-election hearing, by expecting the 
Regional Director to resolve these issues before proceeding to an 
election, and by providing time for the Board to entertain a timely-
filed request for review of the regional director's resolution prior to 
the election, the final rule promotes fair and accurate voting by 
ensuring that the employees, at the time they cast their votes, know 
the contours of the unit in which they are voting. Further, by 
permtting litigation of these issues prior to the election, instead of 
deferring them until after the election, the final rule removes the 
pendency of such issues as a barrier to reaching certainty and finality 
of election results. Under the 2014 amendments, such issues could 
linger on after the election for weeks, months, or even years before 
being resolved. This state of affairs plainly did not promote certainty 
and finality.
    Relaxing the timelines instituted by the 2014 amendments also 
promotes transparency and uniformity. Providing employees with more 
detailed knowledge of the contours of the voting unit, as well as 
resolving eligibility issues, self-evidently promotes transparency; 
leaving issues of unit scope and employee eligibility unresolved until 
after an election (absent agreement of the parties to do so) clearly 
does a disservice to transparency. Relatedly, resolving issues such as 
supervisory status before the election ensures that the parties know 
who speaks for management and whose actions during the election 
campaign could give rise to allegations of objectionable conduct or 
unfair labor practice charges. Permitting non-petitioning parties 
slightly more time to submit their Statements of Position, requiring 
petitioning parties to file a responsive Statement of Position, and 
providing all parties slightly more time to prepare for the pre-
election hearing also promotes a sense of overall fairness in 
representation proceedings, which also serves the purpose of 
transparency. And impounding ballots while a pre-election request for 
review remains pending also promotes transparency by avoiding the 
confusion that will likely follow the publicization of election results 
that may be nullified or modified by the Board's ruling on the pending 
request for review. In addition, the various provisions of the final 
rule work together to provide parties with a more definite, predictable 
timeline between the filing of the petition and the conduct of the 
election. In this regard, the final rule provides that the election 
will be scheduled sometime after the 20th business day from the 
direction of election, whereas the 2014 amendments stated only that the 
election would be scheduled ``as soon as practicable.'' Likewise, the 
final rule promotes uniformity by guaranteeing the right to file post-
hearing briefs, instead of permitting briefing only upon the discretion 
of the regional director (or the hearing officer in post-election 
proceedings).
    Moreover, despite relaxing the election timeline, the final rule 
also serves the purpose of efficiency in a variety of ways.\18\ As with 
accuracy, the Eleventh Circuit has indicated that efficiency carries 
connotations of certainty and finality. Certainteed Corp., supra at 
1053. On that note, it is worth emphasizing that the Board is charged 
with the expeditious resolution of questions of representation. The 
mere fact that elections are taking place quickly does not necessarily 
mean that this speed is promoting finality or the most efficient 
resolution of the question of representation.\19\ Thus, by providing 
time between the direction and conduct of the election for the Board to 
resolve disputed election issues, should a party timely seek review 
during that time period, the final rule in fact promotes efficiency and 
expeditious final resolution of the question of representation, even if 
the election itself is not conducted as quickly as it may have been 
under the 2014 amendments. Likewise, although it is true that some pre-
election issues need not be resolved in order to determine the 
existence of a question of representation, litigating those issues at 
the pre-election hearing (in the absence of the parties agreeing to 
defer them) will nevertheless contribute to a more efficient resolution 
of the question of representation by either resolving those issues 
prior to the election, leading to faster finality of the result, or at 
least permitting faster post-election resolution of those issues by 
creating a record before the election has been conducted.\20\ And 
resolving issues

[[Page 69530]]

such as supervisory status before the election promises to minimize 
post-election litigation, given that the pre-election determination of 
supervisory status gives the parties an opportunity to guard against 
supervisory behavior that could give rise to objections or unfair labor 
practice charges.
---------------------------------------------------------------------------

    \18\ Efficiency and speed are two distinct interests. See A.J. 
Tower, supra at 331. They are, of course, closely related, and that 
close relationship is reflected in the Board's longstanding 
formulation of its duty to provide for ``expeditious'' resolution of 
questions of representation. ``Expeditious'' is defined as 
``[a]cting or done with speed and efficiency.'' The American 
Heritage Dictionary of the English Language, New College Ed. 462 
(Houghton Mifflin 1979).
    \19\ For example, in The Boeing Co., 368 NLRB No. 67 (2019), an 
election took place on May 31, 2018, but the Board ultimately 
granted review, reversed the Regional Director's finding that the 
petitioned-for unit was appropriate, and dismissed the petition on 
September 9, 2019. Similarly, in Atlantic City Electric Co., Case 
No. 04-RC-221319, an election took place on June 25, 2018; the Board 
granted review on December 13, 2018, and affirmed the Regional 
Director's decision and direction of election on November 18, 2019. 
And in Ohio College Preparatory School, Case No. 08-RC-199371, an 
election was conducted on June 5, 2017; the Regional Director 
overruled objections that had been sent to hearing on March 6, 2018, 
and certified the Petitioner; the Board granted review, reversed the 
Regional Director, and remanded for a second election on July 30, 
2018; and the second election (scheduled for August 23, 2018) was 
cancelled after the Petitioner withdrew its petition two days before 
the second election. In all three cases, then, despite their varied 
procedural conclusions, the questions of representation remained 
unresolved months after the election was conducted. And this 
phenomenon is not limited to cases in which the Board has granted 
review. Thus, in Bio-Medical Applications of Alabama, Inc., Case No. 
15-RC-201753, an election was conducted on August 2-3, 2017; timely 
objections were filed, but the Regional Director did not dismiss 
them until July 19, 2018, just short of a year after the election 
(the Board subsequently denied a request for review of the dismissal 
of objections on October 1, 2018).
    \20\ Although it is true that in some cases the results of the 
election may obviate the need to address certain questions of unit 
scope or voter eligibility, it is impossible to know in advance 
whether this will be the case, and in many cases the election 
results are such that these issues, if deferred, will still need to 
be addressed after the election. In such situations, little 
efficiency has been gained by the quick conduct of the election, 
given that certainty and finality must wait until the conclusion of 
post-election litigation over issues that could have been decided 
before the election. See, e.g., Detroit 90/90 and Axios, Inc., Case 
07-RC-150097 (Regional Director deferred litigation of eligibility 
issues and directed election conducted on May 6, 2015; deferred 
issues required post-election litigation and Regional Director did 
not resolve them until September 30, after which she directed a 
rerun election--based on objectionable conduct--for December 3, in 
response to which union withdrew petition. We accordingly think it 
is preferable to place the decision to defer litigation or 
resolution of pre-election issues in the hands of the parties, 
rather than to adopt a default position of deferring issues to post-
election proceedings in the hope the results of the election will 
render the issues moot.
---------------------------------------------------------------------------

    In addition, there is another dimension of efficiency that the 
final rule promotes. As the Board has stated in the past, ``the 
fundamental design of the Act is to encourage agreement between the 
parties as much as possible.'' 79 FR 74393. Accordingly, when the Board 
encourages parties to enter into election agreements, it reflects the 
fundamental design of the Act and promotes efficiency by deferring to 
the parties' resolution of potential differences. The Board believes 
that the final rule promotes election agreements through the 
introduction of the responsive Statement of Position requirement, which 
will result in greater clarification of the issues in dispute prior to 
hearing, and by the provision of 3 business days between the filing and 
service of the responsive Statement of Position and the opening of the 
hearing, which permits additional time for the parties to negotiate 
over whatever issues remain in dispute following the filing and service 
of the responsive Statement of Position. This may lengthen the period 
of time between the petition and the hearing (and, by extension, 
between the petition and the election), but the Board believes that any 
loss of speed will be more than offset by the facilitation of election 
agreements.\21\
---------------------------------------------------------------------------

    \21\ Although the rate at which parties enter election 
agreements is already high--see fn. 16, supra--we observe that there 
nevertheless is still room for growth in this regard. Given the 
Act's fundamental interest in promoting agreement between the 
parties, such continued growth is worth pursuing through this final 
rule.
---------------------------------------------------------------------------

    Finally, although the final rule will often result in more time 
between the petition and the pre-election hearing and between the pre-
election hearing and the election, the final rule retains provisions 
that will ensure the lengthened timelines apply in only a limited 
number of cases and that will minimize the potential for abuse. First, 
the time periods instituted by the final rule apply only to contested 
cases, which have represented a small fraction of all representation 
proceedings before the Board in any given year.\22\ Parties entering 
into election agreements remain free to schedule the election as they 
see fit. Second, even where parties are unable to reach an election 
agreement, they may still, consistent with the Act's bedrock interest 
in promoting agreement between parties, nevertheless agree to (1) a 
faster pre-election hearing; (2) waive the default period between the 
direction and conduct of election; and/or (3) defer any unit scope and 
eligibility issues until after the election.\23\ Third, a party that 
disagrees with the regional director's resolution of pre-election 
issues remains free to wait and see whether the results of the election 
render the issues moot, obviating the need to file any request for 
review. Fourth, the final rule retains the Statement of Position 
requirement, the provisions for precluding litigation of issues not 
properly raised therein, and the requirement that the hearing be 
continued from day-to-day. Additionally, pre-election hearings remain 
under the firm control of the regional director and the hearing 
officer, who will continue to have the authority to prevent 
introduction of irrelevant evidence and the litigation of improperly-
raised issues. Parties accordingly will not be able to use the expanded 
timeline to engage in improper gamesmanship when negotiating election 
agreements, nor will they be able to engage in delaying tactics at the 
hearing. Given these provisions, we are confident that parties will 
frequently avail themselves of the opportunity to avoid potentially 
unnecessary litigation, and in any event they will be prevented from 
engaging in the types of delaying tactics the 2014 amendments sought to 
prevent.
---------------------------------------------------------------------------

    \22\ See fn. 16, supra.
    \23\ We recognize that permitting parties to defer such issues 
until after the election comes at the expense of the benefits of 
litigation and resolution outlined above, but such tradeoffs are 
inherent in balancing competing interests. In our view, there is no 
inconsistency in this approach; rather, from an institutional 
perspective we find the deferral of such contested issues to be 
generally undesirable and we would not impose deferral on the 
parties as an agency rule. In those situations where agreement 
cannot be reached, and accordingly does not factor in to the 
balancing of interests, we think the benefits of pre-election 
litigation and resolution discussed above are sufficiently weighty 
to take precedence over the additional time that may be involved. 
However, if the parties to a particular election choose on their own 
to defer such issues, notwithstanding the potential drawbacks of 
doing so, we would not prohibit them from doing so. After all, this 
final rule seeks to encourage and promote agreement between parties 
(including with respect to deferring issues to post-election 
proceedings).
---------------------------------------------------------------------------

    In sum, the final rules will likely result in some lengthening of 
the pre-election period, but the sacrifice of some speed will advance 
fairness, accuracy, transparency, uniformity, efficiency, and finality. 
This is, in our considered judgment, a more than worthwhile tradeoff.

D. Global Changes

    Consistent with the final rule effective March 6, 2017,\24\ the 
representation case Rules have been revised to ensure that terms and 
capitalization of titles, such as ``Regional Director,'' are consistent 
throughout the Rules. Where feasible, headings have been added to 
facilitate finding particular rules. Outdated cross-references have 
also been updated and corrected.
---------------------------------------------------------------------------

    \24\ 82 FR 11748 et seq.
---------------------------------------------------------------------------

    In addition, all time periods have been explicitly set forth in 
terms of ``business days,'' and time periods previously phrased as 
calendar days have been converted to business days. Section 102.2(a) 
generally provides that time periods of less than 7 days should be 
calculated as business days, i.e., calculations should omit weekends 
and holidays, whereas periods of 7 or more days include weekends and 
holidays (unless the last day falls on a weekend or holiday, in which 
case the time period in question ends on the next business day). Due to 
the fact that the representation case Rules have been drafted in such a 
way that many, even most, provisions are interlocking, the Board has 
concluded that all representation case time periods should be 
calculated in the same manner to reduce confusion and promote 
uniformity and transparency. For the most part, this has simply been a 
matter of converting due dates previously phrased in multiples of 7 
(calendar) days to the same multiple of 5 business days. This 
conversion leaves the actual time afforded for complying with the 
relevant requirement undisturbed, except in those relatively rare 
circumstances where a federal holiday falls within time period being 
calculated. Any loss of speed or efficiency will accordingly be rare 
and will be more than offset by the uniformity, transparency, and 
clarity gained through the conversion to business days.
    Relatedly, given that the prior rules did not expressly define 
``business day'' (despite using occasionally using the phrase), the 
final rule updates Sec.  102.2(a) to explicitly state that ``business 
day'' does not include Saturdays, Sunday, or holidays. Further, as the 
prior rules used various and undefined

[[Page 69531]]

formulations when accounting for holidays in time computations,\25\ the 
final rule updates Sec.  102.2(a) to specify that only federal holidays 
should be excluded from time computations. These modifications also 
promote uniformity and transparency.\26\
---------------------------------------------------------------------------

    \25\ Thus, the time computation provisions in Sec.  102.2(a) 
refer to both ``a legal holiday'' and unmodified ``holidays''; 
certain time computation provisions of the representation case Rules 
refer to ``federal holidays,'' see Sec.  102.63(a)(1), while others 
refer to unmodified ``holidays,'' see Sec. Sec.  102.67(i)(1), (k), 
102.69(f); and the time computation provisions Freedom of 
Information Act Requirements mostly refer to ``legal public 
holidays,'' see Sec. Sec.  102.117(c)(2), 102.119(a)(2), (b)(1), 
(d), (f)(1)(iv), but also refer to ``legal holidays,'' see Sec.  
102.117(d)(1)(viii).
    \26\ As the main focus of the final rule is on the 
representation case procedures set forth in subpart D, the Board is 
not taking this opportunity to update references to holidays in 
other Subparts, particularly as the revisions to Sec.  102.2(a) are 
adequate to bring clarity and uniformity to this issue.
---------------------------------------------------------------------------

IV. Explanation of Changes to Particular Sections

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

102.62 Election Agreements; Voter List; Notice of Election
    In Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), the 
Board established a requirement that, 7 (calendar) 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 \27\--
with the regional director, who in turn made the list available to all 
parties. Failure to comply with the requirement constituted grounds for 
setting aside the election whenever proper objections were filed. Id. 
at 1240.
---------------------------------------------------------------------------

    \27\ The Board subsequently clarified the Excelsior list 
requirements to include disclosure of employees' full names and 
addresses. North Macon Health Care Facility, 315 NLRB 359 (1994).
---------------------------------------------------------------------------

    The 2014 amendments codified the requirement that the employer 
furnish a voter list, but--in addition to a number of other 
modifications \28\--provided that, absent agreement of the parties to 
the contrary specified in the election agreement or extraordinary 
circumstances specified in the direction of election, the employer was 
required to file the voter list with the regional director, and serve 
it on the other parties, within 2 business days of the approval of the 
election agreement or direction of election. We conclude that the 
relevant interests will be better balanced by requiring filing and 
service of the list within 5 business days.
---------------------------------------------------------------------------

    \28\ The 2014 amendments also modified the voter list 
requirement to require the employer: (1) To furnish additional 
information--including available personal email addresses, available 
home and personal cellular telephone numbers, work locations, 
shifts, and job classifications--for eligible voters; (2) to provide 
the same information for individuals permitted to vote subject to 
challenge (whether by party agreement or direction of the regional 
director); (3) to submit the list in an electronic format approved 
by the General Counsel (unless the employer certifies that it does 
not possess the capacity to produce the list in the required form); 
(4) to serve the list on the other parties; and (5) to file and 
serve the list electronically when feasible. The 2014 amendments 
also state that the parties shall not use the list for purposes 
other than the representation proceeding, Board proceedings arising 
from it, and related matters. The final rule leaves these provisions 
unmodified, aside from simplifying the challenged voter information 
requirement so that it now simply refers to voters who will be 
permitted to vote subject to challenge, without specifying the 
manner in which that arrangement may be reached. For further 
discussion of individuals being permitted to vote subject to 
challenge, see the discussion of changes to Sec.  102.64, infra.
---------------------------------------------------------------------------

    The 2014 amendments provided relatively little explanation for 
reducing the time for producing and serving the voter list--
notwithstanding the accompanying expansion of the required information 
to be included on the list--aside from stating that ``advances in 
recordkeeping and retrieval technology as well as advances in record 
transmission technology . . . warrant reducing the time period'' and 
that faster production of the list facilitated expeditious resolution 
of questions of representation given that an election cannot be held 
before the voter list is provided. 79 FR 74353. In dismissing comments 
objecting to the reduction in time, the Board commented that employers 
now are far more likely to have access to computers, spreadsheets, and 
email than was the case in 1966, that prior experience indicates some 
employers were already capable of producing the list within 2 days, 
that employers are free to begin assembling the list before the 
election agreement is approved or the election is directed, that the 
median unit is relatively small, and that provision of the voter list 
simply entails updating the preliminary employee list that must be 
included with the employer's Statement of Position pursuant to Sec.  
102.63. The Board also observed that for elections conducted pursuant 
to an election agreement, the parties are free to agree to more time, 
and that for directed elections the regional director can provide more 
time in light of extraordinary circumstances.
    We take a different view. First, as discussed below with respect to 
Sec.  102.67(b), for directed elections the election will now normally 
not be scheduled before the 20th business day after the date of the 
direction of election.\29\ Accordingly, the reduction in the time for 
producing the voter list would no longer facilitates a corresponding 
reduction in time for scheduling a directed election. Under the final 
rule, the employer will now have 5 business days from the direction of 
election to file and serve the voter list, consistent with Board 
practice prior to the 2014 amendments. Further, the parties entitled to 
the list will--absent waiver--have additional time to make use of the 
list to communicate with employees prior to the election.\30\ And for 
election agreement situations, providing for 5 business days to produce 
the list harmonizes these parallel provisions and promotes uniformity.
---------------------------------------------------------------------------

    \29\ In most cases, the only exception is if the parties agree 
to waive the 20-business-day period, which is designed to permit the 
Board to rule on any pre-election request for review that may be 
filed.
    \30\ See The Ridgewood Country Club, 357 NLRB 2247 (2012); Mod 
Interiors, Inc., 324 NLRB 164 (1997); CHM 11302.1.
---------------------------------------------------------------------------

    Second, independent of the institution of the 20-business-day 
period in directed elections, we conclude that, as a matter of policy, 
it is preferable to provide more time for employers to assemble and 
submit the list, and that the 2014 amendments accorded too little 
weight to concerns that favor permitting more time. Although there 
certainly have been technological changes since 1966 that may permit 
some employers to more quickly compile and transmit the voter list, 
this is by no means true of all employers. Further, the mere fact that 
employers may have access to computers, spreadsheets, and email does 
not mean that the required information is always computerized or kept 
in one location.\31\ If not, gathering the required information for 
disclosure could prove to be a substantial task, even if the employer 
has already gathered some of

[[Page 69532]]

the required information for the employee list submitted in conjunction 
with its Statement of Position.\32\ Moreover, whatever their 
technological capabilities, assembling the voter list may prove 
challenging for large or decentralized employers,\33\ and may, as some 
comments from the 2011 and 2014 rulemakings pointed out, pose special 
problems for particular types of cases, such as those involving the 
construction industry \34\ or joint or multi-employer arrangements.\35\ 
In addition, the fact that some employers were able to submit the 
Excelsior list within 2 days prior to the 2014 amendments is of 
questionable relevance, given that Excelsior required far less 
information to be disclosed than did the 2014 amendments, and in any 
event it simply does not follow that because some employers were able 
to submit a list of names and addresses within 2 days, all employers 
should be required to submit a significantly expanded list within that 
timeframe. Finally, expecting that employers will start assembling the 
list prior to the approval of an election agreement or the direction of 
election may well be reasonable in some cases, but citing this as a 
reason for reducing the time to produce the list in all cases does not 
promote orderly litigation. The voter list requirement is triggered by 
the approval of the election agreement or the direction of election; 
until the regional director takes one of these actions, the requirement 
has not been activated. Effectively requiring employers to begin 
complying with requirements that have not yet been triggered--and in 
some cases may never be triggered--at the very least raises questions 
of fairness and transparency. It is anything but transparent to state 
that a procedural requirement attaches at a certain point yet defend a 
truncated timeline for meeting that requirement by opining that 
employers have ample time to comply with the requirement before it has 
even attached to begin with. At any rate, in cases in which the scope 
of the unit is in dispute, advance preparation will be difficult given 
that the precise contours of the unit will not be known until a 
direction of election issues,\36\ and even in situations where the 
parties reach an election agreement, the contours of the unit may not 
be finalized until shortly before the agreement is signed and approved.
---------------------------------------------------------------------------

    \31\ For example, in RHCG Safety Corp., 365 NLRB No. 88, slip 
op. at 5-6 & n.19-20 (2017), the employer did not maintain its 
employees' personal telephone numbers in a computer database, yet 
the Board concluded that this contact information was nevertheless 
``available'' because there was evidence that when the employer's 
supervisors and foremen needed to contact employees about work, they 
frequently contacted them on the employees' personal cell phones. 
Id., slip op. at 5-6 & 5 n.19. The Board indicated that under such 
circumstances, the employer was obligated to ask the supervisors and 
foremen for the contact information stored on the supervisors' or 
foremen's phones. Id., slip op. at 6 n.20. As this case illustrates, 
technological advances and their availability to a given employer do 
not necessarily mean that the required voter list information is 
readily at hand, even if it is ``available.''
    \32\ This requirement is located at Sec.  102.63(b)(1)(i)(C), 
(b)(2)(iii), and (b)(3)(i)(D) as amended by this final rule.
    \33\ See, e.g., President and Fellows of Harvard College, Case 
No. 01-RC-186442, in which the employer had to coordinate between 14 
separate constituent schools in order to assemble voter list 
information for a unit that included over 3,500 eligible voters for 
the first election and over 5,000 eligible voters for the second 
election.
    \34\ 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., 308 NLRB 
1323, 1326-27 (1992), and Daniel Construction Co., Inc., 133 NLRB 
264, 267 (1961), modified, 167 NLRB 1078, 1081 (1967). Even for 
small employers, applying the formula to identify eligible voters 
may itself prove time-consuming, irrespective of any additional time 
needed to gather the required voter list information.
    \35\ Such arrangements may involve gathering information from 
more than one employer. Particularly for elections involving 
multiemployer associations, this may require coordination among 
dozens of employers.
    \36\ We acknowledge that under the Statement of Position 
requirement (discussed below), a nonpetitioning party who contests 
the propriety of the petitioned-for unit is required to 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,''; an employer is also required to provide 
information on such employees it contends should be included or 
excluded. Sec.  102.63(b)(1)(i) and (iii); (b)(2)(i) and (iii); 
(b)(3)(i) and (iii). Thus, after all initial Statements of Position 
have been filed, an employer will be on notice of the possible unit 
configurations proposed by the parties. Even so, when a petitioned-
for unit is not appropriate, the Board has the discretion to select 
an appropriate unit that is different from the alternative units 
proposed by the parties. See Bartlett Collins Co., 334 NLRB 484, 484 
(2001). Accordingly, even though the parties may be aware of each 
other's positions and alternative proposals, the Board remains free 
to direct an election in some other unit.
---------------------------------------------------------------------------

    This is not to suggest that it is impossible or unreasonable for 
employers to produce the voter list within 2 business days; many 
employers have clearly been able to do so under the 2014 amendments. 
Unlike the 2014 amendments, however, we are unwilling to convert some 
employers' admirable speed into a requirement that must be applied to 
all employers absent ``extraordinary circumstances'' (for directed 
elections) or party agreement to the contrary. We think that the better 
practice is to set forth a timeline that is unlikely to present 
difficulties in the first instance and leave it to the parties to agree 
upon shorter timeframes, as they may deem appropriate.\37\ In this 
regard, the final rule promotes efficiency by promoting voluntary 
agreement between the parties in this area.
---------------------------------------------------------------------------

    \37\ We fully agree with the 2014 amendments that the general 
rule should not be subject to categorical exemptions for particular 
industries. 79 FR 74354-74355. But unlike the 2014 amendments, our 
view is that the potential for greater compliance difficulties in 
certain types of cases counsels in favor of relaxing the general 
requirement, rather than placing the burden on a given employer to 
demonstrate that extraordinary circumstances warrant departing from 
the general requirement.
---------------------------------------------------------------------------

    Finally, providing more time to produce the voter list will reduce 
the potential for inaccurate lists, as well as the litigation and 
additional party and Agency expenditures that may result therefrom. 
Most importantly, if providing the employer with 3 more business days 
to compile the list can avoid having just a few elections set aside 
based on noncompliant voter lists, this is a trade we are more than 
willing to make, given that rerun elections greatly delay the final 
resolution of a question of representation. The voter list, like its 
Excelsior forerunner, serves an important and crucial dual purpose, and 
the Board's practice of setting aside elections where the list is not 
provided or is unacceptably incomplete is designed to vindicate those 
purposes. But at the same time, this can result in the setting aside of 
elections where the parties entitled to the list did not suffer any 
prejudice,\38\ or where the omissions warranting setting aside the 
election were not due to any bad faith on the part of the employer.\39\ 
We are therefore of the view that the Board should, within reason, 
promulgate procedures that will reduce the possibility of inaccurate 
voter lists and thus avoid the litigation and rerun elections that may 
follow. This in turn will promote more expeditious resolution of 
questions of representation, at least in some cases. Providing the 
employer with 3 more business days is an easy way to minimize the 
possibility of inaccurate lists and is generally consistent with the 
prior 7-calendar-day requirement which--it must be said--the 2014 
amendments did not demonstrate was itself causing undue delay in the 
scheduling or conduct of elections.
---------------------------------------------------------------------------

    \38\ See, e.g., Sonfarrel, Inc., 188 NLRB 969, 970 (1971).
    \39\ Woodman's Food Markets, Inc., 332 NLRB 503, 504 n.9 (2000) 
(``a finding of bad faith is not a precondition for a finding that 
an employer has failed to comply substantially with the Excelsior 
rule'').
---------------------------------------------------------------------------

    In sum, modifying the voter list requirement to provide that the 
list must be filed and served within 5 business days of the approval of 
an election agreement or the direction of election will promote 
efficiency, accuracy, transparency and uniformity, without any 
significant reduction in the timely resolution of questions of 
representation under the amendments set forth in this final rule. The 
parties will also remain free to agree to a shorter time for provision 
of the list.

[[Page 69533]]

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
    The final rule makes changes to 3 aspects of Sec.  102.63: (1) For 
the scheduling of pre-election hearings, the regional director now will 
set the hearing date 14 business days from the date of service of the 
notice, and all requests for postponements may be granted upon a 
showing of good cause; (2) for Statements of Position, the non-
petitioning party or parties' Statement(s) of Position will now be due 
8 business days following the issuance and service of the notice of 
hearing, requests for postponement may now be granted upon a showing of 
good cause, and the petitioner will now be required to file a 
responsive Statement of Position no later than noon 3 business days 
before the hearing; and (3) for the required posting of the Notice of 
Petition for Election, the employer now has 5 business days to 
comply.\40\
---------------------------------------------------------------------------

    \40\ The time for scheduling the pre-election hearing and 
submitting the initial and responsive Statements of Position are all 
interconnected and therefore are not severable from each other. In 
addition, we would not adopt the relaxed timeline for posting the 
Notice of Petition absent the relaxed timelines for the pre-election 
hearing and the submission of the Statements of Position, but we 
would adopt the changes to the timeline for the hearing and the 
Statements of Position absent the change to the timeline for posting 
the Notice of Petition. Finally, the requirement that the 
petitioning party file a responsive Statement of Position prior to 
the hearing is severable, and we would adopt it in the absence of 
any or all of the timeline changes made to this Section.
---------------------------------------------------------------------------

A. Scheduling of Pre-Election Hearing
    The 2014 amendments revised Sec.  102.63(a) to provide that, except 
in cases presenting ``unusually complex'' issues, regional directors 
``shall set the hearing for a date 8 days from the date of service of 
the notice.'' This period excludes federal holidays, and if the 8th day 
falls on a weekend or federal holiday, the hearing is set for the 
following business day. The amendments authorized regional directors to 
postpone the opening of the hearing for 2 business days upon request of 
a party showing ``special circumstances'' and to postpone it for more 
than 2 business days upon request of a party showing ``extraordinary 
circumstances.''
    The final rule revises this timeline by providing that the pre-
election hearing will now be set to commence 14 business days from the 
date of service of the notice of hearing.\41\ This timeline is 
essentially dictated by the changes the final rule makes to the 
Statement of Position requirement, which are discussed in detail in the 
next section. In addition, for the reasons explained earlier, relaxing 
the time from the notice of hearing to the hearing itself promotes 
transparency and fairness by affording the parties more time to deal 
with necessary preliminary arrangements (such as retaining counsel,\42\ 
identifying and preparing witnesses, gathering information, and 
providing for any hearing-related travel) and to balance such 
preparation against their other procedural obligations (including 
preparation of the Statement of Position).\43\ Further, the additional 
time before the hearing will give the parties more and better 
opportunity to reach election agreements, and at the very least will 
result in more efficient hearings. The relaxed pre-hearing timeline 
accordingly continues to promote efficiency. The 14-business-day 
timeline may even promote greater administrative efficiency by easing 
the logistical burdens the expedited 8-day timeline currently imposes 
on regional personnel \44\ and by avoiding hearing-related costs when 
the parties are able to reach election agreements. And finally, the 14-
business-day requirement brings the pre-election hearing schedule into 
closer alignment with the post-election hearing schedule, which 
provides for such hearings to open 15 business days from the 
preparation of the tally of ballots.\45\ In sum, the expanded timeline 
for pre-election hearings promotes multiple interests. Although it 
represents a departure from the accelerated schedule provided by the 
2014 amendments, we think this departure is fully justified by the 
advantages the expanded timeline will secure.\46\
---------------------------------------------------------------------------

    \41\ The final rule retains the provision that the regional 
director may set a different hearing date ``in cases presenting 
unusually complex issues.''
    \42\ We observe that the 2014 amendments responded to concerns 
about necessity of retaining counsel by pointing out that labor 
consultants and other ``advisers'' frequently contact employers to 
offer their services shortly after a petition has been filed. This 
may be so, but our experience reflects that, in the vast majority of 
contested cases that involve appeals to the Board, employers have 
elected to retain licensed legal counsel who specialize in labor and 
employment law.
    \43\ The 14-business-day timeline should also alleviate 
concerns--expressed in the 2011 and 2014 rulemaking proceedings and 
in response to the 2017 Request for Information--that the 8-day 
timeline poses particular difficulty for smaller employers who are 
less experienced with the Act, larger employers who have other time-
sensitive obligations, and those employers who may have been 
previously unaware of a petitioner's organizing campaign. 79 FR 
74367.
    \44\ In this regard, we take administrative note that, at 
various times since the 2014 amendments took effect, regional 
personnel have voiced concerns over the 8-day timeline. For example, 
the submission of the NLRB Regional Director Committee in response 
to the 2017 Request for Information commented that some regional 
directors do not agree with setting of hearings for 8 days from the 
date of the petition.
    \45\ See Sec.  102.69(c)(1)(ii). The prior rules provided for 
post-election hearings to open 21 calendar days from the preparation 
of the tally of ballots; for the reasons discussed earlier, the 
final rule has converted this period to 15 business days (which 
will, absent intervening federal holidays, translate to the 
historical 21 calendar days). Contrary to our dissenting colleague's 
assertion, we are not suggesting that the Board could have scheduled 
post-election hearings to open 8 calendar days following the 
issuance of a tally of ballots; we are well aware that this would 
not have been possible given that parties have 5 business days (7 
calendar days) to file objections following the issuance of the 
tally of ballots. We are merely observing that by virtue of this 
final rule, the time between a petition and pre-election hearing now 
closely corresponds to the time between the tally of ballots and the 
post-election hearing, as a result of which there is greater 
uniformity within the Board's representation case procedures.
    \46\ The timing of the hearing provided by the final rule is 
accordingly ``an appropriate accommodation of the interests 
involved.'' Goss v. Lopez, 419 U.S. 565, 579 (1975). We recognize 
that the expanded timeline represents a significant departure from 
the 2014 amendments, as well as Croft Metals, Inc., 337 NLRB 688, 
688 (2002), in which the Board held that 5 business days' notice of 
a pre-election hearing was sufficient. As already discussed, this 
departure is ``rational and consistent with the Act'' and therefore 
justified given other interests served by a longer period, 
particularly including the need to comply with newly-imposed pre-
hearing procedural requirements that were not a concern under the 
Croft Metals timeline. See NLRB v. Curtin Matheson Scientific, Inc., 
494 U.S. 775, 787 (1990) (``a Board rule is entitled to deference 
even if it represents a departure from the Board's prior policy'' if 
it is ``rational and consistent with the Act'').
---------------------------------------------------------------------------

    The final rule also revises the standard for postponing the pre-
election hearing: Instead of requiring parties to show ``special'' or 
``extraordinary'' circumstances, limiting postponements based on 
``special'' circumstances to 2 business days, and providing that 
postponements based on ``extraordinary'' circumstances may be ``more 
than 2 business days,'' the final rule now simply permits postponement 
upon a showing of ``good cause'' and leaves the length of the 
postponement to the discretion of the regional director. The 2014 
amendments offered little explanation for opting to require a showing 
of ``special'' and ``extraordinary'' circumstances to warrant 
postponement of the hearing, as opposed to some other standard. As for 
the 2-day limitation on postponements for ``special circumstances,'' 
the 2014 amendments state only that this limitation of the regional 
directors' discretion was designed to ensure that ``the exception will 
not swallow the rule.'' 79 FR 74371.
    Prior to the 2014 amendments, the Board's Rules and Regulations did 
not articulate any standard for granting postponements. We readily 
agree that by

[[Page 69534]]

articulating some standard for postponements, the 2014 amendments 
promoted transparency and uniformity. At the same time, we fail to 
understand why the 2014 amendments opted for the two-tier ``special'' 
and ``extraordinary'' standard, rather than incorporating preexisting 
guidelines that regional directors were to grant a postponement ``only 
when good cause is shown.'' See Casehandling Manual (Part Two) 
Representation Proceedings section 11143 (Sep. 2014). As the 2014 
amendments acknowledged, several commenters urged retention of the 
Casehandling Manual's guidance, and yet the 2014 amendments offered no 
explanation for opting for ``special'' and ``extraordinary 
circumstances'' standard over the existing ``good cause'' standard. 79 
FR 74371-74372. It appears that the Board believed that a more 
restrictive standard would better serve the purpose of expeditious 
resolution of questions of representation, but we fail to see how this 
is self-evident. The 2014 Casehandling Manual specified that under the 
``good cause'' standard, postponement requests were ``not routinely 
granted,'' see section 11143, and the 2014 amendments did not point to 
any evidence indicating that regional directors had been too liberal in 
granting postponements under this standard, or that it was otherwise 
causing unnecessary delay. Moreover, the 2014 amendments offered no 
guidance on what would constitute ``special'' or ``extraordinary'' 
circumstances.
    Aside from the ill-explained rejection of the ``good cause'' 
standard for pre-election hearing postponements, the rationale for the 
2014 amendments' limitation of postponements to 2 days based on 
``special circumstances'' is also elusive. Here too, the 2014 
amendments did not reference any evidence, or even really suggest, that 
regional directors were granting unreasonably long postponements, or 
that parties were allowed to abuse the ``good cause'' postponement 
guideline. In any event, this restriction on regional directors' pre-
hearing discretion contrasts with the 2014 amendments' expressed 
emphasis on encouraging regional directors' post-hearing exercise of 
discretion,\47\ as well as with the general axiom that regional 
directors, who are closer to the facts and realities on the ground, are 
in better position to judge what is or is not warranted based on the 
particulars presented. And on a final note, this strict limitation is 
somewhat puzzling in light of the regional directors' initial 
discretion to decide, based on the petition alone, that a case presents 
``unusually complex issues'' that warrant setting the initial hearing 
date more than 8 days after the filing of the petition. If regional 
directors are free to schedule a hearing at whatever remote date they 
deem necessary in ``unusually complex'' cases, why should they be 
limited to granting only a 2-day postponement if ``special 
circumstances'' are established?
---------------------------------------------------------------------------

    \47\ Cf. 79 FR 74388 n.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 election 
following pre-election hearings'').
---------------------------------------------------------------------------

    For these reasons, we have decided to reinstate and codify the 
previous ``good cause'' standard for granting postponements and to 
leave the length of each postponement within the sound discretion of 
the Regional Director. Once more, we are aware of no evidence 
suggesting that the ``good cause'' standard or the length of the 
postponements granted under it were in any way responsible for needless 
delay prior to the 2014 amendments. Although we acknowledge that 
limiting the length of postponements may have promoted some degree of 
national uniformity in terms of regional practices, we think that 
restoring to regional directors greater discretion to consider the 
particulars of the cases before them is the preferable course here and 
will ultimately better serve transparency and fairness. Further, 
eliminating the ill-defined two-tiered standard in favor of a single, 
unitary standard for granting postponements will promote a more 
desirable kind of uniformity. Finally, to the extent that ``good 
cause'' is a lower threshold than ``special'' or ``extraordinary'' 
circumstances, we do not think that this standard will prompt regional 
directors to grant postponements at the drop of a hat, thereby 
detracting from the expeditious resolution of questions of 
representation; rather, just as the 2014 Casehandling Manual provided, 
even under the ``good cause'' standard postponements will not be 
routinely granted. We accordingly do not believe there is any risk that 
the exception will swallow the rule.\48\
---------------------------------------------------------------------------

    \48\ Beyond the fact that postponements will not be routinely 
granted under the ``good cause'' standard, we observe that the 
expanded pre-hearing timeline will likely reduce requests for 
postponement to begin with and may mean that fewer parties 
requesting postponement are able to establish good cause in the 
first instance. In any event, should our predictions prove wrong and 
subsequent experience demonstrate that the ``good cause'' standard 
results in unacceptable delay, we will be willing to revisit it.
---------------------------------------------------------------------------

B. Statements of Position
    The 2014 amendments introduced the requirement that the employer 
(in all types of election cases), the other named parties (in RM 
cases), and the incumbent union (in RD cases) file a Statement of 
Position. Although controversial, the Board has decided to retain the 
Statement of Position requirement in its entirety,\49\ with two 
important modifications. First, in order to give parties more time to 
comply with the Statement of Position requirements, the non-petitioning 
party (or parties) will be required to file and serve the Statement of 
Position at noon 8 business days following service of the notice of 
hearing, as opposed to the current requirement that the Statement of 
Position be filed and served at noon the business day before the 
hearing is scheduled to commence. As with the aforementioned amendment 
relating to scheduling of a hearing, the regional director will also be 
permitted to postpone the due date for good cause and will have 
discretion to determine the length of any postponement. Second, in all 
election cases, the petitioner will now be required to file and serve a 
responsive Statement of Position by noon 3 business days before the 
hearing is scheduled to open; as with the initial Statement of 
Position, the regional director will also be permitted to postpone the 
due date for good cause.
---------------------------------------------------------------------------

    \49\ The required contents of the Statement of Position can be 
found in Sec.  102.63(b).
---------------------------------------------------------------------------

    As indicated above, these two modifications account for the 14-
business-day timeline between the notice of hearing and the start of 
the pre-election hearing. Thus, the initial Statement of Position is 
due within 8 business days of the notice of hearing; the responsive 
Statement of Position is due 3 business days before the start of 
hearing; and by providing that the hearing will start 14 business days 
after the notice of hearing, the timeline will always provide 3 
business days for the petitioner to prepare the responsive Statement of 
Position.
    Although these modifications will result in a longer period of time 
between the filing of a petition and the start of the pre-election 
hearing than was the case under the 2014 amendments, the Board believes 
that these changes will enable parties to reach election agreements in 
even more cases than they currently do,\50\ thus serving the purposes 
of efficiency and the voluntary resolution of disputes. Further, even 
in

[[Page 69535]]

those cases where parties are unable to enter into election agreements, 
the introduction of the responsive Statement of Position will result in 
more efficient pre-election hearings. And the recasting of the 
timeframe for filing and serving these documents will promote 
transparency and uniformity with respect to the pre-hearing timeline.
---------------------------------------------------------------------------

    \50\ See fn. 16, supra, for statistics regarding the rate of 
election agreements before and after the 2014 amendments.
---------------------------------------------------------------------------

1. Time for Filing and Service the Initial Statement of Position
    The 2014 amendments provided that the initial Statement of Position 
was due at noon the business day before the opening of the hearing, 
which meant that in most cases the Statement of Position had to be 
filed and received within 7 calendar days of the notice of hearing.\51\ 
As with the scheduling of the pre-election hearing, the 2014 amendments 
provided that regional directors could, upon a showing of ``special 
circumstances,'' postpone the date for filing and service for up to 2 
business days, and could postpone the date for more than 2 business 
days upon a showing of ``extraordinary circumstances.'' With limited 
exceptions, a party was precluded from raising any issue, presenting 
any evidence relating to any issue, cross-examining any witness 
concerning any issue, and presenting argument concerning any issue that 
the party failed to raise in its timely Statement of Position. Sec.  
102.66(d).
---------------------------------------------------------------------------

    \51\ The 2014 amendments also provided that ``in the event the 
hearing is set to open more than 8 days from service of the'' Notice 
of Hearing, the regional director could set the due date for the 
Statement of Position earlier than noon on the business day before 
the hearing, but guaranteed that in all cases, parties would have 7 
(calendar) days' notice of the due date for completion of the 
Statement of Position. 79 FR 74361.
---------------------------------------------------------------------------

    The Board has determined that the Statement of Position requirement 
has been a highly effective tool in promoting orderly litigation and 
efficiency. It has been particularly useful in narrowing the issues to 
be litigated at the pre-election hearing, and we believe that it has 
facilitated entry into election agreements in some cases. At the same 
time, the Statement of Position is also a complicated, multi-part 
requirement that must be completed at the same time the non-petitioning 
parties--especially employers--are concerned with retaining counsel and 
engaging in other hearing-related preparation. Further, the preclusive 
consequences of failing to file a Statement of Position, or of failing 
to raise an issue therein, are heavy. We have accordingly concluded 
that parties should be given slightly more time to file and serve the 
Statement of Position, and under the final rule it will now be due at 
noon 8 business days following service of the notice of hearing.
    This timeline continues to serve the purposes of transparency and 
uniformity, and perhaps even improves upon the 2014 amendments in this 
regard, as the due date is now set forth in terms of a set number of 
business days following the notice of hearing, rather than being linked 
to the scheduled opening of the hearing. The due date for the Statement 
of Position will accordingly always be predictable and readily 
ascertainable.
    Further, the additional time will promote efficiency in several 
ways. Again, the Statement of Position must be prepared against the 
backdrop of other pre-election hearing preparations, which may involve 
a number of other time-consuming tasks, including retaining counsel, 
researching the facts and relevant law, identifying and preparing 
potential witnesses, making travel arrangements, coordinating with 
regional personnel, and exploring the possibility of an election 
agreement. Providing non-petitioning parties with slightly more time to 
prepare the Statement of Position will allow them to better balance 
these obligations.\52\ Moreover, it is foreseeable that providing the 
non-petitioning parties with more time will improve the quality of 
their Statements of Position. For example, allowing more time to 
complete the Statement of Position should encourage parties to better 
focus their arguments, thereby avoiding the so-called ``shotgun'' 
approach some parties have taken to the Statement of Position (i.e., 
raising every conceivable issue to avoid waiving any arguments). More 
focused Statements of Position should in turn lead to more focused and 
efficient hearings, which will result in more focused regional 
decisions (which, if any appeals are filed, will in turn promote more 
efficient Board review). And the additional time and potential for more 
focused Statements of Position--in conjunction with the introduction of 
the responsive Statement of Position discussed below--will promote 
entry into election agreements, promoting efficiency within that 
specific proceeding and conserving the Agency's resources by obviating 
the need for a hearing.
---------------------------------------------------------------------------

    \52\ The additional time should also help alleviate the frequent 
complaints--stretching back to the comments to the 2011 NPRM and 
continuing through the responses to the 2017 Request for 
Information--that the Statement of Position requirements, by 
themselves or in combination with other obligations, are 
particularly onerous for certain types of employers or in certain 
types of cases.
---------------------------------------------------------------------------

    Weighed against the foreseeable benefits of providing additional 
time for filing and serving the Statement of Position, the costs of 
doing so are modest. Generally speaking, extending the typical 
Statement of Position timeline from 7 calendar to 8 business days will 
typically result in initial Statements of Position being due 3-4 days 
later than under the 2014 amendments. This is still within the outer 
limits of the timeline contemplated by the 2014 amendments, which 
permitted regional directors to postpone the time for filing the 
Statement of Position for 2 or more business days upon a proper 
showing. This is also still a significantly shorter timeline than those 
proposed by commenters in the past.\53\
---------------------------------------------------------------------------

    \53\ For example, the 2014 amendments noted comments proposing 
periods ranging from 14 to 30 days. 79 FR 74375.
---------------------------------------------------------------------------

    In addition to extending the time for filing and serving the 
initial Statement of Position, the final rule modifies the standard for 
granting postponements. Rather than requiring a showing of ``special'' 
and/or ``extraordinary'' circumstances and limiting postponements based 
on ``special'' circumstances to 2 business days, postponements will now 
be subject to a showing of good cause, and the length of any 
postponement will be left to the sound discretion of the regional 
director. These changes are warranted for many of the same reasons 
discussed above with respect to postponements to the opening of the 
pre-election hearing. There is no reason to believe that regional 
directors have been too generous in finding good cause in other 
contexts, nor is there any reason to suspect that without limiting 
their discretion they will begin granting unreasonably lengthy 
postponements. The better course is, we think, to give regional 
directors wider discretion to consider the particular circumstances 
before them when evaluating requests for postponements, and we are also 
of the view that this approach better serves transparency and 
efficiency. Further, a uniform ``good cause'' standard is more 
understandable and desirable than the ill-defined two-tiered 
``special'' and ``extraordinary'' circumstances standard, and in this 
particular context it aligns the standard for postponing the Statement 
of Position due date with the standard for permitting parties to amend 
the Statement of Position. See, e.g., Sec.  102.63(b)(1), (2), 
(b)(3)(i)(A). Finally, as is the case with requests to postpone the 
opening of the hearing, postponements will not be routinely granted 
under a good cause standard.

[[Page 69536]]

2. Responsive Statement of Position
    The Board has also determined that efficiency, transparency, and 
uniformity will be served by requiring the petitioner to file a 
responsive Statement of Position, which will be due at noon no later 
than 3 business days before the hearing. As indicated earlier, the 14-
business-day timeline from the notice of hearing to the opening of the 
pre-election hearing guarantees that the petitioner will have 3 
business days to prepare and file the responsive Statement of Position 
after receiving the initial Statement(s) of Position. As with the 
initial Statement of Position, the regional director may permit the 
responsive Statement of Position to be amended for good cause. And 
consistent with existing practice, the petitioner will, with limited 
exceptions, be precluded from raising any issue, presenting any 
evidence relating to any issue, cross-examining any witness concerning 
any issue, and presenting argument concerning any issue that the 
responsive Statement of Position failed to place in dispute in response 
to another party's Statement of Position.
    Under the prior rules, after the opening of the hearing ``all other 
parties''--including the petitioner--were required to ``respond on the 
record to each issue raised'' in the Statement of Position. Sec.  
102.66(b). The regional director could permit such responses to be 
amended in a timely manner for good cause. Sec.  102.66(b). And a party 
was precluded from raising any issue, presenting any evidence relating 
to any issue, cross-examining any witness concerning any issue, and 
presenting argument concerning any issue that the responsive Statement 
of Position failed to place in dispute in response to another party's 
Statement of Position. Sec.  102.66(d). Accordingly, the responsive 
Statement of Position is not a new requirement, nor does the penalty of 
preclusion go beyond existing practice. Rather, the responsive 
Statement of Position simply takes an existing requirement and modifies 
it only to the extent that the response is now due, in writing, 3 
business days before the opening of the hearing.\54\
---------------------------------------------------------------------------

    \54\ Further, the prior rules already required petitioners to 
file pre-hearing Statements of Position in RM cases, although the 
prior rules did not require the petitioner-employer's Statement of 
Position to respond to the issues raised by the Statement(s) of 
Position filed by the individual(s) or labor organization(s) named 
in the petition. See Sec.  102.63(b)(2)(iii).
---------------------------------------------------------------------------

    The responsive Statement of Position is not designed to be an 
onerous requirement. The primary purpose of the responsive Statement is 
simply to get the petitioner's response to the initial Statement(s) of 
Position in writing prior to the hearing, thereby putting the parties 
and the regional director on notice that an issue remains in dispute in 
advance of the hearing. In addition, it will be an opportunity for the 
petitioner to clarify any positions taken that may not have been 
evident from the petition itself. We recognize that there may be times 
when a petitioner is unable to provide a detailed or meaningful 
response to issues raised by the initial Statement of Position due to a 
lack of evidence or knowledge, but in such circumstances it will be 
sufficient for the responsive Statement of Position to state as much, 
thus identifying the issue as still potentially in dispute. As is 
already the case with the initial Statement of Position, the responsive 
Statement need not be exactingly detailed to avoid preclusion.\55\ And 
again, as is already the case with oral responses at the hearing, 
regional directors have the discretion to permit the responsive 
Statement of Position to be amended upon a showing of good cause.
---------------------------------------------------------------------------

    \55\ Cf. 79 FR 74369 n.298 (declining request to require 
employer raising supervisory status to identify in Statement of 
Position particular indicia of supervisory status on which argument 
is based).
---------------------------------------------------------------------------

    The responsive Statement of Position requirement serves the purpose 
of uniformity by requiring a written Statement of Position from all 
parties in advance of the hearing. As noted, RM petitioners are already 
required to file a responsive Statement of Position; this will now be 
required of petitioners in all election cases. Although it is true that 
petitioners were previously required to state positions on certain 
issues in the petition itself, if the initial Statement(s) of Position 
placed other issues in dispute, the petitioner was not obligated to 
state its position on those issues until after the hearing had opened. 
Given that issues beyond those contemplated in the petition can and 
will often be raised in the initial Statement of Position, we think 
that it is a matter of common sense to require the petitioner to state 
its position on newly-raised issues prior to the hearing.\56\
---------------------------------------------------------------------------

    \56\ We do not agree with the dissent's characterization of the 
petition as equivalent to the Statement of Position, such that the 
responsive Statement of Position will amount to second written 
statement of position for petitioners. Aside from contact 
information for the petitioner, the employer, and the incumbent 
union (if any), the RC and RD petition forms merely prompt the 
petitioner to describe the unit involved (and to state whether a 
substantial number of employees in the unit wish/no longer wish to 
be represented by the petitioner), to indicate whether a strike is 
currently in progress, to indicate whether there are other 
organizations or individuals claiming recognition or an interest in 
the unit, and to state the petitioner's position on election details 
(time, place, and type). The RC petition form additionally asks 
whether the petitioner has made a request for recognition or is 
currently recognized as the representative but now desires 
certification, and the RD petition asks for the date the incumbent 
was certified and for the expiration date of the current or most 
recent contract (if any). See Form NLRB-502 (RC) and Form NLRB-502 
(RD). By contrast, the Statement of Position, in addition to 
soliciting the nonpetitioning party's position on election details, 
also requires the party to state its position on the Board's 
jurisdiction, the propriety of the petitioned-for unit (and the 
basis for any contention it is not appropriate), whether there is a 
bar to conducting an election, and what eligibility period (as well 
as special eligibility formula, if any) should apply; the party is 
also obligated to list the names of individuals whose eligibility 
the nonpetitioning party intends to contest at the hearing (and the 
basis for contesting their eligibility), to describe any other 
issues the nonpetitioning party intends to raise at the pre-election 
hearing, and to prepare the initial employee list. See Form NLRB-
505. The Statement of Position accordingly requires a great deal 
more information and detail from the nonpetitioning party than does 
the petition. It is true that the nonpetitioning party (typically 
the employer) generally possesses the facts needed to litigate any 
issue at the hearing, and that it accordingly makes sense for the 
Statement of Position form to seek more information than the 
petition form, but this does not detract from the fact that the 
Statement of Position form expressly prompts the nonpetitioning 
party to address issues beyond those addressed in the petition, and 
further assumes that the nonpetitioning party will often raise 
additional issues even beyond those the Statement of Position form 
affirmatively prompts that party to address. Thus, at the time it 
files the petition, the petitioner likely does not and often cannot 
know the full range of issues the nonpetitioning party intends to 
raise, let alone the positions that party intends to take on them. 
In short, requiring a responsive Statement of Position prior to the 
hearing is not redundant, but instead solicits the petitioner's 
response--in advance of the hearing--to issues and positions it has 
had no previous opportunity to address.
---------------------------------------------------------------------------

    On a related note, the responsive Statement of Position also serves 
the purpose of transparency by removing any impression that the Board 
is imposing an onerous pleading requirement on the non-petitioning 
parties without extending a similar requirement to the petitioner. To 
be clear, we are not suggesting that the 2014 amendments engaged in any 
prejudicial disparate treatment of the parties vis-[agrave]-vis the 
Statement of Position requirement; as already stated, the requirement 
that the petitioner respond to the Statement(s) of Position already 
existed, albeit in oral form after the hearing had opened. Nor, as the 
dissent suggests, are we altering our procedures to mollify prior 
criticism that the initial Statement of Position requirement is an 
unfair or arbitrarily one-sided requirement. The revision we make would 
seem incidentally to address that criticism, but that is not at all the 
point of requiring a written responsive Statement of Position in 
advance of the hearing.\57\
---------------------------------------------------------------------------

    \57\ We note here that that requiring a responsive Statement of 
Position is likely to be more productive than requiring that 
petitioners file a Statement of Position along with the petition, as 
some responses to the 2017 Request for Information proposed. 
Although in some instances a petitioner may be able to anticipate 
the issues nonpetitioning parties will raise in response to the 
petition, this will not always, or even often, be the case.

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

[[Page 69537]]

    Most importantly, the responsive Statement of Position will promote 
greater efficiency. Virtually every reason that the 2014 amendments 
articulated for the original Statement of Position requirement could be 
reiterated here, but two considerations are, we think, sufficient to 
illustrate the advantages of requiring a responsive Statement. First, 
like the initial Statement, the responsive Statement will make hearings 
more efficient. As the 2014 amendments observed, ``[i]t clearly . . . 
helps narrow the scope of the hearing if all parties state what they 
believe the open issues . . . are and what they seek to litigate in the 
event of a hearing.'' 79 FR 74369 (emphasis added). By requiring the 
petitioner to respond to the issues the employer (and other non-
petitioning parties) have placed in dispute before the hearing, all 
parties and the Board itself will have earlier notice of what issues 
will require litigation at the hearing, should one prove necessary. The 
earlier notice of the issues remaining in dispute will in turn 
facilitate better preparation for the hearing. For example, the 
responsive Statement will put parties on notice of the possible need 
for subpoenas, offer further guidance on what witnesses to call and 
what exhibits to prepare, and may suggest avenues for additional legal 
research. In addition, the responsive Statement will, in at least some 
instances, indicate that a non-petitioning party should prepare 
rebuttal witnesses, which may avoid the need for continuances that 
otherwise would have been necessary had the petitioner's response come 
after the opening of the hearing. For that matter, the responsive 
statement may also enable non-petitioning parties to narrow the scope 
of their witnesses' testimony and may eliminate the need for certain 
witnesses altogether. Thus, aside from permitting better preparation 
for hearings, the responsive statement could help parties save time and 
money. And at the very least, the responsive Statement will help non-
petitioning parties evaluate the merits of the petitioner's positions 
and better formulate their responses in advance of the pre-election 
hearing. These are, of course, some of the very reasons the 2014 
amendments introduced the initial Statement of Position requirement. 
See 79 FR 74362-74364.
    In addition, the responsive Statement of Position will also help 
Agency personnel make hearings more efficient. Just like the initial 
Statement of Position, the responsive Statement saves government 
resources ``by reducing unnecessary litigation and making litigation 
that does occur more efficient.'' Brunswick Bowling Products, LLC, 364 
NLRB No. 86, slip op. at 2 (2016). The Board has long sought ``to 
narrow the issues and limit its investigation to areas in dispute.'' 
Bennett Industries, 313 NLRB 1363, 1363 (1994). Historically, the Board 
has regarded the pre-election hearing as ``part of the investigation in 
which the primary interest of the Board's agent is to insure that the 
record contains as full a statement of the pertinent facts as may be 
necessary for determination of the case.'' Solar International Shipping 
Agency, Inc., 327 NLRB 369, 370 n.2 (1998) (internal quotations 
omitted). The responsive Statement will permit the Board to narrow the 
issues and its investigation prior to the hearing, rather than at the 
start of the hearing. Even where the responsive statement may not 
narrow the number of issues, it will in most cases enable Board 
personnel to better understand the parties' respective positions prior 
to the hearing, which will enable the hearing officer to better prepare 
for the hearing by, for example, reviewing relevant case law in advance 
and developing potential lines of questioning for the parties' 
witnesses. In short, the responsive Statement of Position promises to 
assist hearing officers in anticipating what types of evidence and 
testimony will be necessary to ensure a more complete, useful record. 
And this, in turn, will assist the Regional Director in preparing a 
decision after the hearing.
    Second, even more than promoting narrower, more orderly hearings, 
we are confident that the responsive Statement of Position will provide 
additional opportunity and incentive for parties to reach election 
agreements. Here too, the reasoning the 2014 amendments articulated for 
adopting the initial Statement of Position requirement applies directly 
to the new responsive Statement. As with narrowing the scope of the 
hearing, ``[i]t clearly facilitates entry into election agreements . . 
. 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.'' 79 FR 74369 (emphasis added). Likewise, if ``[i]t 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,'' 79 FR 74370, the same 
can readily be said of advising the nonpetitioner of the petitioner's 
response prior to the hearing.\58\
---------------------------------------------------------------------------

    \58\ The dissent suggests that our prediction that the 
responsive Statement of Position will facilitate election agreements 
lacks supporting evidence. It comments that there is no showing that 
a significant number of election agreements are reached following 
the petitioner's oral response to the initial Statement of Position 
at the hearing. Both criticisms miss the mark. Of course there is no 
empirical evidence that requiring the responsive Statement of 
Position before the hearing starts will facilitate election 
agreements, because to date no such response has been required prior 
to the start of the hearing. And although there may be no evidence 
that a significant number of election agreements are reached 
following the petitioner's oral response at the hearing, this is 
beside the point. Our view is that by requiring a response before 
the hearing, parties will be afforded a greater and better 
opportunity to reach election agreements. Once a pre-election 
hearing has already commenced, parties have already lost one of the 
primary advantages of an election agreement, viz., avoiding the need 
to prepare for and appear at a hearing in the first place.
---------------------------------------------------------------------------

    Election agreements are the most obvious and efficient means of 
expediting the resolution of questions concerning resolution because 
they avoid altogether the time that would be spent in litigation of 
pre-election issues. It is this interest in facilitating election 
agreements that has led us to adopt the requirement that the responsive 
Statement of Position be filed and received no later than noon 3 
business days before the hearing. As with the initial Statement, if the 
responsive Statement ``is to fulfill its intended purposes, then 
parties should be required to complete and serve it before the 
hearing.'' 79 FR 74362. As the 2014 amendments observed:

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. In our experience, parties also sometimes use different 
terms to describe work locations and shifts.

79 FR 74366. Requiring that the responsive Statement of Position be 
filed and served 3 business days before the hearing will enable parties 
to identify circumstances where they are ``talking past each other,'' 
clarify the terminology at issue, and identify or even eliminate any 
related disputes. Providing more time between the due date for the 
responsive Statement of Position and the opening of the hearing will 
also give the parties more time to conclude an election agreement. In 
the days just before the hearing, however, negotiations for an 
agreement must be balanced with the parties' other preparations in the 
event an agreement cannot be reached. These often include

[[Page 69538]]

preparations for travel to the hearing location by the parties and 
their representatives and, in some cases, by regional personnel as 
well.
    Under the prior rules, the employer's Statement of Position was due 
by noon the business day before the opening of the hearing. In many 
instances, this gave the parties less than one full day before the 
hearing to try to finalize an agreement; it hardly need be said that a 
half-day is not much time to receive and process the Statement of 
Position (which may itself complicate negotiations for an election 
agreement) and meaningfully negotiate for an election agreement while 
concurrently preparing for the hearing should no agreement be 
concluded. The Board is accordingly of the view that more time should 
be provided between the filing and service of the responsive statement 
and the hearing so that parties have more time to balance these tasks. 
We believe that requiring submission of the responsive statement by 
noon 3 business days in advance of the hearing date serves this 
purpose, as it ensures parties and Agency personnel will have at least 
two full business days (the two days after the responsive statement is 
received) to manage and adjust their hearing-related tasks in light of 
the responsive statement while still having time to explore the 
possibility of an election agreement. It also affords regional 
personnel and the hearing officer more time and opportunity to 
facilitate the execution of an election agreement while still preparing 
for the contingency of a hearing.
    In conclusion, the responsive Statement of Position amendment here 
merely modifies the existing requirement that the petitioner respond to 
the initial Statement to require that response in writing prior to the 
hearing. This modification promotes uniformity and transparency, will 
facilitate more efficient hearings, and in many instances will enable 
parties to reach election agreements, avoiding the need for a hearing 
altogether.
C. Posting of Notice of Petition for Election
    The 2014 amendments introduced the requirement that, within 2 
business days after service of the notice of hearing, the employer must 
post the Notice of Petition for Election in conspicuous places and must 
distribute it electronically if the employer customarily communicates 
with its employees electronically.
    This requirement serves the laudatory purpose of giving employees 
prompt notice that a petition for election has been filed, and the 
information contained on the Notice of Petition for Election provides 
useful information and guidance to employees and the parties. The Board 
has, however, determined that two refinements to this provision are 
warranted.
    First, the final rule provides the employer with slightly more time 
to post the Notice of Petition for Election, requiring that it be 
posted within 5, rather than 2, business days after the service of the 
notice of hearing.
    The Board believes that this change is warranted in view of the 
logistical difficulties many employers may face upon receipt of the 
notice of hearing. For some larger employers, especially large multi-
location employers, it may take a significant amount of time to post 
the Notice of Petition for Election in ``all places where notices to 
employees are customarily posted,'' and it may likewise take time to 
determine with which of the petitioned-for employees the employer 
customarily communicates. More generally, in view of the changes to the 
scheduling of the pre-election hearing occasioned by the amendments 
discussed above, it is far less urgent that the Notice of Petition for 
Election be posted within 2 business days. Under the prior rules, where 
the pre-election hearing was generally scheduled for 8 days after 
service of the notice of hearing, in most instances the employees and 
the parties were guaranteed only 6 calendar days' posting of the Notice 
of Petition for Election prior to commencement of the pre-election 
hearing.\59\ On such a timeline, requiring posting within 2 business 
days was understandable in order to ensure some reasonable posting 
period. But under the final rule, where the pre-election hearing will 
normally be scheduled to start 14 business days after the notice of 
hearing, requiring that the Notice of Petition of Election be posted 
within 5 business days will guarantee that the employees and parties 
will have the benefit of the notice posting for at least 9 business 
days prior to the start of the hearing. That being the case, the Notice 
of Petition will clearly continue to serve its intended purpose of 
providing ample notice and useful guidance to employees and the parties 
under the final rule. Further, inasmuch as the failure to timely post 
the Notice of Petition may be grounds for setting aside the election, 
providing an extra few days for the employer to comply with this 
requirement will hopefully minimize the occurrence of objectionable 
noncompliance.
---------------------------------------------------------------------------

    \59\ The employees and parties are guaranteed only 4 calendar 
days' posting of the Notice of Petition for Election if the Notice 
of Hearing is served on a Thursday.
---------------------------------------------------------------------------

    Second, the final rule clarifies that in those situations where 
electronic distribution of the Notice of Petition for Election is 
warranted, the Notice only needs to be distributed electronically to 
the employees in the petitioned-for unit. This appears to have been the 
intent of the 2014 amendments, given that the explanation for the 
amendments states, in response to a comment questioning the reach of 
the electronic distribution requirement:

    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.

79 FR 74379. The limitation of electronic distribution to employees in 
the petitioned-for unit is not, however, clear from the face of the 
prior rules. By clarifying this point, the final rule provides parties 
with clearer guidance and reduces the possibility of wasteful 
litigation over the proper interpretation of this provision.
102.64 Conduct of Hearing
    Section 9(c)(1) of the Act, 29 U.S.C. 159(c)(1), states that 
whenever a petition has been filed in accordance with the Board's 
regulations, ``the Board shall investigate such petition and if it has 
reasonable cause to believe that a question of representation affecting 
commerce exists shall provide for an appropriate hearing upon due 
notice.'' The Act itself does not define the parameters of the pre-
election hearing, aside from providing that (1) it may be conducted by 
a regional officer or employee ``who shall not make any recommendations 
with respect thereto,'' and (2) if, upon the record of the pre-election 
hearing, the Board finds ``that such a question of representation 
exists, it shall direct an election by secret ballot and shall certify 
the results thereof.'' Id.
    Prior to the 2014 amendments, the Board's approach to the scope of 
the pre-election hearing was governed by Barre National, Inc., 316 NLRB 
877 (1995). In that case, the regional director determined that, in the 
absence of any other disputed issues, the supervisory status of certain 
individuals would not be litigated at the pre-election hearing, and 
that instead those individuals would be permitted to vote subject to 
challenge. The Board reversed, holding that by precluding litigation of 
the

[[Page 69539]]

supervisory issue, the pre-election hearing had not met the 
requirements of the Act or the Board's then-current rules and 
regulations.\60\ Thus, under Barre National and its progeny, the Board 
held that parties had the right to present evidence in support of their 
respective positions at the hearing. See North Manchester Foundry, 
Inc., 328 NLRB 372, 372-373 (1999). This right did not extend to pre-
election resolution of eligibility and inclusion issues, however, given 
that reviewing courts had held that there was no general requirement 
that the Board decide all voter eligibility issues prior to an 
election. Barre National, 316 NLRB at 878 n.9 (collecting cases).
---------------------------------------------------------------------------

    \60\ Before the 2014 amendments, Sec.  102.64 provided that 
``[i]t shall be the duty of the hearing officer to inquire fully 
into all matters in issue and 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,'' and Sec.  
101.20(c) stated that ``[t]he parties are afforded full opportunity 
to present their respective positions and to produce the significant 
facts in support of their contentions.'' As noted below, the 2014 
amendments removed this language from Sec.  102.64; the 2014 
amendments eliminated Sec.  101.20.
---------------------------------------------------------------------------

    The 2014 amendments altered this longstanding approach to the scope 
of the pre-election hearing. First, the 2014 amendments modified Sec.  
102.64(a) to state that the purpose of the pre-election hearing ``is to 
determine if a question of representation exists'' and to further 
specify the circumstances under which such a question exists.\61\ 
Second, the Board further modified Sec.  102.64(a) to provide that 
``[d]isputes concerning individuals' eligibility to vote or inclusion 
in an appropriate unit ordinarily need not be litigated or resolved 
before an election is conducted.'' Third, the Board modified Sec.  
102.66(a) to limit the parties' right to present testimony and evidence 
to contentions that ``are relevant to the existence of a question of 
representation.'' Relatedly, the Board modified Sec.  102.67 to reflect 
that regional directors could defer questions of eligibility and 
inclusion by directing that the affected employees vote subject to 
challenge. In making these modifications, the 2014 amendments expressly 
overruled Barre National and North Manchester Foundry. 79 FR 74386.
---------------------------------------------------------------------------

    \61\ ``A question of representation exists if a proper petition 
has been filed 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.''
---------------------------------------------------------------------------

    The 2014 amendments explained these changes as follows. First and 
foremost, the Board emphasized that the only requirement for the scope 
of the pre-election hearing set forth in the Act is the determination 
of whether a question of representation exists, and that whether 
particular individuals are in the unit and are eligible to vote is not 
relevant to whether a question of representation exists. 79 FR 74384-
74386. Second, the Board explained that Barre National had relied on 
the text of the Board's regulations, not the text of the Act, in 
holding that the parties had a right to present evidence in support of 
their positions, and the 2014 amendments eliminated that language. 79 
FR 74385-74386. The Board also opined that Barre National was not 
``administratively rational'' because although it required litigation 
of issues, it permitted deferral of the resolution of those issues 
until after the election, and in many instances the election results 
would moot those very issues; accordingly, Barre National permitted 
unnecessary litigation that was a barrier to more expeditious 
resolution of questions of representation. 79 FR 74385-74386. Third, 
the Board expressed concern that unless the pre-election hearing were 
limited to evidence bearing on the existence of a question of 
representation, ``the possibility of using unnecessary litigation to 
gain strategic advantage exists in every case''; for example, a party 
could use the threat of litigating unnecessary issues at a hearing to 
extract favorable terms in an election agreement. 79 FR 74386-
74387.\62\ Fourth, the Board emphasized that not requiring litigation 
of these types of issues conserved Agency and party resources rather 
than wasting them on issues that could ultimately prove unnecessary to 
litigate and resolve in the first place. 79 FR 74387, 74391. In this 
regard, the Board stated that ``[e]very 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.'' 79 FR 74387.
---------------------------------------------------------------------------

    \62\ The Board commented that the temptation to use the threat 
of protracted litigation to gain a strategic advantage was 
heightened by the fact that, under the pre-2014 rules and 
regulations, parties had a right to take at least 7 days after the 
hearing to file post-hearing briefs, and elections directed after a 
hearing ordinarily could not be scheduled for sooner than 25 days 
after the direction of election.
---------------------------------------------------------------------------

    The 2014 amendments accordingly permitted regional directors to 
defer litigation of eligibility and inclusion disputes in order to 
avoid wasteful litigation, to conduct elections more promptly, and to 
disincentivize delaying tactics. And more generally, the Board's 
holding was that any interest in pre-election litigation of these 
disputes was outweighed by the interest in prompt resolution of 
questions of representation. 79 FR 74391.
    We agree with the 2014 amendments' decision to set forth the 
purpose of the pre-election hearing. We are also satisfied that 
defining that purpose as ``determin[ing] if a question of 
representation exists'' is consistent with the text of Sec.  9(c)(1). 
And we do not dispute that deferral of issues that do not bear on the 
existence of a question of representation is permissible under the 
Act.\63\ But contrary to the 2014 amendments, we conclude that, as a 
policy matter, the Board should return to the practice of permitting 
parties to present evidence in support of their positions with respect 
to disputed, properly-raised issues. In our view, permitting litigation 
of issues of eligibility and inclusion at the pre-election hearing--and 
encouraging regional directors to resolve such issues before directing 
an election--will better serve the interests of certainty and finality, 
uniformity and transparency, fair and accurate voting, and efficiency. 
The final rule accordingly modifies Sec.  102.64(a) to provide that the 
primary purpose of the pre-election hearing is to determine the 
existence of a question of representation, but to specify that--absent 
agreement of the parties to the contrary--disputes concerning unit 
scope, voter eligibility, and supervisory status will normally be 
litigated and resolved by the regional director before an election is 
directed.
---------------------------------------------------------------------------

    \63\ We note that court challenges asserting the contrary were 
rejected. Associated Builders & Contractors of Texas, 826 F.3d at 
220-223; Chamber of Commerce, 118 F.Supp.3d at 196-200.
---------------------------------------------------------------------------

    Returning to the practice of permitting parties to present evidence 
in support of their properly raised, adverse positions will promote 
certainty and finality of election results in several ways. To begin, 
it bears emphasis here that, with respect to the scope of the pre-
election hearing, the 2014 amendments focused almost exclusively on 
establishing the existence of a question of representation. Although we 
readily agree that the existence of such a question is the prerequisite 
to the direction of an election, this does not mean that the litigation 
of additional issues is an impediment to the ultimate resolution of the 
question of representation. As explained earlier, the mere fact that an 
election has been conducted promptly does not mean that the question of 
representation has been resolved. Indeed, where litigation of 
eligibility or inclusion issues has been deferred, and the election 
results do not

[[Page 69540]]

render these issues moot, the question of representation cannot be 
resolved until these issues are litigated and decided by the regional 
director (and, if a request for review follows, by the Board). Prior to 
2014, these issues would have at least been litigated before the 
election, creating a record permitting them to be resolved more quickly 
post-election even if the decisional process was deferred until then. 
Under the 2014 amendments, however, it may be necessary to conduct 
extensive hearings on these very issues after the election has been 
conducted. Given that many such issues could be litigated and decided 
prior to the direction of election, actively promoting their deferral 
to post-election proceedings comes at the cost of swifter certainty and 
finality. In our view, where the parties have not agreed to defer these 
types of issues, the Board should strive to maximize the opportunity 
for an election vote to provide immediate finality, subject only to the 
filing of objections to conduct allegedly affecting the results. 
Creating a record on which issues of eligibility and inclusion can be 
decided and encouraging regional directors to resolve the issues to the 
greatest extent possible prior to the election serves this goal.
    Litigating and resolving eligibility and inclusion issues prior to 
an election will, as a general matter, reduce the number of challenged 
voters. Whenever a challenged vote is cast, it cannot but detract from 
certainty, because neither the Board nor the parties nor the individual 
voter can be sure, at the time the challenged vote is cast, whether it 
will be counted. Whenever challenges prove determinative of the 
ultimate election outcome, their post-election litigation and/or 
resolution litigation postpones finality. And even where challenged 
votes are not determinative, a shadow of uncertainty remains over the 
bargaining unit placement of the challenged voters that could impact a 
rerun election or contract negotiations over the placement of the 
challenged voters in the bargaining unit. This is not to suggest that 
all challenges should always be resolved regardless of whether they are 
determinative, nor is to deny that unanticipated challenges can arise 
on the date of the election regardless of what issues have been 
litigated and resolved previously. It is only to observe that 
challenges inherently detract from the goal of finality and certainty 
in the election results, and that seeking to minimize them accordingly 
serves this goal.\64\
---------------------------------------------------------------------------

    \64\ In addition, as discussed at greater length below with 
respect to the 20-business-day period between the direction and 
conduct of an election and the automatic impoundment of ballots when 
a request for review is pending, challenges carry a greater risk of 
compromising ballot secrecy. Thus, by litigating and resolving 
eligibility issues before the election, and thus removing the basis 
for at least some challenges, this change also serves the interest 
of ballot secrecy.
---------------------------------------------------------------------------

    In particular, encouraging the resolution of supervisory issues 
prior to the direction of election advances these purposes. Failing to 
resolve properly-raised issues of supervisory status prior to an 
election can lead to post-election complications where the putative 
supervisors engage in conduct during the critical period that is 
objectionable when engaged in by a supervisor, but is unobjectionable 
when engaged in by nonparty employees.\65\ As the dissent to the 2014 
amendments observed, by not resolving supervisory issues before the 
election,

many employees will not know there is even a question about whether 
fellow voters--with whom they may have discussed many issues--will 
later be declared supervisor-agents of the employer. Many employers 
will be placed in an untenable situation regarding such individuals 
based on uncertainty about whether they could speak as agents of the 
employer or whether their individual actions--though not directed by 
the employer--could later become grounds for overturning the 
election.
---------------------------------------------------------------------------

    \65\ For example, compare Montgomery Ward & Co., 232 NLRB 848 
(1977) (threats of job loss by supervisor objectionable) with 
Duralam, Inc., 284 NLRB 1419, 1419 fn. 2 (1987) (``threats of job 
loss for not supporting the union, made by one rank-and-file 
employee to another, are not objectionable'').

79 FR 74438 n.581 (dissenting views of Members Philip A. Miscimarra and 
Harry I. Johnson III). The 2014 amendments did not, in our view, 
satisfactorily account for these possible complications. In this 
regard, the 2014 amendments dismissed similar concerns by suggesting 
that undisputed supervisors will almost always be present during the 
election campaign and by arguing that uncertainty cannot be entirely 
eliminated. 79 FR 74389. But the fact that undisputed supervisors may 
be present during the campaign does not respond to the concern 
identified by the 2014 dissent, and the fact that pre-election 
resolution of all supervisory status disputes may not always be 
possible or cannot forestall objectionable conduct that occurs prior to 
resolution does not mean that the Board should not ordinarily attempt 
to resolve supervisory status issues prior to an election when the 
parties are unable to agree to other disposition of these issues. At a 
minimum, resolution of supervisory issues at some point prior to the 
election can provide the parties with better guidance for the remainder 
of the election campaign and increases the possibility of forestalling 
objectionable conduct during that time.
    The considerations identified above in support of this amendment in 
the final rule also promote transparency and uniformity. Having 
eligibility and inclusion issues litigated and generally resolved 
before a direction of election will assist the parties in knowing who 
is eligible to vote and who speaks for management. We think it goes 
without saying that these circumstances promote greater transparency in 
the Board's procedures. Further, given that the 2014 amendments 
encouraged deferral and gave regional directors broad discretion to 
determine whether to defer and how many individual voter eligibility 
and inclusion issues could be deferred, or to litigate and resolve 
these types of issues prior to directing an election, 79 FR 74388,\66\ 
setting the expectation in the final rule that, unless the parties 
agree to defer them, these types of disputes will be litigated, and 
normally will be decided, before the election is directed also promotes 
greater uniformity in regional practice.
---------------------------------------------------------------------------

    \66\ The Board had originally proposed language under which 
deferral of issues affecting less than 20% of the unit would have 
been mandatory, but the final 2014 amendments stated that a case-by-
case approach permitting regional directors to exercise their 
discretion was preferable. See id. Still, the amendments encouraged 
deferral to this substantial degree, or more, in order to avoid any 
delay in the conduct of an election. This was recognized in the 
General Counsel's subsequent Guidance Memorandum, which stated ``The 
Board noted that it strongly believed that regional directors' 
discretion would be exercised wisely if regional directors typically 
chose not to expend resources on pre-election litigation of 
eligibility and inclusion issues amounting to less than 20 percent 
of the proposed unit. GC Memo 15-06 at 12 fn. 18, https://www.nlrb.gov/news-publications/nlrb-memoranda/general-counsel-memos 
(citing 79 FR 74388 fn. 373). This guidance has been incorporated in 
the current advisory Casehandling Manual (Part Two) Representation 
Proceedings section 11084.3. This guidance contrasts with the prior 
version of the manual that provided, in relevant part, that ``As a 
general rule, the regional director should decline to approve an 
election agreement where it is known that more than 10 percent of 
the voters will be challenged, but this guidance may be exceeded if 
the regional director deems it advisable to do so.'' Notably, the 
General Counsel's Guidance Memo for implementation of the 
subsequently revoked 2011 election rule amendments applied the 10 
percent rule to directed elections as well. GC Memo 12-04 at 9, 
https://www.nlrb.gov/news-publications/nlrb-memoranda/general-counsel-memos. As discussed below, although we agree that regional 
directors should retain a certain degree of discretion to defer 
resolution of individual inclusion and exclusion issues under the 
final rule, they should be encouraged to resolve all of them, rather 
than defer, as much as possible, and should not as a general rule 
defer issues that affect more than 10% of the unit.
---------------------------------------------------------------------------

    The final rule promotes fair and accurate voting as well. When 
issues of eligibility and inclusion are deferred,

[[Page 69541]]

employees cast their votes without the benefit of knowing the precise 
contours of the unit in which they are voting, and specific inclusions 
and exclusions may be of great significance to them. The potential for 
confusion increases as the number of deferred individual employee 
eligibility issues increases. It seems obvious that it would be 
important for voters to know who they are voting to join in collective 
bargaining when they decide whether or not they want to be represented 
by a union for purposes of collective bargaining. Accordingly, rules 
encouraging the resolution of unit eligibility and inclusion issues 
prior to the election do not represent wasteful litigation, even if 
they may not be a cost-free proposition, because they still promote the 
exercise of employee free choice by maximizing the information 
available to voters regarding unit scope and voter eligibility. The 
2014 amendments acknowledged that eligible voters do indeed have an 
interest ``in knowing precisely who will be in the unit should they 
choose to be represented.'' 79 FR 74384 (quoting 79 FR 7331); see 79 FR 
74387. But the 2014 amendments also gave this interest short shrift, 
commenting that although employees may not know whether particular 
individuals or groups will be eligible or included, this was already 
the case under the pre-2014 rules and regulations because the 
resolution of a certain number of eligibility issues, even if litigated 
pre-election, would still be deferred in many instances until after the 
election. 79 FR 74389.\67\ This is, however, precisely why the final 
rule amends Sec.  102.64(a) to state that issues of ``unit scope, voter 
eligibility and supervisory status will normally be litigated and 
resolved'' before the election is directed (emphasis added).
---------------------------------------------------------------------------

    \67\ The 2014 amendments also responded by pointing out that 
since 1947, voters in mixed professional/non-professional units do 
not know the precise composition of the unit when they vote, insofar 
as at the election, the professional employees must vote 
simultaneously on whether they wish to be included in a unit with 
non-professionals and whether they wish to be represented by the 
petitioning union. 79 FR 74389 (citing Sec.  9(b)(1); Sonotone 
Corp., 90 NLRB at 1241-42). This is true, but this procedure was 
developed in response to a specific statutory mandate. The fact that 
the Board has adopted this specific practice in this discrete area 
for statutory reasons is not, in our view, a persuasive reason not 
to seek to facilitate a better-informed electorate where this can be 
achieved through permitting litigation, and promoting resolution, of 
inclusion and eligibility issues prior to the direction of election.
---------------------------------------------------------------------------

    We recognize that there may be instances in which the detriment of 
delay from requiring pre-election resolution of a particular 
eligibility issue or issues outweighs the substantial interest in 
having all eligibility issues resolved prior to an election. For 
example, those instances may involve the eligibility of a few employees 
for whom the record evidence is not sufficient, even when the issue has 
been litigated, to permit a definitive finding.\68\ The Board has also 
long held that disputes concerning the voting eligibility of economic 
strikers are properly resolved in post-election proceedings. See, e.g., 
Milwaukee Independent Meat Packers Association, 223 NLRB 922, 923 
(1976) (citing Pipe Machinery Co., 76 NLRB 247 (1948)). Accordingly, we 
are not imposing a requirement that, absent agreement of the parties to 
the contrary, all eligibility issues must be resolved prior to an 
election. Section 102.64(a) as modified by the final rule states only 
that that disputes concerning unit scope, voter eligibility, and 
supervisor status will ``normally'' be litigated and resolved by the 
regional director. However, we are making clear that, as a general 
rule, when regional directors consider the need to defer some properly-
raised eligibility and inclusion issues, they should adhere to the 
general pre-2014 practice of limiting deferral of inclusion and 
exclusion issues to 10 percent of the proposed unit.\69\ Doing so will, 
quite simply, help ensure that voters know the contours of the unit in 
which they are voting. And a more informed electorate plainly promotes 
fair and accurate voting.
---------------------------------------------------------------------------

    \68\ See, e.g., Medical Center at Bowling Green v. NLRB, 712 
F.2d 1091, 1093 (6th Cir. 1983) (finding no error in Board's 
decision to allow certain individuals to vote under challenge where 
evidence was insufficient to determine whether they were statutory 
supervisors and noting ``[s]uch a practice enables the Board to 
conduct an immediate election'').
    \69\ The same limitation should apply to the regional director's 
consideration of election agreements to vote individuals subject to 
challenge. We leave to subsequent adjudication the question whether 
it may even be appropriate for a regional director to exceed the 
general 10 percent limitation on deferrals.
---------------------------------------------------------------------------

    The final rule also promotes fair and accurate voting by reducing 
the possibility that voters will be confused by use of the vote-
subject-to-challenge procedure. When this procedure is used, the Notice 
of Election advising employees of the voting unit and the other 
election details states that the individuals in question ``are neither 
included in, nor excluded from, the bargaining unit, inasmuch as'' they 
have been permitted to vote subject to challenge, and that their 
eligibility or inclusion ``will be resolved, if necessary, following 
the election.'' Sec.  102.67(b). Although the 2014 amendments 
optimistically described such language as providing the parties and 
voters with ``guidance,'' 79 FR 74403, we are not persuaded that this 
is especially useful guidance for the typical voter in a Board-
conducted election. When voters are effectively being told that the 
Board will decide an issue later if it has to, it is unclear to us what 
``guidance'' this provides. Although it may be the case that employees 
can take the notice of their challenged status in stride, we think this 
information runs the risk of being a disincentive for some employees to 
vote, even if they might ultimately be found eligible to participate. 
Even the possibility that this could happen and that it could affect 
the election outcome warrants an amended procedural rule that seeks to 
provide more comprehensive guidance to employees in advance of an 
election as to who can and who cannot vote.\70\
---------------------------------------------------------------------------

    \70\ The dissent indicates that our reasoning on this count is 
inconsistent with UPS v. NLRB, 921 F.3d 251 (D.C. Cir. 2019). Not 
so. The court in that case merely held that the Acting Regional 
Director's decision to defer ruling on the unit placement of two 
disputed classifications and instead vote the affected employees 
under challenge did not ``imperil the bargaining unit's right to 
make an informed choice'' given that the notice of election advised 
employees of the possibility of change to the bargaining unit's 
definition. Id. at 257. The court said nothing at odds with our 
conclusion that, as a policy matter, it will better promote fair, 
accurate, and transparent voting by providing that eligibility and 
unit scope disputes will normally be litigated and resolved prior to 
the election.
---------------------------------------------------------------------------

    A few final observations concerning litigation of these issues are 
in order. First, we emphasize that the parties remain free to agree to 
defer litigation of these types of issues to post-election proceedings 
(should election results not render the issues moot), and the final 
rule expressly provides for this option.\71\ Second, we reiterate that 
although the practice of deferring litigation can result in conducting 
elections sooner,\72\ it is impossible to know in advance whether the 
eligibility and inclusion issues the parties have properly raised will 
be mooted by the election results, and little overall efficiency is 
gained when litigation of these issues proves necessary in post-
election proceedings. Third, we are not requiring that regional 
directors resolve all disputes prior to the direction of election. As 
noted above, we are not at this time eliminating the discretion of the 
regional director to defer resolution of eligibility and

[[Page 69542]]

inclusion issues, although we are making clear that they should 
normally do so and that there are, in any event, limits to the number 
of individual eligibility and inclusion issues that may be deferred. 
Fourth, we are not, through this change, countenancing free-for-all 
hearings at which parties will be free to introduce irrelevant evidence 
without limitation. As already discussed, the final rule retains the 
Statement of Position requirement, as well as the preclusion 
provisions, and it further requires responsive statements from 
petitioners. Parties will accordingly be limited to presenting evidence 
pertaining to issues they have properly raised, and on which they have 
taken adverse positions. And although evidence regarding eligibility 
and inclusion issues may not necessarily be relevant to the existence 
of a question of representation, such evidence can and in many cases 
will prove relevant to the resolution of that question. As for truly 
irrelevant evidence, as explained below nothing in the final rule 
disturbs the right of the hearing officer and regional director to 
police the hearing against the burdening of the record.\73\ With these 
protections in place, we are not persuaded by the 2014 amendments' 
concern that the ability to litigate these issues will result in 
parties ``using unnecessary litigation to gain strategic advantage.'' 
79 FR 74386.\74\ Fifth, and finally, nothing in the final rule changes 
the fact that the regional director will direct an election upon 
finding that a question of representation exists. The final rule simply 
provides that the election thus directed will entail greater certainty 
about who is included in the unit and eligibility to vote in the 
election, thereby promoting a variety of the interests the Board's 
representation case procedures are required to balance and potentially 
limiting the litigation of post-election challenge and objections 
issues that could delay finality in the election results.
---------------------------------------------------------------------------

    \71\ As explained earlier, we do not view preserving this option 
as inconsistent with the benefits that attach to litigating and 
resolving issues prior to the election. See fn. 23, supra.
    \72\ That said, we are confident that in the vast majority of 
instances, disputes of this kind that would be deferred under the 
2014 amendments can be litigated and resolved without dramatically 
expanding the pre-election hearing and without drastically 
protracting the length of time it will take the regional director to 
decide such issues.
    \73\ See, e.g, Jersey Shore Nursing and Rehabilitation Center, 
325 NLRB 603, 603 (1998). See also 79 FR 74397 (``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.'').
    \74\ We observe that despite the 2014 amendments' concern with 
the possibility of parties behaving in this way, the supplementary 
information to the amendments did not offer evidence establishing 
that such behavior was routine. See 79 FR 74445-74446 (dissenting 
views of Philip A. Miscimarra and Harry I. Johnson III). In 
addition, the Board's statistics reflect that parties continue to 
enter election agreements at the same rate that they did before the 
2014 amendments took effect. See fn. 16, supra. If there was a 
widespread practice of parties using the threat of unnecessary 
litigation to gain strategic advantages in election agreements prior 
to the 2014 amendments, one would expect to see some meaningful 
change in this statistic following the 2014 amendments' elimination 
of this incentive.
---------------------------------------------------------------------------

102.66 Introduction of Evidence: Rights of Parties at Hearing; 
Preclusion; Subpoenas; Oral Argument and Briefs
    The final rule makes three significant modifications to Sec.  
102.66.\75\ First, the final rule modifies Sec.  102.66(a) to specify 
that parties have the right to call, examine, and cross-examine 
witnesses, and to introduce into the record evidence of the significant 
facts that support the party's contentions that are relevant not just 
to the existence of a question of representation, but also the other 
issues in the case that have been properly raised. Second, the final 
rule modifies Sec.  102.66(c) to emphasize that, notwithstanding the 
offer of proof procedure, in no event shall a party be precluded from 
introducing relevant evidence ``otherwise consistent with this 
subpart.'' Both of these changes simply reflect the modifications to 
Sec.  102.64(a) explained immediately above. The rights of the parties 
at the pre-election hearing, and the discretion of the hearing officer 
to solicit (and the regional director to rule on) offers of proof, are 
both otherwise unmodified.
---------------------------------------------------------------------------

    \75\ The final rule also modifies Sec.  102.66(b) to reflect 
that, as now provided under Sec.  102.63(b), at least two Statements 
of Position will have been filed prior to the start of the hearing 
and will need to be received in evidence at the start of the 
hearing. The final rule does not otherwise modify the requirements 
of this paragraph.
---------------------------------------------------------------------------

    Third, the final rule modifies Sec.  102.66(h) to provide that any 
party desiring to submit a brief to the regional director shall be 
entitled to do so within 5 business days after the close of the 
hearing, and that prior to the close of the hearing and for good cause 
the hearing officer may grant an extension of time to file a brief not 
to exceed an additional 10 business days. Prior to the 2014 amendments, 
the Board's rules and regulations provided that, following the close of 
the pre-election hearing, any party that desired to submit a brief to 
the regional director had 7 (calendar) days to file it, although prior 
to the close of the hearing and for good cause the hearing officer 
could grant an extension of time of up to an additional 14 days. See 
Sec.  102.67(a) (2013). The final rule here essentially reinstates that 
longstanding practice.
    The 2014 amendments removed the right of the parties to file post-
hearing briefs, providing that they would be permitted only upon 
``special permission of the Regional Director and within the time and 
addressing subjects permitted by the Regional Director.'' Absent such 
permission, parties were limited to presenting their positions via oral 
argument (if requested) at the close of the hearing. Sec.  102.66(h). 
The principal supporting rationale for these amendments was that (1) 
briefs are not necessary in the majority of representation cases, as 
they often raise ``recurring and uncomplicated legal and factual 
issues'' that do not require briefs in order for the parties to fully 
and fairly present their positions, and (2) providing the right to file 
briefs could delay issuance of the decision and direction of election, 
and thus delay the conduct of the election itself. 79 FR 74401-74402. 
Although we do not take issue with the proposition that the Board is 
not required to permit post-hearing briefs after pre-election hearings, 
we have nevertheless decided to reinstate the parties' right to file 
them. In this regard, we disagree with the premises underlying the 
removal of this right, and we further conclude that permitting post-
hearing briefs will better accommodate the interests of efficiency and 
uniformity.
    To begin, we do not agree with the 2014 amendments' pronouncement 
that post-hearing briefs are generally unnecessary because 
representation cases are so prone to ``recurring and uncomplicated 
legal and factual issues'' as to make briefing unnecessary in a 
``majority'' of cases. We note that An Outline of Law and Procedure in 
Representation Cases--the Office of the General Counsel's summary 
treatise for representation case law--takes more than 300 pages merely 
to summarize the range of possible pre-election representation issues. 
It is true that some of the issues covered in that document arise far 
more frequently than others, but the cases in which there is clearly 
controlling precedent that dictates only one possible outcome are far 
less common than suggested by the 2014 amendments. Further, even when 
governing legal principles are clear, many of the admittedly recurring 
issues that are litigated in pre-election hearings are anything but 
factually ``uncomplicated.'' That was true even for issues directly 
involving whether a question concerning representation existed, such as 
those involving unit scope and contract bar, which still had to be 
litigated and resolved prior to an election under the 2014 amendments. 
As discussed above, under the final rule, properly-raised eligibility 
and inclusion issues will also once again be litigated at pre-election 
hearings. Many of these issues, such as those involving alleged 
supervisory or independent contractor status, frequently require 
detailed factual analyses in the context of multi-factor legal tests. 
In sum,

[[Page 69543]]

review of Board decisions on these and other representation issues 
suggests that factual and legal complexity is much more common in 
contested cases than the 2014 amendments supposed. And even in cases 
where no one issue is particularly complex, a multiplicity of issues 
may nevertheless result in a case that is complex overall.
    We also do not accept the unsubstantiated premise that the right to 
file post-hearing briefs was a significant source of delay in pre-
election proceedings prior to 2015. Outside of instances in which 
extensions were granted, the pre-2014 rules provided a mere 7 calendar 
days for filing post-hearing briefs. Thus, at best, the 2014 amendments 
saved 7 days between the close of the hearing and the issuance of a 
decision and direction of election. But even this figure is somewhat 
misleading. Following any pre-election hearing, the regional director 
typically requires at least a few days to draft and issue a decision 
and direction of election. And as the dissent to the 2014 amendments--
quoting former Member Hayes's dissent to the vacated December 2011 
rule--pointed out:

[T]he majority points to no evidence that the 7 days . . . afforded 
parties to file briefs following pre-election hearings actually 
causes delay in the issuance of Regional directors' decisions. . . . 
There is no reason why a Regional director or his decision writer 
cannot begin preparing a decision before the briefs arrive and, if 
the briefs raise no issues the Regional director has not considered, 
simply issue the decision immediately. In fact, the Agency's 
internal training program expressly instructs decision writers to 
begin drafting pre-election Regional directors' decisions before the 
briefs arrive.

79 FR 74449 (quoting 77 FR 25567).
    In addition, it seems more plausible that the information provided 
in post-hearing briefs would generally save time in the processing of 
cases from the close of the hearing to the regional director's 
decision, rather than causing delay. In this respect, the briefs serve 
the same purpose, but with greater specificity, as the required filing 
of pre-hearing statements by parties. Post-hearing briefs further 
clarify the issues presented and opposing views taken in pre-hearing 
statements, and they do so with the additional guidance of reference to 
specific caselaw and to specific pages in the record that support a 
party's position.
    Ultimately, then, there is no evidence--only the 2014 amendments' 
ipse dixit--that post-hearing briefs are unnecessary and cause delay. 
That being the case, it is unclear whether permitting them only upon 
special permission of the Regional Director secured any tangible 
benefit for the processing of election petitions, but even assuming 
that the 2014 amendments did in some cases accelerate the issuance of 
the Regional Director's decision, we think that restoration of the 
right to file post-hearing briefs will yield benefits that easily 
outweigh any consequential addition of time for issuance of the 
subsequent decision.
    We are strongly of the view that permitting post-hearing briefs in 
all cases will promote greater overall efficiency. The 2014 amendments 
generally permitted only oral argument, limiting parties to 
extemporaneous summaries of the evidence, relevant case law, and their 
arguments and positions on the issues without the benefit of the 
hearing transcript and post-hearing research of precedent. By contrast, 
permitting the routine filing of post-hearing briefs does allow the 
parties time to review the transcript, to engage in legal research, and 
to refine, moderate, or even abandon arguments or sub-arguments they 
otherwise might have only generally made, misstated, or even overlooked 
during oral argument. It seems obvious that the greater specificity in 
briefs, as opposed to oral argument, would benefit both the parties and 
the regional director in multiple ways by forging a better common 
understanding of the issues presented and the precedent and record 
evidence relevant to those issues. The regional director's need for 
independent research of the law and record would be reduced, as would 
the risk of misunderstanding or overlooking arguments that a party 
believed to be essential to its case. Again, without totally 
discounting the contention in the 2014 amendments that permitting the 
routine filing of post-hearing briefs may add time to the pre-election 
period, we believe it is just as likely that in many instances routine 
briefing can have the opposite result of contracting the time needed 
for the regional director to draft a decision. In any event, the 
additional time involved will be modest. As indicated above, the final 
rule provides that parties have 5 business days to file their post-
hearing brief, absent securing permission for an extension of up to 10 
more business days at the close of the hearing. In most instances, this 
will equate to time provided for post-hearing briefs prior to the 2014 
amendments. Given that pre-election hearings can be--and often are--
fact-intensive affairs involving multiple and/or complex issues, 5 
business days is hardly an unreasonably long time to expect most 
parties to produce a brief.\76\
---------------------------------------------------------------------------

    \76\ Although it is true, as the 2014 amendments pointed out, 
that many representation case hearings last less than a day, we 
nevertheless believe that even in simple cases the parties' 
arguments to the regional director will benefit from having time to 
review the transcript, conduct additional research, and structure 
and refine their arguments. Contrary to the dissent's imaginative 
reliance on comparative rates of Board reversals of Regional 
Directors' decision before and after implementation of those 
amendments, we do not regard those statistics as conclusive, or even 
probative, of the value of post-hearing briefs to the decisional 
process.
---------------------------------------------------------------------------

    Finally, we are not requiring that post-hearing briefs be filed in 
each and every contested case. As was the case before the 2014 
amendments, the parties will be free to waive the period for filing 
post-hearing briefs, and we expect that hearing officers will resume 
the practice of encouraging parties to argue their positions orally in 
lieu of briefs in appropriate circumstances.\77\ We are confident that 
parties will generally do so in cases that are truly routine and 
uncomplicated.\78\
---------------------------------------------------------------------------

    \77\ See former CHM section 11242 (2014).
    \78\ To the extent parties insist on filing briefs in truly 
routine and uncomplicated cases, we note that these are the very 
cases in which the regional director (or his or her decision-writer) 
will be in the best position to largely prepare the decision while 
awaiting the posthearing briefs.
---------------------------------------------------------------------------

102.67 Proceedings Before the Regional Director; Further Hearing; 
Action by the Regional Director; Appeals From Actions of the Regional 
Director; Statement in Opposition; Requests for Extraordinary Relief; 
Notice of Election; Voter List
    The final rule makes several changes, most of them relatively 
limited, to Sec.  102.67. First, the final rule modifies Sec.  
102.67(b) to emphasize that regional directors retain the right to 
issue the Notice of Election after issuing a decision and direction of 
election. Second, the final rule further modifies Sec.  102.67(b) to 
provide that, absent a waiver by the parties, the regional director 
will normally not schedule an election before the 20th business day 
after the date of the direction of election. Third, the final rule 
modifies Sec.  102.67(c) to provide for the impoundment of ballots if 
the Board has not ruled on a timely filed pre-election request for 
review by the date of the election. Fourth, the final rule codifies the 
existing practice of permitting reply briefs only upon special leave of 
the Board. Fifth, the final rule now specifies that a party may not 
file more than one request for review of a particular action or 
decision by the Regional Director. Sixth, the final rule aligns the 
procedure for requesting permission to depart from the formatting 
requirements for briefs,

[[Page 69544]]

and for requesting extensions of time, with the procedure used for 
these actions in other types of Board proceedings. Finally, the final 
rule clarifies that the Notice of Election only need be electronically 
distributed to eligible voters. Finally, the final rule modifies the 
time for submitting the Voter List in directed elections consistent 
with the modifications discussed above with respect to election 
agreements.\79\
---------------------------------------------------------------------------

    \79\ The final rule also modifies Sec.  102.67(a) to reflect 
that the regional director will ``determine whether a question of 
representation exists in a unit appropriate for purposes of 
collective bargaining as provided in Sec.  102.64(a), and to direct 
an election, dismiss the petition, or make other disposition of the 
matter'' (emphasis added). This change is simply a matter of a 
cross-reference to reflect that issues of eligibility and inclusion 
will now be permitted at the hearing, and that the regional director 
will normally resolve those issues in the decision and direction of 
election. The reasons for these changes have already been discussed 
above. Similarly, the final rule simplifies Sec.  102.67(b) and (l) 
to refer to the fact that voters may vote subject to challenge, 
without further explanation, as there is no need to set forth the 
method by which voters are permitted to vote subject to challenge. 
These changes also reflect the final rule's encouraging of regional 
directors to resolve eligibility and inclusion disputes prior to 
directing an election, which has been explained above.
---------------------------------------------------------------------------

A. Timing of Election Details
    The 2014 amendments modified Sec.  102.67(b) to provide that if the 
regional director directs an election, the direction ``ordinarily will 
specify the date(s), time(s), and location(s) of the election and the 
eligibility period.'' Prior to the 2014 amendments, the Board's rules 
did not state when regional directors would specify the election 
details,\80\ but the practice was to resolve such details after the 
decision and direction of election through consultation and negotiation 
with the parties. See 79 FR 74404; CHM section 11280.3 (2014). The 
rationale in the 2014 amendments for adding language providing for 
simultaneous issuance of the direction of election and election details 
was that parties will have already stated their positions on the 
election details in the petition, in the Statement(s) of Position, and 
at the hearing. Accordingly, there was generally no need for the region 
to solicit their positions again, and the election would be conducted 
sooner. 79 FR 74404. The 2014 amendments stated that simultaneous 
issuance should ``ordinarily'' occur, given that there could still be 
situations where the regional director concluded it was appropriate to 
consult further with about election details. 79 FR 74404 n.439. The 
2014 amendments apparently envisioned that regional directors would 
only deviate from ordinary practice in the face of ``unusual 
circumstances,'' such as when an election was directed substantially 
after the close of the hearing, or where an election was directed in a 
unit very different from any the parties had proposed. 79 FR 74370 
n.300.
---------------------------------------------------------------------------

    \80\ Under the pre-2014 practice, the regional director's 
decision and direction of election would contain the eligibility 
list requirements, however. CHM section 11273.1 (2014).
---------------------------------------------------------------------------

    The final rule modifies this language to state that the regional 
director ``may'' specify the election details in the direction of 
election, and to emphasize that the regional director ``retains 
discretion to continue investigating these details after directing an 
election and to specify them in a subsequently-issued Notice of 
Election.'' \81\ This change represents a shift in emphasis, rather 
than substance. Given that the parties will have stated their positions 
on the election details both before and during the hearing, we fully 
agree with the 2014 amendments that the regional director should 
ordinarily be able to provide the election details in the direction of 
election, thus avoiding any delay in issuing the Notice of Election.
---------------------------------------------------------------------------

    \81\ The final rule also modifies subsequent language in Sec.  
102.67(b) regarding transmission of the Notice of Election to 
reflect that it may be transmitted separately after the direction of 
election.
---------------------------------------------------------------------------

    That said, we think that it will better promote transparency and 
efficiency to revise the wording of this provision to place more 
emphasis on the discretion regional directors have in this regard. By 
doing so, the final rule emphasizes what the 2014 amendments 
acknowledged, but did not overtly state in text of Sec.  102.67(b): 
There may be situations where the regional director concludes it is 
appropriate to further consult with the parties concerning election 
details after issuing the direction of election. Replacing the word 
``ordinarily'' with ``may,'' as well as the adding the final clause to 
the first sentence of Sec.  102.67(b), makes the Regional Director's 
discretion absolutely clear.
    This change in wording will also promote efficiency by eliminating 
any concern that regional directors face an either/or situation where 
there remains some post-hearing issue about election details. The 
regional director can issue a direction of election and resolve the 
election detail issue later without having to justify the bifurcated 
action based on the existence of ``unusual circumstances.'' The 
discretion afforded regional directors to engage the parties in post-
hearing discussion of those details will likely lead in some, if not 
most, cases to consensus and thereby avoid any subsequent request for 
review or post-election objection based on such matters.\82\ It also 
communicates that a party seeking review of the regional director's 
exercise of the discretion to issue a Notice of Election after a 
direction of election will do so in vain. Again, we expect that 
regional directors will in fact continue to ordinarily specify such 
details in the direction of election; the final rule accordingly should 
not result in any additional delay by virtue of this change.\83\
---------------------------------------------------------------------------

    \82\ To be clear, we are not suggesting that consensus on these 
matters is required, or that a regional director is obligated to try 
to achieve consensus on the election details. As always, in directed 
elections such details are left to the discretion of the regional 
director. See Manchester Knitted Fashions, Inc., 108 NLRB 1366, 1367 
(1954). Nor do we suggest, via this change, that regional directors 
should be exercising their discretion in this area any more 
frequently than has been the case to date under the 2014 amendments. 
We merely modify the language of this provision to more clearly 
emphasize the discretion of regional directors to issue the Notice 
of Election separately from the Direction of Election.
    \83\ To the extent this provision does cause some additional 
delay in the issuance of the Notice of Election, we note that the 
mandatory period between the direction and conduct of election--as 
discussed immediately below--makes it highly unlikely that such 
circumstances would delay the scheduling of the election itself.
---------------------------------------------------------------------------

B. Period Between Direction and Conduct of Election
    Before the 2014 amendments eliminated it, Sec.  101.21(d) of the 
Board's Statements of Procedure provided that ``unless a waiver is 
filed, the [Regional] Director will normally not schedule an election 
until a date between the 25th and 30th day after the date of the 
decision, to permit the Board to rule on any request for review which 
may be filed.'' At the same time, a request for review of a decision 
and direction of election was required to be filed within 14 calendar 
days of that decision to be timely. See Sec.  102.67(b) (2013).
    As indicated, the 2014 amendments eliminated Sec.  101.21(d) and 
revised Sec.  102.67(b) to provide that a Regional Director ``shall 
schedule the election for the earliest date practicable consistent with 
these Rules.'' \84\ In addition, the 2014 amendments modified the 
request for review procedures to permit a party to file a request for 
review of any regional director's action ``at any time following the 
action until 14 days after a final disposition of the proceeding by the 
Regional Director,'' and they more specifically stated that a party is 
not ``precluded from filing a request for review of the direction of 
election within the time provided in this

[[Page 69545]]

paragraph because it did not file a request for review of the direction 
of election prior to the election.'' Sec.  102.67(c). Thus, the 2014 
amendments eliminated any specified minimum timeline between the 
direction and conduct of election \85\ while at the same time 
instituting procedures that permitted a party to wait to file a request 
for review of the direction of election until after the election (the 
results of which may have removed the need to request review of the 
direction of election).
---------------------------------------------------------------------------

    \84\ The 2014 amendments described the insertion of the 
``earliest date practicable'' language as a ``codification'' of 
guidance contained in the Casehandling Manual. 79 FR 74310. As 
discussed below, we think this characterization of the change is 
somewhat misleading.
    \85\ However, the scheduling of any of election under the 2014 
amendments would still have to permit sufficient time for the 
required posting of the Notice of Election, which Sec.  102.67(k) 
defines as ``at least 3 full working days prior to 12:01 a.m. of the 
day of the election.'' Further, nonemployer parties are entitled to 
have the Voter List for 10 days, although the parties entitled to 
the list may waive the 10-day period to proceed to an election more 
quickly. See The Ridgewood Country Club, 357 NLRB 2247 (2012); Mod 
Interiors, Inc., 324 NLRB 164 (1997); CHM 11302.1.
---------------------------------------------------------------------------

    The rationale for elimination of the 25- to 30-day period was that 
it ``serve[d] little purpose.'' 79 FR 74410. More specifically, the 
Board stated that (1) the period unnecessarily delayed the conduct of 
elections, thereby postponing the resolution of questions of 
representation; (2) the period was in tension with the instruction in 
section 3(b), 29 U.S.C. 153(b), that a grant of review ``shall not, 
unless specifically ordered by the Board, operate as a stay of any 
action taken by the regional director''; (3) the period encouraged 
delay in elections conducted pursuant to election agreements because 
parties would use the threat of insisting on a hearing and the 
attendant 25- to 30-day period to extract concessions within the 
election agreement (including the scheduling of the election); (4) the 
period was designed to permit Board ruling on a request for review 
before an election, but because requests for review were filed in only 
a small percentage of cases, review was granted in an even smaller 
percentage, and stays of elections were virtually never granted, the 
period served little purpose; \86\ and (5) even where a pre-election 
request for review was filed, the election ``almost always'' proceeded 
anyway, using the vote-and-impound procedure,\87\ before the Board 
ruled on the request for review. 79 FR 74410.
---------------------------------------------------------------------------

    \86\ The Board further observed that by providing that a request 
for review of a direction of election could be filed after the 
election, it was likely even fewer pre-election requests for review 
would be filed, further reducing the number of cases the 25- to 30-
day period would serve. 79 FR 74410.
    \87\ Prior to the 2014 amendments, Sec.  102.67(b) provided that 
when a pending request for review had not been ruled upon or had 
been granted prior to the conduct of the election, ``all ballots 
shall be impounded and remain unopened pending such decision.'' The 
2014 amendments also eliminated this procedure. See 79 FR 74409. As 
explained in the next section, we are reinstating a modified version 
of this procedure at Sec.  102.67(c).
---------------------------------------------------------------------------

    Upon reflection, we have decided that the better procedural policy 
is to reinstate a modified version of the 25- to 30-day period. Section 
102.67(b) will continue to provide that the regional director ``shall 
schedule the election for the earliest date practicable,'' but restores 
this phrase to its original context by providing that ``unless a waiver 
is filed, the regional director will normally not schedule an election 
before the 20th business day after the date of the direction of 
election.'' We have replaced the 25- to 30-day period with the ``20th 
business day'' formulation in keeping with our general conversion of 
representation procedure time periods to business days, and also to 
provide more certainty and uniformity with respect to the minimum 
period of time between the direction and conduct of election. Further, 
consistent with prior practice, the final rule emphasizes that this 
period is designed ``to permit the Board to rule on any request for 
review which may be filed pursuant to paragraph (c) of this section.'' 
However, the final rule also retains the flexibility introduced by the 
2014 amendments, insofar as a party may wait until after an election 
has been conducted to decide whether to file a request for review of 
the direction of election. Also, consistent with the pre-2014 
regulations, the parties remain free to agree to waive the 20-business-
day period.
    As an initial matter, we do not agree with the 2014 amendments' 
characterization of the addition of the ``earliest date practicable'' 
language to Sec.  102.67(b) as a codification of pre-2014 practice. The 
precursor to the 25- to 30-day period was already present in the rules 
and regulations promulgated in the immediate wake of the Board's 
delegation of its representation case authority to the Regional 
Directors pursuant to section 3(b). 26 FR 3886 (May 4, 1961).\88\ The 
language in the Casehandling Manual that the Board purported to codify 
in the 2014 amendments must, of course, be understood in conjunction 
with the Board's extant procedures. As such--and indeed, as 
acknowledged in the 2014 amendments \89\--the fact that the 
Casehandling Manual had long provided that ``[a]n election should be 
held as early as is practical'' \90\ nevertheless assumed the existence 
of a period between the direction and conduct of an election during 
which a request for review could be filed, considered by the Board, and 
potentially ruled upon. By removing that period and providing for 
elections to be held on ``the earliest date practicable,'' the 2014 
amendments accordingly did represent a ``sea change'' compared pre-2014 
practice.\91\
---------------------------------------------------------------------------

    \88\ The period provided for in 1961 was a 20- to 30-day period, 
rather than a 25- to 30-day period.
    \89\ See 79 FR 74405 n.442.
    \90\ CHM section 11302.1 (2014).
    \91\ 79 FR 74405 (``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 any event, the 25- to 30-day period was not, as the 2014 
amendments stated, ``unnecessary delay'' that served ``little 
purpose.'' As the pre-2014 regulations explicitly stated, this period 
existed ``to permit the Board to rule on any request for review which 
may be filed'' in response to a direction of election. The 1961 
institution of this period and the provisions in Sec.  102.67 related 
to it was not some sort of accident or oversight; indeed, when certain 
aspects of Sec.  102.67 were amended in 1977, the Board emphasized that 
they were ``designed to facilitate consideration and disposition of 
requests for review of regional directors' decisions, thereby further 
contributing to the prompt resolution of representation issues.'' 42 FR 
41117 (Aug. 15, 1977) (emphasis added). Although the 25- to 30-day 
period did indeed preclude scheduling the election at an earlier time 
after the direction of election, this was a calculated tradeoff, 
because--as the emphasized quote above demonstrates--the Board had 
concluded that the prompt resolution of representation issues prior to 
the election would facilitate other interests.
    In many respects, this procedural amendment goes hand-in-hand with 
the amendment permitting litigation of eligibility and inclusion issues 
at the pre-election hearing and serves the same policy interests.\92\ 
For example, providing a period before the election during which 
parties can file and the Board can rule on requests for review permits 
issues to be definitively resolved prior to the election (or at least 
prior to the counting of the votes), thereby promoting finality and 
certainty. As previously stated, the mere fact that an election is 
conducted promptly does not mean that the question of representation 
has been resolved. When a request for review has been filed, there is 
no final resolution until the Board rules on the issues

[[Page 69546]]

raised by that request for review. Although there may be circumstances 
where the election results moot the issues raised by a pre-election 
request for review, there is no way to know beforehand whether this 
will be the case. Permitting time for the Board to rule on a pre-
election request for review could just as well dispose of issues that 
would not be mooted by the election results and would have to be 
addressed later anyway. Here too, what we have said before applies: The 
Board should strive to maximize the opportunity for the election to 
provide finality. Permitting the Board a reasonable amount of time, 
prior to the election, to consider and rule on a request for review as 
to issues that might otherwise give rise to challenges or objections 
requiring post-election litigation clearly serves this goal, increasing 
the likelihood of final agency action--issuance of the appropriate 
election certification--soon after the tally of ballots.
---------------------------------------------------------------------------

    \92\ These amendments are, however, severable, and we would 
adopt each of them independently of the other.
---------------------------------------------------------------------------

    Reinstating a minimum time period between the direction and conduct 
of election will also serve uniformity and transparency.\93\ Under the 
2014 amendments, an election would be scheduled ``for the earliest date 
practicable,'' an ill-defined term that provides very little guidance. 
An election could still be scheduled in 25 to 30 days, as under the 
prior rule, or in less than a week after the direction of election if 
the nonemployer parties waived the right to have the voter list for 10 
days (the only other limitation being the requirement that the employer 
post the Notice of Election for 3 full working days). Sec.  102.67(k). 
This is neither a uniform nor transparent standard for the public or 
agency personnel, and we believe a more consistent and predictable 
approach to the scheduling of a Board election is preferable by far. 
The 20-business-day period accordingly promotes uniformity and 
transparency by notifying parties that in all cases--unless they agree 
to the contrary--there will be a finite minimum period of time between 
the direction and conduct of election.
---------------------------------------------------------------------------

    \93\ The dissent faults us for discussing other interests served 
by the 20-business-day period despite the fact the regulatory text 
refers only to permitting the Board to rule on a request for review. 
The purpose of the 20-business-day period is indeed to permit the 
Board to rule on a request for review, should one be timely filed 
during that period. But that period also happens to serve others 
interests, and there is nothing irregular in discussing them here.
---------------------------------------------------------------------------

    Further, under the 2014 amendments, there was no guidance at all as 
to when or even whether the Board would rule on a timely filed request 
for review prior to the election. Now, the 20-business day minimum 
period from direction to election restores the opportunity for the 
Board to address and resolve issues that involve a question of 
representation as well as eligibility and inclusion issues.
    If a party does file a pre-election request for review over issues 
of eligibility, inclusion, and/or unit scope, the 20-business-day 
period will also promote fair and accurate voting. As previously 
discussed, when the Board is able to rule on a request for review 
raising these types of issues prior to the election, it provides the 
voters with more precise information regarding the contours of the unit 
in which they are voting. Similarly, as discussed above with respect to 
Sec.  102.64(a), the inclusions in and exclusions from a unit may be 
crucial campaign issues that may influence how employees intend to 
vote. Again, the 2014 amendments acknowledged that voters have an 
interest in ``knowing precisely who will be in the unit should they 
choose to be represented.'' 79 FR 74384. Giving parties a pre-election 
period during which to file a request for review that the Board has a 
realistic opportunity to resolve clearly promotes that interest.
    We acknowledge here that the 20-business-day period will detract 
from how promptly elections were--or at least could be--conducted under 
the 2014 amendments. Such tradeoffs are unavoidable when balancing 
competing interests. We note that in most instances the 20-business-day 
period will add only about two weeks to the typical period between the 
direction and conduct of election. Under the 2014 amendments, the 
employer had 2 business days after the direction of election to supply 
the required Voter List, after which the nonemployer parties were 
entitled to 10 calendar days to use the list prior to the election. 
Thus, absent a waiver of the 10-day period, parties could expect an 
election to be conducted no sooner than two weeks after the direction. 
Under the final rule, the 20-business day period (absent intervening 
federal holidays) translates to about four weeks.\94\ In our view, 
providing for an additional two weeks to facilitate the Board's ruling 
on a request for review is a worthwhile tradeoff, given the potential 
gains to fair and accurate voting, finality and certainty, and 
uniformity and transparency such a ruling will occasion. Further, the 
20-business-day period will also promote efficiency because--as 
discussed at length at several points above--deciding issues prior to 
the election (in the absence of agreement by the parties to defer those 
issues to post-election resolution) will contribute to a more efficient 
resolution of the question of representation by clearing away issues 
that may otherwise linger on after the election.
---------------------------------------------------------------------------

    \94\ Due to the fact that the final rule retains the ``earliest 
date practicable'' language, it is foreseeable that elections will 
be scheduled as soon as possible after the 20-business-day period 
has elapsed.
---------------------------------------------------------------------------

    We also reject the 2014 amendments' other grounds for eliminating 
the 25- to 30-day period. First, such a period is not in tension with 
section 3(b) of the Act. Section 3(b) simply states that ``such a 
review shall not, unless specifically ordered by the Board, operate as 
a stay of any action taken by the regional director.'' The 20-business-
day period is not a stay. It simply sets a uniform minimum period of 
time during which a pre-election request for review may be filed and 
ruled on by the Board prior to an election. As explained below, the 
election will go forward as scheduled even if the Board has not ruled 
on a pending request for review by the election date (unless the Board 
specifically orders a stay of the election). Second, as discussed 
already with respect to Sec.  102.64(a), the 2014 amendments' claim 
that parties used the threat of unnecessary litigation and the delay 
that came with it to gain leverage in negotiating election agreements 
was unsupported by objective evidence. The retention of the Statement 
of Position requirement and the authority of the regional director and 
hearing officer to require offers of proof should minimize the 
potential for abuse. Third, the fact that requests for review are filed 
in a small percentage of cases, and granted in only a fraction of those 
cases, does not explain why a pre-election period for requesting review 
should not be permitted in directed election cases, particularly when 
such a procedure may to lead to faster resolution of issues that are 
raised in a request for review and in doing so enhance the possibility 
of finality in election results without the need for post-election 
litigation. Fourth, although it may well be true that the Board 
frequently failed to rule on pre-election requests for review prior to 
the conduct of elections before the 2014 amendments, this says more 
about the historical shortcomings of the Board itself than it does 
about the desirability of a procedure providing the greater possibility 
of pre-election resolution.
    In conclusion, while we find that reinstatement of a pre-election 
period for the resolution of issues that are timely raised by requests 
for review is desirable for the policy reasons we have stated, we 
emphasize that the 20-business-day period is likely to have a limited 
practical effect on the conduct of elections. The period applies only 
to

[[Page 69547]]

the historically small number of cases in which the parties cannot 
reach an election agreement, and even then the parties remain free to 
waive the 20-business-day period if they so desire.\95\
---------------------------------------------------------------------------

    \95\ We agree with the statement in the preamble to the 2014 
amendments that implementing a 20-business-day period only in cases 
where a request for review is actually filed would be impractical 
(as the election details typically set forth in the direction of 
election would necessarily be contingent on whether a request was 
filed) and would invite gamesmanship in the form of parties filing 
frivolous requests for review solely to delay the election. See 79 
FR 74410. For these reasons, as well as for the sake of uniformity 
and transparency, we think that the only way to guarantee the 
benefits of the 20-business-day period is to provide for it in all 
contested cases, absent waiver by the parties. We note that even 
absent waiver, we have--in keeping with the pre-2014 language--
provided that the regional director will normally not schedule an 
election before the 20th business day after the date of the 
direction of election. Accordingly, we are not altering any 
procedures or precedent pursuant to which an election can be held on 
a faster timeline. For example, the Board historically permits 
regional directors to schedule elections earlier than would 
ordinarily be the case in order to preserve the voting eligibility 
of economic strikers. See, e.g., Northshore Fabricators & Erectors, 
Inc., 230 NLRB 346 (1977); Kingsport Press, 146 NLRB 1111, 1112 fn. 
4 (1964). Similarly, nothing in the final rule disturbs the Board's 
historic practice with respect to expedited elections conducted 
pursuant to section 8(b)(7). See also Sec.  102.73 et seq.
---------------------------------------------------------------------------

    In sum, the 25- to 30-day period eliminated by the 2014 amendments, 
and its purpose of giving the Board the opportunity to rule on pre-
election requests for review, served a variety of important interests 
that outweighed the significance of the extra time required to 
accommodate that purpose and these interests. Accordingly, we are 
reinstituting a similar period, but will now instead provide that 
unless a waiver is filed, the Regional Director will normally not 
schedule an election before the 20th business day after the date of the 
direction of election.
C. Pre-Election Requests for Review and Impoundment of Ballots
    Prior to the 2014 amendments, the Board's rules provided that a 
request for review of a decision and direction of election could be 
filed with the Board within 14 days after the service of the direction 
of election. The regional director would schedule and conduct the 
election, but Sec.  102.67(b) (2013) provided that ``if a pending 
request for review ha[d] not been ruled upon or ha[d] 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.''
    The 2014 amendments eliminated this impoundment provision and 
amended Sec.  102.67(c) to read that, if a request for review is filed:

such a review shall not, unless specifically ordered by the Board, 
operate as a stay of any action by the Regional Director. The 
request for review may be filed at any time following the action 
until 14 days after a final disposition of the proceeding by the 
Regional Director. No party shall be precluded from filing a request 
for review of the direction of election within the time provided in 
this paragraph because it did not file a request for review of the 
direction of election prior to the election.

In justifying the removal of the impoundment provision, the 2014 
amendments stated that doing so codified the approach purportedly set 
forth in section 3(b) of the Act, which states that stays will not take 
place ``unless specifically ordered by the Board.'' 79 FR 74409. The 
amendments observed that nothing in the Act itself provides for 
impoundment, and accordingly argued that the removal of this mechanism 
``is consistent with the purpose of Section 3(b) to prevent delays in 
the Board's processing from impacting regional Section 9 proceedings.'' 
79 FR 74409. In addition, the 2014 amendments stated that, although 
removing the impoundment procedure could result in unnecessary rerun 
elections, parties still remained free (under Sec.  102.67(j)) to 
request impoundment in a particular case, ballots of those employees 
permitted to vote subject to challenge would still be segregated and 
impounded, and the possibility of reruns was minimized in any event 
because the Board rarely reverses the regional director. 79 FR 74409.
    As indicated, the 2014 amendments did not eliminate automatic 
impoundment in all circumstances. The ballots of individuals permitted 
to vote subject to challenge--whether by the agreement of the parties 
or at the direction of the regional director--were still segregated and 
impounded. When such ballots proved determinative of the election 
outcome, the eligibility of the challenged voters would be resolved by 
the regional director, but even then the ballots could remain 
impounded. As provided in GC Memo 15-06, ``Guidance Memorandum on 
Representation Case Procedure Changes Effective April 14, 2015,'' 
following a regional director's decision ordering ballots to be opened 
and counted, the region ``should not open and count until the time for 
filing a request for review has passed and no request was filed or the 
Board has ruled on the request for review'' in order ``[t]o help 
protect ballots secrecy.'' Id. at 33.
    As discussed above, the final rule retains the option in the 2014 
amendments for a party to wait to file a request for review of a 
decision and direction of election until after an election has been 
conducted. A significant inducement for exercising this option is that 
the results of the election may moot the arguments an aggrieved party 
would otherwise raise, thereby eliminating the need to file a request 
for review. See 79 FR 74408-74409. Even so, we have decided to 
reinstate the pre-2014 impoundment procedure in limited form. 
Accordingly, the final rule amends Sec.  102.67(c) to provide that, if 
a pre-election request for review is filed within 10 days of the 
direction of election and remains unresolved when the election is 
conducted, ``ballots whose validity might be affected by the Board's 
ruling on the request for review or decision on review shall be 
segregated in an appropriate manner, and all ballots shall be impounded 
and remain unopened pending such ruling or decision. A party retains 
the right to file a request for review of a decision and direction of 
election more than 10 business days after that decision issues, but the 
pendency of such a request for review shall not require impoundment of 
the ballots.'' \96\
---------------------------------------------------------------------------

    \96\ In keeping with these changes, the final rule also amends 
Sec.  102.67(h) to state that ``[t]he grant of a request for review 
shall not, outside of the provision for impoundment set forth in 
paragraph (c) of this section, stay the Regional Director's action 
unless otherwise ordered by the Board'' (emphasis added).
---------------------------------------------------------------------------

    As these modifications indicate, automatic impoundment will be 
strictly limited to situations in which the request for review is filed 
within 10 business days after the decision and direction of election. 
In this regard, the final rule also modifies Sec.  102.67(i)(3) to 
provide that no extensions of time will be granted to circumvent the 
impoundment provisions in Sec.  102.67(c). Thus, any party that files a 
request for review of a decision and direction of election more than 10 
business days after the issuance of the decision will be precluded from 
securing automatic impoundment.\97\
---------------------------------------------------------------------------

    \97\ A party that files a request for review of a decision and 
direction of election more than 10 business days after the issuance 
of the decision will still be able to request impoundment pursuant 
to Sec.  102.67(j). Relief pursuant to that provision, however, is 
only granted upon a clear showing that it is necessary under the 
particular circumstances of the case, and this standard is ``not 
routinely met'' and such requests are ``very rarely granted.'' 79 FR 
74409.
---------------------------------------------------------------------------

    As discussed in the previous section, having a period between the 
direction and conduct of election during which the Board has the 
opportunity to rule on

[[Page 69548]]

any request for review of the decision and direction of election 
promotes finality and certainty, fair and accurate voting, transparency 
and uniformity, ballot secrecy, and even (in certain respects) 
efficiency. The advantages of the 20-business-day waiting period are 
largely undercut if the ballots are counted and the tally of ballots 
issues before the Board rules on the request for review. But even apart 
from that consideration, providing for impoundment where a request for 
review is filed within 10 business days of the decision and direction 
of election will also promote each of these interests.
    First, providing for automatic impoundment in these limited 
circumstances promotes finality and certainty. In this regard, 
providing that all ballots will remain impounded pending the Board's 
ruling on a timely-filed request for review ensures that the issues 
raised in the request for review are resolved prior to the counting of 
votes. As a result, when the tally of ballots issues, it will not be 
subject to revision or invalidation based on the Board's ruling on a 
pending request for review. Although the tally of ballots may of course 
still be altered or nullified based on post-election litigation, at 
least the pre-election issues will have been cleared away. As we have 
stated before with respect to the litigation and resolution of 
eligibility and inclusion issues, as well as the 20-business-day period 
from direction to election, although it is possible that the results of 
an election will render issues moot, there is no way to know in advance 
if this will be the case, and where the issues are not mooted by the 
election results, the parties will have greater finality and certainty 
if these matters are resolved prior to the vote count.
    More specifically, impoundment serves the interest of finality and 
certainty in situations where the issues raised in a pre-election 
request for review result in challenges. Resolving such issues by 
ruling on the request for review before the ballots are counted may 
remove the basis for pending challenges, thereby permitting the 
challenges to be summarily overruled and for those ballots to be 
commingled and counted with the other ballots. By the same token, the 
Board's ruling on the request for review may agree with the basis for 
the challenges, allowing them to be summarily sustained. In either 
case, as we have explained elsewhere, challenges inherently detract 
from certainty and finality; resolving the basis for them before the 
count moves forward accordingly promotes these interests.\98\ More than 
that, ruling on the request for review prior to the count may also 
remove the basis for post-election objections, such as where the 
request for review raises issues of supervisory status. This may in 
turn facilitate the certification of the results of the election.
---------------------------------------------------------------------------

    \98\ Even where such challenges may not have proven dispositive, 
resolving them before the count will clarify the contours of the 
bargaining unit, which will promote greater certainty and finality 
by removing any need for the parties to bargain over these employees 
or resort to unit clarification proceedings if the tally of ballots 
results in certifying a union.
---------------------------------------------------------------------------

    Providing for impoundment in these narrow circumstances also 
promotes transparency and uniformity. With respect to transparency, 
impoundment of the ballots will reduce the possibility of confusion 
where results are announced prior to the Board's ruling on a pending 
request for review, but then the Board's subsequent ruling nullifies or 
alters the results. As for uniformity, this interest is advanced 
because (1) impoundment assures the parties that in all cases where a 
pre-election request for review is filed within 10 business days of the 
direction of election, the count will not happen until after that 
request has been ruled on (as opposed to the situation under the 2014 
amendments, where the Board might never rule on the request); (2) 
impoundment avoids situations where sometimes some votes are not 
counted based on the guidance contained in GC Memo 15-06 concerning 
secrecy; and (3) on a related note, impoundment guarantees that, for 
the most part, all votes will be counted at the same time.
    Restoring impoundment also promotes ballot secrecy. As noted above, 
even under the 2014 amendments the General Counsel recognized that in 
at least some situations impoundment remained necessary to protect 
ballot secrecy. This is naturally true of those situations where 
individual challenges might, if isolated from the count, compromise 
secrecy, or where all affected voters have voted the same way, but it 
is also true as a general matter. In many instances, a party will file 
a request for review of a decision and direction of election 
challenging the very propriety of the election, or of the unit. 
Although proceeding to a ballot count in these situations may not 
compromise ballot secrecy with respect to individuals, issuance of a 
tally of ballots nevertheless reveals the sentiments of the employees 
in the petitioned-for unit. Yet the Board's ruling on a request for 
review challenging the propriety of the election or the unit may 
nullify the results of the election while still revealing the 
sentiments of the employees.
    As with the institution of the 20-business-day period from 
direction to election, we acknowledge that providing for automatic 
impoundment in these limited circumstances may come at the cost of some 
promptness and efficiency, but we think the advantages outlined above 
outweigh the costs, particularly as the final rule also promotes 
efficiency in certain other respects. For instance, by limiting 
automatic impoundment to requests for review that are filed within 10 
business days of the direction of election, the final rule requires an 
aggrieved party to promptly decide which request for review option they 
will exercise: File a pre-election request for review and receive 
impoundment, or wait until after the election to see if a request for 
review is even necessary in the first place. In addition, for the 
reasons already discussed above with respect to certainty and finality, 
the final rule promotes efficiency by resolving pre-election issues 
before the commencement of post-election proceedings. As a result, the 
need to litigate challenges or even objections may be eliminated, 
whereas counting the ballots may spur post-election litigation that 
ultimately proves unnecessary based on the Board's resolution of a 
pending request for review. Further, keeping ballots impounded pending 
resolution of a pre-election request for review avoids situations where 
ineligible ballots do get counted, only to be nullified, and will also 
avoid situations where the Board's ruling on the request for review 
requires a rerun election because challenged ballots were opened and 
commingled with the valid ballots.
    For largely the same reasons that we disagree with the rationale in 
the 2014 amendments' reasoning for eliminating the 25- to 30-day pre-
election waiting period, we also disagree with the 2014 amendments' 
criticisms of impoundment. Providing the 10-business-day period for 
filing a pre-election request for review, and for automatic impoundment 
when such a request is filed but not yet ruled on when the election is 
held, is not in actual tension with Sec.  3(b), because impounding the 
ballots is not a ``stay'' of the regional director's action. The 
election will go forward as directed; impoundment only postpones the 
count to ensure the count comports with the Board's ruling on the 
pending request for review. We also place little weight on the fact 
that the Board rarely reverses findings in a regional director's 
decision and direction of election. That may be

[[Page 69549]]

an accurate description of the Board's experience in this area, but it 
is not a particularly compelling reason for seeking to avoid the 
complications that follow in the small number of cases where the Board 
does reverse a regional director's decision and direction of election. 
In addition, any delay that may be attributed to the impoundment 
procedure is based not on the impoundment procedure itself, but on the 
inability of the Board to rule on the request for review prior to the 
election. In our view, this should have been motivation for the Board 
to endeavor to rule on requests for review more swiftly, rather than a 
reason to eliminate the impoundment procedure.
    We reiterate that, as with the 20-business-day period from 
direction to election, the automatic impoundment procedure will only 
apply in the small number of cases where parties are not able to 
conclude an election agreement, and even then will only apply in those 
cases where a party exercises the option to file a request for review 
within 10 business days of the issuance of the decision and direction 
of election. Accordingly, we think that while the reinstated 
impoundment provision is an important option in representation case 
procedure, it will only be activated in a very small number of 
cases.\99\
---------------------------------------------------------------------------

    \99\ With respect to the filing of pre-election requests for 
review, and the impoundment that follows such a timely filed 
request, the dissent charges that it is internally inconsistent for 
the Board to strive to maximize the opportunity for an election to 
provide finality (on the one hand) while also permitting parties to 
wait until after the election (and vote count) and then file a 
request for review that may still cover pre-election issues (on the 
other). This again misunderstands our project of balancing the 
various competing interests. We have outlined the many advantages to 
resolving pre-election issues prior to the ballot count, but just as 
we have recognized there are also many advantages to permitting 
parties to agree to defer eligibility and inclusion issues, we also 
recognize that there are advantages to permitting parties to wait to 
file requests for review until after the election has been 
conducted. Thus, despite the clear advantages to resolving pre-
election issues prior to the ballot count, we also will not stand in 
the way of a party that decides to wait to see the results of the 
election before filing a request for review embracing pre-election 
issues.
---------------------------------------------------------------------------

D. Oppositions and Replies
    The Board has long provided that, when a request for review has 
been filed, any party may file with the Board a statement in opposition 
thereto, although the Board need not await such an opposition to rule 
on the request for review. The right to file an opposition is currently 
located at Sec.  102.67(f). From time to time, after an opposition has 
been filed, the party seeking review will attempt to file a reply to 
the opposition. The Board's general practice has been to reject such 
replies on the basis that the Board's representation procedures do not 
provide for them; further, the Board's experience is that the reply 
briefs parties attempt to file in representation cases are generally 
unhelpful, as in most cases they simply reiterate points already made 
in the initial request for review. At times, however, the Board has 
accepted reply briefs, such as when a reply contains previously 
unavailable information that may be useful in assisting the Board's 
consideration of the request for review. We conclude that it will serve 
the interests of uniformity and transparency for the Board to codify 
its practice with respect to reply briefs. The final rule accordingly 
revises Sec.  102.67(f) to provide that ``[n]o reply to the opposition 
may be filed except upon special leave of the Board.''
    The same limitation should apply when the Board grants a request 
for review. The parties are permitted to file briefs on review, and 
from time to time one of the parties may seek to file a reply brief. 
The Board typically rejects such replies, but has accepted them on 
occasion. We accordingly conclude that it will also serve the interests 
of uniformity and transparency to codify this practice. The final rule 
thus revises Sec.  102.67(h) to provide that ``[n]o reply briefs may be 
filed except upon special leave of the Board.'' The alignment of Sec.  
102.67(f) and (h) also promotes overall uniformity in the Board's 
procedures for handling reply briefs in representation cases.
E. Prohibition of Piecemeal Requests for Review
    As previously discussed, the 2014 amendments modified Sec.  
102.67(c) to provide that a party may file a request for review of a 
regional director's action

at any time following the action until 14 days after a final 
disposition of the proceeding by the regional director. No party 
shall be precluded from filing a request for review of the direction 
of election within the time provided in this paragraph because it 
did not file a request for review of the direction of election prior 
to the election.

Further, the 2014 amendments revised Sec.  102.67(i)(1) to allow a 
party to ``combine a request for review of the regional director's 
decision and direction of election with a request for review of the 
regional director's post-election decision, if the party has not 
previously filed a request for review of the pre-election decision.'' 
The same paragraph also states that ``[r]epetitive requests will not be 
considered.''
    As already discussed, these modifications were designed to give 
parties flexibility in deciding when to file a request for review, 
particularly requests for review of a decision and direction of 
election (which were formerly required to be filed within 14 days of 
the issuance of the decision and direction). At the same time, the 2014 
amendments to Sec.  102.67(i)(1) aimed to ensure there was still an 
orderly process for raising issues via a request for review. Thus, 
``repetitive requests'' were not permitted under the 2014 amendments, 
nor could a party seek review of a decision and direction of election 
while also seeking review of a post-election decision if that party had 
already filed a request for review of the pre-election decision.
    These modifications unintentionally left open an important 
question: Whether a party that has requested review of part of a 
regional director's action can subsequently file a request for review 
of a different part of that same action. In Yale University, Case 01-
RC-183014, et al., the regional director issued a decision and 
direction of election on January 25, 2017, finding that (1) nine 
separate petitioned-for bargaining units were appropriate and (2) the 
petitioned-for graduate students in each of these units were 
``employees'' within the meaning of the Act. The employer filed a 
request for review arguing the merits of the unit determination issue, 
and also registered its disagreement with the employee status issue, 
stating that it intended to request review of that issue, if necessary, 
following the regional director's final disposition of the case. The 
elections went forward,\100\ and the petitioning union prevailed in six 
of the nine elections. Subsequently, the employer filed a letter with 
the Board requesting an extension of time to file a request for review 
addressing the employee status issue. The petitioner opposed this 
motion, contending that the Board should not permit such a piecemeal 
approach to seeking review of a single action by a regional director.
---------------------------------------------------------------------------

    \100\ The employer also requested expedited consideration of 
this issue, as well as a stay of the election. The Board denied the 
requests for expedited consideration and a stay of the election, see 
365 NLRB No. 90 (2016), but did not pass on the merits of the 
request for review.
---------------------------------------------------------------------------

    The petitioner in Yale University ultimately withdrew the relevant 
petitions before the Board had the opportunity to address the propriety 
of the employer's decision to sever its arguments concerning the 
direction of election into separate requests for review,\101\ but it is 
foreseeable that this

[[Page 69550]]

circumstance will arise again.\102\ The final rule therefore modifies 
Sec.  102.67(i)(1) to expressly prohibit such a piecemeal approach by 
stating: ``A party may not, however, file more than one request for 
review of a particular action or decision by the Regional Director.'' 
Taking this approach will better serve the interests of efficiency, 
fairness, finality, and certainty. Although in some circumstances it 
may possibly promote efficiency to permit a party to raise different 
issues pertaining to a single action at different times, we are 
confident that in the vast majority of circumstances permitting such a 
piecemeal approach will be far less efficient than requiring a party to 
raise all issues it may have with a single action in a single request 
for review. In addition, requiring a party to confine its arguments 
concerning a single action to a single request for review permits the 
Board to efficiently allocate its resources to a case's resolution by 
guaranteeing that the propriety of a single regional action cannot be 
raised to the Board on more than one occasion. It also promotes 
fairness to any parties in opposition--and provides guidance to all 
parties--by permitting them to focus on the issues that have been 
raised with respect to a regional director's action without having to 
consider whether other issues may be subsequently raised.\103\
---------------------------------------------------------------------------

    \101\ The Board accordingly informed the employer, by letter 
dated February 13, 2018, that its first request for review and its 
request for an extension of time to file the second request for 
review were moot and would not be ruled on by the Board.
    \102\ Indeed, the employer in Reed College, Case No. 19-RC-
213177, similarly filed two requests for review seeking review of 
different aspects of the Regional Director's decision and direction 
of election, and the petitioner opposed the second on the grounds 
that the decision and direction had already been affirmed by the 
Board's denial of the first request for review. As in Yale 
University, the petitioner in Reed College disclaimed interest and 
withdrew its petition before the Board ruled on the second request 
for review, and the Board accordingly advised the employer that the 
second request for review was moot and would not be ruled on by the 
Board.
    \103\ The Board's experience in Yale University and Reed College 
indicates that, at a minimum, the employers' decision to seek review 
of the decisions and directions of election in two separate filings 
caused significant confusion on the part of the petitioners.
---------------------------------------------------------------------------

F. Requests To Deviate From Formatting Requirements and for Extensions
    For many years, Sec.  102.67(i)(1) stated that if a party sought to 
exceed the 50-page limit to a request for review, the party was 
required to file a motion setting forth the reasons therefore filed 
``not less than 5 days, including Saturdays, Sundays, and holidays, 
prior to the date the document is due.'' By contrast, Sec.  
102.67(i)(3), which governed extensions of time to file requests for 
review, oppositions, or other briefs permitted by Sec.  102.67, simply 
stated that a request for an extension of time must be filed with the 
Board (or the regional director) and served on the other parties.
    Section 102.2(c) also provides a procedure for filing a request for 
an extension of time that applies ``[e]xcept as otherwise provided,'' 
and requires a party to file an extension of time ``no later than the 
date on which the document is due,'' and further provides that a 
request for an extension of time ``filed within 3 days of the due date 
must be grounded upon circumstances not reasonably foreseeable in 
advance.'' Section 102.2(c) further states that a request for an 
extension must be in writing and served simultaneously on the other 
parties, encourages the party requesting the extension to seek 
agreement from other parties for the extension (and states that the 
request should indicate the others parties' positions), and states that 
an opposition to a request for an extension should be filed as soon as 
possible following receipt of the request. In practice, the Board has 
applied Sec.  102.2(c) by permissively granting requests for extensions 
of time filed more than 3 days in advance of the due date, but has been 
restrictive in granting requests filed within 3 days of the due date in 
keeping with the ``grounded in circumstances not reasonably foreseeable 
in advance'' standard.
    It is unclear why Sec.  102.67(i)(3) differs in its provisions for 
extensions of time, and we see no reason why the process for requesting 
extensions of time in representation cases should differ from that set 
forth in Sec.  102.2(c). The final rule accordingly amends Sec.  
102.67(i)(3) to state that a request for an extension ``shall be filed 
pursuant to Sec.  102.2(c)'' (emphasis added). This change promotes 
uniformity among the Board's procedures, and also promotes transparency 
insofar as Sec.  102.67(i)(3) (2013) did not provide any timeline or 
required showing for filing an extension. Cross-referencing Sec.  
102.2(c) will put parties on notice that the Board will be permissive 
in granting extensions of time unless they are filed within 3 days of 
the due date,\104\ in which case it falls to the requesting party to 
make the requisite showing.
---------------------------------------------------------------------------

    \104\ The exception, of course, being a request for an extension 
attempting to circumvent the impoundment provisions set forth in 
Sec.  102.67(c), as discussed above.
---------------------------------------------------------------------------

    We are also of the view that the process set forth in Sec.  
102.2(c), which by its terms is applicable to extensions of time, can 
also be workably applied to any requests to exceed the request for 
review page limit. The final rule therefore amends Sec.  102.67(i)(1) 
to state that a request to exceed the page limit may be ``filed 
pursuant to the procedures set forth in Sec.  102.2(c)'' (emphasis 
added). This change also promotes uniformity in the Board's procedures, 
and further promotes transparency by signaling that requests to exceed 
the page limit will be permissively granted unless filed within with 3 
days of the due date.
G. Notice of Election
    The 2014 amendments modified the already-existing notice posting 
requirement in Section 102.67(k) by adding the requirement that the 
employer also ``distribute [the Notice of Election] electronically if 
the employer customarily communicates with employees in the unit 
electronically.'' The final rule amends this provision to state that 
the Notice of Election need only be electronically distributed ``to all 
eligible voters (including individuals permitted to vote subject to 
challenge) if the employer customarily communicates with employees in 
the unit electronically.'' As with the Notice of Petition for Election, 
discussed above in relation to Sec.  102.63, this appears to have been 
the intent of the 2014 amendments, given their statement that ``if the 
employer customarily communicates with employees in the unit by 
emailing them messages, it will need to email them the Notice of 
Election.'' 79 FR 74405-74406 (emphasis added). The final rule 
accordingly clarifies a minor imprecision in the wording of the 2014 
amendments. This minor clarification provides parties with better 
guidance and reduces the possibility of wasteful litigation over the 
proper interpretation of this provision.
H. Voter List
    The final rule makes the same change with respect to the timing of 
the list of eligible voters that the employer must file after a 
direction of election as described above in relation to Sec.  102.62. 
In addition to the reasons stated there for giving the employer with 5 
business days, as opposed to the former provision of 2 business days, 
to file and serve the list, the provision for the 20-business day 
period between the direction and conduct of election discussed above 
means that the extra time for providing the voter list will not, in 
directed elections, contribute to any delay in the scheduling or 
conduct of election.

[[Page 69551]]

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 final rule makes a series of changes to Sec.  102.69. Several 
of these are consistent with changes that have already been discussed. 
In this regard, the final rule modifies Sec.  102.69(f) and (g) to 
conform to the modifications made to Sec.  102.67(i), which are 
discussed above. The final rule also subdivides Sec.  102.69(a) into 8 
subparagraphs so that the various procedures and requirements contained 
therein are easier to cite and locate. And consistent with the global 
changes discussed earlier, the final rule updates several cross-
references and rephrases all time periods in terms of business days.
    The final rule also makes three significant procedural 
modifications to Sec.  102.69. First, the final rule modifies Sec.  
102.69(a) to provide additional instruction and guidance with respect 
to the selection of the parties' election observers. Second, the final 
rule modifies Sec.  102.69(c)(1)(iii) to provide parties with the right 
to file post-hearing briefs with the hearing officer following post-
election hearings. Third, the final rule modifies Sec.  102.69(b) and 
(c) to eliminate the practice of regional directors issuing 
certifications while a request for review remains pending (or the time 
for filing one has not yet elapsed). In conjunction with this change, 
the final rule also adds Sec.  102.69(h), which defines ``final 
disposition'' and thus provides clearer guidance as to the last point 
at which a party can file a request for review.
A. Election Observers
    The practice of permitting the parties to be represented by 
observers at Board-conducted elections dates to the earliest days of 
the Act,\105\ and since 1946 the Board's rules and regulations have 
provided that ``[a]ny party may be represented by observers of [its] 
own selection, subject to such limitations as the Regional Director may 
prescribe.'' See 11 FR 177A-602, 612 (Sep. 11, 1946) (amending Sec.  
203.55); Sec.  102.69(a).\106\ But the Act itself does not make any 
provision for observers to be present at an election, and the Board has 
long made clear that there is no such right, instead characterizing the 
practice as a ``courtesy'' or ``privilege.'' Jat Transportation Corp., 
131 NLRB 122, 126 (1961); Simplot Fertilizer Co., 107 NLRB 1211, 1221 
(1954); Union Switch & Signal Co., 76 NLRB 205, 211 (1948).\107\ 
Indeed, one of the first Board cases to deal with observers held that 
it was not an abuse of discretion to refuse to permit a party from 
having a representative present at the balloting. See Marlin-Rockwell 
Corp., 7 NLRB 836, 838 (1938).
---------------------------------------------------------------------------

    \105\ See, e.g., Paragon Rubber Co., 7 NLRB 965 (1938) 
(sustaining objection based on use of ``high supervisory official'' 
as observer).
    \106\ The 2014 amendments left this provision undisturbed, aside 
from clarifying that it applies ``[w]hen the election is conducted 
manually.''
    \107\ See also Southern S.S. Co. v. NLRB, 120 F.2d 505, 507 (3d 
Cir. 1941) (``The [A]ct confers no right upon the employer to have 
its representatives present and it is obvious that their presence is 
not essential to a fair election.''), rev'd on other grounds, 316 
U.S. 31 (1942).
---------------------------------------------------------------------------

    In addition, although the Board's rules make open-ended provision 
for a party to select observers ``of its own selection, subject to such 
limitations as the Regional Director may prescribe,'' the Board's 
decisional law has imposed a series of more specific limitations on the 
selection of observers. Thus, the Board has long held that employers 
may not use individuals ``closely identified with management'' as 
observers. See, e.g., First Student, Inc., 355 NLRB 410, 410 (2010); 
Sunward Materials, 304 NLRB 780, 780 (1991); Peabody Engineering Co., 
95 NLRB 952, 953 (1951). Unions are likewise barred from using 
supervisors as their observers. See Family Service Agency, 331 NLRB 850 
(2000). And unions cannot use nonemployee union officials as observers 
in decertification elections. See Butera Finer Foods, Inc., 334 NLRB 43 
(2001).
    Conversely, the Board has encouraged parties to use nonsupervisory 
employees as observers. For example, the Board has commented that ``it 
is standard procedure to permit the parties to use employees, and 
unusual to permit outside observers.'' Jat Transportation, 131 NLRB at 
126 (emphasis in original). Likewise, the Board has stated that 
``nonemployees may be used as observers only if `reasonable under the 
circumstances.' '' Butera Finer Foods, 334 NLRB at 43 (quoting Kelley & 
Hueber, 309 NLRB 578, 579 fn. 7 (1992)). Former editions of the Board's 
Casehandling Manual went further, stating that ``[o]bservers must be 
nonsupervisory employees of the employer, unless a written agreement of 
the parties provides otherwise.'' CHM section 11310 (1989) (emphasis 
added). And even now, the current Casehandling Manual states that 
``[o]bservers should be employees of the employer, unless a party's use 
of an observer who is not a current employee of the employer is 
reasonable under the circumstances.'' CHM section 11310.2 (2017) 
(emphasis added).\108\
---------------------------------------------------------------------------

    \108\ The Board has generally been permissive regarding the 
meaning of ``employee'' in these circumstances. See, e.g., 
Correctional Health Care Solutions, 303 NLRB 835, 835 fn. 1 (1991) 
(individual whose employment status was ``a matter of some dispute 
at the time of the election . . . was entitled to act as an 
observer''); Kellwood Co., 299 NLRB 1026, 1029 (1990) 
(``[d]ischarged employees are entitled to be considered employees of 
the employer for the purpose of serving as observers at an election 
pending resolution of [unfair labor practice charges] against the 
employer''); Thomas Electronics, Inc., 109 NLRB 1141 (1954) 
(``inasmuch as Lapinsky's eligibility to vote as a laid-off employee 
had not been determined at the time of the election, she was 
entitled to be considered an employee for the purpose of acting as 
an observer at the time of the election'').
---------------------------------------------------------------------------

    In keeping with these principles, the Board historically found that 
the refusal to permit nonemployees to serve as observers was neither an 
abuse of discretion nor otherwise objectionable. See, e.g., Jat 
Transportation, 131 NLRB at 126; Tri-Cities Broadcasting Co., 74 NLRB 
1107, 1110 (1947). But the Board has also been unwilling to sustain 
objections based on the use of nonemployees as observers absent 
misconduct by such observers or prejudice to the other parties. See, 
e.g., Embassy Suites Hotel, Inc., 313 NLRB 302 (1993) (use of former 
employee not objectionable); San Francisco Bakery Employers Ass'n, 121 
NLRB 1204, 1206 (1958) (use of nonemployee not objectionable).
    In a similar vein, Casehandling Manual section 11310.2 currently 
provides that nonemployee union officials should not serve as 
observers,\109\ but the Board has nevertheless excused that very 
practice. Thus, in E-Z Davies Chevrolet, 161 NLRB 1380, 1382-1383 
(1966), enfd. 395 F.2d 191, 193 (9th Cir. 1968), the Board reasoned 
that because it was unobjectionable to use a nonemployee observer in 
San Francisco Bakery Employers, and because it is generally 
unobjectionable to use employee union officials as observers, it was 
also unobjectionable for a nonemployee union official to serve as an 
observer (absent any showing of misconduct by the observer or prejudice 
to the other party). Likewise, in NLRB v. Black Bull Carting Inc., 29 
F.3d 44 (2d Cir. 1994), the court, citing cases including the 9th

[[Page 69552]]

Circuit's enforcement of E-Z Davies, held that the Board had not abused 
its discretion in refusing to set aside an election based on the 
petitioner's use of a nonemployee union official.
---------------------------------------------------------------------------

    \109\ The Board permits union officials who are also employees 
to serve as observers, however. See, e.g., United States Gypsum Co., 
81 NLRB 197 (1949) (``[a] fellow employee of the eligible voters 
does not possess the disciplinary power of a supervisor, or the 
ability to intimidate employees, merely because he holds office in 
the union that is seeking to be elected as the employees' bargaining 
representative''). See also Soerens Motor Co., 106 NLRB 1388 (1953) 
(``[t]he Employer concedes that the presence of a union official as 
an observer at an election is proper, if such official is otherwise 
qualified'').
---------------------------------------------------------------------------

    Additional considerations may arise in cases involving an election 
agreement. Typically, in accord with the template Board agents use in 
such situations, election agreements contain a provision that ``[e]ach 
party may station an equal number of authorized, nonsupervisory-
employee observers'' at the polling place(s). And yet the Board has, 
since 1993, consistently held that a union's use of nonemployee 
observers is not a material breach of the election agreement, while 
also holding that if--by preventing a union from using nonemployee 
observers--a union is left with fewer observers than the employer, such 
disparity is a material breach. See Browning-Ferris Industries of 
California, Inc., 327 NLRB 704 (1999) (setting aside election where 
union had no observers at election because Board agent refused to 
permit union to use former employees as observers); Longwood Security 
Services, Inc., 364 NLRB No. 50 (2016) (setting election aside where 
union had no observer because Board agent refused to permit union to 
use one of its officials as observer).\110\ The Board has rationalized 
this approach by explaining that the policy favoring the use of current 
employees as observers, and thus the language in the Board's election 
agreement template, is ``aimed primarily at preventing intimidation 
that might take place should the employer choose to have supervisory 
employees present.'' Embassy Suites, 313 NLRB at 302 (quoting New 
England Lumber, 646 F.2d at 3 (emphasis in original)). By contrast, 
because observers ``help to assure the parties and the employees that 
the election is being conducted fairly,'' an imbalance in the number of 
observers introduces `` `a significant risk that an imbalance in the 
number of observers, with the acquiescence of the Board agent, could 
create an impression of predominance on the part of [one party] and 
partiality on the part of the Board.' '' Browning-Ferris Industries, 
327 NLRB at 704 (1999) (quoting Summa Corp. v. NLRB, 625 F.2d 293, 295 
(9th Cir. 1980)).\111\
---------------------------------------------------------------------------

    \110\ See also New England Lumber Division of Diamond 
International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir. 1981) (holding 
Board did not abuse discretion by permitting nonemployee union 
official to serve as observer notwithstanding typical stipulation 
language).
    \111\ The Board has accordingly held that, at least with respect 
to elections agreements, when a party proposes using an individual 
alleged to be ineligible, the proper procedure is not for the Board 
agent to prohibit the use of that individual as an observer, but 
instead to inform the parties that the use of an ineligible observer 
may result in the election being set aside later, and then to 
proceed to conduct the election with the parties' chose observers. 
See Longwood Security Services, 364 NLRB No. 50, slip op. at 1; 
Browning Ferris Industries, 327 NLRB at 705.
---------------------------------------------------------------------------

    As the foregoing account illustrates, the current state of Board 
law concerning the selection of observers is riddled with 
inconsistencies. Thus, despite the fact that the use of observers is a 
courtesy and privilege, rather than a right, the Board has set 
elections aside based on the absence of observers. Even though the 
Board's own guidance documents and precedent set forth an explicit 
preference--sometimes even phrased in mandatory language--that parties 
use employees as observers, the Board has nevertheless permitted (and 
in some cases gone out of its way to allow) certain parties to use 
nonemployee observers. Contrary to guidance strongly disfavoring the 
use of nonemployee union officials, the Board has nevertheless 
countenanced the use of just such persons as observers, even in cases 
where the election was conducted pursuant to an election agreement 
explicitly stating that observers should be nonsupervisory 
employees.\112\ In addition, intentionally or not, the Board decisions 
discussed above repeatedly permit a union's use of a nonemployee agent, 
contrary to the Board's stated preference against nonemployees 
generally and nonemployee agents in specific. And Board precedent in 
this area has not been entirely rigorous in distinguishing between 
directed elections and those conducted pursuant to election 
agreements.\113\
---------------------------------------------------------------------------

    \112\ The Board has excused this tension by explaining that the 
``nonsupervisory-employee'' language does not specify that the 
observer must be an employee of the employer. See, e.g., Longwood 
Security Services, 364 NLRB No. 50, slip op. at 1; Browning Ferris 
Industries, 327 NLRB at 704. At least one court has stated that 
whether this language ``is sufficiently ambiguous . . . to warrant 
the Board's interpretation is uncertain'' (even while accepting the 
Board's interpretation of the language as specifically aimed at 
preventing an employer from using supervisory employees as its 
supervisors). See New England Lumber, 646 F.2d at 3. For our part, 
we think it much more plausible that parties confronted with this 
``nonsupervisory employee'' language will assume that it refers to 
employees of the employer.
    \113\ For example, Embassy Suites, in which the election took 
place pursuant to a stipulated election agreement, see 313 NLRB at 
302 fn. 1, makes no mention of the ``material breach'' precedent and 
relies primarily on San Francisco Bakery Employer, 121 NLRB at 1204, 
and E-Z Davies, 161 NLRB at 1381, which both involved directed 
elections. Similarly, Longwood Security, 364 NLRB No. 50, which does 
employ the ``material breach'' analysis, relies in part on the Ninth 
Circuit's decision enforcing E-Z Davies, as well as Black Bull 
Carting, 29 F.3d at 44, another directed election case. Longwood 
also freely cites cases involving the use of employee union 
officials to support its conclusion that the use of nonemployee 
union officials is permissible. See Shoreline Enterprises of 
America, 114 NLRB 716, 718-719 (1955). More than that, both the 
Board--see Embassy Suites, 313 NLRB at 303--and the courts--see 
Black Bull Carting, 29 F.3d at 46--have cited Standby One 
Associates, 274 NLRB 952 (1985), to support the use of nonemployee 
representatives as observers in Board elections, but that case 
involved the limited question of whether to extend comity to a 
certification issued by the New York State Labor Relations Board 
(the Board holding that the use of a nonemployee union official as 
an observer in the state proceeding was not a sufficient basis to 
refuse to extend comity).
---------------------------------------------------------------------------

    In light of this undesirable state of affairs, and in order to 
better promote transparency, uniformity, and efficiency with respect to 
the selection of observers, the final rule amends the provision 
permitting election observers, now located at Sec.  102.69(a)(5), to 
read:

    When the election is conducted manually, any party may be 
represented by observers of its own selection; whenever possible, a 
party shall select a current member of the voting unit as its 
observer, and when no such individual is available, a party should 
select a current nonsupervisory employee as its observer. Selection 
of observers is also subject to such limitations as the Regional 
Director may prescribe.

    These modifications promote transparency by qualifying the 
statement that ``any party may be represented by observers of its own 
selection'' in order to codify the Board's historical preference that 
parties use nonsupervisory employees as their observers. Prior to the 
final rule, this preference could only be found in a handful of older 
Board decisions and the Casehandling Manual. Moreover, these 
modifications promote transparency because further qualifying the 
``observers of its own selection'' phrase better reflects the fact that 
the use of observers is a privilege, not a right, and that as such a 
party does not have an unqualified right to use whatever observer it 
wishes. In addition, by explicitly setting forth this preference in the 
rules and regulations, we make clear that the preference is applicable 
to ``any party,'' rather than only to employers, as certain decisions 
discussed above might otherwise suggest.
    On that note, these revisions also promote uniformity. Aside from 
the fact that the final rule makes the Board's preference for 
nonsupervisory employee observers explicit, and expressly applies that 
preference to all parties, the final rule sets forth a clearer 
framework under which the parties will now select their observers. 
First, the parties will be expected to use current members of the 
voting unit ``whenever possible''; second, in the event this is not 
possible, a party ``should'' select a current nonsupervisory employee. 
We

[[Page 69553]]

acknowledge that the first step of this framework is a new innovation, 
but we think it is readily justified. Given the indisputably important 
role that observers play in Board elections--representing their 
principals, challenging voters, generally monitoring the election 
process, and assisting the Board agent in the conduct of the election 
\114\--it is highly desirable that the parties' observers be drawn from 
those persons most interested and invested in the outcome of the 
election: The members of the voting unit. Of course, due to unit size, 
employee schedules, and an employer's operational considerations there 
may be times when it is not possible for a party to select a voting 
unit employee as its observer. In such circumstances, a party will be 
able to fall back on the Board's historical preference and select some 
other current nonsupervisory employee of the employer to serve as an 
observer.\115\ Recognizing that there may be highly unusual situations 
where it is also impossible to select some other nonsupervisory 
employee, we have only phrased this second step in terms of ``should.'' 
But to be clear, the intent of Sec.  102.69(a)(5) is--absent agreement 
of the parties to the contrary--to limit observers to current 
nonsupervisory employees of the employer at issue.\116\
---------------------------------------------------------------------------

    \114\ See Casehandling Manual section 11310.3.
    \115\ We will continue to broadly define ``employee'' consistent 
with prior precedent. See n.108, supra. The dissent's contention 
that we are overruling precedent permitting the use of potential 
discriminatees as observers is therefore meritless.
    \116\ To the extent any previous Board decisions can be read to 
the contrary, we overrule them.
---------------------------------------------------------------------------

    By limiting the selection of observers to nonsupervisory employees 
of the employer, the final rule also promotes efficiency by eliminating 
wasteful litigation. As our earlier discussion of observer cases makes 
abundantly clear, litigation over the identity of observers is a 
recurrent issue before the Board. It should strike the reader as 
peculiar that this has been the case even though the parties have no 
right to have observers present. Although we have no quarrel with the 
general policy of permitting observers, we also agree with the Third 
Circuit's long-ago observation that ``it is obvious'' that the presence 
of observers ``is not essential to a fair election.'' Southern S.S. 
Co., 120 F.2d at 506. That being the case, the Board's history of 
dedicating time, energy, and ink to sorting out disputes over the 
identity of particular observers is at the very least a questionable 
policy choice. In order to avoid this type of litigation, we expect 
that in directed elections Board agents will, going forward, simply 
apply Sec.  102.69(a)(5) and disallow parties from using nonemployee 
observers.\117\ We likewise expect that in directed elections, regional 
directors will summarily overrule objections contending that a party 
was wrongly prevented from using a person who is not a current employee 
of the employer as its observer (as well as objections contending that 
a party impermissibly used a nonsupervisory employee of the employer as 
its observer).\118\
---------------------------------------------------------------------------

    \117\ In those unusual situations where it is truly not possible 
for a party to use a nonsupervisory employee, a Board agent will 
determine whether the use of a proposed nonemployee observer is 
``reasonable under the circumstances,'' consistent with past 
precedent. Kelley & Hueber, 309 NLRB at 579 n.7. We emphasize, 
however, that it will be the extremely rare case in which this 
inquiry will be warranted.
    \118\ As noted above, this expectation incorporates the Board's 
longstanding approach to broadly defining ``employee'' in this 
context.
---------------------------------------------------------------------------

    As for cases involving elections conducted pursuant to election 
agreements, the final rule does not disturb the overall approach to 
alleged breaches (i.e., determining whether the breach was material), 
but we have decided to adopt a new interpretation of the standard 
``nonsupervisory-employee'' language. Consistent with the fact that the 
parties should reasonably understand any reference to ``employer'' in 
an election agreement to refer to the employer who is a party to the 
agreement, we will no longer construe ``nonsupervisory-employee'' to 
include employees who are employed by some other employer. Accordingly, 
whenever an election agreement provides that the parties ``may station 
an equal number of authorized, nonsupervisory-employee observers'' at 
the polling place(s), we will henceforth treat any use of an observer 
not employed by the signatory employer as a material breach of the 
election agreement. Further, because the use of a nonemployee observer 
constitutes a material breach of the election agreement, we will expect 
Board agents to disallow the use of such observers, rather than 
following the current procedure of permitting the use of such observers 
while advising the parties that this may result in the election being 
set aside. Moreover, if, as a result of noncompliance with the 
``nonsupervisory-employee'' provision, a party ends up having fewer 
observers than the others, that party will be estopped from contending 
that the disparity constitutes a material breach of the agreement, 
insofar as the disparity will have resulted from the party's own 
material breach of the election agreement. See, e.g., Republic 
Electronics, 266 NLRB 852, 853 (1983) (``a party to an election is 
ordinarily estopped from profiting from its own misconduct'').\119\
---------------------------------------------------------------------------

    \119\ To the extent that they are inconsistent with the 
principles set forth above, we overrule cases such as Browning 
Ferris Industries, 327 NLRB 704, and Longwood Security, 364 NLRB No. 
50.
---------------------------------------------------------------------------

    These changes represent only a limited departure from the Board's 
prior practice. The Board has long preferred that parties use 
nonsupervisory employees as observers; we are merely curtailing the use 
of nonemployee observers. We do not expect that the observer issue will 
arise all that often, given that (1) an employer should have little 
issue finding a nonsupervisory employee to act as its observer; (2) a 
union that is either an incumbent or has already produced a sufficient 
showing of interest should also have little issue finding a 
nonsupervisory employees to act as its observer; and (3) as always, the 
parties remain free to stipulate to other arrangements for observers, 
to the extent they are willing to do so. Finally, we conclude by 
emphasizing that we are not setting forth any new grounds on which 
parties can object to the selection of observers. To the contrary, the 
goal in modifying Sec.  102.69(a)(5) is to reduce (or ideally even 
eliminate) litigation surrounding a party's choice of observer. The 
parties now have clear guidance in the rules and regulations that they 
should be choosing nonsupervisory employees, and we have made clear 
here that Board agents will be empowered to police the choice of 
observers prior to the conduct of the election. As a result, there 
should be fewer grounds on which to object in the first instance, and 
those objections that are filed should be easily disposed of.
B. Final Dispositions and Stays of Certifications
    Prior to the 2014 amendments, regional directors issued 
certifications of results (including certifications of representative 
where appropriate) in limited circumstances, generally where no 
objections were filed to an election (or to a revised tally of ballots) 
and where challenges were not determinative. See Sec.  102.69(b), (h) 
(2013); CHM section 11472 (2014). In most stipulated election cases 
where objections were filed or challenges were determinative, the Board 
would issue the certification; so too in directed election cases, 
unless the regional director chose to resolve challenges/objections via 
supplemental decision. See Sec.  102.69(c)(3) (2013); CHM sections 
11472.2, 11472.3 (2014).
    As already described above, the 2014 amendments modified Sec.  
102.67(c) to provide that a request for review could

[[Page 69554]]

be filed ``at any time following the action until 14 days after a final 
disposition of the proceeding by the regional director,'' thereby 
removing the prior requirement that a request for review of a decision 
and direction of election be filed before the election, as well as the 
requirement that the Board rule on such request prior to the ballots 
being counted. The 2014 amendments also thoroughly overhauled the 
procedure for post-election appeals by providing, in Sec.  
102.69(c)(2), that appeals of post-election determinations by the 
regional director could only be made to the Board pursuant to the 
request for review procedure set forth in Sec.  102.67(c). Further, the 
2014 amendments provided that regional directors would issue post-
election certifications, including certifications of representative, 
where appropriate, in most cases, irrespective of whether a request for 
review remained pending or could still be timely filed. See Sec.  
102.69(b); (c)(1)(i) and (iii), (c)(2). Additionally, although the 2014 
amendments did not explicitly define ``final disposition,'' GC Memo 15-
06 effectively defined the phrase to include the regional director's 
issuance of a certification of representative. Id. at 27.\120\
---------------------------------------------------------------------------

    \120\ The Board's practice since the 2015 implementation of the 
2014 amendments has reflected the same view of ``final 
disposition.''
---------------------------------------------------------------------------

    Taken together, these changes created a process under which 
regional directors were effectively required to issue certifications 
after the vast majority of elections, including where a request for 
review of a decision and direction of election was still pending before 
the Board and where a request for review could still be timely filed. 
Indeed, by defining the issuance of the certification as a ``final 
action,'' the 2014 amendments guaranteed that parties could wait to 
file requests for review until after certifications had already issued, 
and our experience reflects that parties have frequently done so.
    The 2014 amendments accordingly instituted a shift from a 
procedural model in which regional directors infrequently issued 
certifications when an appeal to the Board was pending or still 
possible to a model where regional directors almost always issue 
certifications despite the pendency or possibility of an appeal. This 
represented a significant change in the Board's practice and procedure, 
yet the 2014 amendments offered little explanation for it. At one 
point, the 2014 amendments state that they are ``intended to carry out 
the Board's statutory mandate to establish fair and efficient 
procedures for,'' inter alia, ``certifying the results of secret-
ballots elections,'' and at another point stated that ``a question 
cannot be answered until the election results are certified.'' 79 FR 
74326, 74411. Elsewhere, the 2014 amendments observed that the practice 
of issuing certifications notwithstanding the possibility a party may 
still file a request for review was permitted in limited situations 
under the prior rules. 79 FR 74414 (citing CHM section 11742.3 (2014)). 
Finally, the 2014 amendments also justified the practice by noting that 
certifications were always subject to challenge in technical 8(a)(5) 
proceedings in the courts. 79 FR 74414. Further, in a case decided 
after the 2014 amendments took effect, a Board majority defended the 
practice of regional directors issuing certifications by stating that 
``Sec. 3(b) of the National Labor Relations Act expressly authorizes, 
and [Sec. ] 102.69 of the final rule expressly requires, that regional 
directors issue certifications even though a party may file a request 
for review of that (or any other) regional director action.'' Republic 
Silver State Disposal, Inc., d/b/a Republic Services of Southern 
Nevada, 365 NLRB No. 145, slip op. at 1 n.1 (2017).
    From these remarks, it would seem the 2014 amendments viewed the 
regional directors' issuance of certifications even when requests for 
review were pending or could still be filed with the Board as promoting 
efficiency, finality, and uniformity. As explained below, we take a 
different view. In fact, we think that the issuance of certifications 
prior to a final Board ruling on any request for review that has 
already been, or may yet be, filed has been a source of unnecessary 
confusion and needless litigation. To the extent that the regional 
directors' issuance of certifications serves any relevant interests, 
those interests are substantially outweighed by other interests that 
will be served by instituting a uniform practice under which regional 
directors will not issue certification where a request for review is 
pending or may yet be filed. Accordingly, the final rule modifies 
relevant provisions of Sec.  102.69 to provide that regional directors 
will only issue certifications after the time for filing a request for 
review has passed without any being filed. If any request for review is 
filed, the certification will issue only after the Board's ruling on 
that request. These changes will better serve the interests of 
transparency, finality, efficiency, and uniformity.
    First, the final rule advances transparency by eliminating 
confusion and complications occasioned by certifications that issue 
prior to the Board's ruling on a request for review. The issuance of a 
certification of representative triggers legal obligations on the parts 
of the employer and the certified representative.\121\ Both parties 
become obligated to bargain with each other in good faith; \122\ the 
union must meet its duty of fair representation; \123\ and the employer 
must refrain from making unilateral changes to mandatory subjects of 
bargaining.\124\ But if a certification of representative issues before 
the Board has ruled on any request for review, such ruling by the Board 
may require that the certification be modified or vacated. Likewise, 
the issuance of a certification of results may, depending on the 
circumstances, dissolve a previous bargaining obligation and/or require 
a union (or unions) to refrain from filing a petition to represent the 
unit for a period of time.\125\ But here too, if the certification 
issues before the Board has ruled on any request for review, such 
ruling by the Board may reestablish the bargaining relationship and/or 
remove the bar to petitioning to represent the union; indeed, the 
Board's ruling may even establish a new bargaining relationship.
---------------------------------------------------------------------------

    \121\ Cf. Audio Visual Services Group, Inc. d/b/a PSAV 
Presentation Services, 365 NLRB No. 84, slip op. at 2 (2017) 
(``Under well-established law, an employer is not relieved of its 
obligation to bargain with a certified representative of its 
employees pending Board consideration of a request for review'' 
(citing Benchmark Industries, 262 NLRB 247, 248 (1982), enfd. mem. 
724 F.2d 974 (5th Cir. 1984))).
    \122\ See section 8(a)(5), (b)(3), (d).
    \123\ See section 8(b)(1)(A).
    \124\ See, e.g., NLRB v. Katz, 369 U.S. 736 (1962); Raytheon 
Network Centric Systems, 365 NLRB No. 161 (2017).
    \125\ See section 9(c)(3).
---------------------------------------------------------------------------

    The drawbacks of requiring regional directors to issue 
certifications that the Board may alter or vacate are accordingly 
clear: A certification of representative may create the appearance of 
rights and obligations on the part of unions and employees that may yet 
be nullified, and the issuance of a certification of results may create 
the appearance that a legal obligation does not exist that may yet be 
imposed. Thus, any case in which the Board grants review and reverses a 
regional director has the potential to, at minimum, cause confusion 
among employees and the parties. Further, the issuance of a 
certification despite the (potential) pendency of a request for review 
places an employer in the difficult position of either (1) refusing to 
bargain while awaiting the Board's ruling on a request for review, or 
(2) devoting resources to bargaining while

[[Page 69555]]

awaiting the Board's ruling.\126\ In the former scenario, the employer 
risks committing unfair labor practices should the Board uphold the 
certification; in the latter scenario, the employer risks wasting 
resources should the Board invalidate the bargaining obligation. In all 
of these situations, the parties and employees are left to wonder 
whether the legal rights and obligations that supposedly attach to the 
certification actually exist.
---------------------------------------------------------------------------

    \126\ See Audio Visual Services, supra, slip op. at 2 (``By 
relying on its filing of a request for review in refusing to bargain 
with the certified Union, the Respondent acted at its peril'' 
(citing Allstate Insurance Co., 234 NLRB 193, 193 (1978)).
---------------------------------------------------------------------------

    The complications for employers outlined above will be compounded 
if an employer refuses to bargain while a request for review is 
pending, the certified union files unfair labor practice charges based 
on that refusal, and the regional director finds merit to, and 
processes, a technical 8(a)(5) refusal-to-bargain charge. The potential 
result is that both the unfair labor practice charge and the underlying 
representation case on which it is based end up pending before the 
Board at the same time. It plainly detracts from transparency for a 
region (or even the Board) to process unfair labor practice charges 
that are premised on a certification whose validity is still being 
challenged before the Board. We acknowledge that this situation is 
largely hypothetical; although the processing of refusal-to-bargain 
charges while the underlying certification is still being appealed to 
the Board is not entirely unheard of,\127\ since the 2014 amendments 
took effect our experience has been that regions generally hold 
refusal-to-bargain charges in abeyance pending the Board's ruling on a 
request for review. But this practice also detracts from transparency, 
insofar as it gives the appearance that regions are delaying 
vindication of the rights that attach to already-issued 
certifications.\128\
---------------------------------------------------------------------------

    \127\ See Audio Visual Services, supra, slip op. at 2 and cases 
cited therein.
    \128\ The 2014 amendments' comment that most requests for review 
are ultimately rejected do not alleviate these concerns, which are 
only indirectly related to the rate at which the Board reverses 
Regional Directors' determinations. Rather, these concerns are based 
on the appearance of the Board's inaction with respect to the rights 
and obligations that attach to certifications.
---------------------------------------------------------------------------

    In short, where a certification issues notwithstanding the 
(potential) pendency of a request for review that may nullify the 
certification, the possibility for confusion is greatly amplified, and 
whatever course the region takes with respect to the filing of unfair 
labor practice charges premised on the certification detracts from the 
legal effect of the certification. All of these problems are readily 
solved by simply requiring regional directors to refrain from issuing 
certifications until the Board has ruled on any request for review. 
Given that the Board employed that approach in most cases for over 50 
years prior to the 2014 amendments, it is clearly a valid and viable 
approach.\129\
---------------------------------------------------------------------------

    \129\ Although we do not question that the 2014 amendments' 
approach to issuing certifications was permissible under section 
3(b), we do not agree that the 2014 amendments' approach is somehow 
more consistent with section 3(b). Although section 3(b) states that 
a request for review ``shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
director,'' it has nothing to say about the time at which a 
certification should issue vis-[agrave]-vis a request for review. 
Further, nothing in the legislative history of section 3(b) suggests 
that Congress intended for regional directors to issue 
certifications prior to the Board's ruling on a request for review.
---------------------------------------------------------------------------

    For the same reasons just discussed, the final rule also better 
promotes certainty and finality. In addition, with respect to finality, 
to the extent that the 2014 amendments suggested that the faster 
issuance of certifications promoted finality, we disagree. In this 
regard, the 2014 amendments stated that ``a question [of 
representation] cannot be answered until the election results are 
certified.'' 79 FR 74411. But the amendments also tacitly acknowledged 
that the issuance of a certification is not the final word on the 
matter by commenting that ``a proceeding cannot necessarily be 
considered closed'' until the time for filing a request for review has 
passed. 79 FR 74414. Regardless of technical niceties, a certification 
cannot be considered the ``final'' disposition of a question of 
representation until either the time for a request for review has 
passed, or the Board has ruled on any request for review that has been 
filed. To describe an action of a regional director, who is a Board 
delegate, as ``final'' when the Board itself may yet vacate or modify 
that very action robs the word of its ordinary meaning. By contrast, a 
certification that issues after the time for any request for review has 
passed, or after the Board has ruled on any pending request for review, 
will in fact be final for the Board's purposes.\130\
---------------------------------------------------------------------------

    \130\ As noted above, the 2014 amendments apparently justified 
the premature issuance of certifications by pointing out that a 
certification still can be challenged before the courts. We 
acknowledge that a certification may not be given full effect until 
a circuit court enforces the Board's test-of-certification decision, 
but this is entirely beside the point in deciding, as a policy 
matter, when in the course of the Board's representation proceedings 
a certification should issue.
---------------------------------------------------------------------------

    All of the reasons discussed thus far also demonstrate that the 
final rule serves efficiency, particularly in the form of providing for 
orderly litigation and resolution of disputes. Given that the Board's 
ruling on a request for review may nullify a previously-issued 
certification, waiting to issue any certification until after the 
Board's ruling is a far more orderly way of proceeding, and we can 
detect no harm in waiting to issue the certification until that point. 
As already discussed, regions are, as a practical matter, postponing 
the processing of unfair labor practice charges premised on 
certifications of representative until after the Board rules on a 
request for review, so any delay that might be caused by waiting to 
issue certifications already exists.
    Further, the final rule promotes efficiency insofar as it will 
eliminate the perceived need or incentive for parties to file requests 
to stay certifications, or at least the legal effect thereof. Since the 
2014 amendments became effective, the Board has processed a steady 
stream of such requests,\131\ but to date has declined to grant any. 
Given the regional practice, noted above, of holding refusal-to-bargain 
charges in abeyance pending the Board's ruling on a request for review, 
it is unclear whether, as a practical matter, any requested stay of 
certification has been or ever could be truly ``necessary,'' but 
parties clearly are entitled to file such requests under the 2014 
amendments, and have the incentive to do so given the legal rights and 
obligations that attach to the certification. Postponing the issuance 
of certifications until after the Board has ruled on any pending 
request for review removes both the need and incentive to file such 
requests. Accordingly, the final rule promotes efficiency by 
eliminating any basis to request stays of certifications, thereby 
avoiding needless litigation and better conserving the resources of the 
Board and the parties.
---------------------------------------------------------------------------

    \131\ See Didlake, Inc., 367 NLRB No. 125, slip op. at 1 fn. 2 
(2019); Troutbrook Co. LLC d/b/a Brooklyn 181 Hospitality LLC, 367 
NLRB No. 56 (2019); Premier Utility Services, LLC, 363 NLRB No. 159, 
slip op. at 1 fn. 1 (2016); St. Luke's Hopsital, Case 01-RC-230363 
(Mar. 20, 2019); Universal Television Productions, Case No. 31-RC-
226424 (Jan. 30, 2019); Warner Bros. Television, Case No. 31-RC-
226460 (Jan. 23, 2019); Centerpoint Energy Houston Electric, LLC, 
Case No. 16-RC-229214 (Nov. 28, 2018); Rhode Island LFG Genco, LLC, 
Case No. 01-RC-208704 (Nov. 7, 2018); Northwestern University, Case 
No. 13-RC-177943 (Sep. 27, 2018); Bronx Lobster Place, LLC, Case No. 
02-RC-191753 (Feb. 2, 2018); Saint Mary's University, Case No. 19-
RC-173933 (Jun. 27, 2016); Volkswagen Group of America, Inc., Case 
No. 10-RC-162530 (Apr. 13, 2016).
---------------------------------------------------------------------------

    In conclusion, under the final rule regional directors will only 
issue certifications after the time for filing a request for review has 
passed without any such request being filed. If any

[[Page 69556]]

request for review is filed, the certification will issue only after 
the Board's ruling on that request.\132\ Given that a certification was 
previously a ``final disposition'' that would trigger the time for 
filing a request for review, the final rule has added Sec.  102.69(h) 
to provide the parties with clearer guidance regarding what actions 
will now trigger the time for filing a request for review with the 
Board.
---------------------------------------------------------------------------

    \132\ Either the Board will do so when it rules on the request 
for review, or the regional director will do so following the 
Board's ruling on the request.
---------------------------------------------------------------------------

C. Posthearing Briefs Following Post-Election Hearings
    In overhauling the Board's post-election procedures, the 2014 
amendments provided that following the close of a post-election 
hearing, ``[p]ost-hearing briefs shall be filed only upon special 
permission of the Hearing Officer and within the time and addressing 
the subjects permitted by the Hearing Officer.'' This was consistent 
with the Board's prior practice. See 79 FR 74402, 74417 n.475, 74426; 
CHM Sec.  11430 (2014); Hearing Officer's Guide at 167.
    It is not entirely clear why the Board has historically pursued 
this course; under the 2014 amendments, at least, it may be partly due 
to the fact that, unlike with pre-election hearings, there is an 
additional level of review following post-election hearings.\133\ The 
Board's Casehandling Manual simply states that ``[t]he filing of briefs 
is generally to be discouraged to the extent that they are unnecessary 
and interfere with the promptness with which post-election matters 
should be resolved.'' CHM section 11430. Even so, the Casehandling 
Manual provides that when such briefs are allowed, the hearing officer 
can set the time limit for filing them, but that it is assumed that 
``no more time than is necessary will be allowed, usually 7 days.'' Id.
---------------------------------------------------------------------------

    \133\ Thus, the hearing officer conducting the post-election 
hearing issues an initial report; a party aggrieved by the hearing 
officer's report may file exceptions and an accompanying brief with 
the regional director, who issues a decision; and a party aggrieved 
by the regional director's decision may file a request for review 
with the Board. Sec.  102.69(c)(1)(iii), (2).
---------------------------------------------------------------------------

    The final rule amends Sec.  102.69(c)(1)(iii) to provide for the 
filing of post-hearing briefs within 5 business days of the close of 
hearing as a matter of right and further provides that prior to the 
close of a hearing the hearing officer may, for good cause shown, grant 
an extension of time not to exceed and additional 10 business days. We 
have decided that the parties should be permitted to file post-hearing 
briefs in post-election proceedings for the same reasons we have 
restored the right to file post-hearing briefs in pre-election 
proceedings. These reasons are fully discussed above with respect to 
Sec.  102.66(h), and need not be repeated in detail here; suffice it to 
say, we think that hearing officers will benefit from post-hearing 
briefs for the same reasons regional directors will in pre-election 
proceedings, and the parties will also benefit from the opportunity to 
better formulate their post-election arguments.\134\ Any delay will be 
minimal and consistent with prior practice, as the 5 business days to 
file briefs provided by the final rule accords with the 7 calendar days 
to file briefs set forth in CHM section 11430. To promote uniformity, 
we have made the same provision for extensions of time set forth in 
Sec.  102.66(h), but we observe that the hearing officer will be under 
no obligation to grant an extension absent a showing of good cause, and 
is under no obligation to wait to begin drafting his or her report 
until briefs have been filed. Finally, as with post-hearing briefs in 
pre-election proceedings, the parties will be free to waive the period 
for filing post-hearing briefs, and hearing officers will be free to 
encourage the parties to opt for closing oral argument in lieu of 
filing briefs.\135\
---------------------------------------------------------------------------

    \134\ Further, given that briefs will ensure that hearing 
officers fully address the arguments raised therein, providing for 
post-hearing briefs in post-election proceedings should also help 
regional directors more swiftly deal with exceptions raised to 
hearing officers' reports.
    \135\ Obviously, the right to file a post-hearing brief will 
attach only where there has been a post-election hearing. Regional 
directors can, and frequently do, overrule objections without a 
hearing. See Sec.  102.69(c)(1)(i).
---------------------------------------------------------------------------

102.71 Dismissal of Petition; Refusal To Proceed With Petition; 
Requests for Review by the Board of Action of the Regional Director
    Section 102.71 sets forth the requirements for filing a request for 
review of a regional director's administrative dismissal of a petition, 
as well as a regional director's determination that a petition should 
be dismissed or held in abeyance due to the pendency of concurrent 
unresolved unfair labor practice charges. Section 102.71(c) sets forth 
formatting requirements, which are limited to ``[t]he request shall be 
printed or otherwise legibly duplicated,'' and provides--without 
further elaboration--that requests for an extension of time to file the 
request shall be filed with the Board. In keeping with the changes to 
Sec. Sec.  102.67(i) and 102.69(f) and (g), the final rule modifies 
Sec.  102.71(c) to require that any request for review comply with the 
formatting requirements of Sec.  102.67(i)(1), and also states that a 
request for an extension of time shall be filed pursuant to Sec.  
102.2(c).
    Section 102.71 does not explicitly provide for the filing of an 
opposition to a request for review filed pursuant to this section, but 
in practice the Board has accepted oppositions to requests for review 
filed pursuant to this section. To promote transparency and uniformity, 
the final rule codifies this practice in Sec.  102.71(d), which, 
consistent with the changes to Sec. Sec.  102.67(h), (i), and 
102.69(f), (g), specifically provides that a party may file an 
opposition brief with the Board as a matter of right. The rule also 
specifies requirements for service and formatting, and requests for 
extensions of time to file, and requests for extensions of time to 
file. Finally, the rule also states that the Board may grant or deny a 
request for review without waiting for an opposition and that no reply 
to the opposition may be filed except upon special leave of the Board.

V. Response to Dissent

    Our colleague dissents to the entirety of our rule revisions, 
although she specifically discusses only some of those that in her view 
contribute to unnecessary delay and its corollary, unnecessary 
litigation.\136\ Where appropriate, we have addressed specific 
arguments in our justification of the particular contested revisions. 
We have also addressed her argument that the Board should engage in 
notice and comment rulemaking even though not required to do so under 
the Administrative Procedure Act exception for procedural rulemaking. 
Nothing more needs to be said in those respects. Here, we consider only 
the dissent's overarching contentions that this rulemaking cannot pass 
muster under the Administrative Procedure Act because the rule 
revisions made (1) are not supported by empirical evidence drawn from 
the agency statistics available to us, and (2) as measured by the 
standards set in the 2014 amendments, they will delay the conduct of an 
election.
---------------------------------------------------------------------------

    \136\ Not surprisingly, the dissent voices no complaint about 
our retention of numerous procedural changes made in the 2014 
amendments, including the vitally important Statement of Position 
requirement, the reorganization of the process for post-election 
appeals, the Notice of Petition requirement, electronic filing of 
petition, simultaneous submission of showing of interest, option of 
waiting to file a request for review until after an election, 
electronic distribution of the notice of election, and simultaneous 
submission of offer of proof in support of objections. Of the 
revisions we do make today, she expresses no specific opposition to 
several of them that do not involve the alleged delay that she 
contests.

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

[[Page 69557]]

    Our colleague does not claim, nor could she, that we are not 
operating within the range of our broad discretionary statutory 
authority to define the particulars of representation election 
procedures. Our revisions are clearly permissible under the Act. 
Instead, her dissent purportedly looks to the same procedural legal 
standard set by the APA for administrative agency action as we do, but 
her view of the proper application of that standard in this instance is 
far off the mark. It is certainly true that the APA requires the 
setting aside of agency action that is ``arbitrary'' or ``capricious,'' 
and that an agency must ``examine the relevant data and articulate a 
satisfactory explanation for its action.'' State Farm, supra, 463 U.S. 
at 43. However, the dissent fundamentally errs in its estimation of 
what are relevant data in this proceeding and what can be a 
satisfactory explanation for our action in revising or rescinding 
certain of the 2014 amendments in this proceeding.
    First, the dissent is clearly mistaken to the extent that it 
implies our rationale for rescinding or modifying the 2014 amendments 
must be better than the rationale for implementing them. ``The 
[Administrative Procedure Act] makes no distinction, however, between 
initial agency action and subsequent agency action undoing or revising 
that action.'' Fox Television Stations, supra, 556 U.S. at 515. 
Further, ``the agency must show that there are good reasons for the new 
policy. But it need not demonstrate to a court's satisfaction that the 
reasons for the new policy are better than the reasons for the old one; 
it suffices that the new policy is permissible under the statute, that 
there are good reasons for it, and that the agency believes it to be 
better, which the conscious change of course adequately indicates. This 
means that the agency need not always provide a more detailed 
justification than what would suffice for a new policy created on a 
blank slate. Sometimes it must--when, for example, its new policy rests 
upon factual findings that contradict those which underlay its prior 
policy; or when its prior policy has engendered serious reliance 
interests that must be taken into account.'' Id.
    We have extensively explained the reasons why we believe the 
election rule provisions we announce today selectively improve on those 
made in the 2014 amendments. Further, the new policy we set here does 
not rest on factual findings that contradict factual findings made by 
the Board majority in the 2014 amendments. To the contrary, that 
majority made no significant factual findings relevant to the 
provisions in the amendments that we address in this rulemaking. It 
specifically rejected the statistical argument that no rule revisions 
were needed because the Board was consistently meeting its extant 
statistical time targets. 79 FR at 74316. The reasons extensively set 
forth there were based on non-statistical policy choices, and our 
reasons for revising or rescinding some of the 2014 amendments are 
similarly based on non-statistical policy choices. That is a 
permissible approach to rational rulemaking under State Farm and Fox. 
See, e.g., BellSouth Corp. v. FCC, 162 F.3d 1215, 1221 (D.C. Cir. 1999) 
(``When . . . an agency is obliged to make policy judgments where no 
factual certainties exist or where facts alone do not provide the 
answer, our role is more limited; we require only that the agency so 
state and go on to identify the considerations it found persuasive''), 
and Chamber of Commerce v. SEC, 412 F.3d 133, 142 (D.C. Cir. 2005) (an 
agency ``need not--indeed cannot--base its every action upon empirical 
data; depending upon the nature of the problem, an agency may be 
`entitled to conduct . . . a general analysis based on informed 
conjecture.' '') quoting from Melcher v. FCC, 134 F.3d 1143, 1158 (D.C. 
Cir. 1998), and cited with approval in Chamber of Commerce v. NLRB, 
supra, 118 F.Supp. 3d at 183.
    The Board majority in the 2014 amendments also did not claim that 
the pre-2014 representation procedures that they modified on policy 
grounds and that we selectively restore to the same or similar state 
here, were ``arbitrary'' or ``capricious.'' A different weighing of all 
relevant factors can lead to a different conclusion as to which is the 
better procedure for the conduct of representation elections. This 
brings us to the one factor that our dissenting colleague, in common 
with the 2014 rulemaking majority, stresses here far more than anything 
else: ``delay.'' Delay is a relative term, suggesting that an action 
takes longer than reasonably expected. It does not mean that any action 
is delayed that could possibly be taken sooner. If that were so, all 
governmental speed limits should be set aside as arbitrarily delaying 
drivers from going from Point A to Point B as fast as their vehicles 
can take them.
    It is undisputed that the Act does not specify a maximum time for 
any stage of a representation proceeding, particularly the time between 
the filing of a petition and the conduct of an election. The Supreme 
Court has instructed that ``[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., supra, 
329 U.S. at 331. These goals are expressed in the conjunctive, not 
separately, and consistent with the Act the Supreme Court has deferred 
to the Board's determination of how best to balance and achieve them. 
The 2014 rulemaking majority believed that elections could be conducted 
more speedily without detriment to the goals of doing so accurately and 
efficiently. Our colleague agrees with the timeline set there and 
consequently views our extension of that timeline to be unacceptable, 
arbitrarily-imposed delay. We obviously disagree.
    We readily concede that the revisions to the pre-election timeline 
we make here may result in a return to pre-2015 median times, 
particularly in contested cases. Unlike the dissent, we do not regard 
that extension of time as unreasonably delaying the conduct of a fair 
election in which votes are recorded ``accurately, efficiently, and 
speedily.'' For reasons that have been extensively explained, we 
believe that the expedited processes implemented in 2014 at every step 
of the election process--from petition to hearing, from hearing to 
regional decision, from decision to election, and from election to 
final resolution of post-hearing issue--unnecessarily sacrificed prior 
elements of Board election procedure that better assured a final 
electoral result that is fundamentally fairer and still provides for 
the conduct of an election within a reasonable period of time from the 
filing of a petition. We believe that the representation election 
procedures we announce today are balanced measures necessary to redress 
those shortcomings.

VI. Dissenting View of Member McFerran

    Member Lauren McFerran, dissenting.

A. Introduction

    In 2014, the National Labor Relations Board comprehensively revised 
its regulations addressing the processing of petitions for 
representation elections under the National Labor Relations Act.\137\ 
The 2014 rule was the product of a painstaking, three-and-a-half-year 
process, involving the consideration of tens of thousands of public 
comments generated over two separate comment periods totaling 141 days, 
including 4 days of hearings with live questioning by Board Members. 
The rule was designed to simplify and modernize the Board's 
representation process, to establish greater transparency and 
consistency in administration, and to better provide for the fair and

[[Page 69558]]

expeditious resolution of representation cases.
---------------------------------------------------------------------------

    \137\ Representation-Case Procedures, 79 FR 74308 (Dec. 15, 
2014).
---------------------------------------------------------------------------

    The implementation of the 2014 rule went smoothly. In the words of 
the Board's Regional Directors--the agency's own in-house experts 
charged with administering the representation case process on a day-to-
day basis--``[w]hile parties initially voiced great concerns about the 
2014 Election Rule, to all the parties' credit, after the initial 
learning curve, there have been very few difficulties in the adoption 
of the rules.'' \138\ In addition, all available evidence indicates 
that the 2014 rule has achieved its intended goals. As explained in 
greater detail below, Board procedures are more transparent, and more 
meaningful information is more widely available at earlier stages of 
our proceedings. Across regions, employees' statutory rights are 
afforded more equal treatment, the timing of hearings is more 
predictable, and litigation is more efficient and uniform. Parties are 
more often spared the expense of litigating, and the Board is more 
often spared the burden of deciding, issues that are not necessary to 
determine whether a question of representation exists, and which may be 
mooted by election results. Voters are able to receive election 
information using modern means of communication rather than door-to-
door visits.
---------------------------------------------------------------------------

    \138\ See Regional Director Committee's Response (RDs' Response) 
to 2017 Request for Information concerning the 2014 Rule p.4.
---------------------------------------------------------------------------

    And all of this has been accomplished while processing 
representation cases more expeditiously from petition, to election, to 
closure. The 2014 rule reduced the median time from petition to 
election by more than three weeks in cases involving a pre-election 
hearing, and by two weeks in cases involving an election 
agreement.\139\ And the Agency's 100-day closure rate for 
representation cases is better than ever. In three of the four full 
fiscal years since the 2014 rule's implementation, the agency has 
achieved historic highs of closing 88.8%, 89.9% and 90.7% of its 
representation cases within 100 days of a petition's filing--besting 
any year's performance preceding the 2014 rule.\140\ The 2014 rule has 
thus proved remarkably successful in doing exactly what it was intended 
to do, while promoting the goals of the National Labor Relations Act.
---------------------------------------------------------------------------

    \139\ See https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election (showing a 
median of 37 days to process an election agreement case from 
petition to election in pre-rule FYs 2013-2014, as compared to only 
22 or 23 days in post-rule FYs 2016-2017, and 59 days for contested 
case in FYs 2013-2014, as compared to only 35 or 36 days in post-
rule FYs 2016-2017).
    \140\ See Performance Accountability Reports, FYs 2013-2017, 
www.nlrb.gov/reports-guidance/reports (indicating the following 
representation case 100-day closure rates: FY 2019-90.7%, FY 2018-
88.8%, FY 2017-89.9%, FY 2016-87.6%, FY 2014-88.1%; FY 2013-87.4%; 
FY 2012-84.5%; FY 2011-84.7%; FY 2010-86.3%; FY 2009-84.4%).
---------------------------------------------------------------------------

    Certainly, the 2014 rule was the subject of employer criticism at 
the time of its enactment. While much of this criticism centered on 
misguided claims that the revisions were designed to put a thumb on the 
scale in favor of unions winning more representation elections,\141\ 
that has not proven to be the case in practice.\142\ The 2014 rule was 
also the subject of numerous legal challenges alleging that it went 
beyond the Board's statutory authority, or was inconsistent with the 
requirements of the Administrative Procedure Act (APA) or the 
Constitution. The courts rejected these claims, and the validity of the 
rule has uniformly been upheld.\143\
---------------------------------------------------------------------------

    \141\ See, e.g., 79 FR 74326 fn.83.
    \142\ See NLRB, Annual Review of Revised R-Case Rules, available 
at https://www.nlrb.gov/news-outreach/news-story/annual-review-revised-r-case-rules (showing, in comparison between pre- and post-
rule elections, no substantial change in party win-rates).
    \143\ See Associated Builders & Contractors of Texas, Inc. v. 
NLRB, 826 F.3d 215, 229 (5th Cir. 2015) (ABC of Texas v. NLRB) 
(noting that the Board ``conducted an exhaustive and lengthy review 
of the issues, evidence, and testimony, responded to contrary 
arguments, and offered factual and legal support for its final 
conclusions''), affg. No. 1-15-CV-026 RP, 2015 WL 3609116 (W.D. Tex. 
June 1, 2015); Chamber of Commerce of U.S. v. NLRB, 118 F. Supp. 3d 
171, 220 (D.D.C. 2015) (Chamber v. NLRB) (``[T]he Board engaged in a 
comprehensive analysis of a multitude of issues relating to the need 
for and the propriety of the [2014] Final Rule, and it directly 
addressed the commenters' many concerns[.] [P]laintiffs have not 
shown that the Final Rule contravenes either the NLRA or the 
Constitution, or that the Final Rule is arbitrary and capricious or 
an abuse of Board discretion''). See also UPS Ground Freight v. 
NLRB, 921 F.3d 251 255-257 (D.C. Cir. 2019) (UPS v. NLRB) (rejecting 
a challenge to the application of various 2014 rule provisions 
including scheduling of the pre-election hearing, the timing of the 
employer's statement of position and the pre-election deferral of 
the voting eligibility of two employees in disputed 
classifications).
---------------------------------------------------------------------------

    But the success of the 2014 rule was apparently too good to last. 
On September 25, 2017--roughly two and a half years after the 2014 
rule's effective date--the composition of the Board's majority shifted. 
Less than three months later, a new Board majority announced a Request 
for Information (RFI) seeking ``to evaluate whether the [2014] Rule 
should be [1] [r]etained without change, [2] retained with 
modifications, or [3] rescinded, possibly while making changes to the 
prior Election Regulations that were in place before the Rule's 
adoption.'' \144\ The perfunctory request did not identify any specific 
problems with the rule's implementation or negative effects that 
justified its revisiting. Nor did the then-majority (including two 
members of the current majority) make any effort to take even a 
preliminary look at the agency's own wealth of data and records about 
the rule's effect and operation before seeking to reopen its 
provisions. The RFI simply noted that the composition of the Board had 
changed,\145\ observed that the rule had been in effect for more than 
two years,\146\ and then conducted the functional equivalent of a straw 
poll on the rule's popularity.\147\
---------------------------------------------------------------------------

    \144\ Representation-Case Procedures, 82 FR 58783 (Dec. 14, 
2017).
    \145\ This certainly is not a ``good reason'' for revisiting a 
past administrative action, particularly in the context of 
rulemaking. See generally Motor Vehicle Mfrs. Assn. of United 
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 
(1983). Even in the context of adjudication, the Board has long and 
consistently rejected motions to reconsider its decisions based on a 
change in the composition of the Board. See, e.g., Brown & Root 
Power & Mfg., 2014 WL 4302554, *3 (Aug. 29, 2014); Visiting Nurse 
Health System, Inc., 338 NLRB 1074 (2003); Wagner Iron Works, 108 
NLRB 1236, 1239 (1954).
    \146\ As I mentioned in my dissent at the time, even the most 
ardent advocates of regulatory review would not support such a short 
regulatory lookback period. Indeed, Section 610 of the Regulatory 
Flexibility Act, for example, contemplates that agencies may take up 
to 10 years before they may adequately assess a rule's 
effectiveness. See 5 U.S.C. 610 (providing that agencies shall 
develop plan ``for the review of such rules adopted after the 
effective date of this chapter within ten years of the publication 
of such rules as the final rule'').
    \147\ The majority also summarily cited congressional votes, 
hearings, and proposed (but never-passed) legislation as reasons to 
issue the RFI. As I pointed out at the time, though such 
congressional actions might raise concern over a rule's actual 
effectiveness in other circumstances, here--where criticism was 
leveled in the absence of any meaningful experience under the rule--
they seem to signify little more than partisan opposition to the 
rule.
---------------------------------------------------------------------------

    The RFI was, in short, a fishing expedition--a transparent effort 
to manufacture an evidentiary basis for revisiting the rule. The 
effort, predictably, was unsuccessful. The public's responses provided 
no empirical basis for amending the 2014 rule, and likewise articulated 
no statutory arguments that were not previously rejected by the Board 
and the courts. Indeed, the current majority now expressly disclaims 
that it is relying on anything obtained through that process in 
generating or justifying its amendments to that rule. A reasonable 
observer might have thought that the 2014 rule was safe after the RFI, 
but that is not the case.
    Fast forward two years, and the majority now issues a direct final 
rule substantially rewriting the 2014 rule without any notice to, or 
comment from, the public about the specific changes being made. The 
primary effect of these changes will be to dramatically increase the 
timetable for conducting

[[Page 69559]]

representation elections by imposing unnecessary delay at each stage of 
the representation case process. Under the new rule, the minimum total 
number of days from the filing of an election petition to certification 
of a union in a case that is contested both pre- and post-election will 
rise from 23 days (under the 2014 rule) to 78 days. The majority 
provides no reasoned explanation for proceeding in such utter disregard 
of public input, or for codifying such a substantial delay in 
conducting elections.
    On the procedural front, even assuming notice and comment was not 
legally required, there is no question that the better choice would be 
to seek the input of workers, unions, employers, legal practitioners, 
Board regional staff, and other affected stakeholders about any 
specific proposed changes before rushing them to completion. We owe the 
public the opportunity to weigh in on something so central to our core 
mission as an agency.\148\
---------------------------------------------------------------------------

    \148\ Although Federal agencies are not required to engage in 
notice and comment rulemaking before promulgating, amending, or 
repealing ``rules of agency organization, procedure, or practice'' 
(5 U.S.C. 553(b)(A)), nothing prevents an agency from voluntarily 
using notice and comment rulemaking. Indeed, the Administrative 
Conference of the United States has recommended that Federal 
agencies use that process even for rules that fall within the so-
called ``procedure or practice'' exception ``except in situations in 
which the costs of such procedures will outweigh the benefits of 
having public input and information on the scope and impact of the 
rules, and of the enhanced public acceptance of the rules that would 
derive from public comment.'' Administrative Conference of the 
United States (ACUS), Recommendation 92-1, The Procedural and 
Practice Rule Exemption from the APA Notice-and-Comment Rulemaking 
Requirements (June 18, 1992).
    The majority offers no reasoned explanation for disregarding 
ACUS's recommendation. The majority cannot convincingly claim that 
the costs of providing the public with notice of, and an opportunity 
to comment on, the specific amendments at issue today outweigh the 
benefits of having public input and information on those specific 
changes. The majority's decision to disregard ACUS' recommendation 
suggests that the majority believes that the responses to the 2017 
RFI were not helpful in evaluating the 2014 rule provisions, and 
therefore engaging in notice and comment about these amendments 
would not be particularly helpful. But that would make no sense: The 
2017 RFI did not provide the public with notice of any of the 
specific amendments the majority adopts today, and thus it is hardly 
surprising that the responses to the 2017 RFI did not provide 
illumination about these amendments.
    Finally, it merits notice that the majority signals that they 
may be addressing in a future rulemaking the contents of the voter 
list provisions contained in very same 2014 rule that it amends 
today. It goes without saying that the majority would have to engage 
in notice and comment rulemaking to amend or repeal the substantive 
voter list provisions of the 2014 rule. Thus, the majority could 
have easily provided the public with notice of, and the opportunity 
to comment on, the majority's desire to make the specific changes at 
issue today in the very same notice of proposed rulemaking--just as 
the 2014 Board engaged in notice and comment rulemaking before 
adopting each and every one of the 2014 rule provisions. It is 
difficult to discern why the majority would opt to do two separate 
rulemakings rather than use the time and resources available to do a 
single rulemaking on a longer timetable that would allow for notice 
and comment.
---------------------------------------------------------------------------

    Unfortunately, the substance of the majority's analysis is even 
more problematic. The current majority is in a unique and superior 
position as compared to the 2014 Board in evaluating whether to keep 
changes made in 2014, to revert to pre-2014 procedures, or to do 
something else entirely: The Board now has a rich source of data from 
which to determine whether any of the predicted problems with the 2014 
rule actually materialized, and whether there is an objective basis to 
prefer one set of procedures to another. However, continuing the 
irresponsible pattern of the RFI, my colleagues appear to have 
conducted no analysis of the more than four years of available agency 
data and records about the actual, real-world impact of the 2014 rule. 
In justifying the changes enacted today, the majority does not cite 
even anecdotal evidence that significant problems with the operation or 
implementation of the 2014 rule have actually emerged. Instead, my 
colleagues base their criticism of the 2014 rule largely on their own 
unsupported suppositions, and those of previous dissenting Board 
members. Incredibly, the majority does not expressly invoke its own 
experience administering the 2014 rule to justify its amendments.
    While the majority repeats (over and over again) that these changes 
are necessary to promote ``fairness, accuracy, transparency, 
uniformity, efficiency, and finality,'' repeating this mantra does not 
make it so. The majority cites no data whatsoever substantiating its 
conclusion that the 2014 rule has impaired those interests. Nor does it 
cite any evidence supporting its conclusions that the changes it makes 
today will promote these goals--despite the fact that my colleagues 
characterize several of these changes as a functional reversion to 
practice prior to 2014, which would presumably allow them to draw on a 
wealth of historical agency experience.
    It is one thing for an agency to change its mind based on a 
reasoned analysis of available evidence--or even a reinterpretation of 
the data it previously relied upon,\149\ but it is quite another for an 
agency to refuse to examine any of the relevant information readily 
available within the agency itself to test the hypotheses underlying 
its new approach. This is particularly irrational in the context of a 
direct final rule that will not even provide members of the public with 
the opportunity to assist the agency in evaluating the wisdom of 
specific changes. The majority's complete and indefensible failure to 
investigate the agency's own data and experience on these issues 
renders the rule enacted today arbitrary and capricious.
---------------------------------------------------------------------------

    \149\ See, e.g., Nat Assn. of Home Builders v. EPA, 682 F.3d 
1032 (D.C. Cir. 2012).
---------------------------------------------------------------------------

    This flawed analysis, unsurprisingly, produces an equally flawed 
result that undermines the fundamental goals of our statute. Section 9 
of the National Labor Relations Act is animated by the principle that 
representation cases should be resolved quickly and fairly. As the 
Supreme Court has recognized, ``the Board must adopt policies and 
promulgate rules and regulations in order that employees' votes may be 
recorded accurately, efficiently and speedily.'' \150\
---------------------------------------------------------------------------

    \150\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946). Indeed, 
Congress deliberately exempted Section 9 proceedings from the APA's 
provisions governing formal adjudications, see 5 U.S.C. 554(a)(6), 
because of ``the simplicity of the issues, the great number of 
cases, and the exceptional need for expedition.'' S. Comm. on the 
Judiciary, 79th Cong., Comparative Print on Revision of S. 7, at 7 
(Comm. Print 1945). Because of this need for expedition, Congress 
also deferred judicial review of representation decisions unless and 
until the Board enters an unfair labor practice order based on those 
decisions. See Boire v. Greyhound Corp., 376 U.S. 473, 477-79 
(1964).
---------------------------------------------------------------------------

    Recognizing the importance of timely elections to the fundamental 
goals of the Act, ``every time Congress has amended laws governing 
representation cases, it has reaffirmed the importance of speed,'' 
because ``[t]his is essential both to the effectuation of [NLRA] rights 
of employees, and to the preservation of labor peace.'' \151\ In 
keeping with this fundamental goal, since the NLRA was enacted, the 
Board has revised its representation case procedures multiple times, 
and the Board's General Counsel has continually revised representation 
case time targets downward (not upward) to resolve questions concerning 
representation more fairly, expeditiously and efficiently.\152\
---------------------------------------------------------------------------

    \151\ 79 FR 74316.
    \152\ Id. at 74310, 74316-74317.
---------------------------------------------------------------------------

    With this rule, my colleagues claim the dubious distinction of 
becoming the first Board in the agency's 84-year history to 
intentionally codify substantial delay in the representation case 
process, to the detriment of the mission of our Agency.\153\ Because I

[[Page 69560]]

cannot support this arbitrary exercise, or the unjustified burden it 
will place on workers seeking to exercise their fundamental workplace 
rights, I dissent.
---------------------------------------------------------------------------

    \153\ The majority is wrong to claim that this rule will merely 
result in a return to pre-2015 timeframes for contested cases. The 
reality is that the processing of representation cases will be even 
slower than before the 2014 rule. For example, under the majority's 
scheme, pre-election hearings will open no sooner than 20 days from 
the petition, yet in FYs 2011-2013, pre-election hearings were 
opening in a median of 13 days. See infra fn.182.
---------------------------------------------------------------------------

    My dissenting views are laid out in two separate analyses--Section 
B explains in summary fashion why the majority's rule violates the 
Administrative Procedure Act, while Section C includes a detailed 
discussion of the substance of the majority's particular amendments and 
why these changes are not the product of reasoned decisionmaking.\154\
---------------------------------------------------------------------------

    \154\ The latter portion of the dissent incorporates passages, 
often verbatim, from the 2014 rule because the best evidence of the 
2014 Board's reasoning for adopting that rule is contained in its 
preamble.
---------------------------------------------------------------------------

B. The Majority's Rule Is Arbitrary and Capricious in Violation of the 
Administrative Procedure Act

    It is hard to see how the majority's rule could survive judicial 
review under the Administrative Procedure Act, given its glaring 
defects. The majority's rule is arbitrary and capricious--a textbook 
example of how administrative agencies should not proceed. The rule 
makes radical changes to the Board's 2014 rule without any factual 
basis. Simply put, there is no administrative record here supporting 
the rule. Indeed, the majority seems to have made a determined effort 
to avoid making factual findings related to the 2014 rule. It has (1) 
disclaimed any reliance on public submissions made in response to the 
Board's 2017 Request for Information concerning the implementation of 
the 2014 rule; (2) inexplicably made no attempt to collect, examine, 
and evaluate the Board's own records and data involving representation 
cases under the 2014 rule; and (3) dispensed with notice-and comment 
rulemaking, which would have provided some basis to evaluate the 2014 
rule. But that is not all.
    The majority's rule is arbitrary, too, in deliberately sacrificing 
the undeniable benefits of the 2014 rule--including dramatic reductions 
in unnecessary delay in the representation-case process--for purely 
speculative gains serving other policy goals that are (at best) 
secondary under the National Labor Relations Act. There can be no 
dispute that the 2014 rule reduced delay--the evidence proves it--and 
that this rule will, by design, increase delay by building it into the 
process at multiple points. There is no evidence at all, of course, 
that this increased delay will serve any legitimate statutory purpose. 
This action is not reasoned decision-making leading to a permissible 
change in Board policy, but rather the reflexive rejection of the 2014 
rule, predetermined when the current Board majority was formed.
    This rule must be set aside under the APA as ``arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance with 
law.'' \155\ As the Supreme Court has explained, under the ``arbitrary 
and capricious'' standard, an agency must:

    \155\ 5 U.S.C. 706. See, e.g., Citizens to Preserve Overton 
Park, Inc. et al. v. Volpe, 401 U.S. 402, 413-414 (1971).
---------------------------------------------------------------------------

examine the relevant data and articulate a satisfactory explanation 
for its action including a rational connection between the facts 
found and the choice made. In reviewing that explanation, we must 
consider whether the decision was based on a consideration of the 
relevant factors and whether there has been a clear error of 
judgment. Normally, an agency rule would be arbitrary and capricious 
if the agency has relied on factors which Congress has not intended 
it to consider, entirely failed to consider an important aspect of 
the problem, offered an explanation for its decision that runs 
counter to the evidence before the agency, or is so implausible that 
it could not be ascribed to a difference in view or the product of 
agency expertise.

State Farm, supra, 463 U.S. at 43 (internal citations omitted).
    The ``arbitrary and capricious'' standard simply cannot be 
satisfied here, given the complete lack of any factual basis for the 
majority's rule. In addition, the majority's decision to discard the 
demonstrated benefits of the 2014 rule--such as reducing unnecessary 
delay in representation cases, a prime statutory objective--in favor of 
alleged process improvements that are purely speculative also fails the 
``arbitrary and capricious'' test.
1. The Majority Has Arbitrarily Failed To Examine the Board's Actual 
Experience Under the 2014 Rule and Arbitrarily Failed To Rely on a 
Factual Basis for Its New Rule
    In the Supreme Court's words, the ``APA requires an agency to 
provide more substantial justification when `its new policy rests upon 
factual findings that contradict those which underlay its prior 
policy.' '' \156\ Here, the majority's rule contradicts factual 
findings that underlay the Board's prior policy (as reflected in the 
2014 rule), but the majority's rule does not rest upon any genuine 
factual findings at all.\157\ The majority has disclaimed any reliance 
on public submissions made in response to the Board's 2017 Request for 
Information concerning the implementation of the 2014 rule, and it 
inexplicably has made no attempt to collect, examine, and evaluate the 
Board's own records and data involving representation cases under the 
2014 rule.\158\
---------------------------------------------------------------------------

    \156\ Perez v. Mortgage Bankers Assn., 135 S.Ct. 1199, 1209 
(2015), quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 
515 (2009).
    \157\ The majority argues that in 2014, the Board ``made no 
significant factual findings relevant to the provisions that [are] 
address[ed] in this rulemaking.'' But aside from the fact that the 
2014 Board made multiple factual findings concerning pre-rule 
practice in the 2014 rule, it is beyond question that the 
implementation of the 2014 rule, over a period of more than four 
years, has created a new set of facts: The positive, real-world 
consequences of the 2014 rule that the Board sought to achieve (and 
effectively predicted). Those new facts are precisely what this rule 
contradicts, without justification.
    \158\ Even if the majority was free not to engage in notice-and-
comment rulemaking, a consequence of that choice--given the 
majority's failure to rely on RFI submissions or to address the 
Board's own records and data--is that the Board has no factual basis 
for this rule. The majority, in other words, has assumed the risk of 
forgoing notice and comment, against the recommendation of the 
Administrative Conference. See ACUS Recommendation 92-1, supra.
---------------------------------------------------------------------------

    The Supreme Court has observed that in reviewing agency rules under 
the APA, the federal courts ``insist that an agency `examine the 
relevant data and articulate a satisfactory explanation for its 
action.' '' \159\ The majority has arbitrarily chosen not to ``examine 
the relevant data'' (which is easily available to it) and so it cannot 
possibly ``articulate a satisfactory explanation'' for this rule, which 
is not ``a new policy created on a blank slate,'' but rather a 
departure from the 2014 rule that has been in effect for nearly 5 
years.
---------------------------------------------------------------------------

    \159\ Fox Television Stations, supra, 556 U.S. at 513 (emphasis 
added), quoting State Farm, 463 U.S. at 43.
---------------------------------------------------------------------------

    That rule can only be rationally evaluated on the basis of the 
Board's actual experience during that period, and the majority cannot 
simply refuse to examine that information.\160\ The question here is 
not whether, in 2014, the Board permissibly could have made different 
choices in deciding whether and how to improve the representation-case 
process, but instead whether today the choices made by the Board in 
2014 have been vindicated or refuted by experience. The majority, 
however, deliberately avoids addressing that question and thus ``has 
failed to consider an important aspect of the

[[Page 69561]]

problem.'' \161\ As Supreme Court precedent makes clear, when `` ` 
[t]here are no findings and no analysis . . . to justify the choice 
made' '' by an agency's rule, the agency has acted arbitrarily and 
capriciously.\162\ That is the case here.
---------------------------------------------------------------------------

    \160\ See Gas Appliance Mfrs. Assn. v. Department of Energy, 998 
F.2d 1041, 1047 (D.C. Cir. 1993) (``An important, easily testable 
hypothesis should not remain untested.''); Natural Resources Defense 
Council, Inc. v. Herrington, 768 F.2d 1355, 1391 (D.C. Cir. 1985) 
(agency ``may not tolerate needless uncertainties in its central 
assumptions when the evidence fairly allows investigation and 
solution of those uncertainties.'')
    \161\ State Farm, supra, 463 U.S. at 43.
    \162\ State Farm, supra, 463 U.S. at 48, quoting Burlington 
Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962).
---------------------------------------------------------------------------

2. The Majority Has Arbitrarily Chosen To Significantly Increase Delay 
in the Board's Representation Process for Unsupported and Unjustified 
Reasons
    The lack of any factual basis for the majority's rule is glaringly 
apparent--and unacceptable under the Administrative Procedure Act. 
Equally arbitrary, in turn, is the majority's deliberate decision to 
increase delay in the Board's representation process, in the name of 
other considerations that are both unsupported and unjustified, given 
the Act's overriding policy goals.
    The majority's amendments impose unnecessary delay at each stage of 
the representation case process: (1) Between the filing of the petition 
and the opening of the pre-election hearing; (2) between the opening of 
the pre-election hearing and the issuance of a decision and direction 
of election; (3) between the decision and direction of election and the 
actual election; and (4) between the election and the certification of 
results. My analysis shows that the majority's rule will cause 
elections to be held nearly two months from the filing of the petition 
in the simplest case. And it will add another three weeks to the time 
it takes for the results be certified.
    The chart below compares the minimum amount of time it will take 
the Board to conduct an election and certify the results in a no-issue 
case under the rule the majority issues today, as compared to the 2014 
rule.\163\
---------------------------------------------------------------------------

    \163\ As discussed below, a party has the right under the Act to 
insist on a pre-election hearing even if there is no substantive 
dispute between the parties concerning the Board's jurisdiction, the 
propriety of the petition, and the appropriateness of the 
petitioned-for unit. Accordingly, the chart assumes that the 
employer facing an RC petition refuses to enter into a stipulated 
election agreement, and instead proceeds to a pre-election hearing 
that only requires the regional director to direct an election.
    Regarding the timing of the election, the chart assumes that the 
petitioning union waives the 10-day period to use the voter list 
contact information. Regarding the timing of post-election 
certification, the chart assumes the regional director can overrule 
the losing party's election objections the day after they are filed.
[GRAPHIC] [TIFF OMITTED] TR18DE19.000

Thus, the majority's amendments will significantly delay certifications 
in the simplest directed election cases by close to two months. \164\ 
The majority provides no reasoned explanation for codifying such a 
substantial delay into the Board's election process.
---------------------------------------------------------------------------

    \164\ Directing simple elections to be conducted in 55 days is 
nearly twice as long as the so-called ``minimum period'' that 
critics of the 2014 rule previously insisted (erroneously) was 
necessary ``as a `safeguard against rushing employees into an 
election.''' See ABC of Texas v. NLRB, 826 F.3d at 226-227 
(rejecting critics' mistaken claim that Congress had recognized the 
necessity for a minimum 30-day waiting period between petition and 
election).
---------------------------------------------------------------------------

    The majority concedes, as it must, that one of 2014 rule's 
legitimate purposes was to reduce delay in conducting elections, and 
that it has succeeded in reducing delay in conducting both stipulated 
and directed elections. But the majority then observes, by way of 
explanation for this action, that:

    In other respects, however, it appears that the 2014 amendments 
have not resulted in a significant departure from the pre-2014 
status quo. In this regard, the overall rate at which parties reach 
election agreements remains more or less unchanged. So too the rate 
at which unions win elections. Based on this state of affairs, it is 
reasonable to consider whether these gains in speed have come at the 
expense of other relevant interests. Based on our review of our 
current representation case procedures, Congressional policy, and 
concerns that have been previously and repeatedly voiced about the 
current procedures, we conclude that they have. [footnotes omitted]
* * * * *
[B]eyond the interest in speed, the Board's interests include 
efficiency, fair and accurate voting, and transparency and 
uniformity, among others. The provisions instituted today that will 
expand the time between petition and election serve each of these 
interests.
* * * * *
    In sum, the final rules will likely result in some lengthening 
of the pre-election period, but the sacrifice of some speed will 
advance fairness, accuracy, transparency, uniformity, efficiency, 
and finality. This is, in our

[[Page 69562]]

considered judgment, a more than worthwhile tradeoff.

    The majority's explanation is demonstrably insufficient. It rests 
on a mischaracterization of the purposes of the 2014 rule, and it 
offers conclusions that are unsupported by any evidence. Most 
importantly, the majority's ostensible cost-benefit analysis--the 
``tradeoff'' it embraces of increased delay for other supposed 
benefits--is arbitrary.
    First, the majority's purported analysis of the results of the 2014 
rule is fundamentally misleading. The majority is wrong to conclude 
that only one of the purposes of the 2014 rule (reduced delay) has been 
accomplished. Contrary to the majority, increasing the ``rate at which 
unions win elections'' was never a purpose of any of the 2014 rule 
amendments.\165\ Accordingly, the fact that union win rates have not 
increased hardly provides a justification for re-evaluating, let alone 
amending, the 2014 rule.
---------------------------------------------------------------------------

    \165\ See, e.g., 79 FR 74326 fn.83.
---------------------------------------------------------------------------

    Second, the majority fails to acknowledge other purposes of the 
2014 rule, such as reducing unnecessary litigation and reducing the 
overall costs of litigation, objectives that the rule has successfully 
achieved.\166\
---------------------------------------------------------------------------

    \166\ See 79 FR 74308-74310, 74383-74393, 74401-74404, 74407-
74413, 74416-74417. For example, the 2014 rule has successfully 
reduced the number of decisions and directions of election appealed 
to the Board. See infra fn.233 (showing an approximate 23% decrease 
in pre-election requests for review from pre-rule FYs 2013-2014, to 
post-rule FYs 2016-2017).
     Contrary to the majority's implicit suggestion, the statement 
of position requirement in the 2014 rule was not solely designed to 
increase the rate of election agreements, which was already above 90 
percent. Rather, as the rule made clear, the requirement was 
designed to enable unions to make informed decisions about whether 
to enter into election agreements on alternative terms proposed by 
the employer by, for example, requiring the employer to provide the 
petitioning union with, among other things, the names and jobs 
titles of the employees that the employer wished to add to or 
subtract from the petitioned-for unit (in addition to narrowing the 
scope of the prelection hearing in the event parties were unable to 
enter into an agreement). 79 FR 74318 fn.32, 74361, 74362, 74363, 
74367; see also 74424 & fn.518. Accordingly, the fact that the 2014 
rule has not dramatically increased the rate of stipulated election 
agreements hardly proves that the requirement is not serving one of 
its primary purposes of enabling unions to make more informed 
decisions about whether to enter into agreements. In any event, as 
former Member Pearce and I have previously pointed out (82 FR 58786-
58787), the fact that the 2014 rule has not reduced the election 
agreement rate (as predicted by the dissenting Board members) 
actually supports retention of the rule, because it demonstrates 
that the rule's benefits have not come at the cost of increasing the 
number of pre-election hearings.
---------------------------------------------------------------------------

    Third, as will be discussed in more detail below, the majority's 
failure to examine the relevant data about how the 2014 rule has worked 
in practice, and to acknowledge pre- and post-2014 rule judicial 
precedent, allows the majority to wrongly assert that the rule's 
accomplishments have come at the expense of, and are outweighed by, the 
interests in finality, efficiency, fair and accurate voting, 
transparency, and uniformity. Remarkably, the majority cites no data to 
substantiate its conclusion that the 2014 rule has impaired those 
interests. Nor does it cite any case holdings that support its 
conclusions. This failure is damning, given that the rule went into 
effect in April 2015, more than four years ago.
    In contrast, my analysis of the agency's own data indicates 
remarkable stability in every relevant statistical measure--proving, 
for example, that elections have been no less final, certain, fair, 
accurate, transparent, and uniform since the 2014 rule went into 
effect.\167\ For example, the obvious gains in prompt case processing 
from eliminating the entitlement to litigate irrelevant individual 
eligibility issues at the pre-election hearing, and from eliminating 
the 25-day waiting period between the decision and direction of 
election and the election itself, have caused none of the majority's 
claimed unwelcome side effects. The number of Board reversals of 
regional director decisions and directions of elections has remained 
stable,\168\ as has the number of cases involving post-election 
objections \169\ and determinative challenges.\170\ Similarly, the 
number of rerun elections has shown equal stability.\171\ The majority 
is unable to point to a single case since the 2014 rule went into 
effect where the Board or the courts have set aside an election because 
employees were ``confused'' as a result of the Board's failing to 
decide pre-election a small number of individual eligibility or 
inclusion issues.\172\ Nor is the majority able to cite a single case 
in which the courts have set aside an election due to an issue 
attributable to the case's processing under the 2014 rule. Thus, the 
benefit of moving cases from petition to election much more promptly 
has not been accompanied by any countervailing costs. The more 
expeditious post-2014 rule elections have been just as final, just as 
certain, and just as fair and accurate as the pre-2014 rule elections 
in resolving questions of representation.\173\
---------------------------------------------------------------------------

    \167\ Much of my statistical analysis below is based on data 
produced from searches in the Board's NxGen case processing 
database. For several reasons, this analysis will typically involve 
comparison of the last two full fiscal years of data before the 2014 
rule's implementation with the first two fiscal years of data after 
the 2014 rule's implementation (i.e., I will compare data from FYs 
2013 and 2014 with data from FYs 2016 and 2017). First, the Board's 
NxGen case processing database does not include full fiscal year 
data for years more distant than 2013. Second, because the rule was 
implemented in the middle of FY 2015, it is difficult to untangle 
pre-rule data from post-rule data for that year. Third, I have not 
had time to carefully review data available in the software for FYs 
2018 or 2019. In some contexts where the 2014 Board relied on 
relevant data from older fiscal years produced through searches in 
the agency's older CATS software, I have referenced that data as 
well.
    \168\ See infra fn.231 (showing consistency of 3 post-rule 
reversals based on extant law during FYs 2016-1017, with 4 pre-rule 
reversals based on extant law during FYs 2013-2014).
    \169\ See infra fn.214 (showing 114 largely post-rule cases 
requiring a postelection regional director decision on objections in 
FYs 2016-2017 as compared to 118 such pre-rule cases in FYs 2013-
2014).
    \170\ See infra fn.213 (showing 56 post-rule cases requiring a 
postelection regional director decision on determinative challenges 
in FYs 2016-2017 as compared to 53 such cases in FYs 2013-2014).
    \171\ See infra fn.215 (showing 61 largely post-rule (non-
duplicative) cases in which regional directors directed rerun 
elections during FYs 2016-2017 as compared to 59 such pre-rule (non-
duplicative) cases in FYs 2013-2014).
    Nor has there been any significant increase in parties filing 
unit clarification (UC) petitions after a union election victory, in 
order for the Board to determine unit placement issues that were not 
decided pre-election. See infra fn.216 (showing stability in the 
rate of UC petitions filed in relation to the number of union 
election wins in the prior fiscal year for post-rule FYs 2016 (8.2%) 
and 2017 (7.2%) as compared to pre-rule FYs 2013 (7.3%) and 2014 
(8.7%)).
    \172\ To the contrary, the District of Columbia Circuit has 
rejected the majority's premise that such a situation would cause 
confusion when, as the 2014 rule requires (29 CFR 102.67(b) (2015)), 
the notice of election alerts employees of the possibility of change 
to the unit definition. See UPS v. NLRB, supra, 921 F.3d at 257 
(``the Acting Regional Director did not abuse his discretion by 
declining to decide, before the election, whether two employees in 
disputed job classifications . . . were part of the bargaining 
unit'' because it did not ``imperil the bargaining unit's right to 
make an informed choice'' given that the election notice `` 
`alert[ed] employees to the possibility of change' to the definition 
of the bargaining unit.'').
    \173\ Moreover, due to the 2014 rule's elimination of the 
automatic ballot impound procedure, elections since the rule went 
into effect have been more transparent and timing of the ballot 
count more uniform than were their pre-2014 counterparts, and more 
transparent and uniform than elections will be under the rule the 
majority announces today.
---------------------------------------------------------------------------

    In short, there is no rational or empirical basis for the 
majority's claim that these changes will promote the purposes of the 
Act in any respect. Having inexplicably decided not to give weight to 
the public's responses to the 2017 RFI, to examine the Board's own data 
(which refutes the premises of this rule), or to engage in notice-and-
comment rulemaking, the majority is left with no good reasons for 
departing from the 2014 rule. This failure dooms the rule under the 
Administrative Procedure Act.

[[Page 69563]]

C. Discussion of Particular Amendments

    The majority provides no reasoned justification for adopting 
amendments that undermine the Act's policies of fairly and 
expeditiously resolving representation cases. The majority's rule 
negatively impacts the representation process by:
     Requiring unnecessary delays before workers can get an 
election. These changes build a number of unnecessary delays into the 
pre-election process, including:
    [cir] Reverting to 1960s-era timeframes for employers to produce 
the voter list despite advances in widely-available technology that 
make it easier to collect and serve this information.
    [cir] Delaying pre-election hearings by two weeks--beyond any 
Board's processing time in more than two decades--while simultaneously 
making such hearings easier to postpone.
    [cir] Delaying the due date for the employer's statement of 
position and requiring that petitioners file an additional (and 
unnecessary) responsive statement of position, needlessly delaying the 
opening of pre-election hearings.
    [cir] Expanding the purpose of the pre-election hearing beyond that 
mandated by Congress, which also wastes resources and incentivizes 
employers to threaten irrelevant litigation to extract concessions 
regarding the election's timing and voting unit.
    [cir] Entitling parties to file post-hearing briefs in even the 
simplest cases, despite Congress's express decision to exempt Board 
representation cases from required post-hearing briefing due to ``the 
simplicity of the issues, the great number of cases, and the 
exceptional need for expedition.''
    [cir] Providing an unnecessary month-long waiting period between 
the direction of election and the election itself to allow time for the 
Board to rule on interlocutory appeals that might be filed, even though 
such appeals are rarely filed before the election, almost never result 
in reversals before the election, and in any event, could be mooted by 
the election results.
     Making it more difficult to finalize the results of an 
election. These changes also make it more difficult for workers to get 
finality in the results of their election. These delays include:
    [cir] Impounding ballots in cases where pre-election appeals remain 
undecided, which will require the Board to waste resources deciding 
matters that may be rendered moot by the election results.
    [cir] Stripping regional directors of the power to timely certify 
unions, despite Congressional authorization for regional directors to 
exercise such powers.
    As discussed in more detail below, the majority fails to provide a 
reasoned explanation for these and other changes that build serious 
flaws into the election process.
1. The Majority Fails To Provide a Reasoned Basis for Amending Sections 
102.62(d) and 102.67(l) to More Than Double the Time To Produce the 
Voter List
    It is a bedrock principle of United States labor law that when a 
petition is filed with the Board seeking an election to enable 
employees to decide whether they wish to be represented by a union, the 
Board must strive to ensure that ``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.'' Excelsior Underwear, Inc., 156 
NLRB 1236, 1240 (1966). By definition, one factor that ``undoubtedly 
tend[s] to impede such a choice is a lack of information with respect 
to one of the choices available.'' Id. ``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.'' Id.
    It is undeniable that as a practical matter an employer, through 
his possession of employee names and contact information 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.'' Id. It is equally 
undeniable that, without a list of employee names and contact 
information, a union, ``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.'' Id. at 1240-1241. Thus, dating back to its decision 
in Excelsior Underwear, Inc., it has long been the Board's considered 
judgment that provision by employers of a list of eligible voters' 
names and home addresses promotes fair and free elections by 
``maximiz[ing] the likelihood that all the voters will be exposed to 
the arguments for, as well as against, union representation.'' Id. at 
1241.
    The Excelsior Board reasoned that the requirement of prompt 
disclosure of employee names and home addresses would also further the 
public interest in the speedy resolution of questions of 
representation. Id. at 1242-1243. As the Board explained, in many cases 
at least some of the names on the employer's list of eligible voters--
that are used by election observers to check off voters when they 
arrive at the polls--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.'' Id. at 1243. As the Board further 
explained, ``[t]he 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. 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. 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.
    Accordingly, for both of these reasons, the Board had--since 1966--
required employers to produce Excelsior lists of employee names and 
home addresses within seven days after approval of an election 
agreement or issuance of a decision and direction of election with the 
regional director having discretion to extend the time to produce the 
list upon a showing of extraordinary circumstances. Id. at 1239-1240 & 
fn.5. It has now been fifty years since the Supreme Court upheld the 
Board's Excelsior list requirement as ``encouraging an informed 
employee electorate and [ ] allowing unions the right of access to 
employees that management already possesses.'' NLRB v. Wyman-Gordon 
Co., 394 U.S. 759, 767 (1969).
    In 2014, based on a notice of a detailed proposal, and review of 
extensive commentary (predicated, in part, on the transformative 
technological changes since Excelsior), the Board decided to update and 
codify the Excelsior requirements as the ``voter list'' in its 
representation case regulations. See 79 FR 74335-74361 (Final Rule 
discussion of voter list); see also 79 FR 7322-7323, 7326-7328

[[Page 69564]]

(NPRM discussion of voter list). The Board explained at length why it 
concluded that requiring employers to disclose the available home and 
personal cell phone numbers of the unit employees (as well as available 
personal email addresses) would help advance the principal objectives 
of the original Excelsior requirement. 79 FR 74336-74341.
    Specifically, the 2014 Board determined that requiring the employer 
to furnish the other parties with the available personal email 
addresses and home and personal cell phone numbers of eligible voters 
would facilitate an informed electorate, thus serving the first purpose 
of the Excelsior rule. 79 FR 74340. In addition, the Board concluded 
that the expanded voter contact information would 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) would have to challenge voters based solely on ignorance of 
their identities. Id.
    Most relevant to this rule, the 2014 Board ``conclude[d] that 
advances in recordkeeping and retrieval technology as well as advances 
in record transmission technology in the years since Excelsior was 
decided warrant[ed] reducing the time period for production, filing, 
and service of the list from 7 calendar days to 2 business days.'' Id. 
at 74353. Shortening the time period would 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. As the 2014 Board explained, when the 
Board first established a 7-day time frame for producing the list, 
employers maintained their employees' records in paper form (because 
virtually no employer had access to personal computers or 
spreadsheets). Id. Employers also had to allow time for the filing of 
the list via U.S. Mail (because instantaneous electronic filing and 
service methods such as email did not exist in 1966). Id. In contrast, 
the typical modern employer can use computers to retrieve the necessary 
electronically-stored information to compile the list and to file and 
serve it instantaneously. 79 FR 74353, 74428. The Board found 
particularly persuasive that even ``under the technological constraints 
of the 1960s, [when Excelsior was decided] employers could and did 
produce voter lists, at least for deposit into the mails, in 4 calendar 
days or fewer.'' Id. at 74353. ``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.'' Id.
    Additional factors likewise persuaded the Board that the 2-business 
day time frame was appropriate for production of the list. Id. First, 
in many cases the employer will have provided a preliminary list of 
employees in the proposed or alternative units as part of its required 
Statement of Position \174\ before the clock ever begins running on the 
2 business day deadline for production of the voter list. 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. Id. 
Accordingly, to produce the voter list, ``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.'' Id.\175\ Second, the 
description of representation case procedures which is served with the 
petition will explicitly advise employers of the voter list 
requirement--just as the opening letter did pre-2014--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. Id. at 74353-74354.\176\ 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. Id. at 74354.\177\ Finally, 
parties may enter into agreements providing more time for employers to 
produce the list subject to the director's approval, and the regional 
directors may direct a due date for the voter list beyond two days in 
extraordinary circumstances. Id.
---------------------------------------------------------------------------

    \174\ The majority retains this aspect of the statement of 
position requirement.
    \175\ Today, the majority has also lengthened the time to 
produce the statement of position from 5 business days to 8 business 
days. The majority never addresses why despite this additional time, 
employers need more time to subsequently produce the voter list. Nor 
does the majority acknowledge that for directed election cases, 
employers will have still more time to work on the voter list, as 
hearings are delayed for another 10 days after the initial list is 
filed.
    \176\ The Board noted that the Casehandling Manual in effect 
before the 2014 rule provided in Section 11009.2 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.'' 79 FR 74354 
fn.224. Contrary to the majority, advising employers of the voter 
list requirement early in the process promotes transparency and 
orderly case processing, and the majority gives no indication that 
it plans to cease the practice of advising employers of the 
requirement in the description of representation case procedures 
that is served along with the petition. In any event, because of the 
required statement of position, the employer will already have 
compiled much of the information required by the voter list before 
the 2-business day period even begins to run.
    The majority strains to suggest that because the Board may 
direct an election in a unit different from that proposed by either 
party, it may be difficult for an employer to produce the voter list 
notwithstanding that it will have already produced the initial lists 
of employees as part of its required Statement of Position. But it 
certainly is not the norm for the Board to direct an election in a 
unit that bears no relation to either the petitioned-for unit or the 
employer's proposed alternative unit. And in the majority's fanciful 
scenario in which the Board concludes that the appropriate unit is 
so substantially larger and different from either the petitioned-for 
unit or the employer's alternative unit, so as to make it infeasible 
for the employer to produce the list within the normal time frame, 
that would obviously constitute extraordinary circumstances 
justifying additional time to produce the list.
    \177\ I note that this trend held steady in the years since the 
rule's implementation. The median size of bargaining units ranged 
from 24 to 26 employees in FYs 2016-2017. See https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-size-bargaining-units-elections.
---------------------------------------------------------------------------

    Today, the majority quite properly retains the requirement that 
employers disclose the available email addresses and available home and 
personal cell phone numbers of eligible voters to the nonemployer 
parties to the case once an election is agreed to by the parties or 
directed by the regional director. However, without engaging in notice 
and comment, the majority more than doubles the time to produce the 
voter list by amending the Board's rules to provide that the list is 
due 5 business days from approval of an election agreement or issuance 
of a decision and direction of election. The majority justifies its 
elongation of the time to produce the voter list by claiming that: (a) 
In the minority of directed election cases changed in other respects by 
their rule, the added time will not delay the election; (b) the 
majority of stipulated election cases should then suffer a similar 
delay to make them ``uniform'' with the directed election cases; and 
(c) in any event, more time is better based

[[Page 69565]]

on the possibility that some employers could have difficulty complying 
with the two-day timeframe to produce the list provided by the 2014 
Board.
    The majority claims that providing employers with more time to 
produce the information ``better balances'' the relevant interests in 
prompt elections, efficiency, accuracy, transparency and uniformity. 
But the majority has failed to show that the 2014 rule's 
accomplishments have come at the expense of efficiency, accuracy, 
transparency and uniformity.
    For starters, the 2014 rule timeline for production of the voter 
list was uniform and transparent; the default due date was two business 
days in both the stipulated election context and the directed election 
context. While the majority's default five business day timeline is 
more than twice as long, it plainly is no more uniform or transparent 
than the 2014 rule. And while the 2014 rule provided for exceptions in 
both the stipulated and directed election contexts, the majority's rule 
provides for exactly the same exceptions in both the stipulated and 
directed election contexts despite providing so much more initial time 
to produce the lists. See amended Sec. Sec.  102.62(d) and 102.67(l).
    The majority also argues that providing more time for employers to 
produce the list decreases the chances that employers will provide 
inaccurate lists. But the majority provides no evidence whatsoever that 
the reduction in time to produce the list has caused any statistically 
significant increase in the number of election objections cases 
concerning inaccurate voter lists. Indeed, the evidence that the total 
number of election objections cases has held steady despite the reduced 
time to produce the voter list would suggest precisely the 
opposite.\178\ One might reasonably expect that a new Board majority, 
skeptical of the wisdom of the 2014 Board's reducing the timeframe to 
produce the voter list, would examine available case records and agency 
statistics to see whether there have in fact been compliance problems 
warranting a change. Failing that, one might expect a skeptical 2019 
majority to invite comment from stakeholders who had actually 
participated in Board proceedings involving the 2-day voter list 
production timeframe to hear specifics about their compliance 
experiences. But, here, one would be wrong. The majority demonstrates 
their disinterest in reasoned decisionmaking by failing to examine 
evidence relevant to its proposal or to solicit comments.
---------------------------------------------------------------------------

    \178\ See infra fn.214 (showing 114 largely post-rule cases 
requiring a postelection regional director decision on objections in 
FYs 2016-2017 as compared to 118 such pre-rule cases in FYs 2013-
2014).
---------------------------------------------------------------------------

    Although the majority cites two cases in support of its claim that 
the information required to be disclosed may not be available in 
centralized computerized form and thus may not be readily available, 
the majority's expanded time frame for producing the list would not 
have made any difference at all in those cases.\179\
---------------------------------------------------------------------------

    \179\ RHCG Safety Corp., 365 NLRB No. 88 (2017), certainly 
provides no support for the majority's lengthening the time to 
produce the list. To the contrary, the case shows that the employer 
at issue, with a larger than average sized voting unit, both (a) had 
sufficient time to contact its supervisors for voter list 
information that was not stored on a computer database, and (b) 
would have produced a deficient voter list devoid of available 
employee cell phone numbers even under the majority's 5 business day 
timeframe. As the Board explained, ``although [ ] the individual 
assigned to compile the voter list testified that he spoke to 
supervisors to obtain information relating to employees who might be 
eligible under the [construction industry] Steiny/Daniel formula, he 
admitted that he did not ask any supervisors for the phone numbers 
of the unit employees they had.'' Id. slip op. at 6. Moreover, the 
employer in that case ``voluntarily entered into a stipulated 
election agreement providing for the normal 2-business day 
timeframe'' to produce the list rather than ``negotiat[ing] with the 
Petitioner for a longer period of time to produce the list or, 
failing that . . . refus[ing] to enter into an election agreement 
and go[ing] to a hearing to explain why it needed more time to 
produce the list.'' Id. slip op. at 7. The fact that the employer in 
RHCG pursued neither option available under the 2014 rule would, if 
anything, tend to suggest that it thought it had sufficient time to 
comply with its voter list requirements, and certainly does not 
support the majority's implication that a 5-business day timeframe 
would have materially changed the outcome of that case.
    Next, the majority cites President and Fellows of Harvard 
College, 01-RC-186442, to support its position that a 5-business day 
timeframe for production of the voter list should be applied to all 
cases due to the possibility that ``assembling the voter list may 
prove challenging for large or decentralized employers.'' But, 
again, the majority's 5-business day timeframe would seemingly have 
done nothing to change the outcome of that case. As recounted in the 
Regional Director's Decision and Direction of Second Election, slip 
op. at 22 (July 7, 2017), the employer entered into a stipulated 
election agreement on October 21, 2016 under which it was able to 
produce the voter list used in the election on November 4 (10 
business days later). Moreover, the employer had in fact begun 
preparing its list in mid-September, so any difficulties it had 
would clearly not have been meaningfully impacted by my colleagues' 
adding 3 business days to the voter list's presumptive due date. If 
anything, President and Fellows of Harvard College shows the current 
rule's ability to adapt to extraordinary circumstances and hardly 
supports a general move to delay the production of voter lists in 
the main run of Board cases with bargaining units of twenty-some 
individuals, as opposed to the thousands at issue in the Harvard 
election.
---------------------------------------------------------------------------

    And the majority's claim that its amendment will not delay 
elections is only true in the directed election context because, as the 
majority concedes, the majority has decided to amend Sec.  102.67 to 
introduce a 20 business day (or 28 calendar day) waiting period between 
issuance of the decision and direction of election and the actual 
election. But for that waiting period, the majority's decision to more 
than double the time to produce the voter list would delay directed 
elections (because the election cannot be conducted until the list is 
produced).\180\ And, as shown below, the majority's waiting period 
amendment is itself arbitrary and capricious and cannot shield its 
decision to more than double the time employers have to produce the 
voter list.
---------------------------------------------------------------------------

    \180\ Moreover, the majority also imports its delay into the 
election agreement context (which accounts for more than 90% of 
Board elections) where it will undoubtedly delay the date on which 
elections could otherwise be held. See amended section 102.62 
(increasing the time to produce the list in election agreement 
cases); see also infra fn.184 (showing pre and post-rule election 
agreement rates of 91.1% to 91.7%). Delaying more than 90% of 
elections merely to make them uniform with less than 10% of 
elections undermines the Act's interest in expedition.
---------------------------------------------------------------------------

    Echoing comments from the 2014 rule record, the majority contends 
that the rule's time frame may pose special problems for particular 
employers or industries such as construction industry employers. The 
2014 rule dealt with these contentions at length (79 FR 74354-74356), 
pointing out that, among other things, an employer can obtain more time 
to produce the list even without a union's consent based upon a showing 
of extraordinary circumstances ``which may be met by an employer's 
particularized demonstration that it is unable to produce the list 
within the required time limit.'' 79 FR 74354. Here again, the majority 
cites nothing showing that employers in those industries have been 
unable to comply with the rule's provisions as a general matter or have 
been unable to obtain additional time where necessary.
    Although the majority concedes that ``many employers have clearly 
been able'' to produce voter lists within two business days since the 
2014 rule went into effect, the majority takes the position that ``the 
potential for greater compliance difficulties in certain types of cases 
counsels in favor of relaxing the general requirement, rather than 
placing the burden on the employer'' to justify why it needs more time 
than the default two business day time frame to produce the list. This 
is nonsensical; it amounts to a claim that the Act's policy in favor of 
expeditiously resolving questions of representation should be 
undermined in the overwhelming majority of cases where delaying the 
election is not necessary merely because in some cases employers may 
justifiably need more time to produce the list, which additional time 
they can obtain under

[[Page 69566]]

the exceptions expressly provided for in the 2014 rule. Exceptions 
should not swallow the rule.
2. The Majority's Amendments to Sec.  102.63 Create Unnecessary Delay 
Between the Petition and the Pre-Election Hearing
a. The Majority Amends Sec.  102.63(a) To Delay the Opening of the Pre-
Election Hearing by Two Weeks for No Good Reason
    Unless parties enter into an election agreement, the Board may not 
conduct an election without first holding a pre-election hearing to 
determine whether a question of representation exists. See 29 U.S.C. 
9(c)(1), (4). Accordingly, the timing of the pre-election hearing 
undeniably affects the timing of the election because the longer it 
takes to open the pre-election hearing, the longer it takes for the 
regional director to determine whether a question of representation 
exists and to conduct the election to answer the question. 79 FR 74371.
    Prior to the 2014 rule, the Board's regulations did not specify 
when pre-election hearings would open. Instead, the regulations merely 
indicated that hearings would open at a time and place designated by 
the regional director. 29 CFR 102.63(a) (2011). Although pre-election 
hearings were routinely scheduled to open in 7 days to 10 days, 
practice was not uniform among regions, with some regional directors 
scheduling hearings for 10 to 12 days, even though a 1999 model opening 
letter indicated that hearings should open 7 days after service of the 
notice of hearing. 79 FR 74309, 74424 & fn. 517, 74373.
    The 2014 rule scheduled pre-election hearings to open in 8 days 
from the date of service of the notice of hearing ``[e]xcept in cases 
presenting unusually complex issues.'' 29 CFR 102.63(a) (2015). The 
Board reasoned that this amendment would bring all regions in line with 
best practices and help to expeditiously resolve questions of 
representation, while allowing sufficient time for the filing of the 
nonemployer party's statement of position before the hearing. 79 FR 
74309, 74370-74371. The amendment would also render Board procedures 
more transparent and uniform across regions, thereby affording 
employees' statutory rights the same treatment across the country, 
convey to the employees that the Board, not the parties, is in charge 
of the process, reduce the Board's expenses and make the process more 
efficient by discouraging abusive party delays and encouraging prompt 
settlement without litigation. 79 FR 74371-74373.
    Today, however, the majority dramatically revises the hearing 
scheduling provisions of the 2014 rule and creates a significant delay 
between the filing of petitions and the opening of pre-election 
hearings. The majority substantially postpones the opening of pre-
election hearings in all cases by some two weeks, with the majority 
delaying the opening of pre-election hearings from 8 calendar days to 
14 business days (i.e., 20 calendar days) from service of the notices 
of hearing.\181\ The majority's amendment will delay pre-election 
hearings beyond any Board's processing in more than two decades.\182\
---------------------------------------------------------------------------

    \181\ Unless the notice of hearing is served on a Monday, no 
pre-election hearing will open sooner than 20 calendar days from 
service of the petition and notice of hearing.
    \182\ See, e.g., NLRB Annual Reports (Table 23) (FYs 1999-2009) 
(listing annual medians of only 13 to 15 calendar days to process 
cases from notice of a pre-election hearing to the close of the pre-
election hearing); see also 79 FR 74353 and fn.222 (citing annual 
medians for FYs 2011-2013 of 10 calendar days to schedule pre-
election hearings in the notices of pre-election hearings, and 13 
calendar days to open pre-election hearings).
---------------------------------------------------------------------------

    The majority fails to offer a reasoned explanation for changing the 
hearing scheduling provisions of the 2014 rule. The majority certainly 
cannot claim that the 8-day hearing scheduling provision contravenes 
the Act or the Constitution. Nor can the majority claim that the 8-day 
hearing scheduling provision contravened Board law. To the contrary, as 
the Board noted, the 8-day hearing scheduling provision was consistent 
with Croft Metals, Inc., 337 NLRB 688 (2002), where the Board concluded 
that 5 business days' notice of pre-election hearings was sufficient. 
79 FR 74309, 74370-74371, 74424. Nor can the majority cite any judicial 
authority for changing the hearing scheduling provisions. The courts 
have rejected every challenge to the hearing scheduling provisions of 
the 2014 rule.\183\
---------------------------------------------------------------------------

    \183\ See UPS v. NLRB, 921 F.3d at 256 (``an eight-day notice 
accords with both the Due Process Clause and [the employer's] 
statutory right to an `appropriate' hearing''); ABC of Texas v. 
NLRB, 826 F.3d at 220, 222-223 (``the rule changes to the pre-
election hearing did not exceed the bounds of the Board's statutory 
authority''), affirming ABC of Texas v. NLRB, 2015 WL 3609116 at *2, 
*5-*7; Chamber v. NLRB, 118 F.Supp.3d at 177, 205- 206 (rejecting 
due process challenge to hearing scheduling provision).
---------------------------------------------------------------------------

    Significantly, the majority offers no empirical basis for 
concluding that the 2014 rule hearing timeframe has caused the parade 
of horribles forecasted by rule's critics. Indeed, the majority fails 
to cite any available data to support its conclusion that it somehow 
promotes efficiency to substantially delay all pre-election hearings. 
Thus, for example, the majority cannot show that the hearing scheduling 
provision reduced the rate of stipulated election agreements, prevented 
parties from adequately preparing for hearings, or from obtaining 
counsel, notwithstanding the ``additional obligations imposed by the 
2014 final rule'' (i.e., completing the statement position and posting 
the notice of petition for election). In fact, as the majority 
acknowledges, since the rule went into effect, the Board's election 
agreement rate has remained robust, with more than 90 percent of all 
elections having been held pursuant to stipulated election 
agreements.\184\ Moreover, the median time for the parties to enter 
into election agreements approved by the regional directors has been 7 
days from issuance of notices of hearings,\185\ which constitutes 
powerful evidence that employers can in fact obtain advisors and have 
the conversations necessary to formulate positions on the issues that 
would be addressed at the pre-election hearing in the time frame set 
forth in the 2014 rule.\186\
---------------------------------------------------------------------------

    \184\ Information reported in the Agency's NxGen case processing 
software shows post-rule election agreement rates of 91.7% in FYs 
2016-2017, as compared with pre-rule election agreement rates of 
91.1% in FYs 2013-2014.
    \185\ Information produced from searches in the Board's NxGen 
case processing software shows post-rule medians of 7 days from 
issuance of notice of hearing and regional director approval of 
election agreements for FYs 2016-2017.
    \186\ As the 2014 Board explained (79 FR 74375): 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.''
---------------------------------------------------------------------------

    Instead, the majority contends that its amendment represents a 
better balance of the interests in the expeditious processing of 
representation cases, efficiency, fairness, transparency, and 
uniformity. The majority chiefly argues that the 8-day default timeline 
between petitions and pre-election hearings is

[[Page 69567]]

too short and is burdensome and inconvenient for employers. And the 
majority argues that the additional time provided by its amendments 
will permit employers to ``more easily manage'' their obligations. 
According to the majority, providing more time ``promotes a sense of 
overall fairness in representation proceedings, which also serves the 
purpose of transparency.''
    But the majority greatly exaggerates the burden or inconvenience of 
the 8-day hearing scheduling provision. For starters, despite the 
majority's claim that the 2014 rule caused a ``substantial reduction of 
time between the filing of a petition and the conduct of the pre-
election hearing,'' the 2014 rule hearing scheduling provision, as 
shown, was consistent with Board caselaw and the best practices of the 
Board that existed before the rule.\187\ Moreover, the majority simply 
ignores the fundamental facts that employers already know the necessary 
information to prepare for pre-election hearings before the notices of 
hearings even issue,\188\ and that employers are frequently aware of 
union organizing campaigns even before the filing of the 
petitions.\189\ The majority is unable to point to any demonstrable 
problems that have arisen since the 8-day default timeline became 
effective more than 4 years ago. In these circumstances and where, as 
here, the time provided by the 2014 rule exceeds that required by due 
process, the statutory interest in expeditiously resolving questions of 
representation clearly trumps the non-statutory interest in maximizing 
employer convenience.
---------------------------------------------------------------------------

    \187\ Although the majority cites the need in some cases to 
obtain counsel, identify and prepare witnesses, gather information, 
and provide for any hearing-related travel as necessary, all this 
was equally true before the 2014 rule, when, as shown, Croft Metals 
was decided and when the best practice was already to schedule the 
opening of pre-election hearings in 7 days. Moreover, the statement 
of position requirement cannot be used to justify granting parties 
additional time to prepare for pre-election hearings. While 
employers were not required to file and serve a written statement of 
position prior to the rule, the information solicited by the form 
routinely was requested by regional personnel prior to the 2014 
rule. 79 FR 74424,74362-74370. And in any event, the form merely 
requires parties to do what they would have to do to prepare for 
pre-election hearings. Indeed, the requirement helps guide hearing 
preparation. 79 FR 74362-74370, 74424. Nor can the 2014 rule's 
requirement that employers post the notices of petitions for 
election justify granting parties additional time to prepare for 
pre-election hearings. The regional director provides the employer 
with the notice to be posted along with posting instructions, and so 
compliance with the requirement is hardly time consuming. See 29 CFR 
102.63(a)(1), 79 FR 74463.
    \188\ As the Board noted,
    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. 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. 79 
FR 74372, 74378-74379 (footnotes omitted).
    \189\ See, e.g., 79 FR 74320-74321, 74372, 74378-74379. As the 
Board noted (79 FR 74320-74321), the Supreme Court's decision in 
NLRB v. Gissel Pacing Co., 395 U.S. 575, 620 (1969), Board 
precedent, the Board's own experience in processing representation 
petitions and unfair labor practice cases, an academic study, and 
the 2014 rulemaking record confirm that employers are frequently 
aware of union organizing drives even before petitions are filed. 
See also ABC of Texas v. NLRB, 826 F.3d at 227 (noting the Supreme 
Court's observation that union organizing drives rarely catch 
employers by surprise).
---------------------------------------------------------------------------

    The majority also claims that delaying the opening of the hearing 
from 8 calendar days to 14 business days (or 20 calendar days) will 
increase the rate of election agreements or will make hearings more 
efficient. But saying this does not make it so. The majority cites 
absolutely no evidence to support its proposition. And its explanation 
runs counter to the evidence before the agency. In fact, the rate of 
stipulated elections agreements was not meaningfully different prior to 
the 2014 rule when hearings were scheduled to open in more than 8 
calendar days in some regions.\190\ Nor was litigation at pre-election 
hearings more efficient then. Instead, all that the majority's hearing 
scheduling amendment is likely to do is either simply push off the date 
when election agreements are entered into and approved (or delay the 
date that hearings actually open in the event the parties do not enter 
into election agreements). As any experienced practitioner knows, 
parties to a representation case frequently attempt to negotiate 
election agreements the day before the hearing opens as the immediate 
prospects of a hearing--and its attendant costs--serves to focus the 
parties' attention on the matter at hand. 79 FR 74362.
---------------------------------------------------------------------------

    \190\ See supra fn.184.
---------------------------------------------------------------------------

    The majority also speculates that the 14 business day (or 20 
calendar day) timeline ``may even promote greater administrative 
efficiency by easing the logistical burdens the expedited 8-day 
timeline currently imposes on regional personnel.'' But that is all the 
majority offers in support of its specific amendment--sheer 
speculation. Although the majority takes ``administrative note'' that 
at various times since the 2014 rule took effect, regional personnel 
have voiced concerns over the 8-day timeline, the only ``evidence'' 
that the majority specifically cites for regional concern about the 
timeline is the response of the regional director committee to the RFI. 
But, as noted previously, the majority expressly states that ``[n]one 
of the procedural changes that we make today are premised on the 
responses to the Request for Information.''
    In any event, the regional directors' response did not request that 
the pre-election hearing be scheduled to open in 14 business days (or 
20 calendar days), let alone state that doing so would increase 
administrative efficiency, and it therefore provides no support for the 
majority's hearing scheduling amendment. All the regional director 
committee said regarding the pre-election hearing date was as follows: 
``Some Regional Directors did not agree with this section of the rule 
which set hearings for eight days from the filing date of the petition. 
Other Regional Directors liked this section of the rule because it 
provides for consistency and is consistent with the hearing dates that 
were set by many Regions prior to the 2014 Election Rule.'' RDs' 
Response to 2017 RFI p.2. To the extent that the 2014 rule has required 
the agency to shift regional resources in order to accomplish the 
statutory goal of expeditiously resolving questions of representation, 
that is clearly appropriate.
    The majority also argues that the hearing scheduling amendment 
promotes uniformity by bringing the pre-election hearing time frame 
``into closer alignment'' with the time frame for post-election 
hearings, which the 2014 rule provided would open 21 calendar days from 
the tally of ballots. The majority's implicit suggestion that Board 
could have scheduled post-

[[Page 69568]]

election hearings to open in 8 days from the tally of ballots--in line 
with the pre-election hearing schedule of 8 days from the petition--
(but chose not to) reflects nothing less than a fundamental 
misunderstanding of the representation case process and the Board's 
rules and regulations. Even before the 2014 rule, parties had 7 days 
from the tally of ballots to file objections to the conduct of the 
election. See 29 CFR 102.69(a) (2011). Accordingly, the Board could not 
possibly have scheduled a post-election hearing within 8 days of the 
tally of ballots because party objections were not due until 7 days 
from the tally. And Croft Metals required that parties be given 5 
business days' notice of a hearing. This meant that the earliest the 
Board could possibly schedule a post-election hearing would be 14 days 
from the tally. However, if the objections/offer of proof were not 
filed until the close of business on the 7th day following the tally, 
that would leave no time for the regional director to evaluate the 
objections/offer of proof to determine whether the objections warranted 
a hearing and still provide parties the notice the Board has long 
required they should be afforded. Accordingly, the Board determined 
that post-election hearings should commence 21 days from the service of 
the tally, which would give directors time to weed out frivolous 
objections and provide parties adequate notice. No such obstacles 
prevented the Board from scheduling pre-election hearings for 8 days 
from service of petitions and notices of hearing. To the contrary, as 
shown, the 2014 rule pre-election hearing scheduling provision was 
fully consistent with Board precedent and best practices. Making pre-
election hearing scheduling more uniform with post-election hearing 
scheduling hardly serves any legitimate statutory purpose; rather, it 
simply imposes unnecessary delay in conducting pre-election hearings.
    The majority also plainly fails to offer good reasons for mandating 
that pre-election hearings may not open sooner than 14 business days 
(or 20 calendar days). Recall that the majority affords employers far 
more time to prepare for the pre-election hearing than they were 
afforded prior to the 2014 rule. In 2013, regional directors scheduled 
pre-election hearings to open in 7 to 10 calendar days in 76% of cases. 
And in those few cases that actually went to a hearing, 25% of pre-
election hearings opened in 7 to 10 calendar days and 71% of the cases 
that went to a hearing opened within 14 calendar days. 79 FR 74424 & 
fn.517. The majority offers no reason whatsoever--let alone a good 
reason--why employers require more time to prepare for the pre-election 
hearing today than they needed in 2013.
    Nor does the majority provide any explanation for why it selected 
that number of business days as opposed to any other number of days, 
apart from pointing to its statement-of-position amendments. For 
example, the majority offers no explanation for why it rejected the 
General Counsel's suggestion that the hearing open in 12 calendar days. 
See GC Response to 2017 RFI p.3. The majority has plainly failed to 
establish a rational connection between the facts before the agency and 
the choice made.
    Finally, the majority is also simply wrong in contending that pre-
election hearings must be postponed to 14 business days (or 20 calendar 
days) because of changes to the statement of position provisions, such 
as requiring written pre-hearing responsive statements of position from 
petitioning parties. Indeed, although the GC agrees that petitioners 
should be required to file such responsive statements of position, he 
argued that pre-election hearings should open in 12 calendar days, far 
quicker than the majority's 14 business day (or 20 calendar day) 
timeline. And the GC argued in favor of maintaining the 2014 rule's due 
date for employers' statements of position at 7 calendar days.\191\ The 
majority does not explain why it rejected the GC's view. In any event, 
as I explain below, the statement of position changes are unwarranted, 
arbitrary and capricious and cannot be used to justify the majority's 
hearing scheduling amendment. Indeed, because the majority concedes 
that its hearing scheduling amendment is not severable from its 
statement of position amendments, the hearing scheduling amendment must 
be invalidated as well.
---------------------------------------------------------------------------

    \191\ See GC's Response to 2017 RFI at p.3.
---------------------------------------------------------------------------

b. The Majority Further Amends Sec.  102.63(a) To Make Postponing the 
Pre-Election Hearing Easier, Exacerbating Their Default Two-Week Delay 
to the Pre-Election Hearing
    To make matters worse, the majority also makes it significantly 
easier for parties to seek postponement of pre-election hearings, 
further delaying elections. The 2014 rule provided that the regional 
director could postpone pre-election hearings for up to 2 business days 
upon request of a party showing special circumstances and for more than 
2 business days upon request of a party showing extraordinary 
circumstances. 29 CFR 102.63(a)(1) (2015). Today, however, despite 
automatically providing employers 2 extra weeks to prepare for pre-
election hearings, the majority also substantially relaxes the standard 
for obtaining postponements of pre-election hearings by rewriting 29 
CFR 102.63(a)(1) to provide that regional directors may postpone 
hearings for an unlimited amount of time upon request of a party merely 
showing ``good cause.''
    Here, again, the majority offers no reasoned explanation for 
changing the 2014 rule standards governing postponements of pre-
election hearings--no statutory or constitutional requirement of a good 
cause postponement standard, no judicial invalidation of the 2014 
postponement standards, and no empirical basis for concluding that the 
2014 standards were problematic. Significantly, the regional directors, 
the agency's nonpolitical career officials who were charged with 
administering the standards, have not requested any change in those 
standards in their response to the 2017 RFI about the rule. And the 
majority certainly provides no good reason for making it easier to 
obtain postponements now that it has automatically provided employers 
an extra 2 weeks to prepare for pre-election hearings. Thus, the 
majority nowhere explains why it should be easier for a party--who was 
given 20 calendar days to prepare for a hearing--to obtain a 
postponement than it was for a party who was given 8 calendar days to 
prepare for a pre-election hearing. If anything, common sense suggests 
that it should be harder to obtain postponements now that parties will 
have so much more preparation time.
    The majority's arguments against what it calls the ``two tier'' 
postponement standard are based on erroneous readings of the pre-rule 
practice or the 2014 rule. Specifically, the majority's reliance on the 
casehandling manual in effect prior to the 2014 rule for the 
proposition that requests for postponements ``were not routinely 
granted'' is unavailing; the manual merely provided that the general 
policy ``should be'' that cases set for a hearing will be heard on the 
date set, and that a postponement request ``will not be routinely 
granted.'' Contrary to the majority (and contrary to the aspirational 
language in the manual), the 2014 rule noted (79 FR 74424 fn.517), that 
extensions ``were often granted.'' A stricter standard than good cause 
is also warranted because, the 8-day hearing timeframe does not apply 
to cases presenting unusually complex issues. See Sec.  102.63(a)(1) 
(2015). In other words, requests to extend the opening of pre-election 
hearings beyond 8 days are unnecessary

[[Page 69569]]

in cases presenting unusually complex issues, because regional 
directors will schedule those hearings to open in more than 8 days. The 
majority asks why regional directors should be limited to granting only 
a 2-day postponement if special circumstances are established, when 
regional directors are free to extend the opening of the pre-election 
hearing beyond 2 days from the default 8-day timeframe in ``unusually 
complex cases.'' This question is beside the point, because the 2014 
rule expressly provided that the regional director can extend the 
opening of the pre-election hearing ``for more than 2 business days 
upon request of a party showing extraordinary circumstances.'' 29 CFR 
102.63(a)(1) (2015).
c. The Majority's Amendment to Sec.  102.63(b) Substantially Delays the 
Due Date for the Nonpetitioning Party's Statement of Position for No 
Good Reason
    Today, the majority quite properly retains the 2014 final rule 
amendment requiring nonpetitioning parties to complete a written 
Statement of Position soliciting the parties' positions on issues such 
as the appropriateness of the petitioned-for unit, jurisdiction, the 
existence of any bar to the election; and the type, dates, times, and 
location of the election--issues that would have to be resolved in 
order to enter into an election agreement or addressed at the pre-
election hearing. The majority also quite properly retains the 
preclusion provisions associated with failing to comply with the 
Statement of Position requirement.
    However, the majority changes the Statement of Position scheduling 
provisions in ways that delay the opening of pre-election hearings and 
the conduct of elections. The 2014 rule provided that Statement of 
Position forms would be due no later than at noon on the business day 
before the hearing if the hearing were set to open 8 days from service 
of the notice. See 29 CFR 102.63(b)(1) (2015). And because the 
Statement of Position form largely requires parties to do what they 
would have do to prepare for a pre-election hearing, the 2014 rule 
provided that parties would always have at least 7 calendar days (5 
business days) notice. 79 FR 74362, 74363, 74364, 74371-74375.
    But today the majority automatically gives the nonpetitioning 
parties an extra 3 business days to prepare the statement of position, 
by providing that it is due on the 8th business day (or 10th calendar 
day) following service of the notice of hearing. See amended Sec.  
102.63(b)(1) through (3). As the majority concedes, delaying the due 
date for nonpetitioning parties' statement of position beyond 7 days 
necessarily delays the opening of the pre-election hearing, which also 
inevitably delays the election.
    However, just as was the case with its hearing scheduling 
amendments, the majority provides no reasoned explanation for changing 
the 2014 rule's due date for completing the statement of position form. 
Thus, the majority certainly cannot claim that the statement of 
position scheduling provisions contained in the 2014 rule contravened 
the Act or the Constitution. Nor can the majority point to any judicial 
authority for changing the statement of position timeframes. Indeed, 
the courts have rejected every challenge to the time frames for 
completion of the statement of position.\192\ And the majority offers 
no empirical basis for concluding that the statement of position 
timeframes have caused the parade of horribles predicted by the rule's 
critics. Thus, for example, the majority fails to cite any evidence 
showing that the 2014 rule statement-of-position time frames have 
regularly resulted in employers being precluded from raising or 
litigating issues. In addition, they concede that ``the overall rate at 
which parties reach election agreements remains more or less 
unchanged'' despite the 2014 rule's time frames for completing the 
statement position.
---------------------------------------------------------------------------

    \192\ See, e.g., Chamber v. NLRB, 118 F.Supp. 3d at 205 & n.14 
(rejecting plaintiff's argument that ``the burdensome requirement of 
the Statement of Position violates [its] due process rights by not 
providing it sufficient time to respond'').
---------------------------------------------------------------------------

    Instead, the majority claims that its statement of position 
amendment represents a better balance of the interests in the 
expeditious processing of representation cases, efficiency, fairness, 
transparency, and uniformity. The majority argues that the 2014 rule 
timeframe for completion of the statement of position was too short and 
was burdensome and even onerous for employers, when considered 
``against the backdrop of other pre-election hearing preparation, which 
may involve a number of other time-consuming tasks, including retaining 
counsel, researching facts and relevant law, identifying and preparing 
potential witnesses, making travel arrangements, and coordinating with 
regional personnel and exploring the possibility of an election 
argument.'' Accordingly, the majority argues that the additional time 
provided by its amendments will permit employers to ``better balance'' 
their obligations.
    But, as shown, the statement of position requires parties to do no 
more than what they have to do to prepare for a pre-election hearing; 
the form actually guides hearing preparation and facilitates entry into 
election agreements; and the 2014 rule's 7 day time frame for 
completion of the statement of position complies with Croft Metals and 
best agency practices. In short the required statement of position does 
not delay hearing preparation (or vice versa) or impede negotiations 
for a stipulated election agreement (or vice versa). Indeed, the rule 
provided approximately one business day to negotiate an agreement after 
the filing and service of the statement of position before the hearing 
opens. 79 FR 74375 & fn.325. At bottom, the majority's claim that 
employers need more time to complete the statement of position ignores 
that employers already have in their possession all the information 
necessary to complete the statement of position even prior to the 
filing of the petition,\193\ and that employers typically are aware of 
union organizing drives prior to the filing of petition.\194\ In these 
circumstances and where, as here, the time for filing the statement of 
position satisfies due process, the statutory interest in expeditiously 
resolving questions of representation trumps the non-statutory interest 
in maximizing employer convenience.\195\
---------------------------------------------------------------------------

    \193\ See supra fn.188.
    \194\ See supra fn.189.
    \195\ Although the majority invokes the interests of 
transparency and uniformity, it offers no evidence demonstrating 
that its amendment better serves those interests. Indeed, it merely 
states (emphasis added) its amendment ``continues to serve the 
purposes of transparency and uniformity, and perhaps even improves 
upon the 2014 amendments in this regard, as the due date is now set 
forth in terms of a set number of business days following the notice 
of hearing, rather than being linked to the scheduled opening of the 
hearing.'' Contrary to the majority's implicit suggestions, parties 
faced with a petition under the rule did not wonder when their 
statement of position was due, because the notice of hearing served 
on them explicitly told them the date and time that the statement of 
position was due.
---------------------------------------------------------------------------

    The majority provides no support for its claim that providing more 
time to complete the statement of position promotes efficiency. The 
majority suggests that allowing a few more days to complete the 
statement of position should discourage parties from taking a shotgun 
approach and raising every possible issue in it, which should lead to 
more focused hearings. But the majority provides no evidence that this 
frequently occurs under the current timeline, much less that providing 
more time will matter. Thus the list of litigable issues is ordinarily 
quite

[[Page 69570]]

small--e.g., election bars, jurisdiction, and unit appropriateness. It 
is difficult to understand why an employer needs three additional 
business days-on top of a week to ascertain whether an election 
involving its own employees has been held in the preceding 12 months, 
whether the petitioned-for employees are covered by contract (election 
bar issues), whether it is engaged in interstate commerce 
(jurisdiction), whether employees in the petitioned for unit share 
similar working conditions (unit appropriateness) or whether certain 
individuals employed by it are supervisors, because the employer 
already knows all these things before the petition is even filed. In 
any event, as the 2014 rule noted, the offer-of proof procedure--which 
the majority retains in its rule--provides tools for the region to 
``swiftly dispose of the unsupported contentions that a party may set 
forth in its Statement of Position simply to avoid triggering the 
preclusion provisions.'' 79 FR 74375. Again, the majority provides no 
reasoned explanation for delaying the due date for the statement of 
position, which delays the election.
    The majority also fails to offer any explanation for why it chose 
to set the due date at 8 business days as opposed to any other number 
of days. I note in this regard that although the GC advocated that the 
hearing date should be extended (to allow time for the implementation 
of his proposed requirement that petitioners file a prehearing 
responsive statement of position), the GC explicitly stated that he 
``would not modify the requirement that the [nonpetitioning party's] 
SOP be filed at noon on the seventh day after filing of the petition.'' 
GC Response to 2017 RFI p.3. (emphasis added). The majority certainly 
fails to offer a good reason for why employers need more time to 
prepare a statement of position today than Croft Metals entitles them 
to prepare for a pre-election hearing.\196\
---------------------------------------------------------------------------

    \196\ Moreover, even prior to the 2014 rule, parties committed 
to enter into election agreements in 7 days or less, which 
constitutes powerful evidence that employers can in fact obtain 
advisors and have the conversations necessary to formulate positions 
on the issues covered by the Statement of Position form within the 5 
business-day time frame set forth in the rule. 79 FR 74375.
---------------------------------------------------------------------------

d. The Majority's Further Amendment to Sec.  102.63(b) Makes Postponing 
the Statement of Position Easier, Exacerbating Their Default Delay 
Caused by Granting Parties Approximately 50 Percent More Time to 
Complete It
    To make matters even worse, the majority also substantially 
increases the likelihood of further delay in opening pre-election 
hearings--and hence elections--by making it easier for nonpetitioning 
parties to obtain additional time to complete their statements of 
position. As noted, under the 2014 rule, if the hearing were set to 
open 8 days from the petition, then the nonpetitioning parties' 
statement of position would be due at noon on the 7th day. The 2014 
rule provided that the regional director could postpone the due date 
for filing statements 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. 29 
CFR 102.63(b)(1) through (3) (2015). But today the majority makes it 
substantially easier for parties to obtain potentially lengthy 
extensions of time to file their statements of position, by providing 
that the regional director may postpone the time for filing statements 
of position merely for ``good cause.'' See amended Sec.  102.63(b)(1) 
through (3).
    Here again the majority offers no reasoned reason for changing the 
standard--no statutory or constitutional requirement of a ``good 
cause'' standard; no judicial invalidation of the 2014 rule standards 
for postponement requests, and no empirical evidence that the rule 
standards for postponement requests caused problems. And here again 
neither the GC nor the regional directors requested a change in the 
standard.
    The majority's explanations for amending the two-tiered standard 
for granting postponements of the statement of position are identical 
to the explanations it offers for amending the two-tiered standard for 
granting request to postpone to pre-election hearing and are devoid of 
merit for the reasons previously discussed. And the majority certainly 
fails to offer good reasons for making it easier to obtain extensions 
of time now that nonpetitioning parties have approximately 50% more 
time to complete their statements of position.
e. The Majority's Amendments to Sec.  102.63(b)(1)(ii), (b)(2)(iii), 
and (b)(3)(ii) Further Delay the Opening of the Pre-Election Hearing by 
at Least a Week by Requiring Petitioning Parties To Complete a 
Responsive Statement of Position
    A representation case is initiated by the filing of a petition. The 
2014 rule required petitioners to indicate on their petitions their 
positions with respect to a variety of relevant matters, including the 
appropriate unit, identifying both inclusions and exclusions, the 
number of employees, the existence of any bars to an election, possible 
intervenors, and election details, including the date, time, and place 
of the election.\197\ As noted, nonpetitioning parties were then 
required to respond by filing their own statements of position a week 
later (normally at noon on the business day prior to the hearing).
---------------------------------------------------------------------------

    \197\ 29 CFR 102.61 (2015); 79 FR 74328, 74424 (``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.'').
---------------------------------------------------------------------------

    The rule did not require the petitioner to respond in writing to 
the nonpetitioning party's statement of position prior the opening of 
the hearing. After all, the nonpetitioning party's statement of 
position itself was a response to positions already taken in writing by 
the petitioner,\198\ and was due at noon the day before the opening of 
the hearing. Instead, the rule provided that, in the event the parties 
were unable to enter into an election agreement, the petitioner ``shall 
respond on the record to each issue raised in the Statement [of 
Position]'' after the Statement of Position ``is received in evidence 
[at the pre-election hearing] and prior to the introduction of further 
evidence[.]'' 29 CFR 102.66(b) (2015).
---------------------------------------------------------------------------

    \198\ As the Board noted (79 FR 74424): 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 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.
---------------------------------------------------------------------------

    Today, the majority amends this process by requiring the 
petitioning parties to file a written responsive statement of position 
no later than noon 3 business days before the hearing. In other words, 
the majority has decided to impose a requirement that petitioners file 
what amounts to a second written statement of position prior to the 
opening of the pre-election hearing. Imposition of this requirement 
delays the opening of the hearing (and hence elections) by a week, 
because the majority has built in a significant amount of time to allow 
for the filing of this new responsive prehearing statement of position 
by petitioners.
    However, the majority fails to provide a reasoned explanation for 
amending the 2014 rule in this regard--no statutory or constitutional 
requirement that petitioners file a written, pre-hearing responsive 
statement of position, no judicial criticism of the rule

[[Page 69571]]

amendment requiring petitioners to respond orally at the hearing to the 
nonpetitioner's statement of position, and no empirical evidence that 
the 2014 rule provision was causing problems.
    Instead, the majority offers a number of unsupported contentions. 
First, the majority claims that requiring petitioners to file and serve 
a responsive statement of position prior to the hearing is more 
efficient than requiring petitioners to respond orally at the hearing 
to the nonpetitioner's statement of position, even though the 
majority's requirement will delay hearings and elections by a week. 
According to the majority, the requirement will increase the chances 
that parties enter into an election agreement. But saying this does not 
make it so. Indeed, even without the majority's new requirement, 
parties have entered into election agreements in over 90% of the 
cases.\199\ The majority offers no evidence--or reason to expect--that 
requiring petitioners to file a responsive statement of position before 
the opening of the pre-election hearing will materially increase the 
election agreement rate. Indeed, the majority fails to show that a 
significant number of election agreements are reached after the 
petitioner responds orally on the record to the nonpetitioner's 
statement of position at the beginning of the pre-election hearing.
---------------------------------------------------------------------------

    \199\ See supra fn.184.
---------------------------------------------------------------------------

    Alternatively, the majority insists that this amendment has the 
potential to streamline the pre-election hearing by clarifying what 
remains in dispute (i.e., by informing the nonpetitioning party that 
the petitioner has changed its position from that which appeared on its 
petition in response to the nonpetitioner's statement of position). But 
if this is true, then the question arises why the majority does not 
also require the nonpetitioning parties to respond in writing (prior to 
the heating) to the petitioner's (second) statement of position, and 
thereby inform the petitioner that the nonpetitioning party has changed 
its position in response to the petitioner's second statement of 
position. The answer is obvious. At some point, the hearing has to 
open, and the cost of delaying the hearing to allow multiple rounds of 
exchanging written statements of position is not worth the delay--
particularly since it is the norm for the parties to disclose whether 
their positions have changed when they attempt to negotiate a 
stipulated election agreement the day before the scheduled opening of 
the hearing. In any event, as the 2014 Board explained, because the 
employer already is in possession of all the facts necessary to 
litigate any issue at the pre-election hearing, no additional pre-
hearing discovery (beyond the completed petition) is necessary from the 
petitioner. See 79 FR 74368; see also supra fn.188.
    The majority also fails to provide a good reason for establishing 
the timeline associated with its new requirement that petitioners file 
a responsive statement of position: The petitioner's responsive 
statement of position is due 3 days after the nonpetitioner's statement 
of position is due and 3 days before the opening of the pre-election 
hearing. But given that petitioners have been able to respond orally to 
the nonpetitioner's statement of position less than 24 hours after 
service of the nonpetitioner's statement of position (as required by 
the 2014 rule), the majority provides no reason for tripling the amount 
of time for the petitioner to respond in writing. Indeed, the majority 
acknowledges that its responsive statement of position requirement 
``simply takes an existing requirement and modifies it to the extent 
that the response is now due, in writing, 3 business days before the 
hearing;'' affirms that its new requirement that the petitioner file a 
pre-hearing responsive statement of position ``is not designed to be an 
onerous requirement;'' and states that it is simply designed to get the 
petitioner's response to the initial statement of position in writing 
prior to the hearing. So all the petitioner will have to note, for 
example, is that it disagrees with the employer's proposed alternative 
unit and maintains the positions it took on its petition--or that it 
agrees with the majority's position that for example, one 
classification that the employer seeks to add to the unit should be 
added. That should not take 3 business days.
    Nor does the majority provide a good reason why the pre-election 
hearing should be delayed for another three business days following 
receipt of the petitioner's responsive statement of position, given 
that they fail to seek or produce any evidence that pre-election 
hearings have not been running smoothly notwithstanding that, under the 
2014 rule, the pre-election hearing continues without adjournment after 
the petitioner responds orally on the record to the issues raised in 
the nonpetitioning party's statement of position. The employer 
certainly does not need an additional 3 business days to prepare for 
the hearing once it receives the petitioner's responsive statement of 
position, which it will receive 11 business days after service of the 
notice of hearing. After all, as noted above, the employer already is 
in possession of the relevant evidence on all issues that can be 
contested at the pre-election hearing.
    Although the majority claims that allowing an additional three 
business days could increase the chances of the parties arriving at a 
stipulated election agreement, thereby sparing the Agency the expense 
of having to conduct a pre-election hearing and issue a decision and 
direction of election, the 2014 rule already granted regional directors 
discretion to postpone the prelection hearing if it appears likely that 
the parties will be able to enter into an election agreement. 79 FR 
74375 fn.325, 74424. There simply is no good reason to build in an 
automatic delay in the process for those cases where there is no 
indication that the parties will be able to enter into an election 
agreement, given that such an automatic delay undermines the Act's 
policy of expeditiously resolving questions of representation. And, as 
shown, the majority offers no evidence--or reason to expect--that the 
election agreement rate will increase in any material way as a result 
of its amendment today. Instead, as noted, the most likely result is 
simply to push off the date that parties enter into election 
agreements.\200\
---------------------------------------------------------------------------

    \200\ The majority's remaining contentions are nonsensical. Thus 
the majority's claim that its amendment promotes uniformity by 
requiring that all parties file a written statement of position in 
advance of the hearing ignores that, as the 2014 rule explained (79 
FR 74425), ``The nonpetitioning parties' prehearing, written 
Statement of Position is a response to the positions taken in 
writing 1 week earlier by the petitioner in its petition.'' The 
majority's related claim--that its new requirement eliminates any 
impression that the Board is imposing one-sided pleading 
requirements on nonpetitioning parties--fails for the same reason; 
no statement of position is due from the nonpetitioning party until 
the petitioner has set forth its position on relevant matters in 
writing on its petition. In short, the 2014 rule's statement of 
position requirement was not ``arbitrarily one-sided'', and the 
majority admits that any contrary impression was unwarranted. An 
agency should not alter its procedures to mollify unwarranted 
criticism. The majority's claim that the nonemployer party is 
required to furnish some additional information beyond that required 
of petitioners is partly true, but beside the point. As the Board 
explained (79 FR 74424-74425), ``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 
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.''

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

[[Page 69572]]

f. The Majority Fails To Justify Amending Sec.  102.63(a)(2) to Nearly 
Triple Employers' Time To Post the Notice of Petition for Election
    Prior to the 2014 rule, employers were requested, but not required, 
to post a notice about the representation petition that was filed and 
the potential for an election to follow. 79 FR 74309. The 2014 rule 
required employers to post the Notice of Petition for Election in 
conspicuous places and to electronically distribute the notice to 
employees if the employer customarily communicates with its employees 
electronically. (The regional director furnishes employers with the 
notice of petition for election that they must post and electronically 
distribute.) 29 CFR 102.63(a)(1), (2) (2015), 79 FR 74463.
    The Notice of Petition for Election specifies that a petition has 
been filed, as well as the type of petition, the proposed unit, and the 
name of the petitioner; briefly describes the procedures that will 
follow, and lists employee rights and sets forth in understandable 
terms the central rules governing campaign conduct. 79 FR 74379. The 
notice also provides employees with the Board's website address, 
through which they can obtain further information about the processing 
of petitions. Id. The 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. Id.
    The Board reasoned that the Notice of Petition for Election would 
provide useful information and guidance to employees and the parties. 
Id. The employees 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 benefit from more detailed Board guidance 
about compliance. 79 FR 74309, 74379.
    The Board explained that while it believed that most employers 
should be able to post the notice on the same day that it is received, 
it would not judge an employer to have failed to comply with this 
provision so long as the notice was posted within 2 business days of 
receipt, and, accordingly, the 2014 rule stated that the employer shall 
post the Notice of Petition for Election within 2 business days after 
service of the notice of hearing. 79 FR 74379. The Board left it 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, Sec.  102.63(a)(2) of the 2014 rule 
further provided that the employer's failure properly to post or 
distribute the notice ``may be'' grounds for setting aside the election 
when proper and timely objections are filed. Rendering failure to post 
the notice grounds for setting aside the election provides an incentive 
for its timely posting. Id.
    Although the majority concedes that the requirement serves a 
laudatory purpose, the majority today nearly triples the time employers 
have to post and distribute the notice, by providing that employers 
shall post it within 5--rather than 2--business days. But the majority 
provides no reasoned explanation for changing the period of time to 
post and distribute the notice--no statutory or constitutional mandate 
for a longer timeframe, no judicial invalidation of the notice positing 
requirement's time frame, and no empirical basis for concluding that 
the time-frame has caused problems.
    The majority merely states that it believes that this change is 
warranted in view of the logistical difficulties many employers ``may 
face'' in complying with the requirement. Specifically, the majority 
claims that for some larger multi-location employers, it ``may'' take a 
significant amount of time to post the notice in ``all the places where 
notices to employees are customarily posted.'' But that is all the 
majority offers--sheer speculation, despite the fact that the rule has 
been in effect now for over 4 years. The majority certainly provides no 
empirical basis for concluding that two business days is insufficient 
time for an employer to post and electronically distribute the notice 
in the ordinary case. If the petitioned-for employees of a large 
employer work at more than one of the employer's facilities, it is 
likely that the employer has supervisors at each facility. And given 
the widespread availability and use of email, scanners, and facsimile 
machines, it should hardly prove difficult or time consuming for a 
``large multi-location employer'' with a centralized human resources 
office to email, scan or fax the notices for posting to its on-site 
representatives at each of the facilities where its petitioned-for 
employees work and read the employer's posted notices. Significantly, 
the majority fails to cite any cases where parties complained that 
elections were improperly set aside due to an employer's failure to 
post the notice for election within 2 business days.
    The majority also fails to provide good reason for granting 
employers 5 business days to post the notice. Recall that in 2002, the 
Board held that 5 business days constituted sufficient time to prepare 
for a pre-election hearing. The majority nowhere explains why employers 
need the same amount of time to post and electronically distribute a 
notice--supplied to them with posting instructions by the regional 
director--as they need to prepare for a pre-election hearing.
    The majority's contention--that it is ``less urgent'' that the 
notice be posted within two business days of service by the regional 
director given the majority's decision to delay the opening of the pre-
election hearing to 14 business days--reflects a fundamental 
misunderstanding of the purpose of the notice and the realities of 
organizing campaigns. The purpose of the notice is not to inform 
employees of the pre-election hearing; indeed, as the majority concedes 
elsewhere, the vast majority of representation cases never have a pre-
election hearing. Rather, as noted, the purpose of the notice is to 
timely inform employees about the petition and the process and to 
timely inform employees, supervisors and managers of employee rights 
and the central rules governing campaign conduct. 79 FR 74379. Given 
the purpose of the notice (and that campaigning does not commence only 
with the opening of the pre-election hearing), it makes little sense to 
link the time for posting the notice with the opening of the pre-
election hearing.\201\ In any event, this amendment must be invalidated 
because the majority concedes that this amendment is not severable from 
its hearing scheduling amendment, which, as shown, must be invalidated.
---------------------------------------------------------------------------

    \201\ The majority's remaining arguments miss the mark for the 
same reasons. The earlier the notice is posted, the better, 
regardless of when the pre-election hearing opens, and the 2014 rule 
did not link the end of the posting period to the opening of the 
pre-election hearing, as the required posting period does not end 
with the opening of the pre-election hearing. Rather, the 2014 rule 
made clear that the employer must maintain the posting of the notice 
of the petition for election until it is replaced by the Notice of 
Election--which is not posted until after the regional director 
directs an election or approves the parties' election agreement--or 
until the petition is dismissed or withdrawn. See 29 CFR 
102.63(a)(2) (2015). Moreover, the fact that the majority's rule 
substantially delays the opening of the pre-election hearing does 
not mean that regional directors will serve the notice of the 
hearing any later than they did under the 2014 rule. After all, it 
would hardly serve the majority's purpose of giving parties more 
time to prepare for the pre-election hearing if the regional 
director delayed serving the notice of hearing.
---------------------------------------------------------------------------

    3. The Majority's Amendments to the Pre-Election Hearing in 
Sec. Sec.  102.64 and 102.66 Will Encourage Unnecessary Litigation; 
Create Unnecessary Delay Between the Opening of the Pre-Election 
Hearing and Issuance of the Decision and Direction of Election; and 
Create a

[[Page 69573]]

Perverse Incentive for Employers To Threaten To Litigate Irrelevant 
Matters
a. Background
    As Section 9(c)(1) of the Act makes clear, the purpose of the pre-
election hearing is to determine whether a question of representation 
exists.\202\ ABC of Texas v. NLRB, 826 F.3d at 222; Chamber v. NLRB, 
118 F.Supp.3d at 197. However, prior to the 2014 rule, the Board's 
rules and regulations neither expressly stated the purpose of the pre-
election hearing nor empowered regional directors to limit the evidence 
that parties could introduce at the pre-election hearing to that which 
was relevant the statutory purpose of the hearing. To make matters even 
worse, the Board had interpreted its pre-2014 statement of procedures 
and rules and regulations as entitling parties to litigate matters such 
as individual eligibility or inclusion issues (including supervisory 
status questions) that were not relevant to the statutory purpose of 
the pre-election hearing. This interpretation was particularly odd 
because, as the majority concedes, the Board and the courts had 
repeatedly held that parties were not entitled to a pre-election 
determination regarding such matters even if the parties had litigated 
them at the pre-election hearing.\203\
---------------------------------------------------------------------------

    \202\ Section 9(c)(1) of the Act provides: ``Whenever a petition 
shall have been filed . . . the Board shall investigate such 
petition and if it has reasonable cause to believe that a question 
of representation affecting commerce exists shall provide for an 
appropriate hearing upon due notice . . . . 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.''
    \203\ 79 FR 74309, 74383-74386, 74425-74426 (and cases cited 
therein).
---------------------------------------------------------------------------

    The 2014 rule modified the language which appeared in Sec.  
101.20(c) of its statement of procedures and amended Sec. Sec.  102.64 
and 102.66 of its Rules and Regulations to maximize procedural 
efficiency by ensuring that regional directors 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.\204\ And because the question of whether a particular 
individual falls within an appropriate unit and is eligible to vote is 
not ordinarily relevant to whether a question of representation exists, 
the 2014 rule provided that ``[d]isputes concerning individuals' 
eligibility to vote or inclusion in an appropriate unit ordinarily need 
not be litigated or resolved before an election is conducted.'' \205\
---------------------------------------------------------------------------

    \204\ See 29 CFR 102.64(a)(2015) (``The purpose of a hearing 
conducted under Section 9(c) of the Act is to determine if a 
question of representation exists.''); see also 79 FR 74309, 74318, 
74383, 74384-74387, 74391.
    \205\ 29 CFR 102.64(a) (2015), 79 FR 74380.
---------------------------------------------------------------------------

    The Board reasoned that it served 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 determine if a question of 
representation exists, and 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. In 
other words, it is administratively irrational to require the hearing 
officer to permit the introduction of irrelevant evidence.\206\
---------------------------------------------------------------------------

    \206\ 79 FR 74385-74386.
---------------------------------------------------------------------------

    The Board also reasoned that the amendment would eliminate an 
unnecessary barrier to the fair and expeditious resolution of questions 
of representation and reduce the costs of pre-election litigation.\207\ 
Every non-essential piece of evidence that is adduced at the pre-
election hearing 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, that is a prerequisite for the election. The 
Board reasoned that by reducing such irrelevant litigation at the pre-
election hearing, hearings would be shorter (with attendant savings to 
the parties), and 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 then-current 20-day median. Thus, 
by eliminating such wholly unnecessary litigation, the 2014 amendments 
eliminate an unnecessary barrier to the expeditious resolution of 
questions of representation.
---------------------------------------------------------------------------

    \207\ 79 FR 74309, 74318, 74385-74387, 74391.
---------------------------------------------------------------------------

    The Board also concluded based on the rulemaking record 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 
and skews the negotiation of pre-election agreements (79 FR 74386-
74387) (footnotes omitted):

    That specter, sometimes articulated as an express threat 
according to some comments, hangs over all negotiations of pre-
election agreements. In other words, bargaining takes place in the 
shadow of the law, and so long as the law, as embodied in the 
Board's regulations, does not limit parties to presenting evidence 
relevant to the existence of a question of representation, some 
parties will use the threat of protracted litigation to extract 
concessions concerning the election details, such as the date, time, 
and type of election, as well as the definition of the unit itself . 
. . [with ]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.
    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 [pre-2014] 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.

    The Board also explained in the 2014 rule why it believed that the 
amendment would not merely shift litigation of individual eligibility 
or inclusion questions from before the election to after the election, 
but rather would eliminate unnecessary litigation. As the Board 
explained (79 FR 74391), the pre-2014 rule practice entitling parties 
to litigate individual eligibility or inclusion questions at the pre-
election hearing 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 vote 
against representation, even assuming all the disputed votes were cast 
in favor of representation, the disputed eligibility questions become

[[Page 69574]]

moot (and therefore never have to be litigated or decided). Id. 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. 
Id.\208\ (In that event too, the individual eligibility or inclusion 
issues never need to be litigated or decided by the Board.) And even if 
the parties cannot do so, the Board does not need to conduct another 
election to resolve the matter; rather, the unit placement of the small 
number of employees is resolved through a unit clarification (UC) 
procedure. Id.
---------------------------------------------------------------------------

    \208\ See New York Law Publishing Co., 336 NLRB No. 93, slip op. 
at 1 (2001) (``The parties may agree through the course of 
collective bargaining on whether the classification should be 
included or excluded.'').
---------------------------------------------------------------------------

    The 2014 Board also explained why it rejected the argument, 
repeated by the majority today, that parties should be entitled to 
litigate at the pre-election hearing, and the Board should decide 
before the election, individual eligibility or supervisory status 
questions to enable employers to know who they can use to campaign 
against the union and to reduce the possibility of post-election 
objections based on conduct attributable to an individual whose 
eligibility/supervisory status was not resolved prior to the election. 
The Board noted that the Act clearly sets forth only one purpose of the 
pre-election hearing--to determine whether a question of representation 
exists--and thus it is not the purpose of the pre-election hearing to 
determine who is a supervisor and who the employer may use to campaign 
against the union. 79 FR 74389 & fn.382. The Board further explained 
that supervisory identification issues exist only at the margin, 
because in virtually every case where there is uncertainty concerning 
the supervisory status of one or more individuals, the employer 
nevertheless has in its employ managers and supervisors whose status is 
not in dispute and is undisputable. 79 FR 74389. The 2014 Board further 
pointed out that the policy arguments (embraced by the current 
majority) were based on a series of faulty premises: First even under 
the pre-2014 rules, employers had no right to a pre-election decision 
concerning individual eligibility or supervisory status questions. 
Second, even if parties are entitled to litigate supervisory status 
questions before the election, and even if regional directors are 
required to resolve them before the election, a regional director 
cannot issue a decision on any eligibility or supervisory status 
question until well after the filing of the petition because a hearing 
must be held and the regional director must issue a decision. Thus, 
even where the regional director resolves the individual eligibility or 
supervisory status 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. Third, 
even if the regional director issues a decision concerning an 
individual eligibility or supervisory status 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.\209\ Fourth, 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.\210\ Thus, uncertainty regarding a disputed individual's 
supervisory status will continue to exist even if parties are entitled 
to litigate individual eligibility/supervisory status questions at the 
pre-election hearing and even if the Board is required to resolve them 
before the election. 79 FR 74389 (footnotes omitted).\211\
---------------------------------------------------------------------------

    \209\ 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).
    \210\ See 29 U.S.C. 159(d) and 160(e); Boire v. Greyhound Corp., 
376 U.S. at 476-79.
    \211\ In fact, the period of uncertainty will be even greater 
under the majority' rule than it was before 2014 in cases where 
regional directors decided supervisory status questions, because the 
majority delays the hearing date and hence the date of the pre-
election decision.
---------------------------------------------------------------------------

b. The Majority's Amendments to Sec.  102.64 and 102.66 Create 
Unnecessary Barriers to the Fair and Expeditious Resolution of 
Questions of Representation for No Good Reasons
    Today, however, the majority takes a giant step backwards. The 
majority expands the purpose of the prelection hearing, by amending 
Sec.  102.64 to state that ``[t]he primary purpose'' of the prelection 
hearing is to determine whether a question of representation exists. 
Having thus expanded the statutory purpose of the pre-election hearing 
beyond what Congress mandated, the majority then provides that 
``[d]isputes concerning unit scope, voter eligibility and supervisory 
status will normally be litigated and resolved by the Region Director 
before an election is directed.'' At the same time, the majority also 
expressly provides that parties can agree to defer eligibility 
questions (section 102.64(a)) and that regional directors need not 
always decide such matters even if they are litigated provided the 
directors adhere to the general pre 2014 practice of deferring ``up to 
10% of the proposed unit.'' Thus, the majority characterizes its 
decision as a return to the pre-2014 final rule status quo.\212\
---------------------------------------------------------------------------

    \212\ Actually, the majority misrepresents the status quo that 
existed prior to the 2014 rule. As the rule explained, Board caselaw 
permitted more than 10% of the unit to be deferred in contested 
cases. 79 FR 74425; see also 79 FR 7331 & fn.54.
---------------------------------------------------------------------------

    The majority offers no reasoned explanation for why it changes the 
2014 rule amendments to sections 102.64 and 102.66. The majority 
certainly cannot claim that the 2014 rule provisions were contrary to 
the Act (or the Constitution). As shown, the express statutory purpose 
of the pre-election hearing set forth in Section 9(c)(1) of the Act is 
to determine whether a question of representation exists. The 2014 
amendments to Sec. Sec.  102.64(a) and 102.66(a) were entirely 
consistent with Section 9(c) because ``both permit[ted] parties to 
introduce evidence at the pre-election hearing that is relevant to 
whether a question of representation exists. Indeed, the [2014] 
amendment to Sec.  102.66(a) expressly vest[ed] 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.'' 79 FR 74385. It is thus not surprising that 
every court to have considered the matter has rejected the claim that 
the statute entitles parties to litigate at the pre-election hearing 
(and requires the Board to decide prior to the election), all 
individual eligibility or unit inclusion issues. See UPS v. NLRB, 921 
F.3d at 257; ABC of Texas v. NLRB, 826 F.3d at 222-223, affirming ABC 
of Texas v. NLRB, 2015 WL 3609116 at * 7, *14-*16; Chamber v. NLRB, 118 
F.Supp.3d at 195-203.
    The majority does not claim that the amendments caused 
administrative problems or failed to accomplish their objectives. 
Indeed, the Board's regional directors have not requested these 
changes, despite the Board specifically

[[Page 69575]]

soliciting their opinions. In fact, the regional directors have 
reported that the amendments have ``worked well in reducing the amount 
of unnecessary pre-election litigation.'' RDs' Response to 2017 RFI 
p.3.
    Instead, according to the majority, its amendment represents a 
better balance of the interests in the expeditious processing of 
questions of representation with certainty, finality, and efficiency; 
fair, and accurate voting and transparency; and uniformity. The 
majority insists that its amendment promotes certainty, finality, and 
efficiency because conducting an election in which individuals vote 
subject to challenge may result in determinative challenges or the 
filing of post-election objections, which will require post-election 
litigation to definitely resolve the outcome of the election.
    But in keeping with their pattern of pontification without 
producing anything in support, my colleagues fail to analyze or cite 
any evidence that the 2014 rule's benefits of avoiding unnecessary 
litigation that also delays elections, have come at the expense of 
finality, certainty, and efficiency. Indeed, the majority's explanation 
that avoiding pre-election litigation and resolution of individual 
eligibility or inclusion issues causes elections to be less final and 
certain runs counter to the evidence before the agency and is therefore 
arbitrary and capricious. See State Farm, 463 U.S. at 43 (rule is 
arbitrary and capricious if the agency has offered an explanation that 
runs counter to the evidence before it). Thus, my analysis of the 
relevant data reveals that the number of elections resulting in 
determinative challenges has remained remarkably stable since the 2014 
rule amendments have gone into effect despite a significant increase in 
regional directors' approving election agreements in which certain 
individuals would votes subject to challenge.\213\ There has likewise 
been remarkable stability in the number of cases necessitating post-
election decisions on objections by regional directors (which would 
tend to show that deferring more individuals' eligibility has not 
resulted in any significant increase in cases involving arguably 
objectionable conduct attributed to such individuals),\214\ and 
stability in the number of rerun elections ordered by regional 
directors (which is likewise consistent with the lack of any 
significant increase in objectionable conduct resulting from increased 
deferral of eligibility litigation or resolution) \215\ Just as telling 
is the stability in UC petitions (demonstrating that the increased pre-
election deferral of individual eligibility decisions has not caused a 
spike in parties coming back before the Board to resolve individuals' 
placement inside or outside the relevant bargaining units).\216\ Thus, 
elections are just as ``final'' and ``certain'' under the 2014 rule 
amendments as they were under the pre-2014 status quo to which the 
majority wishes to return. In short, contrary to the predictions of the 
2014 rule critics, the 2014 amendments have not shifted litigation from 
before the election to after the election. Rather, just as the 2014 
rule predicted, the amendments have eliminated pre-election litigation 
that was unnecessary, as proven by the absence of a corresponding 
increase in post-election litigation. Thus, by expanding the 
preexisting practice of deferring individual eligibility decisions, the 
2014 rule demonstrates a remarkable gain in agency efficiency. See 79 
FR 74413; Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir. 1994) 
(``The NLRB's practice of deferring the eligibility decision saves 
agency resources for those cases in which eligibility actually becomes 
an issue'').
---------------------------------------------------------------------------

    \213\ See February 15, 2018 Letter from NLRB Chairman Kaplan and 
General Counsel Robb to Senator Murray and Representatives Scott, 
Sablan, and Norcross at p.5 (reporting that for a 2 year period 
immediately following the 2014 rule's implementation there were 191 
election agreements to vote individuals subject to challenge, while 
for an equivalent pre-rule period there were only 47 such cases; 
showing an approximate 75% increase). Nevertheless, information 
produced from searches in the Board's NxGen case processing software 
shows that in FYs 2016-2017 there were only 56 post-rule cases 
requiring a postelection regional director decision on determinative 
challenges as compared to 53 such pre-rule cases in FYs 2013-2014.
    \214\ Information produced from searches in the Board's NxGen 
case processing software shows that in FYs 2016-2017 there were 114 
largely post-rule cases requiring a postelection regional director 
decision on objections as compared to 118 pre-rule cases in FYs 
2013-2014.
    \215\ Information produced from searches in the Board's NxGen 
case processing software shows that in FYs 2016-2017 there were 61 
largely post-rule (non-duplicative) cases in which regional 
directors directed rerun elections as compared to 59 such pre-rule 
(non-duplicative) cases in FYs 2013-2014.
    \216\ Comparing information reported on the agency's website 
concerning total RC elections won by unions with information 
reported in the agency's annual Performance Accountability Reports 
concerning total UC Petitions filed in the following fiscal year (to 
take into account time for bargaining to resolve any deferred unit 
placement issues) shows that in FYs 2016-2017 post-rule UC Petitions 
filed constituted 8.2% and 7.2% of the total number of RC elections 
won by unions in the previous fiscal years, as compared to 
equivalent pre-rule UC Petition figures of 7.3% and 8.7% in FYs 
2013-2014.
---------------------------------------------------------------------------

    The majority similarly fails to cite any evidence in support of its 
naked assertion that avoiding pre-election litigation and resolution of 
individual eligibility or inclusion issues impairs the interests in 
fair and accurate voting and transparency. The majority's assertion 
also flies in the face of well-settled precedent. As the D.C. Circuit 
recently reaffirmed, so long as employees are advised before the 
election that the unit placement of the individual voting subject to 
challenge has not been determined--as the 2014 rule explicitly requires 
they be notified (29 CFR 102.67(b) (2015))--the interest in fair and 
accurate voting and transparency is satisfied. See UPS v. NLRB, 921 
F.3d at 257 (``Nor does . . . th[e] . . . common practice [of] 
permit[ting] . . . employees in disputed job classifications . . . to 
vote under challenge . . . imperil the bargaining unit's right to make 
an informed choice, so long as the notice of election--as happened 
here--`alert[s] employees to the possibility of change' to the 
definition of the bargaining unit.''). See also 79 FR 74386 & n.364, 
74389-91 & n.386, 74413 (discussing cases and rejecting claims that 
settled practice of deferring resolution of such matters deprives 
employees' of ability to make an informed choice in election, deprives 
employers of ability to campaign against union, or deters voting).\217\
---------------------------------------------------------------------------

    \217\ The majority's argument that the Board's election notice 
is not sufficiently clear to avoid voter confusion runs afoul of the 
same well-settled precedent. In any event, the very same notice 
about which the majority complains will continue to be used in those 
cases where parties exercise their right under the majority's rule 
to agree to avoid pre-election litigation of individual eligibility 
or inclusion questions (or where the regional director defers 
deciding such matters even though they are litigated). The very same 
notice will also continue to be used when the Board directs an 
individual to vote subject to challenge in ruling on a request for 
review prior to an election. The majority never bothers explaining 
why it has not sought to make the notice clearer if it believes the 
notice is insufficiently clear, instead of resorting to the ill-
advised ``solution'' of opening the floodgates to irrelevant 
litigation.
---------------------------------------------------------------------------

    The majority's additional claim that employees permitted to vote 
subject to challenge are less likely to vote suffers from the same 
flaw. The majority cites no evidence that the turnout of employees 
permitted to vote subject to challenge under the 2014 rule has been 
lower than the turnout of unit employees generally, much less that the 
reason any such individuals declined to vote was because their votes 
would be challenged. And the 2014 rule noted that there was no evidence 
that voter turnout was depressed prior to the 2014 rule when employees 
were likewise permitted to voted subject to challenge.\218\
---------------------------------------------------------------------------

    \218\ 79 FR 74390 (``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).'').

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

[[Page 69576]]

    The majority's reasoning is also internally inconsistent. If 
avoiding pre-election litigation and resolution significantly impairs 
the interests in finality, certainty, efficiency, fair and accurate 
voting, transparency, and ballot secrecy, then it is difficult to 
understand several choices the majority has made. First, the majority 
permits the parties to agree not to litigate individual eligibility or 
inclusion issues at the pre-election hearing.\219\ Second, the majority 
permits regional directors to avoid resolving such matters before the 
election even if they are litigated.\220\ Third, the majority's 
amendments permit the election to go forward if the Board has not yet 
ruled on a request for review of a regional director's resolution of an 
individual eligibility or inclusion issue.\221\ Fourth, the majority's 
amendments continue to permit the Board itself to direct an individual 
to vote subject to challenge in ruling on a request for review of a 
regional director's decision and direction of election.\222\
---------------------------------------------------------------------------

    \219\ See Amended 29 CFR 102.64(a) Conduct of Hearing (``the 
parties may agree to permit disputed employees to vote subject to 
challenge, thereby deferring litigation concerning such disputes 
until after the election'').
    \220\ Thus, the majority specifically states, ``we are not 
requiring that regional directors resolve all disputes prior to the 
direction of election. As noted above, we are not at this time 
eliminating the discretion of the regional director to defer 
resolution of eligibility and inclusion issues[.]''
    \221\ See Amended 29 CFR 102.67(c) (``if a request for review of 
a decision and direction of election is filed within 10 business 
days of that decision and has not been ruled upon or has been 
granted before the election is conducted, ballots whose validity 
might be affected by the Board's ruling on the request for review or 
decision on review shall be segregated in an appropriate manner, and 
all ballots shall be impounded'').
    \222\ The majority's claim--that its amendments promote 
uniformity and transparency by providing that eligibility or 
inclusion issues ``normally will be litigated and decided before the 
election'', and are therefore superior to the 2014 rule--is 
misplaced. Uniformity is not inherently desirable. Making a bad 
practice uniform hardly constitutes a good reason for amending the 
Board's rules. It makes no sense for the majority to provide that 
parties will ``normally'' litigate, and regional directors will 
``normally'' decide, matters that are not relevant to the statutory 
purpose of the pre-election hearing and that carry significant costs 
to the fair and expeditious resolution of questions of 
representation. In any event, as just shown, the majority's claim of 
uniformity is belied by the myriad ways in which these matters may 
not be litigated or resolved before the election under the 
majority's own rule.
    As for transparency, the 2014 rule did provide transparency and 
guidance to the regional directors and the public regarding the 
appropriate exercise of discretion. For example, the 2014 rule 
explained that the Board must address whether there are any 
professional employees in an otherwise appropriate unit containing 
nonprofessionals. 79 FR 74384. The rule further explained that it 
expected regional directors to permit litigation of, and to resolve, 
individual eligibility or inclusion questions when they might 
significantly change the size or character of the unit. 79 FR 74390. 
On the other hand, the rule explained that where the issues would 
not affect the character of the unit, the Board strongly believed 
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. 79 FR 74388. See also 79 FR 74391.
    With regard to the appropriateness of the 20% figure, the 2014 
Board first explained that more than 70% of elections in FY 2013 
were decided by a margin greater than 20% of all unit employees, 
suggesting that deferral of up to 20% of potential voters in those 
cases (and thus allowing up to 20% of the potential bargaining unit 
to vote via challenged ballots, segregated from their coworkers' 
ballots) would not compromise the Board's ability to immediately 
determine election results in the vast majority of cases. 79 FR 
74387. But the Board further explained why there should actually be 
less than 15% of all elections with determinative challenges. Id. at 
74387 fn.370. The 2014 Board was proven correct. In fact, the 56 
post-rule determinative challenge cases in FYs 2016-2017 (described 
in supra fn.213) amount to less than 2% of the total RC, RD and RM 
elections conducted in those years. See also ABC of Texas v. NLRB, 
826 F.3d at 228 (rejecting claim that hearing amendments will delay 
certifications by simply shifting litigation from before the 
election to after the election in light of election margins of 
victory).
---------------------------------------------------------------------------

    The majority also fails to consider important aspects of the 
problem of returning to the pre-2014 rule status quo and providing that 
parties will normally be entitled to litigate, and regional directors 
will normally be required to decide, individual eligibility or 
inclusion issues at the pre-election hearing: Namely that unless 
regional directors have authority to limit evidence to that which is 
relevant to determining whether a question of representation exists, 
(1) the parties and the Board will be forced to incur unnecessary 
expenses and delay resulting from having to respectively litigate and 
decide irrelevant matters; (2) elections that do not involve pre-
election hearings will also be delayed; and (3) some parties will use 
the threat of protracted litigation to extract other concessions 
concerning the election details, including the definition of the unit 
itself, thereby disenfranchising employees. Thus, the majority utterly 
ignores the reality that, because bargaining takes place in the shadow 
of the law, the election dates employers are willing to agree to in the 
stipulated election agreement context are unquestionably influenced by 
how long it would take the Board to conduct an election if the case 
went to a pre-election hearing. In other words, the majority has 
plainly failed to consider that delaying elections in the directed 
election context--by providing that parties will normally litigate at 
the pre-election hearing, and regional directors will normally decide 
before the election, individual eligibility or in inclusion questions--
will also inevitably delay elections in the majority of cases that 
occur outside that context. The majority also ignores that parties use 
the threat of engaging in protracted litigation at the pre-election 
hearing to extract other concessions regarding election details, such 
as the unit itself which has the effect of disenfranchising employees. 
79 FR 74318, 74386-74387.
    The majority essentially contends that there are no such costs, but 
these denials are contrary to the record before the agency and belied 
by the majority's own assertions. Indeed, they fly in the face the 
district court holding in ABC of Texas v. NLRB, 2015 WL 3609116 at *16-
*17 (relying upon the Board's notation that ``the spectre of protracted 
pre-election litigation under the prior rule could be used to `extract 
concessions' regarding the election,'' and finding that the Board 
adequately ``explain[ed] how the final conclusions are factually and 
legally supported''). See also 79 FR 74318, 74386-74387. Moreover, the 
majority's insistence that its amendments will not significantly expand 
the pre-election hearing or delay the time it takes regional directors 
to issue decisions and directions of elections is impossible to square 
with the majority's earlier complaint that deferring such matters until 
after the election may make it necessary to ``conduct extensive 
hearings on these very issues'' after the election has been conducted, 
and the fact that the 2014 rule has significantly reduced the time it 
takes for regional directors to issue their decisions and directions of 
elections.\223\
---------------------------------------------------------------------------

    \223\ See 2018 NLRB Letter (Summary Table) (reporting a 24-day 
median for regional directors to issue a decision and direction of 
election following the close of the pre-election hearing in the year 
immediately preceding the 2014 rule's effective date as compared to 
a 12-day median in the year immediately following the 2014 rule's 
effective date).
    There is no merit to the majority's claim that permitting 
litigation of individual eligibility or inclusion issues will not 
significantly lengthen the hearing because the majority retains the 
statement of position and preclusion provisions of the 2014 rule. 
Thus, the statement of position and preclusion provisions can do 
nothing to prevent parties from litigating timely raised individual 
eligibility or inclusion issues now that the majority has expanded 
the scope of the pre-election hearing beyond that mandated by 
Congress and now that the majority has made what the courts have 
agreed was irrelevant to the purpose of the pre-election hearing 
``relevant.'' In short, as the majority's regulatory text provides, 
parties will ``normally'' be permitted to litigate such matters at 
the pre-election hearing, and regional directors will ``normally'' 
decide such matters before the election.

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

[[Page 69577]]

    Contrary to the majority, the fact that parties continue to enter 
into election agreements more than 90 percent of the time hardly 
disproves that prior to the rule parties used the threat of litigating 
irrelevant matters at the pre-election hearing to extract concessions 
regarding election details. Thus, what matters is the terms of those 
agreements. And the 2014 rule has clearly resulted in a meaningful 
change in those terms because, as the majority concedes, the median 
time for conducting elections in the stipulated election context has 
dropped significantly since the rule went into effect,\224\ and 
because, as shown, the number of election agreements providing for 
individuals to vote subject to challenge dramatically increased once 
employers were no longer entitled to litigate irrelevant eligibility 
issues at the pre-election hearing.\225\
---------------------------------------------------------------------------

    \224\ See https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election (showing a 
median of 37 days to process an election agreement case from 
petition to election in pre-rule FYs 2013-2014, as compared to only 
22 or 23 days for post-rule FYs 2016-2017).
    \225\ See 2018 NLRB Letter at p.5 (reporting that for a 2 year 
period immediately following the 2014 rule's implementation there 
were 191 election agreements to vote individuals subject to 
challenge, while for an equivalent pre-rule period there were only 
47 such cases; showing an approximate 75% percent increase).
---------------------------------------------------------------------------

4. The Majority's Amendment to Sec.  102.66(h) Further Delays Elections 
By Entitling Parties To File Briefs Following the Close of Pre-Election 
Hearings
    Prior to the 2014 rule, Board rules entitled parties to file briefs 
following the close of pre-election hearings. The 2014 rule amended 
Sec.  102.66 to provide that although parties are entitled to present 
oral argument at the close of the pre-election hearing, parties may 
file post-hearing briefs only upon special permission of the regional 
director and within the time and addressing only the subjects permitted 
by the regional director. 29 CFR 102.66(h) (2015), 79 FR 74309.
    The Board reasoned that given the often recurring and uncomplicated 
legal and factual issues arising in pre-election hearings, briefs were 
not necessary in every case to permit the parties to fully and fairly 
present their positions or to facilitate prompt and accurate decisions. 
79 FR 74309, 74401-74402, 74426. Indeed, the Board noted that section 
11242 of the Casehandling Manual then in effect instructed hearing 
officers in pre-election proceedings to ``encourage the parties to 
argue orally on the record rather than to file briefs;'' that the 
drafting guide demonstrated that briefs are often of so little help 
that the drafters are instructed to begin drafting decisions before the 
briefs arrive; \226\ and that the 1997 Report of Best Practices 
Committee--Representation Cases, prepared by a committee of primarily 
NLRB regional directors, deemed it a ``best practice that the hearing 
officer should solicit oral argument in lieu of briefs in appropriate 
cases.'' 79 FR 74427.\227\ The Board also found it self-evident that by 
exercising the right to file briefs or even by simply declining to 
expressly waive the right to file briefs until the running of the 7-day 
period, parties may delay the issuance of a decision and direction of 
election and the conduct of an election unnecessarily. 79 FR 74401, 
74402, 74427 fn.529.\228\ And the Board found it significant that 
Congress had pointed to ``the simplicity of the issues, the great 
number of cases, and the exceptional need for expedition in the 
representation case arena to justify its decision not to require the 
Board to permit post-hearing briefing after every pre-election hearing. 
79 FR 74402, 74426.\229\ Accordingly, the Board decided to grant 
regional directors discretion to permit the filing of post-hearing 
briefs only when they conclude it would be helpful. 79 FR 74427.
---------------------------------------------------------------------------

    \226\ See 79 FR 74427, 74449 (``In fact, the Agency's internal 
training program expressly instructs decision writers to begin 
drafting pre-election Regional directors' decisions before the 
briefs arrive. See `NLRB Professional Development Program Module 5: 
Drafting Regional director Pre-Election Decisions, last updated May 
23, 2004.' '').
    \227\ 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.'').
    \228\ The Board also observed that, as previously discussed, the 
temptation to use the threat of unnecessary litigation to gain 
strategic advantage is heightened by the right under the then 
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) which is triggered automatically when a case 
proceeds to hearing, because 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 then 
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. 79 FR 74386-74387, 74401.
    \229\ The 2014 rule stated in this regard (79 FR 74402):
    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 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.
---------------------------------------------------------------------------

    Today, however, the majority imposes additional delay between the 
close of the hearing and issuance of the decision and direction of 
election by granting parties an absolute right to file briefs following 
the close of the pre-election hearing. Here again the majority offers 
no good reason for changing the 2014 rule's discretionary briefing 
procedure--no statutory or Constitutional mandate that parties be 
permitted to file briefs,

[[Page 69578]]

no judicial invalidation of the 2014 rule's discretionary briefing 
provision, and no empirical evidence that the rule provision had caused 
problems.
    The majority claims that entitling parties to file briefs with the 
regional director following the close of the pre-election hearing 
better accommodates the interests in the expeditious resolution of 
questions concerning representation, efficiency and uniformity. But the 
majority provides no evidence that the benefits of the 2014 rule's 
discretionary briefing procedure have come at the expense of uniformity 
or efficiency (or fairness or transparency). The 2014 rule was uniform 
(and transparent) with respect to briefing; thus the rule took the same 
standard that had long governed briefing to the hearing officer 
following the post-election hearing--no entitlement to briefing; 
briefing permitted only if deemed helpful by the decisionmaker--and 
made it equally applicable to briefing to the regional director 
following the close of the pre-election hearing. Compare 29 CFR 102.66 
(h) with 102.69 (c)(1)(iii) (2015).
    In claiming that its amendment promotes efficiency, the majority 
takes issue with the rule's conclusion that posthearing briefing is 
generally unnecessary because representation cases are prone to 
recurring and uncomplicated legal and factual issues. But the 
majority's conclusion is contrary to the Congressional determination 
not to require briefing in connection with representation case hearings 
because of the issues' ``simplicity'' and the need for expedition.
    Although the majority agrees that the Board is not required to 
permit briefing to the regional director following the close of the 
pre-election hearing, it claims that the APA and the Act do not 
establish that Congress intended that the Board not permit briefing. 
But the 2014 rule does not prohibit briefing. To the contrary, the rule 
permitted directors to permit briefing when they concluded that such 
briefing would be helpful.\230\
---------------------------------------------------------------------------

    \230\ For example, the majority points to independent contractor 
cases as the type of case that warrants briefing. But an analysis of 
the relevant data involving independent contractor cases indicates 
that since the 2014 rule was implemented, regional directors have 
been exercising their discretion to permit briefing in many 
independent contractor cases. See, e.g., Mar. 31, 2016 Decision and 
Order p. 1 in Minnesota Timberwolves Basketball, LP, 18-RC-169231; 
Mar. 31, 2017 Decision and Order p.3 fn.10, Tr. 674 in Bimbo Foods 
Bakeries Distribution LLC, 01-RC-193669; May 7, 2019 Decision and 
Direction of Election p.2 in Rival Entertainment LLC, 10-RC-238340; 
May 7, 2019 Decision and Direction of Election p.2 in Center Stage 
Management LLC, 10-RC-238326; Tr.321 in Green Line Group, Inc., 01-
RC-181492; Oct. 8, 2015 Decision and Direction of Election p.2 in 
Uno Digital, Corp., 12-RC-159482; July 30, 2015 Decision and 
Direction of Election p.2 in Pennsylvania Interscholastic Athletic 
Association Inc., 06-RC-152861; May 23, 2018 Decision and Direction 
of Election p.1 fn.2 in City Communications Corp. 12-RC-218548; Sep. 
18, 2018 Decision and Direction of Election p.2 in Trustees of 
Columbia University, 02-RC-225405. Significantly, however, in some 
independent contractor cases, parties have waived filing briefs in 
lieu of presenting oral argument, thereby evidencing that parties 
themselves recognize that post-hearing briefing to regional 
directors is not necessary in all cases involving independent 
contractors. See, e.g., Porchlight Music Theatre Chicago, 13-RC-
242259 Pre-election Hearing Transcript pp.831, 854.
---------------------------------------------------------------------------

    In support of its claim that parties should be entitled to file 
briefs to the regional director following the close of the pre-election 
hearing in all cases, the majority argues that briefing reduces the 
risk that the regional director will overlook or misunderstand key 
arguments. But the majority cites no evidence that the quality of 
regional director decisions has suffered since the 2014 rule made 
briefing subject to special permission of the regional directors. And 
the circumstantial evidence is directly to the contrary. Thus, for 
example, there is no evidence of an increase in the number of Board 
grants of review or Board reversals of regional director pre-election 
decisions since the 2014 rule went into effect and eliminated the 
parties' entitlement to file post-hearing briefs with the regional 
director,\231\ which is certainly what one would expect to see if there 
had been an uptick in regional directors reaching the wrong results or 
making prejudicial procedural errors since the 2014 rule went into 
effect.\232\ Indeed, there is not even any evidence of an increase in 
requests for review of regional director decisions and directions of 
elections since the 2014 rule went into effect and eliminated the 
parties' entitlement to file post-hearing briefs with the regional 
director, which one would expect if parties believed that the regional 
director had overlooked or misunderstood key points.\233\
---------------------------------------------------------------------------

    \231\ According to a chart of requests for review of regional 
directors' decisions and directions of elections produced for my 
staff by the Board's Office of the Executive Secretary, in FYs 2016-
2017 the Board only granted approximately 14% of such post-rule 
requests for review in which it decided the merits (11 out of 80), 
which constituted only 0.3% of all RC, RD and RM elections held in 
those fiscal years (11 out of 3,154 elections). This is consistent 
with the Board's granting approximately 14% of such pre-rule 
requests for review in which it decided the merits during FYs 2013-
2014 (16 out of 111), which constituted only 0.5% of all elections 
held in those fiscal years (16 out of 3,157). These numbers are also 
consistent with pre-rule statistics relied upon by the 2014 Board 
showing that from FYs 2004-2013, the Board granted approximately 15% 
of all pre-election requests for review filed, which also 
constituted less than 1% of all elections held. See 79 FR 74410 
fn.456.
    Out of the 11 post-rule cases in which a FY 2016 or 2017 request 
for review was granted, only 3 regional director decisions were 
reversed based on applications of then-current law (and 4 regional 
director decisions were either dismissed, remanded or reversed based 
on application of new legal standards issued after the regional 
directors' decisions). These numbers are consistent with the 4 
reversals of regional directors' pre-election decisions during FYs 
2013-2014 based on applications of then-current law (and 2 remands 
based on application of new legal standards). These numbers are also 
consistent with pre-rule statistics relied upon by the 2014 Board 
showing that from FYs 2010-2013 there were only 14 cases in which 
regional director decisions were reversed. See 79 FR 74408 fn.454.
    \232\ Regional directors are bound to apply extant Board law. 
Accordingly, cases where the Board reverses a regional director by 
overturning existing precedent obviously cannot be cited as a basis 
for entitling parties to file posthearing briefs with the regional 
director. Indeed, the parties' ability to argue that precedent 
should be overturned was in no way impaired by the 2014 rule. Thus, 
as the Board noted, the rule permitted parties to file briefs with 
the Board in support of their requests for review in each case. 79 
FR 74402.
    \233\ To the contrary, the same chart from the Board's Office of 
the Executive Secretary, supra fn.231, shows 99 total requests for 
review concerning decisions and directions of election that were 
processed under the 2014 rule in FYs 2016-2017, which represents an 
approximate 23% decrease from the 129 such pre-rule requests for 
review filed in FYs 2013-2014.
---------------------------------------------------------------------------

    The majority also claims that the regional director and his or her 
staff will benefit from briefs in all cases because party briefing will 
save the region from having to conduct independent research of the law 
and the record, which will shorten, rather than lengthen, the time it 
takes for regions to issue decisions and directions of elections. But 
because of the recurring nature and simplicity of the issues in 
representation cases, regions are generally familiar with the law. And, 
contrary to the majority's premise, the region must always examine the 
record and any cited cases for itself before the decision and direction 
of election issues because, as every tribunal knows, parties often 
misstate what the record shows and/or inaccurately characterize case 
holdings. In any event, the majority simultaneously acknowledges that 
at least in some cases the regional director and his or her staff can 
``largely prepare the decision while awaiting posthearing briefing.'' 
In these cases, therefore, briefing is not efficient and results in 
unnecessary costs. Moreover, in these cases at least, the majority's 
rule will unnecessarily delay the decision by requiring the regional 
director to delay his decision until the briefs are filed or the due 
date comes and with no briefs being filed. See 79 FR 74427.\234\
---------------------------------------------------------------------------

    \234\ I recognize that, in response to the Board's 2017 RFI, the 
regional directors requested that they be given discretion to permit 
the filing of briefs following the close of the pre-election 
hearing. However, the 2014 rule already grants regional directors 
such discretion (see 79 FR 74401 (the rule ``vest[s] the regional 
director with discretion to grant a request to file a post-hearing 
brief'')), and regional directors have been exercising that 
discretion to permit briefing in cases where they judge it would be 
helpful. See supra fn.230 (listing independent contractor cases 
where post-2014 rule briefing has been allowed); see also 2018 NLRB 
Letter (Summary Table) (reporting both pre-rule and post-rule median 
and mean time periods between the filing of briefs following the 
close of pre-election hearings and the issuance of regional 
directors' decisions and directions of elections). In any event, the 
regional directors did not request the change made today, whereby 
the majority grants parties an absolute entitlement to file briefs, 
no matter how simple or routine the case.

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

[[Page 69579]]

    The majority's additional suggestion--that briefing should be made 
a matter of right under this rule because regional directors will be 
resolving more issues now than they did under the 2014 rule--is 
mystifying. The majority insists that its amendments to the pre-
election hearing simply constitute a return to the pre-2014 rule status 
quo regarding individual eligibility or inclusion issues. And that was 
precisely the status quo that the Board was reviewing when it concluded 
that briefing was not ordinarily necessary. My colleagues err to the 
extent they attempt to tie the 2014 Board's provision of discretion to 
regional directors to permit or deny pre-election briefing to the 
separate amendment concerning the pre-election litigation of individual 
eligibility issues. No such connection was made in the 2014 rule's 
discussion of pre-election briefing. See 79 FR 74401-74403. To the 
contrary, the 2014 Board expressly clarified that its amendments were 
severable and would have been adopted individually ``regardless of 
whether any of the other amendments were made[.]'' Id. at 74308 fn.6.
    The majority also fails to consider an important aspect of the 
problem of returning to the pre-2014 rule status quo with respect to 
briefing following the close of the pre-election hearing. Specifically, 
they fail to acknowledge that entitling parties to file briefs in all 
cases not only delays elections in contested cases, but also delays 
elections in the stipulated election context. See supra fn.228.
5. The Majority's Amendments to Section 102.67 Also Create Unnecessary 
Delay Between Issuance of the Decision and Direction of Election and 
the Actual Election
a. Without Providing a Reasoned Explanation, the Majority Deletes Sec.  
102.67(b)'s Provision That Regional Directors Will Ordinarily Specify 
the Election Details in Their Decisions and Direction of Election
    By definition, an 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. Prior to the 2014 rule, election 
details were typically addressed after the direction of election 
issued, which required further consultation about matters that could 
easily have been resolved earlier. 79 FR 74310, 74404.
    The 2014 rule required that petitioners state their positions 
regarding election details (including the type, date(s), time(s), and 
location(s) of the election) in their petitions and that the 
nonpetitioning parties state their positions on election details in 
their statements of position. 29 CFR 102.61, 102.63(b)(1)(i), 
(b)(2)(i), and (b)(3)(i) (2015). The rule also provided that before the 
close of the pre-election hearing, hearing officers would solicit party 
positions on election details and solicit the contact information of 
the employer's on-site representative to whom the notice of election 
should be transmitted if an election is directed. See 29 CFR 
102.66(g)(1), (2) (2015).
    Accordingly, the Board concluded that, because the parties will 
have already (twice) stated their positions on the election details, 
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. 79 FR 74404. And, 
because the director ordinarily will be able to 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, thereby enabling a more 
expeditious election. Id. Accordingly, Sec.  102.67(b) of the 2014 rule 
provided that election directions ``ordinarily'' will specify the type, 
date(s), time(s) and location(s) of the election and the eligibility 
period and that the regional director will ``ordinarily'' transmit the 
Notice of Election ``simultaneously with the direction of election.'' 
29 CFR 102.67(b) (2015). In sum, the 2014 Board concluded that by 
enabling the regional director to conduct the election without 
unnecessary delay, the amendments would help the Board to more 
expeditiously resolve questions concerning representation. 79 FR 74404. 
The Board also concluded that the change would obviate the need for a 
wasteful post-decision consultation process in favor of more efficient 
consultations during the hearing itself. Given that all parties would 
be present at the pre-election hearing, it was eminently reasonable to 
solicit party positions then, rather than have the Board agent attempt 
to solicit input individually after the direction issues. Id. at 74405.
    However, the rule left the director free to consult with the 
parties again after directing an election if necessary. Id. For 
example, if the regional director directs an election in a unit 
significantly different from the petitioner's proposed unit and the 
employer's alternative unit, the regional director should consult with 
the parties concerning the election details. Id.
    Today, however, the majority amends Sec.  102.67 to eliminate the 
provision that regional directors ``ordinarily'' will specify the 
election details in their direction of election, and instead rewords 
the language of that section to provide that the direction ``may'' 
specify the election details. Here again the majority provides no 
reasoned explanation for the amendment--no statutory inconsistency, no 
judicial invalidation of the 2014 rule provision at issue, and no 
empirical evidence that the rule provision has caused any 
administrative problems. Neither the GC nor the regional directors have 
requested the change made by the Board today, presumably reflecting 
their position that regional directors ordinarily need not consult for 
a third time with parties regarding election details, because the 
parties will have already stated their positions both before and during 
the pre-election hearing. Indeed, the majority does not, and cannot, 
cite a single submission (in response to the 2017 RFI) questioning this 
rule provision.
    The majority's reasoning in support of this amendment is also 
internally inconsistent. On the one hand, the majority states (emphasis 
added) that the amendment ``represents a shift in emphasis, rather than 
substance'' and that it ``fully agree[s]'' that the regional director 
``should ordinarily be able to specify the election details in the 
direction, thus avoiding any delay in issuing the Notice of Election.'' 
If the majority is sincere in this regard, then the majority's 
amendment is clearly less transparent than the 2014 rule because it 
substitutes the word ``may'' for the word ``ordinarily.'' And it is 
certainly unnecessary to change the 2014 rule to make it clear that 
regional directors do not have to specify the election details in their 
decision and direction of election because, as shown, the regulatory 
text of the rule did not require the regional directors to always 
specify the election details in the direction of the election. 
Moreover, the preamble clearly provided that directors retain 
discretion to consult with the parties yet again after issuing a 
direction

[[Page 69580]]

of election if the director concludes that it is appropriate to do so.
    On the other hand, the majority appears to take the position that 
its amendment will change the status quo ante by claiming that it will 
promote efficiency to ``place more emphasis on the discretion regional 
directors have in this regard'' because ``engag[ing] the parties in 
post-hearing discussion'' of election details ``will likely lead . . . 
to consensus.'' (emphasis added). Accordingly, to the extent that my 
colleagues are signaling regional directors to avoid setting election 
details in their directions of election, such additional post-hearing 
consultations will delay elections and unnecessarily impose costs on 
the parties and the Board. The majority provides no reasoned 
explanation for placing more emphasis on regional director discretion. 
Consensus regarding electing details has never been required, and the 
majority provides no reason to think that consensus is more likely to 
be reached under its amendment than under the 2014 rule provisions. The 
majority's claim--that its amendment decreases the chances that a party 
may seek review of a regional director's decision to specify election 
details after a decision and direction of election issues, because its 
amendment makes clear that any such request for review will be ``in 
vain''--is unfounded. The majority fails to point to a single such 
request for review filed since the 2014 rule went into effect. And that 
should not be surprising because, as shown, the regulatory text of the 
rule did not require the regional director to always specify the 
details in the decision: The phrase ``ordinarily will'' clearly 
indicates that there will be occasions when the director will not 
specify the election details in his decision, as the preamble 
explicitly provides. In any event, the majority's argument ignores that 
even when a decision maker has discretion to act in a certain way, 
parties may still argue that the decision maker abused that discretion. 
Accordingly, the majority's ill-advised and unnecessary amendment will 
not even accomplish its purported purpose.
b. The Majority's Amendment to Sec.  102.67(b) Creates an Unnecessary 
Month-Long Delay in Conducting Elections by Imposing a 20-Business Day 
(or 28 Calendar Day) Waiting Period Between Issuance of the Decision 
and Direction of Election and the Election
i. Background
    Before the 2014 rule, parties were required to request Board review 
of a regional director's decision and direction of election prior to 
the election or be deemed to have forever 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. 79 FR 74309, 
74407. And before the rule, the Board's statement of procedures imposed 
a stay of 25 days following any direction of election to allow time for 
the Board to rule on any request for review that might be filed. See 79 
FR 74309-74310; 29 CFR 101.21(d) (2011). The Board's rules and 
regulations also provided for a second stay, whereby if a pending 
request for review had not been ruled upon or had been granted, the 
election would proceed but ballots whose validity might be affected by 
the final Board decision would be segregated, and all ballots would be 
impounded and remain unopened pending such decision. See 29 CFR 
102.67(b) (2011). As a result of that provision, no ballots could be 
counted until the Board ruled on the request for review. See 79 FR 
74309, 74409.
    The 2014 rule made three changes to this procedure that are 
relevant today. First, the rule relaxed the due date for filing 
requests for review and eliminated the requirement that parties file 
requests for review of the decision and direction of election prior to 
the election. 79 FR 74309, 74408-74409. Thus, the rule provided that 
parties may request review of a regional director decision to direct an 
election either before or after the election. Id. at 74408. The Board 
reasoned that the former practice of requiring parties to seek such 
review of directions of election before the election--or be deemed to 
have waived their right to appeal the decision and direction of 
election--not only encouraged, but required unnecessary litigation. The 
Board noted that 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.\235\ 
Id. The Board concluded that the former rules thereby imposed 
unnecessary costs on the parties by requiring them to file pre- 
election requests for review in order to preserve issues. Id. The Board 
further concluded that the 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, would further the goal of 
reducing unnecessary litigation because 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. Id. The Board also concluded that the amendment would reduce 
the burdens on the other parties to the case and the agency, 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. Id.
---------------------------------------------------------------------------

    \235\ For example, as the Board explained (79 FR 74408), if the 
regional director rejected an employer's contention that a 
petitioned-for unit was inappropriate and directed an election in 
the unit sought by the union, rather than in the alternative unit 
proposed by the employer, the Board's pre-2014 rules required 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 2014 rule also eliminated the mandatory 25-day waiting period. 
Id. at 74309-74310. The Board reasoned that the 25-day waiting period 
was not only not provided for in the statute, but that the 25-day 
waiting period--which effectively stays the election in every contested 
case for 25 days--was in tension with Congress' instruction in Section 
3(b) of the Act that 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.'' 29 U.S.C. 
153(b). 79 FR 74410.
    The Board further reasoned that elimination of the 25-day waiting 
period would eliminate an unnecessary barrier to the fair and 
expeditious resolution of questions concerning representation, because, 
by definition, the waiting period delays the election, which is 
designed to answer the question of representation. 79 FR 74410. 
Although the 25-day waiting period by its terms only applied to 
contested cases, the waiting period also had the effect of delaying 
elections in stipulated-election cases. Thus, the Board noted that 
bargaining takes place in the shadow of the law, and that, as the 
administrative record confirmed, 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. Id.
    The Board further concluded that the 25-day waiting period also 
served little purpose under the pre-existing rules. Id. at 74310, 
74410. The stated purpose of the 25-day period was merely ``to permit 
the Board to rule on any request for review which may be filed.'' 29 
CFR 101.21(d) (2014), 79 FR 74410.

[[Page 69581]]

However, such requests were filed in a small percentage of cases, were 
granted in an even smaller percentage, and resulted in orders staying 
the conduct of elections in virtually no cases at all. 79 FR 74410. 
Thus, if the Board had not yet ruled on the request at the time of the 
election, as was not infrequently the case, the election was held and 
the ballots impounded until the Board could rule. Id. Even if the Board 
granted the request, the Board almost never stayed the election and the 
same vote-and-impound procedure was used. Id. Finally, the Board 
explained that there would be even less reason for the waiting period 
under the 2014 rule, which should (and did) reduce the number of 
requests for review filed before elections by permitting parties to 
file such requests after the election. Id.
    The Board also eliminated the automatic ballot impoundment 
procedure so that the voting and counting of ballots would proceed 
notwithstanding a request for review, unless the Board specifically 
ordered otherwise pursuant to a party's motion for segregation and/or 
impoundment of the ballots. Id. at 74409. By requiring that all ballots 
be impounded until the Board ruled on the request for review, the pre-
2014 rule provisions actually required the Board to decide matters that 
could be rendered moot by the election results. The Board reasoned that 
elimination of the automatic impound procedure, which appeared nowhere 
in the statute, was consistent with Section 3(b)'s purpose to prevent 
delays in the Board's processing from impacting regional Section 9 
proceedings. Id. The Board noted that impoundment, standing alone, 
could not and did not prevent rerunning elections, and that the 
possibility of reruns was minimized further because the Board rarely 
reversed the regional director. Id.
ii. The Majority Provides No Good Reasons for Amending Sec.  102.67(b) 
and (c) To Institute a Month-Long Waiting Period and Automatic Impound 
Procedure
    Although the majority retains the 2014 rule amendment that 
eliminates the requirement that parties request review of a regional 
director's decision to direct an election before the election to avoid 
waiving the right to contest that decision, the majority nevertheless 
imposes a 20-business day (or 28-calendar day) waiting period before an 
election can be held following issuance of a decision and direction of 
election. The majority further provides for the impoundment of all 
ballots if a party files a request for review within 10 business days 
of the decision.\236\
---------------------------------------------------------------------------

    \236\ The majority mistakenly claims that the 2014 rule's 
elimination of the 25-day waiting period was ``controversial.'' Yet, 
the rule noted that very few comments specifically objected to the 
proposed elimination of the 25-day waiting period, and that there 
was near consensus that this period serves little purpose. 79 FR 
74410 & fn.458. Moreover, the Board received only 3 submissions 
critical of that amendment in response to its 2017 RFI.
---------------------------------------------------------------------------

    The majority provides no reasoned explanation for these amendments 
that, by definition, will delay elections and certifications--no 
statutory or constitutional requirement for either a 20-business day 
waiting period or for ballot impoundment, no judicial invalidation of 
the 2014 rule request-for-review amendments,\237\ and no empirical 
evidence of any administrative problems caused by the amendments. 
Instead, the majority asserts: (1) That its waiting period and 
impoundment procedure serve the same variety of purposes--including 
finality, certainty, fair and accurate voting, transparency, and 
uniformity--that the pre-2014 waiting period served; (2) that these 
purposes ``outweigh[ ] the significance'' of delaying the election and 
the tally of ballots; and (3) that contrary to the 2014 rule, there is 
no tension between its waiting period/ballot impoundment provisions and 
the Act. But these explanations ignore the text of the majority's own 
regulatory language, the stated purpose of the pre-2014 rule waiting 
period, and the relevant statutory language. The majority has also 
failed to analyze the relevant data, and failed to consider important 
aspects of the problems, rendering arbitrary and capricious its 
conclusion that the benefits of its amendments outweigh their costs.
---------------------------------------------------------------------------

    \237\ See, e.g., ABC of Texas v. NLRB, 826 F.3d at 227 (noting 
that the Act does not mandate a specified waiting period prior to 
the election).
---------------------------------------------------------------------------

    The majority has plainly failed to engage in reasoned 
decisionmaking. First, the regulatory text of the majority's waiting 
period amendment does not state that the waiting period has a variety 
of purposes. Instead, it lists just one purpose--providing the Board 
with an opportunity to rule on a request for review.\238\ Accordingly, 
it is by no means clear why in analyzing the need for the amendment, 
anything other than providing the Board with an opportunity to rule on 
a request for review should be considered.
---------------------------------------------------------------------------

    \238\ Thus, the majority amends Section 102.67(b) to state, 
``The Regional Director shall schedule the election for the earliest 
date practicable, but unless a waiver is filed, the Regional 
Director will normally not schedule an election before the 20th 
business day after the date of the direction of election, to permit 
the Board to rule on any request for review which may be filed 
pursuant to paragraph (c) of this section.'' (emphasis added).
---------------------------------------------------------------------------

    Second, the majority is simply wrong in claiming that the pre-2014 
Board recognized that a waiting period of 25 days served a variety of 
important purposes beyond providing the Board with an opportunity to 
rule on a request for review that might be filed, and that those were 
the actual purposes of the pre-2014 rule 25-day waiting period. Put 
simply, as the Board repeatedly noted in adopting the 2014 rule, the 
only stated purpose of the 25-day waiting period articulated in the 
Board's statement of procedures prior to the 2014 rule was to give the 
Board an opportunity to rule on any request for review that might be 
filed. 79 FR 74409, 74410.\239\
---------------------------------------------------------------------------

    \239\ Thus, 29 CFR 101.21(d) (2011) provided: 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. . . . 
The Regional Director's action is not stayed by the filing of such a 
request or the granting of review, unless otherwise ordered by the 
Board. Thus, the Regional Director may proceed immediately to make 
any necessary arrangements for an election, including the issuance 
of a notice of election. However, unless a waiver is filed, the 
Director will normally not schedule an election until a date between 
the 25th and 30th days after the date of the decision, to permit the 
Board to rule on any request for review which may be filed. 
(emphasis added).
---------------------------------------------------------------------------

    Third, the majority likewise errors in claiming that there is no 
tension between its 20-business day waiting period and the Act because 
the waiting period does not amount to a stay of the regional director's 
authority to direct and conduct an election. The Act requires the 
regional director (as a result of the Board's delegation to regional 
directors of its authority to conduct elections and certify the results 
thereof pursuant to Section 3(b) of the Act) to direct an election if 
he or she concludes, based on the pre-election hearing, that a question 
of representation exists. 29 U.S.C. 159(c)(1)(B), 29 U.S.C. 153(b). But 
the majority's amendment prevents the director from conducting the 
election for 20 business days. That plainly is in tension with 
Congress' express provision in Section 3(b) that although the Board may 
review any action of the regional director at the request of a party, 
such review ``shall not, unless specifically ordered by the Board, 
operate as a stay of any action taken by the regional director.'' But 
for the majority's amendment today, regional directors could direct and 
conduct elections in far fewer than 20 business days from their 
directions of election, which is precisely what the regional directors 
have regularly done since the 2014 rule amendments went

[[Page 69582]]

into effect.\240\ Indeed, the majority concedes elsewhere that its 
automatic impound procedure does amount to a stay of the regional 
director's power to count the ballots and certify the results.\241\
---------------------------------------------------------------------------

    \240\ Information produced from searches in the Board's NxGen 
case processing software shows post-rule medians of 11 to 12 
calendar days from issuance of a decision and direction of election 
to the election itself in FYs 2016-2017.
    \241\ Thus, the majority acknowledges that it ``amends Sec.  
102.67(h) to state that ``[t]he grant of a request for review shall 
not, outside of the provision for impoundment set forth in paragraph 
(c) of this section, stay the Regional Director's action unless 
otherwise ordered by the Board'' (emphasis added).
---------------------------------------------------------------------------

    There are additional serious flaws with the majority's 
reasoning.\242\ As noted, the majority concludes that the benefits 
resulting from the 2014 rule's elimination of the 25-day waiting period 
and the automatic impound procedure have come at the expense of, and 
are outweighed by, the interests in finality, certainty, fair and 
accurate voting, transparency, and uniformity.\243\ But saying this 
does not make it so. Once again, the majority has failed to analyze the 
relevant data before asserting its conclusion. Indeed, the majority's 
explanation for instituting the waiting period and automatic impound 
procedure run counter to the evidence before the agency, and the rule 
is therefore arbitrary and capricious for this reason as well. See 
State Farm, 463 U.S. at 43. The relevant data reveals that the 2014 
rule's elimination of the 25-day waiting period and automatic impound 
procedure have not caused elections to become less final or certain and 
have not impaired the interests in fair and accurate voting and 
transparency.
---------------------------------------------------------------------------

    \242\ There is likewise a serious flaw in the majority's legal 
citation to a 1977 Federal Register entry to draw a disingenuous 
connection between the ``1961 institution of [the waiting] period'' 
and the 1977 amendments to Sec.  102.67 that the Board emphasized 
were ``designed to facilitate consideration and disposition of 
requests for review of regional directors' decisions, thereby 
further contributing to the prompt resolution of representation 
issues.'' 42 FR 41117. As is patently clear from the 1977 Board's 
own words, its references to the ``prompt resolution of 
representation cases'' was aimed at its amendments of 102.67(d) 
permitting ``the Board to examine the record in evaluating a request 
for review'' and 102.67(g) permitting ``the Board to rule upon the 
issues on review at the same time it grants the request. Such action 
will avoid the delay associated with the briefing time after a grant 
of review when the issues are clear and readily resolved.'' 42 FR 
41117. The waiting period was not discussed, and the majority can 
find no support in the quoted language.
    \243\ The majority insists that its amendments serve those 
interests by enabling the Board to definitely resolve individual 
eligibility or inclusion issues prior to the election. The majority 
asserts in this regard that these amendments to Section 102.67 work 
``hand-in-hand'' with its amendments to the pre-election hearing 
providing for the parties to litigate, and for regional directors to 
decide, individual eligibility or inclusion issues at the pre-
election hearing.
---------------------------------------------------------------------------

    As shown above, my analysis of the agency's own data indicates 
remarkable stability in every relevant statistical measure since the 
2014 rule went into effect, proving that agency elections have been no 
less final, certain, fair, accurate, transparent or uniform. The 
obvious gains in expeditious case processing from the 2014 rule's 
elimination of the 25-day waiting period caused none of the majority's 
claimed unwelcome side effects. The number of Board reversals of 
regional director decisions and directions of elections has remained 
stable,\244\ as has the number of cases involving post-election 
objections \245\ or determinative challenges.\246\ Thus, the benefit of 
moving cases from petition to election much more expeditiously (without 
the 25-day waiting period) has not been accompanied by any 
countervailing costs; i.e., there has been no trend of more cases being 
dragged out following the election due to the need to resolve 
objections or determinative challenges, or because a regional 
director's pre-election decision must be reversed. Similarly, the 
number of rerun elections has shown equal stability.\247\ And the 
majority is unable to point to a single case since the 2014 rule went 
into effect where the Board or the courts have set aside an election 
because employees were ``confused'' as a result of the Board's failing 
to decide pre-election--without the help of the 25-day stay--a small 
percentage of individual eligibility or inclusion issues.\248\ Thus, 
the more expeditious post-2014 rule elections have been just as final 
and certain, just as fair and accurate, and just as uniform as were the 
pre-2014 rule elections in resolving questions of representation. 
(Moreover, due to the post-2014 rule's abstaining from automatically 
impounding ballots, those elections were more transparent than were 
their pre-2014 counterparts, and more transparent than the elections 
will be under the rule announced today.) In any event, absolute 
certainty and finality are not possible under the statutory scheme 
because even if the Board could review every regional director decision 
and direction of election the second it issued, the Board decision 
would still be subject to reversal in the court of appeals in a 
technical 8(a)(5) proceeding. See 79 FR 74334, 74389.
---------------------------------------------------------------------------

    \244\ See supra fn.231 (showing consistency of 3 post-rule 
reversals based on extant law during FYs 2016-2017, with 4 pre-rule 
reversals based on extant law during FYs 2013-2014).
    \245\ See supra fn.214 (showing 114 largely post-rule cases 
requiring a postelection regional director decision on objections in 
FYs 2016-2017 as compared to 118 such pre-rule cases in FYs 2013-
2014).
    \246\ See supra fn.213 (showing 56 post-rule cases requiring a 
postelection regional director decision on determinative challenges 
in FYs 2016-2017 as compared to 53 such pre-rule cases in FYs 2013-
2014).
    \247\ See supra fn.215 (showing 61 largely post-rule rerun 
election cases during FYs 2016-2017 as compared to 59 such pre-rule 
rerun election cases in FYs 2013-2014).
    Nor has there been any significant increase in parties filing 
unit clarification (UC) petitions after a union election victory for 
the Board to determine unit placement issues that were not decided 
pre-election. See supra fn.216 (showing stability in the rate of UC 
petitions filed in relation to the number of union election wins in 
the prior fiscal year for post-rule FYs 2016 (8.2%) and 2017 (7.2%) 
as compared to pre-rule FYs 2013 (7.3%) and 2014 (8.7%)).
    \248\ To the contrary, the D.C. Circuit has rejected the 
majority's premise that such a situation would cause confusion when, 
as the 2014 rule requires (29 CFR 102.67(b) (2015)), the notice of 
election alerts employees of the possibility of change to the unit 
definition. See UPS v. NLRB, 921 F.3d at 257 (``the Acting Regional 
Director did not abuse his discretion by declining to decide, before 
the election, whether two employees in disputed job classifications 
. . . were part of the bargaining unit'' because it did not 
``imperil the bargaining unit's right to make an informed choice'' 
given that the election notice `` `alert[ed] employees to the 
possibility of change' to the definition of the bargaining unit.'').
---------------------------------------------------------------------------

    Moreover, the majority's rule is internally inconsistent. If, as 
the majority contends, ``the Board should strive to maximize the 
opportunity for the election to provide finality'' particularly with 
regard to individual eligibility or inclusion issues and if a final 
Board determination of pre-election issues is necessary to preserve 
fair and accurate voting and transparency, then it is difficult to 
understand why the majority permits parties to wait until after the 
election to file their requests for review. It is also difficult to 
understand why the majority provides that the election will go forward 
(with ballot impoundment) if the Board has not ruled on the request for 
review by the date of the election, and why the election will go 
forward (without ballot impoundment) in cases where the pre-election 
request for review is filed more than 10 business days from the date of 
the decision's issuance.\249\
---------------------------------------------------------------------------

    \249\ Moreover, as discussed in connection with the majority's 
amendments to the pre-election hearing, if the election should 
provide finality regarding individual eligibility or inclusion 
issues, and if final Board resolution of pre-election issues is 
necessary to preserve fair and accurate voting and transparency, 
then it is also difficult to understand why the majority makes 
several additional decisions that run counter to its articulated 
goals. First, it permits the parties to agree not to litigate 
individual eligibility or inclusion issues at the pre-election 
hearing. Second, it permits regional directors to avoid resolving 
such matters before the election even if they are litigated. Third, 
it permits the Board itself to direct an individual to vote subject 
to challenge in ruling on a request for review of a regional 
director's ruling on an individual eligibility question. These 
unexplained inconsistencies highlight the arbitrary nature of my 
colleagues' choices.
    It is also impossible to square the majority's claim--that ``the 
Board should strive to maximize the opportunity for the election to 
provide finality'' with the position the majority has taken in the 
blocking charge rulemaking. Recall that in the blocking charge 
rulemaking, 84 FR 39930, 39938, 39948 (Aug. 12, 2019), the majority 
has taken the opposite position--namely that nothing is more 
important than having employees vote promptly, and therefore it 
should conduct elections before assessing whether employees can 
exercise free choice in the election in the face of blocking 
charges. And it has taken that position in the face of evidence 
showing that 67 percent of the elections that are conducted in the 
face of blocking charges are unlikely to count and thus will not be 
final. The majority nowhere explains the inconsistency.

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

[[Page 69583]]

    The majority also errs in assessing the costs of its 20-business 
day waiting period and automatic impoundment procedure. To be sure, the 
majority concedes, as it must, that the 20-business day (28-calendar 
day) period will delay elections in the directed election context by 
approximately one month. But the majority attempts to minimize the 
delay by claiming that the waiting period will only delay directed 
elections, which constitute a small subset of the elections the Board 
conducts each year.
    Once again, however, the majority has entirely ignored important 
aspects of the problem and has thereby acted arbitrarily and 
capriciously. See State Farm, 463 U.S. at 43. Thus, the majority 
utterly ignores the reality that, because bargaining takes place in the 
shadow of the law, the election dates employers are willing to agree to 
in the stipulated election agreement context are unquestionably 
influenced by how long it would take the Board to conduct an election 
if the case went to a pre-election hearing. By instituting a month-long 
pre-election waiting period in the directed election context, the 
majority not only delays elections in the less than ten percent of 
representation cases that are contested at pre-election hearings, but 
it also delays elections in the more than ninety percent of 
representation cases in which the parties stipulate to an election. In 
addition to ignoring that its amendments will delay all elections, the 
majority also ignores that the delay occasioned by the waiting period 
will be used to extract concession regarding election details and the 
unit, including disenfranchising certain individuals.\250\ The 
automatic impound procedure also imposes costs on the Board by 
requiring it to decide issues that may be, and regularly are rendered 
moot by election results,\251\ and imposes costs on the parties by 
inevitably delaying certifications (by delaying the tally of the 
ballots).
---------------------------------------------------------------------------

    \250\ The majority's contention that there is no objective 
evidence that parties use the threat of unnecessary litigation and 
delay that comes with it to extract concessions regarding election 
details-- flies in the face of the district court's holding in ABC 
of Texas v. NLRB, 2015 WL 3609116 *16-*17 (Board noted the spectre 
of protracted pre-election litigation under the prior rule could be 
used to `extract concessions' regarding the election . . . . The 
Board's [rule] . . . explain[ed] how the final conclusions are 
factually and legally supported.''). See 79 FR 74318, 74386-87); and 
further ignores its reliance on gamesmanship as justification for 
one if its amendments and the concession that good lawyers use 
procedures to their clients' advantage.
    \251\ According to my staff's review of a list of cases 
involving requests for review of decisions and directions of 
election, produced by the Board's Office of the Executive Secretary, 
29% (11 out of 38 post-rule cases) of the requests for review that 
were filed before the election in FYs 2016-2017 were ultimately 
rendered moot by the results of the elections or withdrawal of the 
petitions.
---------------------------------------------------------------------------

    The majority complains that the regulatory text of the 2014 rule 
did not set forth a minimum time between the direction of election and 
the election, and argues that imposing a minimum time between the 
direction of the election and the election serves the interests in 
uniformity and transparency and therefore is preferable. But, contrary 
to the majority's suggestion, the critical period is not between the 
direction of election and the actual conduct of the election. Rather, 
the critical period is between the petition and the election. And in 
the lengthy history of the Act, neither Congress nor the Board has ever 
mandated a minimum timeline in which to conduct elections. See 79 FR 
74422. The majority does not do so either. It provides no timeline to 
process cases from petition to election. (While the majority does 
impose a 20-business day waiting period between the pre-election 
decision and the conduct of the election, the majority allows parties 
to waive it.)
    Given that the majority provides no petition-to-election timeline 
in the directed election context, and given that the majority makes it 
so much easier for parties to obtain extensions and postponements, the 
majority's suggestion that its rule is more transparent than the 2014 
rule is utterly mystifying. The public and agency employees certainly 
have not been operating in the dark regarding the median times for 
conducting elections in both the directed election and stipulated 
election contexts under the 2014 rule, because the GC has been 
publishing those median times on an annual basis, just as prior GCs 
have done for decades, when there was also no minimum timeline provided 
in the Board's rules and regulations.
    In any event, whether uniformity is ``preferable'' depends on what 
is being made uniform. Although imposition of the 20-buiness day 
waiting period will indeed delay all elections, not just directed 
elections, the waiting period is not preferable because it will serve 
little purpose under the majority's rule just as it served little 
purpose prior to the 2014 rule. Put simply, delaying all elections so 
the Board can rule on a request for review serves no possible purpose 
in those cases where a request for review is not filed before the 
election. And those are the overwhelming majority of cases.\252\
---------------------------------------------------------------------------

    \252\ Indeed, in FY 2013, only 4.2% of all RC, RD and RM 
elections (66 out of 1,557) involved requests for review of a 
regional director's decision and direction of election, while in FY 
2014, only 3.9% of such elections (63 out of 1,600) involved such 
requests for review. Since the 2014 rule went into effect, the 
percentage of elections involving requests for review of regional 
directors' decisions and directions of election has been even lower. 
In FY 2016, only 3.5% of elections (56 out of 1,594) involved such 
requests for review, while in FY 2017, only 3.1% of elections (49 
out of 1,560) involved such requests for review. See Office of 
Executive Secretary's Chart (listing requests for review of regional 
directors' decisions and directions of election for FYs 2013-2017); 
https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections. In other words, in the two full fiscal years both before 
and after the 2014 rule, more than 95% of elections involved no 
requests for review of decisions and directions of election 
whatsoever, and the majority offers no reason to believe that this 
trend will not continue.
---------------------------------------------------------------------------

    The waiting period will serve very little purpose under the 
majority's rule even if one looks just at the directed election 
context. Thus, delaying all directed elections so the Board can rule on 
a request for review serves no possible purpose in those directed 
election cases where a request for review is not filed prior to the 
election. The majority of regional director decisions and directions of 
election are never the subject of a request for review.\253\ And even 
considering only the minority of instances when parties have filed 
requests for review of decisions and directions of election since the 
2014 rule went into effect, an even smaller minority of them have

[[Page 69584]]

been filed before the election.\254\ (Thus, as shown, most parties act 
rationally and wait until they see the election results so they know 
whether the results have mooted the basis of their appeal). There 
certainly is no reason to think that this will change after today 
because, under the majority's rule, the waiting period applies 
regardless of whether a party files a request for review before the 
election, and the majority retains the 2014 rule provision permitting 
parties to wait until after the election to request review of the 
regional director's pre-election decision. In short, the waiting period 
serves little purpose even if one looks just to its application in the 
directed election context because parties typically do not file 
requests for review before the election. Moreover, as the 2014 Board 
noted (79 FR 74410), the comparable pre-2014 rule waiting period served 
little purpose, because even in the small percentage of cases in which 
the Board granted review, the Board almost never stayed the election 
and the election proceeded as scheduled. In other words, despite the 
presence of the waiting period, the Board was typically unable to 
render a decision on the underling merits until after the waiting 
period had elapsed and the election had been held.\255\ The majority 
plainly foresees this continuing to be the case because it provides 
that if the Board has not ruled on the request for review, the election 
will proceed as scheduled, and the majority continues to provide for 
the filing of briefs in cases where it grants review, which inevitably 
means that the election will occur before the Board has ruled on the 
request for review of the regional director's pre-election decision. Of 
course, even if the Board were somehow magically able to decide the 
underlying merits of every request for review within 20 business days, 
the waiting period would still not justify delaying all elections 
because the Board only rarely reverses the regional director's pre-
election decisions.\256\
---------------------------------------------------------------------------

    \253\ Considering data from the same two full fiscal year 
periods both before and after the 2014 rule's implementation shows a 
steady increase (from approximately 52% to 62%) of directed election 
cases in which no request for review is filed. In other words, in FY 
2013, only 47.4% of all RC, RD and RM directed elections (66 out of 
139) involved such requests for review, and that percentage fell in 
each subsequent fiscal year. (FY 2014--44.3% (63 out of 142 pre-rule 
cases); FY 2016--42.4% (56 out of 132 largely post-rule cases); FY 
2017--37.9% (49 out of 129 largely post-rule cases). See Office of 
Executive Secretary's Chart; https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/percentage-elections-conducted-pursuant-election (past versions of this chart reported directed 
election percentages for past fiscal years as follows: FY 2017--
8.3%; FY 2016--8.3%; FY 2014--8.9%; and FY 2013--8.9%).
    \254\ As noted, the 2014 rule eliminated the requirement that 
parties file their requests for review of decisions and directions 
of elections before the elections, and granted parties the freedom 
to request review either before or after elections. The Office of 
Executive Secretary's Chart shows that only 39% (38 out of 99) of 
the requests for review concerning decisions and directions of 
election that were processed under the 2014 rule in FYs 2016-2017 
were filed before the election, which constituted only 1.2% of all 
RC, RD and RM elections held (38 out of 3,154) during those fiscal 
years.
    \255\ For example, the underlying NxGen case files concerning 
the 16 cases in which the Board granted review in FYs 2013-2014, 
shows that only once did the Board issue an order disposing of the 
merits before the election was held. See Armstrong County Memorial 
Hospital d/b/a ACMH Hospital, 06-RC-112648 (Dec. 9, 2013) (ordering 
that the intervenor union's name should be corrected on the ballots 
of the election scheduled for Dec. 12, 2013); see also Office of 
Executive Secretary's Chart.
    \256\ See supra fn.231 (Showing in FYs 2016-2017 only 3 
reversals of regional director decisions based on applications of 
then-current law (and 4 regional director decisions that were either 
dismissed, remanded or reversed based on application of new legal 
standards issued after the regional directors' decisions). These 
numbers are consistent with pre-rule statistics relied upon by the 
2014 Board showing that from FYs 2010-2013 there were only 14 cases 
in which regional director decisions were reversed. See 79 FR 74408 
fn.454.).
---------------------------------------------------------------------------

    The majority's argument--that the Board should definitively resolve 
individual eligibility or inclusion issues before any ballots are 
counted (even if the Board cannot definitively resolve the issues 
before the election) because it enables the Board to summarily resolve 
challenges after the election--serves only to confirm that despite 
imposing a month-long waiting period, the Board will still not be able 
to definitely resolve these issues before the election (because if the 
Board had resolved the issues prior to the election, those individuals 
would not have cast challenged ballots). And it makes little sense to 
expend the resources necessary for the Board to regularly decide those 
matters before the ballots are counted, because, as shown, the election 
results could moot the need to do so, and in any event, the Board is 
unlikely to reverse the regional director. The majority's claim--that 
its waiting period and ballot impoundment procedure promote ``orderly 
litigation''--is stranger still. Those provisions are in aid of the 
pre-election request for review procedure that amounts to an 
interlocutory appeal, and interlocutory appeals have long been 
generally disfavored as wasteful, piecemeal litigation. See 79 FR 74407 
and authority cited therein.
    Although the majority offers a few additional arguments 
specifically in support of its automatic impound procedure, they suffer 
from similar shortcomings. For example, the majority offers the 
specious argument that all the ballots should be impounded pending the 
Board's rulings on requests for review because employees or parties may 
be confused if the Board nullifies the results of the election. Again, 
reversals are possible in any legal regime which permits appeals, and 
the possibility of reversal will continue to exist under the majority's 
rule. The majority fails to cite a single case demonstrating such 
employee confusion, much less one where employees were so confused by a 
Board reversal of a regional director decision that they were unable to 
cast an informed vote in a subsequent election.
    Although the majority claims that its impoundment procedure serves 
a variety of other interests, that procedure cannot possibly serve any 
interest in most directed election cases. As the majority concedes, its 
ballot impoundment procedure applies only if a request for review is 
filed before the election and within 10 business days of the decision 
and direction of election. But again, only a minority of regional 
director decisions and direction of election are appealed at all. And 
in the minority of instances when those decisions have been appealed 
since the 2014 rule's implementation, an even smaller minority have 
been filed before the election. Even when ballot impoundment is 
triggered, it will not serve the claimed interests in a significant 
number of cases because, as previously discussed, the Board so rarely 
reverses the regional director. The majority's response to that bottom 
line--``We also place little weight on th[at] fact''--is no response at 
all.
    The majority ignores how its amendments will work in practice in 
claiming that impoundment promotes uniformity (and voter secrecy) by 
ensuring that, ``for the most part'' all ballots are counted at the 
same time in directed elections. To repeat, most decisions and 
directions of election are never the subject of a request for review, 
and the automatic impoundment procedure is triggered under the 
majority's rule only if a request for review is filed prior to the 
election and within 10 business days of the decision and direction of 
election. This makes it quite likely that in the vast majority of 
directed election cases in which people vote subject to challenge, it 
will be only their ballots that are impounded, while all other ballots 
are opened and counted immediately at the close of the election. Thus, 
as shown, the majority's rule permits the parties to ``agree [at the 
pre-election hearing] to permit disputed employees to vote subject to 
challenge,'' (see amended Sec.  102.64(a)), in which event only the 
ballots cast by those particular individuals will be impounded (in 
addition to any election day surprise challenges), while the remaining 
ballots are opened and counted immediately at the close of the 
election. As also shown, regional directors can direct individuals to 
vote subject to challenge even if their eligibility or inclusion was 
litigated at the hearing, in which event, only the ballots cast by 
those individuals will be impounded while the remaining ballots are 
opened and counted immediately at the close of the election. And just 
as was the case prior to the 2014 rule, in

[[Page 69585]]

response to a request for review, the Board is free to direct that only 
particular individuals vote subject to challenge, in which event only 
their ballots are impounded while the remaining ballots are opened and 
counted. The majority's willingness to sanction these practices belies 
its claims of uniformity and undermines its claim that failure to 
definitively resolve individual eligibility or inclusion issues before 
the election impairs voter secrecy.
6. The Majority's Amendments to Sec.  102.69 Also Create Unnecessary 
Delay Between the Election and the Certification of Election Results
a. The Majority Upsets the Pre-2014 Rule Status Quo by Amending Sec.  
102.69(c)(1)(iii) To Entitle Parties To File Briefs With the Hearing 
Officer Following the Close of the Post-Election Hearing
    By definition, certification of the results of a Board conducted 
election or a certification of representative following an election 
cannot issue until determinative challenges or election objections are 
resolved. Determinative challenges and election objections are 
sometimes set for a hearing before a hearing officer, who then is 
charged with issuing a decision addressing those matters and making 
recommendations regarding proper disposition of them to the regional 
director. Prior to the 2014 rule, parties had no right to file briefs 
with the hearing officer following the close of the post-election 
hearing.\257\ The 2014 rule made no change in that regard. Thus, both 
before and after the 2014 rule, hearing officers had discretion to deny 
party requests to file post hearing briefs when he or she determined 
that briefing was unnecessary.
---------------------------------------------------------------------------

    \257\ See 79 FR 74402 (quoting the 2003 Hearing Officer's Guide: 
``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.'').
---------------------------------------------------------------------------

    Today, however, the majority entitles parties to file post-hearing 
briefs with the hearing officer following the post-election hearing in 
all cases, no matter how simple. The majority's amendment can obviously 
delay final resolution of the question of representation because the 
hearing officer will not be able to issue a decision until briefs are 
filed or the time for filing briefs has expired. It also raises the 
cost of litigation by encouraging parties to file their own briefs on 
the assumption their counterparts will do so and by requiring the 
hearing officer to spend time and resources digesting the briefs. The 
majority offers the same reasons for entitling parties to file briefs 
to hearing officers following the close of the post-election hearing 
that it offers in support of its amendment entitling parties to file 
briefs to the regional director following the close of the pre-election 
hearing, and its arguments fail for the same reasons. Moreover, the 
majority glosses over the fact that under the 2014 rule, parties had a 
right to file briefs with the regional director when they filed 
exceptions to the hearing officer's recommended disposition of post-
election objections and determinative challenges.\258\ And, of course, 
under the 2014 rule, parties also had a right to file written briefs 
with the Board in support of any request for review of the regional 
director decision on objections and determinative challenges. 29 CFR 
102.67(e), 102.69(c)(2) (2015). The majority offers no good reason for 
granting parties three opportunities to file briefs. And the majority 
makes matters even worse by making it substantially easier for parties 
to obtain extensions. Thus, the majority provides that extensions 
should be granted merely for good cause, whereas before today, the 
casehandling manual provided that extensions should not be granted 
``except under the most unusual circumstances.'' See Casehandling 
Manual Section 11430 (January 2017).
---------------------------------------------------------------------------

    \258\ See 29 CFR 102.69(c)(1)(iii) (2015) (``Any party may, 
within 14 days from the date of issuance of [the hearing officer's] 
report, file with the regional director . . . exceptions to such 
report, with a supporting brief if desired. * * * [A] party opposing 
the exceptions may file an answering brief with the regional 
director.'').
---------------------------------------------------------------------------

b. The majority's Amendments to Sec.  102.69(b), (c)(1) and (2) Further 
Delay Resolution of Questions of Representation by Stripping Regional 
Directors of the Power to Timely Certify Unions
    The majority today makes an additional change which will further 
delay resolution of questions of representation by stripping regional 
directors of the power to certify victorious unions as collective 
bargaining representatives. In section 3(b) of the Act, Congress 
authorized the Board to delegate the power to certify election results 
to regional directors subject to discretionary Board review.\259\
---------------------------------------------------------------------------

    \259\ Section 3(b) provides in relevant part: The Board is also 
authorized to delegate to its regional directors its powers . . . to 
direct an election . . . and certify the results thereof, except 
that upon the filing of a request therefor with the Board . . . 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.
---------------------------------------------------------------------------

    Consistent with the express language of the statute, the 2014 rule 
empowered regional directors to resolve all post-election matters and 
to issue certifications of results and representatives, subject to 
discretionary Board review. 29 CFR 102.69(b), (c); 79 FR 74310, 74331-
74335, 74412-74414.\260\ The 2014 Board reasoned that the amendment 
would make the process of obtaining Board review of regional directors' 
dispositions of post-election disputes parallel to that for obtaining 
Board review of regional directors' dispositions of pre-election 
disputes and concluded that the amendment would enable it to more 
expeditiously resolve questions of representation. Id. at 74331-74332, 
74412. The Board explained that it perceived no reason why pre- and 
post-election dispositions should be treated differently in this 
regard. Id. at 74332. The Board noted that just as regional directors 
have expertise regarding determining the appropriate unit in which to 
conduct elections, so too do regional directors have expertise 
regarding post-election matters. For example, the Board observed that 
regional directors make decisions concerning whether to prosecute 
charges of unfair labor practices under the Act; those prosecutorial 
decisions often involve supervisory status questions and determinations 
whether certain conduct is unlawful, both of which often parallel 
questions that arise in post-election representation proceedings; and 
the courts have recognized that regional directors have expertise in 
determining what constitutes objectionable conduct.\261\ The Board 
further observed that it affirms the vast majority of post-election 
decisions made at the regional level, and that many present no issue 
meriting full consideration by the Board. Id. The Board noted that in 
FY 2013, for example, 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. Id. at fn.106. The Board

[[Page 69586]]

also found support for the amendment in the Supreme Court's opinion in 
Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971). In that case, 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 2014 rule amendment 
authorizing the Board to delegate to regional directors the power to 
resolve post-election matters, 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.'' 79 FR 74333.
---------------------------------------------------------------------------

    \260\ Even prior to the 2014 rule, regional directors could 
issue certifications in certain cases, notwithstanding the 
possibility of Board Review. This included cases where objections 
were resolved by a hearing officer and appealed to a regional 
director, as opposed to the Board. In these cases, the casehandling 
manual has long specifically instructed that the certification 
``should not be delayed until after the expiration of the time for 
filing a request for review.'' See, e.g., Casehandling Manual 
Section 11472.3(b)(1) (August 2007).
    \261\ See 79 FR 74332, 74334 & fn.125 (citing NLRB v. Chicago 
Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991), cert. denied, 504 
U.S. 955 (1992)).
---------------------------------------------------------------------------

    Today, however, the majority stands section 3(b) on its head and 
deprives regional directors of the power to issue certifications until 
the time for filing requests for review of both the regional director's 
pre-election decision and direction of election and the regional 
director's post-election decision disposing of election objections and/
or determinative challenges has come and gone, or the Board has ruled 
on any requests for review that have been filed. This will plainly 
delay certifications of election results and certifications of 
representatives, even where no requests for review are ultimately 
filed, while regional directors wait for the time for filing to run. 
Such uniform and unnecessary delay is especially egregious given that 
requests for review of regional director determinations are so rarely 
filed and so rarely result in a reversal of the regional director.\262\ 
The majority offers no reasoned explanation for doing so--no statutory 
or constitutional prohibition against regional directors issuing 
certifications which are subject to requests for review, no judicial 
invalidation of the 2014 rule amendment, and no empirical evidence that 
the amendment caused the parade of horribles predicted by the critics, 
such as reducing the rate of stipulated election agreements and 
increasing the number of technical 8(a)(5) proceedings and court 
reversals of certification decisions.
---------------------------------------------------------------------------

    \262\ See supra fns.252 and 231 (together showing that both 
before and after implementation of the 2014 rule, requests for 
review of regional directors' pre-election decisions were filed in 
less than 5% of elections conducted each fiscal year, they were 
granted in less than 1% of elections conducted each fiscal year, and 
regional directors' pre-election decisions have been reversed, on 
average, in fewer than 4 cases per fiscal year).
     Agency data shows that appeals and reversals of regional 
director post-election decisions are just as rare. Thus, during FYs 
2016-2017, only 2.2% of elections involved requests for review to 
the Board concerning regional directors' post-election decisions (69 
cases as compared to 3,154 RC, RD and RM elections), and the Board 
only granted review in 8 cases to reverse any part of those 
decisions. (Data produced from searches in the Board's NxGen case 
processing software concerning regional director post-election 
decisions and from the Board's Office of the Executive Secretary 
concerning post-election requests for review).
---------------------------------------------------------------------------

    The majority argues that whatever interests are served by 
permitting regional directors to issue certifications prior to the 
Board's rulings on requests for review of regional director decisions, 
they are substantially outweighed by the interests in transparency, 
finality, efficiency and uniformity. But the majority merely states 
that this is so without any empirical support.\263\
---------------------------------------------------------------------------

    \263\ For example, the majority here repeats its curious 
argument that employees or parties may be confused if the Board 
reverses a regional director's certification of results or 
representative. But the possibility of such reversals exists in any 
legal regime that provides for an appeal process, and the majority 
cites no evidence of any confusion that lingers.
---------------------------------------------------------------------------

    At bottom, the majority argues that it does not make sense to 
subject employers to liability for refusing to bargain with a union 
when it is possible that the Board might reverse the regional 
director's certification decision. But the possibility of an erroneous 
certification decision cannot be completely eliminated given the 
statutory scheme and will continue under the amendments that the 
majority makes today. Thus, even under the majority's amendments, 
employers still face the possibility of erroneous bargaining 
obligations because a reviewing court can always reverse a 
certification decision made by the Board itself in a technical 8(a)(5) 
proceeding. See 79 FR 74414. And Congress has already determined that 
it does make sense to permit the regional directors to do so 
notwithstanding that the regional director's certification decisions 
will be subject to Board review, because it speeds certifications.\264\ 
And it clearly does speeds certifications by enabling the regional 
directors to, for example, issue a certification without having to wait 
to see whether a request for review will be filed.
---------------------------------------------------------------------------

    \264\ The majority is simply wrong in claiming that the 2014 
rule's amendment--authorizing regional directors to issue 
certifications that are subject to review--was controversial. Thus, 
neither the GC nor the regional directors have requested the change 
made by the majority today, nor did a single response to the Board's 
2017 RFI. Moreover, the majority concedes that that the 2014 
amendment is permissible. See also Chamber v. NLRB, 118 F.Supp.3d at 
216 (rejecting challenges to 2014 rule amendments requiring regional 
directors to issue certifications subject to discretionary Board 
review).
---------------------------------------------------------------------------

    The evidence before the agency confirms the soundness of the 
congressional judgment. Thus, the Agency's experience is that parties 
rarely request review of regional director post-election 
determinations, and that even when parties do request review of 
regional director post-election determinations, the Board only rarely 
reverses the regional director's post-election determinations. Thus, in 
the two fiscal years following the 2014 rule's implementation, parties 
requested review of regional director post-election determinations in 
only 2.2 percent of RC, RD and RM elections (69 requests for review as 
compared to 3,154 elections), and the Board reversed the regional 
director in only 8 cases.\265\ And, as noted previously, most pre-
election decisions are not the subject of requests for review either, 
and the Board rarely reverse regional directors' pre-election decisions 
even when they are the subject of requests for review.
---------------------------------------------------------------------------

    \265\ See supra fn.262.
---------------------------------------------------------------------------

    The 2014 rule amendment clearly promotes the practice and procedure 
of collective bargaining. While an employer acts at its peril in making 
unilateral changes between the time of the election and the issuance of 
a certification,\266\ the Board has long been of the view that an 
employer is under no obligation to bargain with a union that has won an 
initial certification election over the terms of a first contract

[[Page 69587]]

until that union has been certified.\267\ Accordingly, under the 
majority's rule, an employer's refusal to commence negotiations for an 
initial contract with a victorious (but yet to be certified) union will 
not be unlawful where, for example, the employer has filed election 
objections, even if the employer has no plans to challenge the regional 
director's decision overruling those objections. Delaying certification 
thus delays the commencement of negotiations over the employees' terms 
and conditions of employment, and deprives employees of the benefits of 
that bargaining. Given that employers are presently under no obligation 
to bargain prior to the union being certified, given that most 
employers never appeal regional director determinations to the Board, 
and given that most employers agree to commence bargaining once 
certifications issue (as evidenced by the small number of technical 
refusal to bargain cases), it is clear that enabling regional directors 
to issue certifications of representatives (when, for example, they 
overrule election objections) is likely to result in most employers 
agreeing to bargain sooner than if certifications are withheld until 
the time for filing requests for review have come and gone.
---------------------------------------------------------------------------

    \266\ See Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974).
    \267\ See G.H. Bass Caribbean, Inc., 306 NLRB 823, 825 (1992) 
(```an ostensible union victory in an initial certification election 
does not activate an employer's duty to bargain with a union. An 
8(a)(5) violation resulting from an employer's postelection 
unilateral changes, once the union is certified, is actually an 
exception to the rule that election results are final on 
certification, an exception used solely to safeguard a union's 
future bargaining position.''') (citation omitted).
---------------------------------------------------------------------------

    I also note that Chairman Ring has expressed reservations about 
Mike O'Connor Chevrolet and signaled that the Board should considering 
overruling that case.\268\ In the event of such a legal change, 
employers would be free to make unilateral changes between the date the 
union wins the election and the date the certification issues, which 
would have the effect of bypassing, undercutting, and undermining the 
union's status as the statutory representative of the employees in the 
event a certification is issued.\269\ The Chairman's signal--that the 
Board may add Mike O'Connor Chevrolet to the long list of established 
precedent that the current majority has overruled--provides yet another 
reason to maintain the 2014 amendment that speeds certifications by 
enabling regional directors to issue certifications, (notwithstanding 
that they are subject to Board review as provided by the Act).\270\
---------------------------------------------------------------------------

    \268\ See Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip 
op 16 fn.1 (2018).
    \269\ See Mike O'Connor Chevrolet, 209 NLRB at 703 (``To hold 
otherwise would allow an employer to box the union in on future 
bargaining positions by implementing changes of policy and practice 
during the period when objections or determinative challenges to the 
election are pending'').
    \270\ The majority complains that there has been a steady stream 
of requests to stay regional director certifications under the 2014 
rule, and that stripping regional directors of the power to timely 
certify unions will eliminate any basis to request stays of 
certifications, which will avoid needless litigation. That will 
certainly come as news to the attorneys who litigate on behalf of 
the Board in technical 8(a)(5) proceedings before the courts of 
appeals. Thus, employers sometimes file requests to stay 
certifications even after a court of appeals has agreed with the 
Board's underlying certification decision (pending their appeals to 
the Supreme Court).
---------------------------------------------------------------------------

7. The Majority's Election Observer Amendment to Sec.  102.69(a)(5) Is 
Also Poorly Justified
    I also cannot agree to the majority's change to the Board's 
treatment of election observers. The 2014 rule did not make any changes 
regarding who a party could select as its election observers. Yet 
today, without engaging in notice and comment and outside the 
adjudicatory process and without any briefing, the majority admittedly 
overrules precedent and codifies language that changes the status quo 
ante by providing that observers should be current unit employees, and 
that when current unit employees are unavailable, observers should be 
current nonsupervisory employees of the employer of the unit employees 
at issue.
    Although the majority contends that its language is to some extent 
consistent with prior casehandling manuals, those manuals, of course, 
were not binding on the Board, and prior Boards had explicitly declined 
to interpret them in the manor favored by the majority today, at least 
partly on policy grounds. Thus, before today, unions were permitted to 
select potential discriminatees as their observers and it was not per 
se objectionable for parties to select as observers individuals who 
were not employees of the employer.\271\
---------------------------------------------------------------------------

    \271\ See, e.g., Kellwood Company, 299 NLRB 1026, 1029 (1990) 
(alleged discriminatees are entitled to serve as election observers) 
enfd. 948 F.2d 1297 (11th Cir. 1991); NLRB v. Black Bull Carting 
Inc., 29 F.3d 44, 45-46 (2d Cir. 1994) (upholding Board's decision 
that union did not engage in objectionable conduct by using as its 
election observer a union official who was not employed by the 
employer of the unit employees at issue, because there was no 
showing that the union official engaged in improper conduct while 
acting in that capacity); Embassy Suites Hotel, Inc., 313 NLRB 302, 
302 (1993) (Board ``will not find the use of a nonemployee as an 
observer to be objectionable, absent evidence of misconduct by that 
observer or of prejudice to another party by the choice of that 
observer.'').
---------------------------------------------------------------------------

    By narrowing the pool of observers, the majority threatens a 
union's ability to obtain observers, which threatens both the objective 
integrity and the perceived legitimacy of Board conducted 
elections.\272\ Moreover, by narrowing the pool of potential observers, 
the majority increases the chances that the parties will have an 
unequal number of observers, which creates the impression among 
employees that the Board favors the party with the greater number of 
observers, which reasonably tends to interfere with the fairness and 
validity of the election.\273\ It is certainly possible that a union 
would be unable to obtain an observer from the unit for reasons other 
than those suggested by the majority today. At a minimum, the majority 
has not persuaded me that the Board's current case-by-case approach is 
so patently unreasonable that we should rush to codify a different 
approach without first hearing from interested parties. The majority's 
claim--that the current state of Board law is ``riddled with 
inconsistencies''--certainly counsels in favor of a more deliberative 
approach.\274\
---------------------------------------------------------------------------

    \272\ See Longwood Security Services, Inc., 364 NLRB No. 50, 
slip op. at 4 (2016) (`` `By their presence, observers help to 
assure the parties and the employees that the election is being 
conducted fairly.' '') (citation omitted); Newport News Shipbuilding 
& Dry Dock Co., 239 NLRB 82, 85-86 (1978) (election misconduct and 
errors in checking off and/or challenging voters that may not be 
noticed by the Board agent are often brought to his or her attention 
by an alert observer) remanded on other grounds 594 F.2d 218 (4th 
Cir. 1979).
    \273\ Longwood Security Services, Inc., 364 NLRB No. 50, slip 
op. at 4; Browning-Ferris Industries of California, Inc., 327 NLRB 
704, 704 (1999).
    \274\ However, I note that at least some of the alleged 
inconsistencies appear to stem from the majority's mistaken view 
that the use of union officials as observers has the same potential 
to interfere with employee free choice as does the employer's use of 
its supervisors (or other individuals closely identified with 
management) as observers. See, e.g., Longwood Security Services, 
Inc., 364 NLRB No. 50, slip op at 2-4.
---------------------------------------------------------------------------

VII. Other Statutory Requirements

Paperwork Reduction Act

    The amended regulations are exempt from the Paperwork Reduction Act 
of 1995 (PRA), 44 U.S.C. 3501, et seq. See 44 U.S.C. 3518(c); 79 FR 
74468-74469. Accordingly, the final rule does not contain information 
collection requirements necessitating the approval of the Office of 
Management and Budget under the PRA.

Final Rule

    This rule is published as a final rule. As discussed in the 
preamble, the National Labor Relations Board considers this rule to be 
a procedural rule which is exempt from notice and public comment, 
pursuant to 5 U.S.C. 553(b)(3)(A), as a rule of ``agency organization, 
procedure, or practice.''

[[Page 69588]]

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    For the reasons stated in the preamble, the National Labor 
Relations Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

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

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

Subpart A--Definitions

0
2. In Sec.  102.1, add paragraph (i) to read as follows:


Sec.  102.1  Terms defined in Section 2 of the Act.

* * * * *
    (i) Business day. The term business day means days that Agency 
offices are open normal business operating hours, which is Monday 
through Friday, excluding Federal holidays. A list of Federal holidays 
can be found at www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/.

Subpart B--Service and Filings

0
3. In Sec.  102.2, revise paragraph (a) to read as follows:


Sec.  102.2  Time requirements for filings with the Agency.

    (a) Time computation. In computing any period of time prescribed or 
allowed by these Rules, the day of the act, event, or default after 
which the designated period of time begins to run is not to be 
included. The last day of the period so computed is to be included, 
unless it does not fall on a business day, in which event the period 
runs until the next Agency business day. When the period of time 
prescribed or allowed is less than 7 days, only business days are 
included in the computation. Except as otherwise provided, in computing 
the period of time for filing a responsive document, the designated 
period begins to run on the date the preceding document was required to 
be received by the Agency, even if the preceding document was filed 
prior to that date.
* * * * *

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

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


Sec.  102.60  Petitions.

    (a) Petition for certification or decertification. A petition for 
investigation of a question concerning representation of employees 
under paragraphs (1)(A)(i) and (1)(B) of Section 9(c) of the Act 
(hereinafter called a petition for certification) may be filed by an 
employee or group of employees or any individual or labor organization 
acting in their behalf or by an employer. A petition under paragraph 
(1)(A)(ii) of Section 9(c) of the Act, alleging that the individual or 
labor organization which has been certified or is being currently 
recognized as the bargaining representative is no longer such 
representative (hereinafter called a petition for decertification), may 
be filed by any employee or group of employees or any individual or 
labor organization acting in their behalf. Petitions under this section 
shall be in writing and signed, and either shall be sworn to before a 
notary public, Board agent, or other person duly authorized by law to 
administer oaths and take acknowledgments or shall contain a 
declaration by the person signing it, under the penalty of perjury, 
that its contents are true and correct (see 28 U.S.C. 1746). One 
original of the petition shall be filed, and a copy served on all 
parties named in the petition. A person filing a petition by facsimile 
pursuant to Sec.  102.5(e) shall also file an original for the Agency's 
records, but failure to do so shall not affect the validity of the 
filing by facsimile, if otherwise proper. A person filing a petition 
electronically pursuant to Sec.  102.5(c) need not file an original. 
Except as provided in Sec.  102.72, such petitions shall be filed with 
the Regional Director for the Region wherein the bargaining unit 
exists, or, if the bargaining unit exists in two or more Regions, with 
the Regional Director for any of such Regions. A certificate of service 
on all parties named in the petition shall also be filed with the 
Regional Director when the petition is filed. Along with the petition, 
the petitioner shall serve the Agency's description of the procedures 
in representation cases and the Agency's Statement of Position form on 
all parties named in the petition. Prior to the transfer of the record 
to the Board, the petition may be withdrawn only with the consent of 
the Regional Director with whom such petition was filed. After the 
transfer of the record to the Board, the petition may be withdrawn only 
with the consent of the Board. Whenever the Regional Director or the 
Board, as the case may be, approves the withdrawal of any petition, the 
case shall be closed.
    (b) Petition for clarification of bargaining unit or petition for 
amendment of certification. A petition for clarification of an existing 
bargaining unit or a petition for amendment of certification, in the 
absence of a question of representation, may be filed by a labor 
organization or by an employer. Where applicable the same procedures 
set forth in paragraph (a) of this section shall be followed.

0
5. Revise Sec.  102.61 to read as follows:


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

    (a) RC petitions. A petition for certification, when filed by an 
employee or group of employees or an individual or labor organization 
acting in their behalf, shall contain the following:
    (1) The name of the employer.
    (2) The address of the establishments involved.
    (3) The general nature of the employer's business.
    (4) A description of the bargaining unit which the petitioner 
claims to be appropriate.
    (5) The names and addresses of any other persons or labor 
organizations who claim to represent any employees in the alleged 
appropriate unit, and brief descriptions of the contracts, if any, 
covering the employees in such unit.
    (6) The number of employees in the alleged appropriate unit.
    (7) A statement that a substantial number of employees in the 
described unit wish to be represented by the petitioner. Evidence 
supporting the statement shall be filed with the petition in accordance 
with paragraph (f) of this section, but shall not be served on any 
party.
    (8) A statement that the employer declines to recognize the 
petitioner as the representative within the meaning of Section 9(a) of 
the Act or that the labor organization is currently recognized but 
desires certification under the Act.
    (9) The name, affiliation, if any, and address of the petitioner, 
and the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as the representative of 
the petitioner and

[[Page 69589]]

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

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


Sec.  102.62  Election agreements; voter list; Notice of Election.

    (a) Consent-election agreements with final Regional Director 
determinations

[[Page 69590]]

of post-election disputes. Where a petition has been duly filed, the 
employer and any individual or labor organizations representing a 
substantial number of employees involved may, with the approval of the 
Regional Director, enter into an agreement providing for the waiver of 
a hearing and for an election and further providing that post-election 
disputes will be resolved by the Regional Director. Such agreement, 
referred to as a consent election agreement, shall include a 
description of the appropriate unit, the time and place of holding the 
election, and the payroll period to be used in determining what 
employees within the appropriate unit shall be eligible to vote. Such 
election shall be conducted under the direction and supervision of the 
Regional Director. The method of conducting such election shall be 
consistent with the method followed by the Regional Director in 
conducting elections pursuant to Sec. Sec.  102.69 and 102.70 except 
that the rulings and determinations by the Regional Director of the 
results thereof shall be final, and the Regional Director shall issue 
to the parties a certification of the results of the election, 
including certifications of representative where appropriate, with the 
same force and effect, in that case, as if issued by the Board, and 
except that rulings or determinations by the Regional Director in 
respect to any amendment of such certification shall also be final.
    (b) Stipulated election agreements with discretionary Board review. 
Where a petition has been duly filed, the employer and any individuals 
or labor organizations representing a substantial number of the 
employees involved may, with the approval of the Regional Director, 
enter into an agreement providing for the waiver of a hearing and for 
an election as described in paragraph (a) of this section and further 
providing that the parties may request Board review of the Regional 
Director's resolution of post-election disputes. Such agreement, 
referred to as a stipulated election agreement, shall also include a 
description of the appropriate bargaining unit, the time and place of 
holding the election, and the payroll period to be used in determining 
which employees within the appropriate unit shall be eligible to vote. 
Such election shall be conducted under the direction and supervision of 
the Regional Director. The method of conducting such election and the 
post-election procedure shall be consistent with that followed by the 
Regional Director in conducting elections pursuant to Sec. Sec.  102.69 
and 102.70.
    (c) Full consent election agreements with final Regional Director 
determinations of pre- and post-election disputes. Where a petition has 
been duly filed, the employer and any individual or labor organizations 
representing a substantial number of the employees involved may, with 
the approval of the Regional Director, enter into an agreement, 
referred to as a full consent election agreement, providing that pre- 
and post-election disputes will be resolved by the Regional Director. 
Such agreement provides for a hearing pursuant to Sec. Sec.  102.63, 
102.64, 102.65, 102.66, and 102.67 to determine if a question of 
representation exists. Upon the conclusion of such a hearing, the 
Regional Director shall issue a decision. The rulings and 
determinations by the Regional Director thereunder shall be final, with 
the same force and effect, in that case, as if issued by the Board. Any 
election ordered by the Regional Director shall be conducted under the 
direction and supervision of the Regional Director. The method of 
conducting such election shall be consistent with the method followed 
by the Regional Director in conducting elections pursuant to Sec. Sec.  
102.69 and 102.70, except that the rulings and determinations by the 
Regional Director of the results thereof shall be final, and the 
Regional Director shall issue to the parties a certification of the 
results of the election, including certifications of representative 
where appropriate, with the same force and effect, in that case, as if 
issued by the Board, and except that rulings or determinations by the 
Regional Director in respect to any amendment of such certification 
shall also be final.
    (d) Voter list. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction of election, within 5 business days after 
the approval of an election agreement pursuant to paragraph (a) or (b) 
of this section, or issuance of a direction of election pursuant to 
paragraph (c) of this section, the employer shall provide to the 
Regional Director and the parties named in the agreement or direction a 
list of the full names, work locations, shifts, job classifications, 
and contact information (including home addresses, available personal 
email addresses, and available home and personal cellular ``cell'' 
telephone numbers) of all eligible voters. The employer shall also 
include in separate sections of that list the same information for 
those individuals who will be permitted to vote subject to challenge. 
In order to be timely filed and served, the list must be received by 
the Regional Director and the parties named in the agreement or 
direction respectively within 5 business days after the approval of the 
agreement or issuance of the direction unless a longer time is 
specified in the agreement or direction. The list of names shall be 
alphabetized (overall or by department) and be in an electronic format 
approved by the General Counsel unless the employer certifies that it 
does not possess the capacity to produce the list in the required form. 
When feasible, the list shall be filed electronically with the Regional 
Director and served electronically on the other parties named in the 
agreement or direction. A certificate of service on all parties shall 
be filed with the Regional Director when the voter list is filed. The 
employer's failure to file or serve the list within the specified time 
or in proper format shall be grounds for setting aside the election 
whenever proper and timely objections are filed under the provisions of 
Sec.  102.69(a)(8). The employer shall be estopped from objecting to 
the failure to file or serve the list within the specified time or in 
the proper format if it is responsible for the failure. The parties 
shall not use the list for purposes other than the representation 
proceeding, Board proceedings arising from it, and related matters.
    (e) Notice of Election. Upon approval of the election agreement 
pursuant to paragraph (a) or (b) of this section or with the direction 
of election pursuant to paragraph (c) of this section, the Regional 
Director shall promptly transmit the Board's Notice of Election to the 
parties and their designated representatives by email, facsimile, or by 
overnight mail (if neither an email address nor facsimile number was 
provided). The employer shall post and distribute the Notice of 
Election in accordance with Sec.  102.67(k). The employer's failure 
properly to post or distribute the election notices as required herein 
shall be grounds for setting aside the election whenever proper and 
timely objections are filed under the provisions of Sec.  102.69(a)(8). 
A party shall be estopped from objecting to the nonposting of notices 
if it is responsible for the nonposting, and likewise shall be estopped 
from objecting to the nondistribution of notices if it is responsible 
for the nondistribution.

0
7. Revise Sec.  102.63 to read as follows:

[[Page 69591]]

Sec.  102.63  Investigation of petition by Regional Director; Notice of 
Hearing; service of notice; Notice of Petition for Election; Statement 
of Position; withdrawal of Notice of Hearing.

    (a) Investigation; Notice of Hearing; notice of petition for 
election. (1) After a petition has been filed under Sec.  102.61(a), 
(b), or (c), if no agreement such as that provided in Sec.  102.62 is 
entered into and if it appears to the Regional Director that there is 
reasonable cause to believe that a question of representation affecting 
commerce exists, that the policies of the Act will be effectuated, and 
that an election will reflect the free choice of employees in an 
appropriate unit, the Regional Director shall prepare and cause to be 
served upon the parties and upon any known individuals or labor 
organizations purporting to act as representatives of any employees 
directly affected by such investigation, a Notice of Hearing before a 
Hearing Officer at a time and place fixed therein. Except in cases 
presenting unusually complex issues, the Regional Director shall set 
the hearing for a date 14 business days from the date of service of the 
notice. The Regional Director may postpone the hearing upon request of 
a party showing good cause. A copy of the petition, a description of 
procedures in representation cases, a ``Notice of Petition for 
Election,'' and a Statement of Position form as described in paragraphs 
(b)(1) through (3) of this section, shall be served with such Notice of 
Hearing. Any such Notice of Hearing may be amended or withdrawn before 
the close of the hearing by the Regional Director on the director's own 
motion.
    (2) Within 5 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 to 
employees in the petitioned-for unit if the employer customarily 
communicates with its employees electronically. The Notice of Petition 
for Election shall indicate that no final decisions have been made yet 
regarding the appropriateness of the petitioned-for bargaining unit and 
whether an election shall be conducted. The employer shall maintain the 
posting until the petition is dismissed or withdrawn or the Notice of 
Petition for Election is replaced by the Notice of Election. The 
employer's failure properly to post or distribute the Notice of 
Petition for Election may be grounds for setting aside the election 
whenever proper and timely objections are filed under the provisions of 
Sec.  102.69(a)(8). A party shall be estopped from objecting to the 
nonposting of notices if it is responsible for the nonposting, and 
likewise shall be estopped from objecting to the nondistribution of 
notices if it is responsible for the nondistribution.
    (b) Statements of Position--(1) Statement of Position in RC cases. 
If a petition has been filed under Sec.  102.61(a) and the Regional 
Director has issued a Notice of Hearing, the employer shall file with 
the Regional Director and serve on the parties named in the petition 
its Statement of Position such that it is received by the Regional 
Director and the parties named in the petition by the date and time 
specified in the Notice of Hearing, which shall be at noon 8 business 
days following the issuance and service of the Notice of Hearing. The 
Regional Director may postpone the time for filing and serving the 
Statement of Position upon request of a party showing good cause. The 
Regional Director may permit the employer to amend its Statement of 
Position in a timely manner for good cause.
    (i) Employer's Statement of Position. (A) The employer's Statement 
of Position shall state whether the employer agrees that the Board has 
jurisdiction over it and provide the requested information concerning 
the employer's relation to interstate commerce; state whether the 
employer agrees that the proposed unit is appropriate, and, if the 
employer does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or 
excluded from the proposed unit to make it an appropriate unit; 
identify any individuals whose eligibility to vote the employer intends 
to contest at the pre-election hearing and the basis of each such 
contention; raise any election bar; state the length of the payroll 
period for employees in the proposed unit and the most recent payroll 
period ending date; state the employer's position concerning the type, 
date(s), time(s), and location(s) of the election and the eligibility 
period; and describe all other issues the employer intends to raise at 
the hearing.
    (B) The Statement of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer and 
accept service of all papers for purposes of the representation 
proceeding and be signed by a representative of the employer.
    (C) The Statement of Position shall include a list of the full 
names, work locations, shifts, and job classifications of all 
individuals in the proposed unit as of the payroll period preceding the 
filing of the petition who remain employed at the time of filing, and 
if the employer contends that the proposed unit is inappropriate, the 
employer shall separately list the full names, work locations, shifts, 
and job classifications of all individuals that the employer contends 
must be added to the proposed unit to make it an appropriate unit. The 
employer shall also indicate those individuals, if any, whom it 
believes must be excluded from the proposed unit to make it an 
appropriate unit. The list(s) of names shall be alphabetized (overall 
or by department) and be in an electronic format approved by the 
General Counsel unless the employer certifies that it does not possess 
the capacity to produce the list in the required form.
    (ii) Petitioner's Statement of Position. Following timely filing 
and service of an employer's Statement of Position, the petitioner 
shall file with the Regional Director and serve on the parties named in 
the petition its Statement of Position responding to the issues raised 
in the employer's Statement of Position, such that it is received no 
later than noon 3 business days before the hearing. The Regional 
Director may permit the petitioner to amend its Statement of Position 
in a timely manner for good cause.
    (2) Statement of Position in RM cases. If a petition has been filed 
under Sec.  102.61(b) and the Regional Director has issued a Notice of 
Hearing, each individual or labor organization named in the petition 
shall file with the Regional Director and serve on the other parties 
named in the petition its Statement of Position such that it is 
received by the Regional Director and the parties named in the petition 
by the date and time specified in the Notice of Hearing, which shall be 
at noon 8 business days following the issuance and service of the 
Notice of Hearing. The Regional Director may postpone the time for 
filing and serving the Statement of Position upon request of a party 
showing good cause. The Regional Director may permit each individual or 
labor organization named in the petition to amend its Statement of 
Position in a timely manner for good cause.
    (i) Individual or labor organization's Statement of Position. Each 
individual or labor organization's Statement of Position shall state 
whether it agrees that the Board has jurisdiction over the employer; 
state whether it agrees that the proposed unit is appropriate, and, if

[[Page 69592]]

it does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or 
excluded from the proposed unit to make it an appropriate unit; 
identify any individuals whose eligibility to vote the individual or 
labor organization intends to contest at the pre-election hearing and 
the basis of each such contention; raise any election bar; state its 
position concerning the type, date(s), time(s), and location(s) of the 
election and the eligibility period; and describe all other issues it 
intends to raise at the hearing.
    (ii) Identification of representative for service of papers. Each 
individual or labor organization's Statement of Position shall also 
state the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as its representative 
and accept service of all papers for purposes of the representation 
proceeding and be signed by the individual or a representative of the 
individual or labor organization.
    (iii) Employer's Statement of Position. The employer shall file 
with the Regional Director and serve on the parties named in the 
petition its Statement of Position such that it is received no later 
than noon 3 business days before the hearing. The Employer's Statement 
of Position shall include a list of the full names, work locations, 
shifts, and job classifications of all individuals in the proposed unit 
as of the payroll period preceding the filing of the petition who 
remain employed at the time of filing. The list(s) of names shall be 
alphabetized (overall or by department) and be in an electronic format 
approved by the General Counsel unless the employer certifies that it 
does not possess the capacity to produce the list in the required form. 
The employer's Statement of Position shall also state whether the 
employer agrees that the Board has jurisdiction over it and provide the 
requested information concerning the employer's relation to interstate 
commerce; identify any individuals whose eligibility to vote the 
employer intends to contest at the pre-election hearing and the basis 
of each such contention; state the length of the payroll period for 
employees in the proposed unit and the most recent payroll period 
ending date; and respond to the issues raised in any Statement of 
Position timely filed and served pursuant to paragraph (b)(2)(i) of 
this section. The Regional Director may permit the employer to amend 
its Statement of Position in a timely manner for good cause.
    (3) Statement of Position in RD cases--(i) Employer's and 
Representative's Statements of Position. (A) If a petition has been 
filed under Sec.  102.61(c) and the Regional Director has issued a 
Notice of Hearing, the employer and the certified or recognized 
representative of employees shall file with the Regional Director and 
serve on the parties named in the petition their respective Statements 
of Position such that they are received by the Regional Director and 
the parties named in the petition by the date and time specified in the 
Notice of Hearing, which shall be no later than noon 8 business days 
following the issuance and service of the Notice of Hearing. The 
Regional Director may postpone the time for filing and serving the 
Statement of Position upon request of a party showing good cause. The 
Regional Director may permit the employer and the certified or 
recognized representative of employees to amend their respective 
Statements of Position in a timely manner for good cause.
    (B) The Statements of Position of the employer and the certified or 
recognized representative shall state each party's position concerning 
the Board's jurisdiction over the employer; state whether each agrees 
that the proposed unit is appropriate, and, if not, state the basis for 
the contention that the proposed unit is inappropriate, and state the 
classifications, locations, or other employee groupings that must be 
added to or excluded from the proposed unit to make it an appropriate 
unit; identify any individuals whose eligibility to vote each party 
intends to contest at the pre-election hearing and the basis of each 
such contention; raise any election bar; and state each party's 
respective positions concerning the type, date(s), time(s), and 
location(s) of the election and the eligibility period; and describe 
all other issues each party intends to raise at the hearing.
    (C) The Statements of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer or the 
certified or recognized representative of the employees and accept 
service of all papers for purposes of the representation proceeding and 
be signed by a representative of the employer or the certified or 
recognized representative, respectively.
    (D) The employer's Statement of Position shall also include a list 
of the full names, work locations, shifts, and job classifications of 
all individuals in the proposed unit as of the payroll period preceding 
the filing of the petition who remain employed at the time of filing, 
and if the employer contends that the proposed unit is inappropriate, 
the employer shall separately list the full names, work locations, 
shifts, and job classifications of all individuals that the employer 
contends must be added to the proposed unit to make it an appropriate 
unit. The employer shall also indicate those individuals, if any, whom 
it believes must be excluded from the proposed unit to make it an 
appropriate unit. The list(s) of names shall be alphabetized (overall 
or by department) and be in an electronic format approved by the 
General Counsel unless the employer certifies that it does not possess 
the capacity to produce the list in the required form. The employer's 
Statement of Position shall also provide the requested information 
concerning the employer's relation to interstate commerce and state the 
length of the payroll period for employees in the proposed unit and the 
most recent payroll period ending date.
    (ii) Petitioner's Statement of Position. Following timely filing 
and service of any Statement(s) of Position filed pursuant to paragraph 
(b)(3)(i) of this section, the petitioner shall file with the Regional 
Director and serve on the parties named in the petition its Statement 
of Position responding to the issues raised in the other Statement(s) 
of Position, such that it is received no later than noon 3 business 
days before the hearing. The Regional Director may permit the 
petitioner to amend its Statement of Position in a timely manner for 
good cause.
    (c) UC or AC cases. After a petition has been filed under Sec.  
102.61(d) or (e), the Regional Director shall conduct an investigation 
and, as appropriate, may issue a decision without a hearing; or prepare 
and cause to be served upon the parties and upon any known individuals 
or labor organizations purporting to act as representatives of any 
employees directly affected by such investigation, a Notice of Hearing 
before a Hearing Officer at a time and place fixed therein; or take 
other appropriate action. If a Notice of Hearing is served, it shall be 
accompanied by a copy of the petition. Any such Notice of Hearing may 
be amended or withdrawn before the close of the hearing by the Regional 
Director on the director's own motion. All hearing and post-hearing 
procedure under this paragraph (c) shall be in conformance with 
Sec. Sec.  102.64 through 102.69 whenever applicable, except where the 
unit or certification involved arises out of an agreement as provided 
in Sec.  102.62(a), the Regional Director's action shall be final, and 
the provisions for review of Regional Director's

[[Page 69593]]

decisions by the Board shall not apply. Dismissals of petitions without 
a hearing shall not be governed by Sec.  102.71. The Regional 
Director's dismissal shall be by decision, and a request for review 
therefrom may be obtained under Sec.  102.67, except where an agreement 
under Sec.  102.62(a) is involved.

0
8. Revise Sec.  102.64 to read as follows:


Sec.  102.64  Conduct of hearing.

    (a) The primary purpose of a hearing conducted under Section 9(c) 
of the Act is to determine if a question of representation exists. A 
question of representation exists if a proper petition has been filed 
concerning a unit appropriate for the purpose of collective bargaining 
or concerning a unit in which an individual or labor organization has 
been certified or is being currently recognized by the employer as the 
bargaining representative. Disputes concerning unit scope, voter 
eligibility and supervisory status will normally be litigated and 
resolved by the Regional Director before an election is directed. 
However, the parties may agree to permit disputed employees to vote 
subject to challenge, thereby deferring litigation concerning such 
disputes until after the election. If, upon the record of the hearing, 
the Regional Director finds that a question of representation exists, 
the director shall direct an election to resolve the question.
    (b) Hearings shall be conducted by a Hearing Officer and shall be 
open to the public unless otherwise ordered by the Hearing Officer. At 
any time, a Hearing Officer may be substituted for the Hearing Officer 
previously presiding. Subject to the provisions of Sec.  102.66, it 
shall be the duty of the Hearing Officer to inquire fully into all 
matters and issues necessary to obtain a full and complete record upon 
which the Board or the Regional Director may discharge their duties 
under Section 9(c) of the Act.
    (c) The hearing shall continue from day to day until completed 
unless the Regional Director concludes that extraordinary circumstances 
warrant otherwise. The Regional Director may, in the director's 
discretion, adjourn the hearing to a different place by announcement 
thereof at the hearing or by other appropriate notice.

0
9. Revise Sec.  102.65 to read as follows:


Sec.  102.65  Motions; intervention; appeals of Hearing Officer's 
rulings.

    (a) All motions, including motions for intervention pursuant to 
paragraphs (b) and (e) of this section, shall be in writing or, if made 
at the hearing, may be stated orally on the record and shall briefly 
state the order or relief sought and the grounds for such motion. The 
Motion shall immediately be served on the other parties to the 
proceeding. Motions made prior to the transfer of the record to the 
Board shall be filed with the Regional Director, except that motions 
made during the hearing shall be filed with the Hearing Officer. After 
the transfer of the record to the Board, all motions shall be filed 
with the Board. Such motions shall be printed or otherwise legibly 
duplicated. Eight copies of such motions shall be filed with the Board. 
Extra copies of electronically-filed papers need not be filed. The 
Regional Director may rule upon all motions filed with him/her, causing 
a copy of the ruling to be served on the parties, or may refer the 
motion to the Hearing Officer, except that if the Regional Director 
prior to the close of the hearing grants a motion to dismiss the 
petition, the petitioner may obtain a review of such ruling in the 
manner prescribed in Sec.  102.71. The Hearing Officer shall rule, 
either orally on the record or in writing, upon all motions filed at 
the hearing or referred to the Hearing Officer as hereinabove provided, 
except that the Hearing Officer shall rule on motions to intervene and 
to amend the petition only as directed by the Regional Director, and 
except that all motions to dismiss petitions shall be referred for 
appropriate action at such time as the entire record is considered by 
the Regional Director or the Board, as the case may be. All motions, 
rulings, and orders shall become a part of the record, except that 
rulings on motions to revoke subpoenas shall become a part of the 
record only upon the request of the party aggrieved thereby as provided 
in Sec.  102.66(f).
    (b) Any person desiring to intervene in any proceeding shall make a 
motion for intervention, stating the grounds upon which such person 
claims to have an interest in the proceeding. The Regional Director, or 
the Hearing Officer, at the specific direction of the Regional 
Director, may by order permit intervention in person or by counsel or 
other representative to such extent and upon such terms as the Regional 
Director may deem proper, and such intervenor shall thereupon become a 
party to the proceeding.
    (c) Rulings by the Hearing Officer shall not be appealed directly 
to the Regional Director, except by special permission of the Regional 
Director, but shall be considered by the Regional Director when the 
director reviews the entire record. Requests to the Regional Director 
for special permission to appeal from a ruling of the Hearing Officer, 
together with the appeal from such ruling, shall be filed promptly, in 
writing, and shall briefly state the reasons special permission should 
be granted and the grounds relied on for the appeal. The moving party 
shall immediately serve a copy of the request for special permission 
and of the appeal on the other parties and on the Regional Director. 
Any statement in opposition or other response to the request and/or to 
the appeal shall be filed promptly, in writing, and shall be served 
immediately on the other parties and on the Regional Director. No party 
shall be precluded from raising an issue at a later time because it did 
not seek special permission to appeal. If the Regional Director grants 
the request for special permission to appeal, the Regional Director may 
proceed forthwith to rule on the appeal. Neither the filing nor the 
grant of such a request shall stay the proceedings unless otherwise 
ordered by the Regional Director. As stated in Sec.  102.67, the 
parties may request Board review of Regional Director actions.
    (d) The right to make motions or to make objections to rulings on 
motions shall not be deemed waived by participation in the proceeding.
    (e)(1) A party to a proceeding may, because of extraordinary 
circumstances, move after the close of the hearing for reopening of the 
record, or move after the decision or report for reconsideration, for 
rehearing, or to reopen the record, but no such motion shall stay the 
time for filing a request for review of a decision or exceptions to a 
report. No motion for reconsideration, for rehearing, or to reopen the 
record will be entertained by the Board or by any Regional Director or 
Hearing Officer with respect to any matter which could have been but 
was not raised pursuant to any other section of these Rules except that 
the Regional Director may treat a request for review of a decision or 
exceptions to a report as a motion for reconsideration. A motion for 
reconsideration shall state with particularity the material error 
claimed and with respect to any finding of material fact shall specify 
the page of the record relied on for the motion. A motion for rehearing 
or to reopen the record shall specify briefly the error alleged to 
require a rehearing or hearing de novo, the prejudice to the movant 
alleged to result from such error, the additional evidence sought to be 
adduced, why it was not presented previously, and what result it would 
require if adduced and credited. Only newly discovered evidence--
evidence which has become available only since the close of the 
hearing--or evidence

[[Page 69594]]

which the Regional Director or the Board believes should have been 
taken at the hearing will be taken at any further hearing.
    (2) Any motion for reconsideration or for rehearing pursuant to 
paragraph (e)(1) of this section shall be filed within 10 business 
days, or such further period as may be allowed, after the service of 
the decision or report. Any request for an extension of time to file 
such a motion shall be served promptly on the other parties. A motion 
to reopen the record shall be filed promptly on discovery of the 
evidence sought to be adduced.
    (3) The filing and pendency of a motion under this provision shall 
not unless so ordered operate to stay the effectiveness of any action 
taken or directed to be taken nor will a Regional Director or the Board 
delay any decision or action during the period specified in paragraph 
(e)(2) of this section, except that, if a motion for reconsideration 
based on changed circumstances or to reopen the record based on newly 
discovered evidence states with particularity that the granting thereof 
will affect the eligibility to vote of specific employees, the Board 
agent shall have discretion to allow such employees to vote subject to 
challenge even if they are specifically excluded in the direction of 
election and to challenge or permit the moving party to challenge the 
ballots of such employees even if they are specifically included in the 
direction of election in any election conducted while such motion is 
pending. A motion for reconsideration, for rehearing, or to reopen the 
record need not be filed to exhaust administrative remedies.

0
10. Revise Sec.  102.66 to read as follows:


Sec.  102.66  Introduction of evidence: rights of parties at hearing; 
preclusion; subpoenas; oral argument and briefs.

    (a) Rights of parties at hearing. Any party shall have the right to 
appear at any hearing in person, by counsel, or by other 
representative, to call, examine, and cross-examine witnesses, and to 
introduce into the record evidence of the significant facts that 
support the party's contentions and are relevant to the existence of a 
question of representation and the other issues in the case that have 
been properly raised. The Hearing Officer shall also have power to 
call, examine, and cross-examine witnesses and to introduce into the 
record documentary and other evidence. Witnesses shall be examined 
orally under oath. The rules of evidence prevailing in courts of law or 
equity shall not be controlling. Stipulations of fact may be introduced 
in evidence with respect to any issue.
    (b) Statements of Position. Issues in dispute shall be identified 
as follows: After a Statement of Position is received in evidence and 
prior to the introduction of further evidence, all other parties shall 
respond on the record to each issue raised in the Statement. The 
Regional Director may permit any Statement of Position to be amended in 
a timely manner for good cause, in which event the other parties shall 
respond to each amended position. The Regional Director may also permit 
responses to be amended in a timely manner for good cause. The Hearing 
Officer shall not receive evidence concerning any issue as to which 
parties have not taken adverse positions, except that this provision 
shall not preclude the receipt of evidence regarding the Board's 
jurisdiction over the employer or limit the Regional Director's 
discretion to direct the receipt of evidence concerning any issue, such 
as the appropriateness of the proposed unit, as to which the Regional 
Director determines that record evidence is necessary.
    (c) Offers of proof. The Regional Director shall direct the Hearing 
Officer concerning the issues to be litigated at the hearing. The 
Hearing Officer may solicit offers of proof from the parties or their 
counsel as to any or all such issues. Offers of proof shall take the 
form of a written statement or an oral statement on the record 
identifying each witness the party would call to testify concerning the 
issue and summarizing each witness's testimony. If the Regional 
Director determines that the evidence described in an offer of proof is 
insufficient to sustain the proponent's position, the evidence shall 
not be received. But in no event shall a party be precluded from 
introducing relevant evidence otherwise consistent with this subpart.
    (d) Preclusion. A party shall be precluded from raising any issue, 
presenting any evidence relating to any issue, cross-examining any 
witness concerning any issue, and presenting argument concerning any 
issue that the party failed to raise in its timely Statement of 
Position or to place in dispute in response to another party's 
Statement of Position or response, except that no party shall be 
precluded from contesting or presenting evidence relevant to the 
Board's statutory jurisdiction to process the petition. Nor shall any 
party be precluded, on the grounds that a voter's eligibility or 
inclusion was not contested at the pre-election hearing, from 
challenging the eligibility of any voter during the election. If a 
party contends that the proposed unit is not appropriate in its 
Statement of Position but fails to specify the classifications, 
locations, or other employee groupings that must be added to or 
excluded from the proposed unit to make it an appropriate unit, the 
party shall also be precluded from raising any issue as to the 
appropriateness of the unit, presenting any evidence relating to the 
appropriateness of the unit, cross-examining any witness concerning the 
appropriateness of the unit, and presenting argument concerning the 
appropriateness of the unit. If the employer fails to timely furnish 
the lists of employees described in Sec.  102.63(b)(1)(iii), 
(b)(2)(iii), or (b)(3)(iii), the employer shall be precluded from 
contesting the appropriateness of the proposed unit at any time and 
from contesting the eligibility or inclusion of any individuals at the 
pre-election hearing, including by presenting evidence or argument, or 
by cross-examination of witnesses.
    (e) Objections. Any objection with respect to the conduct of the 
hearing, including any objection to the introduction of evidence, may 
be stated orally or in writing, accompanied by a short statement of the 
grounds of such objection, and included in the record. No such 
objection shall be deemed waived by further participation in the 
hearing.
    (f) Subpoenas. The Board, or any Member thereof, shall, on the 
written application of any party, forthwith issue subpoenas requiring 
the attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of 
the Board or any Member thereof. Any party may file applications for 
subpoenas in writing with the Regional Director if made prior to 
hearing, or with the Hearing Officer if made at the hearing. 
Applications for subpoenas may be made ex parte. The Regional Director 
or the Hearing Officer, as the case may be, shall forthwith grant the 
subpoenas requested. Any person served with a subpoena, whether ad 
testificandum or duces tecum, if he or she does not intend to comply 
with the subpoena, shall, within 5 business days after the date of 
service of the subpoena, petition in writing to revoke the subpoena. 
The date of service for purposes of computing the time for filing a 
petition to revoke shall be the date the subpoena is received. Such 
petition shall be filed with the Regional

[[Page 69595]]

Director who may either rule upon it or refer it for ruling to the 
Hearing Officer except that if the evidence called for is to be 
produced at a hearing and the hearing has opened, the petition to 
revoke shall be filed with the Hearing Officer. Notice of the filing of 
petitions to revoke shall be promptly given by the Regional Director or 
Hearing Officer, as the case may be, to the party at whose request the 
subpoena was issued. The Regional Director or the Hearing Officer, as 
the case may be, shall revoke the subpoena if, in his/her opinion, the 
evidence whose production is required does not relate to any matter 
under investigation or in question in the proceedings or the subpoena 
does not describe with sufficient particularity the evidence whose 
production is required, or if for any other reason sufficient in law 
the subpoena is otherwise invalid. The Regional Director or the Hearing 
Officer, as the case may be, shall make a simple statement of 
procedural or other grounds for his/her ruling. The petition to revoke, 
any answer filed thereto, and any ruling thereon shall not become part 
of the record except upon the request of the party aggrieved by the 
ruling. Persons compelled to submit data or evidence are entitled to 
retain or, on payment of lawfully prescribed costs, to procure copies 
or transcripts of the data or evidence submitted by them.
    (g) Election details. Prior to the close of the hearing, the 
Hearing Officer will:
    (1) Solicit the parties' positions on the type, date(s), time(s), 
and location(s) of the election and the eligibility period, but shall 
not permit litigation of those issues;
    (2) Solicit the name, address, email address, facsimile number, and 
phone number of the employer's on-site representative to whom the 
Regional Director should transmit the Notice of Election in the event 
the Regional Director directs an election;
    (3) Inform the parties that the Regional Director will issue a 
decision as soon as practicable and that the director will immediately 
transmit the document to the parties and their designated 
representatives by email, facsimile, or by overnight mail (if neither 
an email address nor facsimile number was provided); and
    (4) Inform the parties what their obligations will be under these 
Rules if the director directs an election and of the time for complying 
with such obligations.
    (h) Oral argument and briefs. Any party shall be entitled, upon 
request, to a reasonable period at the close of the hearing for oral 
argument, which shall be included in the stenographic report of the 
hearing. Any party desiring to submit a brief to the Regional Director 
shall be entitled to do so within 5 business days after the close of 
the hearing. Prior to the close of the hearing and for good cause the 
Hearing Officer may grant an extension of time to file a brief not to 
exceed an additional 10 business days. Copies of the brief shall be 
served on all other parties to the proceeding and a statement of such 
service shall be filed with the Regional Director together with the 
brief. No reply brief may be filed except upon special permission of 
the Regional Director.
    (i) Hearing Officer analysis. The Hearing Officer may submit an 
analysis of the record to the Regional Director but shall make no 
recommendations.
    (j) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.

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


Sec.  102.67  Proceedings before the Regional Director; further 
hearing; action by the Regional Director; appeals from actions of the 
Regional Director; statement in opposition; requests for extraordinary 
relief; Notice of Election; voter list.

    (a) Proceedings before Regional Director. The Regional Director may 
proceed, either forthwith upon the record or after oral argument, the 
submission of briefs, or further hearing, as the director may deem 
proper, to determine whether a question of representation exists in a 
unit appropriate for purposes of collective bargaining as provided in 
Sec.  102.64(a), and to direct an election, dismiss the petition, or 
make other disposition of the matter. A decision by the Regional 
Director upon the record shall set forth the director's findings, 
conclusions, and order or direction.
    (b) Directions of elections. If the Regional Director directs an 
election, the direction may specify the type, date(s), time(s), and 
location(s) of the election and the eligibility period, but the 
Regional Director retains discretion to continue investigating these 
details after directing an election and to specify them in a 
subsequently-issued Notice of Election. The Regional Director shall 
schedule the election for the earliest date practicable, but unless a 
waiver is filed, the Regional Director will normally not schedule an 
election before the 20th business day after the date of the direction 
of election, to permit the Board to rule on any request for review 
which may be filed pursuant to paragraph (c) of this section. The 
Regional Director shall transmit the direction of election to the 
parties and their designated representatives by email, facsimile, or by 
overnight mail (if neither an email address nor facsimile number was 
provided). The Regional Director shall also transmit the Board's Notice 
of Election to the parties and their designated representatives by 
email, facsimile, or by overnight mail (if neither an email address nor 
facsimile number was provided), whether transmitted simultaneously with 
the direction of election or separately thereafter. If the direction of 
election provides for individuals to vote subject to challenge, the 
Notice of Election shall so state, and shall advise employees that the 
individuals are neither included in, nor excluded from, the bargaining 
unit, inasmuch as they have been permitted to vote subject to 
challenge. The election notice shall further advise employees that the 
eligibility or inclusion of the individuals will be resolved, if 
necessary, following the election.
    (c) Requests for Board review of Regional Director actions. Upon 
the filing of a request therefor with the Board by any interested 
person, the Board may review any action of a Regional Director 
delegated to him/her under Section 3(b) of the Act except as the 
Board's Rules provide otherwise. The request for review may be filed at 
any time following the action until 10 business days after a final 
disposition of the proceeding by the Regional Director. 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, except that if a request for review of a 
decision and direction of election is filed within 10 business days of 
that decision and has not been ruled upon or has been granted before 
the election is conducted, ballots whose validity might be affected by 
the Board's ruling on the request for review or decision on review 
shall be segregated in an appropriate manner, and all ballots shall be 
impounded and remain unopened pending such ruling or decision. A party 
retains the right to file a request for review of a decision and 
direction of election more than 10 business days after that decision 
issues, but the pendency of such a request for review shall not require 
impoundment of the ballots.
    (d) Grounds for review. The Board will grant a request for review 
only where compelling reasons exist therefor. Accordingly, a request 
for review may be granted only upon one or more of the following 
grounds:
    (1) That a substantial question of law or policy is raised because 
of:
    (i) The absence of; or
    (ii) A departure from, officially reported Board precedent.

[[Page 69596]]

    (2) That the Regional Director's decision on a substantial factual 
issue is clearly erroneous on the record and such error prejudicially 
affects the rights of a party.
    (3) That the conduct of any hearing or any ruling made in 
connection with the proceeding has resulted in prejudicial error.
    (4) That there are compelling reasons for reconsideration of an 
important Board rule or policy.
    (e) Contents of request. A request for review must be a self-
contained document enabling the Board to rule on the basis of its 
contents without the necessity of recourse to the record; however, the 
Board may, in its discretion, examine the record in evaluating the 
request. With respect to the ground listed in paragraph (d)(2) of this 
section, and other grounds where appropriate, the request must contain 
a summary of all evidence or rulings bearing on the issues together 
with page citations from the transcript and a summary of argument. Such 
request may not raise any issue or allege any facts not timely 
presented to the Regional Director.
    (f) Opposition to request. Any party may, within 5 business days 
after the last day on which the request for review must be filed, file 
with the Board a statement in opposition which shall be served in 
accordance with the requirements of paragraph (i) of this section. The 
Board may grant or deny the request for review without awaiting a 
statement in opposition. No reply to the opposition may be filed except 
upon special leave of the Board.
    (g) Finality; waiver; denial of request. The Regional Director's 
actions are final unless a request for review is granted. The parties 
may, at any time, waive their right to request review. Failure to 
request review shall preclude such parties from relitigating, in any 
related subsequent unfair labor practice proceeding, any issue which 
was, or could have been, raised in the representation proceeding. 
Denial of a request for review shall constitute an affirmance of the 
Regional Director's action which shall also preclude relitigating any 
such issues in any related subsequent unfair labor practice proceeding.
    (h) Grant of review; briefs. The grant of a request for review 
shall not, outside of the provision for impoundment set forth in 
paragraph (c) of this section, stay the Regional Director's action 
unless otherwise ordered by the Board. Except where the Board rules 
upon the issues on review in the order granting review, the appellants 
and other parties may, within 10 business days after issuance of an 
order granting review, file briefs with the Board. Such briefs may be 
reproductions of those previously filed with the Regional Director and/
or other briefs which shall be limited to the issues raised in the 
request for review. No reply briefs may be filed except upon special 
leave of the Board. Where review has been granted, the Board may 
provide for oral argument or further hearing. The Board will consider 
the entire record in the light of the grounds relied on for review and 
shall make such disposition of the matter as it deems appropriate. Any 
request for review may be withdrawn with the permission of the Board at 
any time prior to the issuance of the decision of the Board thereon.
    (i) Format, Service, and Extensions--(1) Format of request. All 
documents filed with the Board under the provisions of this section 
shall be double spaced, on 8 1/2- by 11-inch paper, and shall be 
printed or otherwise legibly duplicated. Extra copies of 
electronically-filed papers need not be filed. Requests for review, 
including briefs in support thereof and any motions under paragraph (j) 
of this section; statements in opposition thereto; and briefs on review 
shall not exceed 50 pages in length exclusive of subject index and 
table of cases and other authorities cited, unless permission to exceed 
that limit is obtained from the Board by motion, setting forth the 
reasons therefor, filed pursuant to the procedures set forth in Sec.  
102.2(c). Where any brief filed pursuant to this section exceeds 20 
pages, it shall contain a subject index with page references and an 
alphabetical table of cases and other authorities cited. A party may 
combine a request for review of the Regional Director's decision and 
direction of election with a request for review of a Regional 
Director's post-election decision, if the party has not previously 
filed a request for review of the pre-election decision. A party may 
not, however, file more than one request for review of a particular 
action or decision by the Regional Director. Repetitive requests will 
not be considered.
    (2) Service. The party filing with the Board a request for review, 
a statement in opposition to a request for review, or a brief on review 
shall serve a copy thereof on the other parties and shall file a copy 
with the Regional Director. A certificate of service shall be filed 
with the Board together with the document.
    (3) Extensions. Requests for extensions of time to file requests 
for review, statements in opposition to a request for review, or 
briefs, as permitted by this section, shall be filed pursuant to Sec.  
102.2(c) with the Board or the Regional Director, as the case may be, 
except that no extension of time will be granted to circumvent the 
impoundment provisions set forth in paragraph (c) of this section. The 
party filing the request for an extension of time shall serve a copy 
thereof on the other parties and, if filed with the Board, on the 
Regional Director. A statement of such service shall be filed with the 
document.
    (j) Requests for extraordinary relief. (1) A party requesting 
review may also move in writing to the Board for one or more of the 
following forms of relief:
    (i) Expedited consideration of the request;
    (ii) A stay of some or all of the proceedings, including the 
election; or
    (iii) Impoundment and/or segregation of some or all of the ballots.
    (2) Relief will be granted only upon a clear showing that it is 
necessary under the particular circumstances of the case. The pendency 
of a motion does not entitle a party to interim relief, and an 
affirmative ruling by the Board granting relief is required before the 
action of the Regional Director will be altered in any fashion.
    (k) Notice of Election. The employer shall post copies of the 
Board's Notice of Election in conspicuous places, including all places 
where notices to employees in the unit are customarily posted, at least 
3 full working days prior to 12:01 a.m. of the day of the election and 
shall also distribute it electronically to all eligible voters 
(including individuals permitted to vote subject to challenge) if the 
employer customarily communicates with employees in the unit 
electronically. In elections involving mail ballots, the election shall 
be deemed to have commenced the day the ballots are deposited by the 
Regional Office in the mail. In all cases, the notices shall remain 
posted until the end of the election. For the purposes of this subpart, 
the term working day shall mean an entire 24-hour period excluding 
Saturdays, Sundays, and holidays. The employer's failure properly to 
post or distribute the election notices as required herein shall be 
grounds for setting aside the election whenever proper and timely 
objections are filed under the provisions of Sec.  102.69(a)(8). A 
party shall be estopped from objecting to the nonposting of notices if 
it is responsible for the nonposting, and likewise shall be estopped 
from objecting to the nondistribution of notices if it is responsible 
for the nondistribution.
    (l) Voter list. Absent extraordinary circumstances specified in the 
direction

[[Page 69597]]

of election, the employer shall, within 5 business days after issuance 
of the direction, provide to the Regional Director and the parties 
named in such direction a list of the full names, work locations, 
shifts, job classifications, and contact information (including home 
addresses, available personal email addresses, and available home and 
personal cellular ``cell'' telephone numbers) of all eligible voters. 
The employer shall also include in separate sections of that list the 
same information for those individuals who will be permitted to vote 
subject to challenge. In order to be timely filed and served, the list 
must be received by the Regional Director and the parties named in the 
direction respectively within 5 business days after issuance of the 
direction of election unless a longer time is specified therein. The 
list of names shall be alphabetized (overall or by department) and be 
in an electronic format approved by the General Counsel unless the 
employer certifies that it does not possess the capacity to produce the 
list in the required form. When feasible, the list shall be filed 
electronically with the Regional Director and served electronically on 
the other parties named in the direction. A certificate of service on 
all parties shall be filed with the Regional Director when the voter 
list is filed. The employer's failure to file or serve the list within 
the specified time or in proper format shall be grounds for setting 
aside the election whenever proper and timely objections are filed 
under the provisions of Sec.  102.69(a)(8). The employer shall be 
estopped from objecting to the failure to file or serve the list within 
the specified time or in the proper format if it is responsible for the 
failure. The parties shall not use the list for purposes other than the 
representation proceeding, Board proceedings arising from it, and 
related matters.

0
12. Revise Sec.  102.68 to read as follows:


Sec.  102.68  Record in pre-election proceeding; what constitutes; 
transmission to Board.

    The record in a proceeding conducted pursuant to the foregoing 
section shall consist of: the petition, Notice of Hearing with 
affidavit of service thereof, statements of position, responses to 
statements of position, offers of proof made at the pre-election 
hearing, motions, rulings, orders, the stenographic report of the 
hearing and of any oral argument before the Regional Director, 
stipulations, exhibits, affidavits of service, and any briefs or other 
legal memoranda submitted by the parties to the Regional Director or to 
the Board, and the decision of the Regional Director, if any. 
Immediately upon issuance of an order granting a request for review by 
the Board, the Regional Director shall transmit the record to the 
Board.

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


Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the Regional Director; hearings; Hearing Officer 
reports on objections and challenges; exceptions to Hearing Officer 
reports; Regional Director decisions on objections and challenges.

    (a) Election procedure; tally; objections. (1) Unless otherwise 
directed by the Board, all elections shall be conducted under the 
supervision of the Regional Director in whose Region the proceeding is 
pending.
    (2) All elections shall be by secret ballot.
    (3) Whenever two or more labor organizations are included as 
choices in an election, either participant may, upon its prompt request 
to and approval thereof by the Regional Director, whose decision shall 
be final, have its name removed from the ballot, except that in a 
proceeding involving an employer-filed petition or a petition for 
decertification the labor organization certified, currently recognized, 
or found to be seeking recognition may not have its name removed from 
the ballot without giving timely notice in writing to all parties and 
the Regional Director, disclaiming any representation interest among 
the employees in the unit.
    (4) A pre-election conference may be held at which the parties may 
check the list of voters and attempt to resolve any questions of 
eligibility or inclusions in the unit.
    (5) When the election is conducted manually, any party may be 
represented by observers of its own selection; whenever possible, a 
party shall select a current member of the voting unit as its observer, 
and when no such individual is available, a party should select a 
current nonsupervisory employee as its observer. Selection of observers 
is also subject to such limitations as the Regional Director may 
prescribe.
    (6) Any party and Board agents may challenge, for good cause, the 
eligibility of any person to participate in the election. The ballots 
of such challenged persons shall be impounded.
    (7) Upon the conclusion of the election the ballots will be counted 
and a tally of ballots prepared and immediately made available to the 
parties.
    (8) Within 5 business days after the tally of ballots has been 
prepared, any party may file with the Regional Director objections to 
the conduct of the election or to conduct affecting the results of the 
election which shall contain a short statement of the reasons therefor 
and a written offer of proof in the form described in Sec.  102.66(c) 
insofar as applicable, except that the Regional Director may extend the 
time for filing the written offer of proof in support of the election 
objections upon request of a party showing good cause. Such filing(s) 
must be timely whether or not the challenged ballots are sufficient in 
number to affect the results of the election. The party filing the 
objections shall serve a copy of the objections, including the short 
statement of reasons therefor, but not the written offer of proof, on 
each of the other parties to the case, and include a certificate of 
such service with the objections. A person filing objections by 
facsimile pursuant to Sec.  102.5(e) shall also file an original for 
the Agency's records, but failure to do so shall not affect the 
validity of the filing if otherwise proper. In addition, extra copies 
need not be filed if the filing is by facsimile or electronically 
pursuant to Sec.  102.5(e) or (c). The Regional Director will transmit 
a copy of the objections to be served on each of the other parties to 
the proceeding, but shall not transmit the offer of proof.
    (b) Certification in the absence of objections, determinative 
challenges and runoff elections. If no objections are filed within the 
time set forth in paragraph (a)(8) of this section, if the challenged 
ballots are insufficient in number to affect the results of the 
election, and if no runoff election is to be held pursuant to Sec.  
102.70, and if no request for review filed pursuant to Sec.  102.67(c) 
is pending, the Regional Director shall forthwith issue to the parties 
a certification of the results of the election, including certification 
of representative where appropriate, with the same force and effect as 
if issued by the Board.
    (c) Regional director's resolution of objections and challenges--
(1) Regional director's determination to hold a hearing--(i) Decisions 
resolving objections and challenges without a hearing. If timely 
objections are filed to the conduct of an election or to conduct 
affecting the results of the election, and the Regional Director 
determines that the evidence described in the accompanying offer of 
proof would not constitute grounds for setting aside the election if 
introduced at a hearing, and the Regional Director determines that any 
determinative challenges do not raise substantial and material factual 
issues, the Regional Director shall issue a decision disposing of the 
objections and determinative challenges. If no

[[Page 69598]]

request for review filed pursuant to Sec.  102.67(c) is pending, and no 
request for review is timely filed pursuant to paragraph (c)(2) of this 
section, the Regional Director shall issue a certification of the 
results of the election, including certification of representative 
where appropriate.
    (ii) Notices of hearing on objections and challenges. If timely 
objections are filed to the conduct of the election or to conduct 
affecting the results of the election, and the Regional Director 
determines that the evidence described in the accompanying offer of 
proof could be grounds for setting aside the election if introduced at 
a hearing, or if the challenged ballots are sufficient in number to 
affect the results of the election, and raise substantial and material 
factual issues, the Regional Director shall transmit to the parties and 
their designated representatives by email, facsimile, or by overnight 
mail (if neither an email address nor facsimile number was provided) a 
Notice of Hearing before a Hearing Officer at a place and time fixed 
therein. The Regional Director shall set the hearing for a date 15 
business days after the preparation of the tally of ballots or as soon 
as practicable thereafter, unless the parties agree to an earlier date, 
except that the Regional Director may consolidate the hearing 
concerning objections and challenges with an unfair labor practice 
proceeding before an Administrative Law Judge. In any proceeding 
wherein the election has been held pursuant to Sec.  102.62(a) or (c) 
and the representation case has been consolidated with an unfair labor 
practice proceeding for purposes of hearing, the Administrative Law 
Judge shall, after issuing a decision, sever the representation case 
and transfer it to the Regional Director for further processing.
    (iii) Hearings; Hearing Officer reports; exceptions to Regional 
Director. The hearing on objections and challenges shall continue from 
day to day until completed unless the Regional Director concludes that 
extraordinary circumstances warrant otherwise. Any hearing pursuant to 
this section shall be conducted in accordance with the provisions of 
Sec. Sec.  102.64, 102.65, and 102.66, insofar as applicable. Any party 
shall have the right to appear at the hearing in person, by counsel, or 
by other representative, to call, examine, and cross-examine witnesses, 
and to introduce into the record evidence of the significant facts that 
support the party's contentions and are relevant to the objections and 
determinative challenges that are the subject of the hearing. The 
Hearing Officer may rule on offers of proof. Any party desiring to 
submit a brief to the Hearing Officer shall be entitled to do so within 
5 business days after the close of the hearing. Prior to the close of 
the hearing and for good cause the Hearing Officer may grant an 
extension of time to file a brief not to exceed an additional 10 
business days. Upon the close of such hearing, the Hearing Officer 
shall prepare and cause to be served on the parties a report resolving 
questions of credibility and containing findings of fact and 
recommendations as to the disposition of the issues. Any party may, 
within 10 business days from the date of issuance of such report, file 
with the Regional Director an original and one copy of exceptions to 
such report, with supporting brief if desired. A copy of such 
exceptions, together with a copy of any brief filed, shall immediately 
be served on the other parties and a statement of service filed with 
the Regional Director. Within 5 business days from the last date on 
which exceptions and any supporting brief may be filed, or such further 
time as the Regional Director may allow, a party opposing the 
exceptions may file an answering brief with the Regional Director. An 
original and one copy shall be submitted. A copy of such answering 
brief shall immediately be served on the other parties and a statement 
of service filed with the Regional Director. Extra copies of 
electronically-filed papers need not be filed. The Regional Director 
shall thereupon decide the matter upon the record or make other 
disposition of the case. If no exceptions are filed to such report, the 
Regional Director, upon the expiration of the period for filing such 
exceptions, may decide the matter forthwith upon the record or may make 
other disposition of the case, save that the Regional Director shall 
not issue a certification of results and/or representative if a request 
for review previously filed subject to Sec.  102.67(c) remains pending, 
or if a request for review is timely filed pursuant to paragraph (c)(2) 
of this section prior to the issuance of the certification of results 
and/or representative.
    (2) Regional Director decisions and Board review. The decision of 
the Regional Director disposing of challenges and/or objections shall 
be final unless a request for review is granted. If a consent election 
has been held pursuant to Sec. Sec.  102.62(a) or (c), the decision of 
the Regional Director is not subject to Board review. If the election 
has been conducted pursuant to Sec.  102.62(b), or by a direction of 
election issued following any proceeding under Sec.  102.67, the 
parties shall have the right to Board review set forth in Sec.  102.67, 
except that in any proceeding wherein a representation case has been 
consolidated with an unfair labor practice proceeding for purposes of 
hearing and the election was conducted pursuant to Sec. Sec.  102.62(b) 
or 102.67, the provisions of Sec.  102.46 shall govern with respect to 
the filing of exceptions or an answering brief to the exceptions to the 
Administrative Law Judge's decision, and a request for review of the 
Regional Director's decision and direction of election shall be due at 
the same time as the exceptions to the Administrative Law Judge's 
decision are due. If no request for review is timely filed pursuant to 
this paragraph, and no request for review filed pursuant to Sec.  
102.67(c) is pending, the Regional Director shall issue a certification 
of the results of the election, including certification of 
representative where appropriate.
    (d) Record for objections and challenges. (1)(i) Record in case 
with hearing. In a proceeding pursuant to this section in which a 
hearing is held, the record in the case shall consist of the Notice of 
Hearing, motions, rulings, orders, stenographic report of the hearing, 
stipulations, exhibits, together with the objections to the conduct of 
the election or to conduct affecting the results of the election, 
offers of proof made at the post-election hearing, any briefs or other 
legal memoranda submitted by the parties, any report on such objections 
and/or on challenged ballots, exceptions, the decision of the Regional 
Director, any requests for review, and the record previously made as 
defined in Sec.  102.68. Materials other than those set out above shall 
not be a part of the record.
    (ii) Record in case with no hearing. In a proceeding pursuant to 
this section in which no hearing is held, the record shall consist of 
the objections to the conduct of the election or to conduct affecting 
the results of the election, any decision on objections or on 
challenged ballots and any request for review of such a decision, any 
documentary evidence, excluding statements of witnesses, relied upon by 
the Regional Director in his decision, any briefs or other legal 
memoranda submitted by the parties, and any other motions, rulings, or 
orders of the Regional Director. Materials other than those set out 
above shall not be a part of the record, except as provided in 
paragraph (d)(3) of this section.
    (2) Immediately upon issuance of an order granting a request for 
review by the Board, the Regional Director shall transmit to the Board 
the record of the proceeding as defined in paragraph (d)(1) of this 
section.

[[Page 69599]]

    (3) In a proceeding pursuant to this section in which no hearing is 
held, a party filing a request for review of a Regional Director's 
decision on challenged ballots or on objections or on both, or any 
opposition thereto, may support its submission to the Board by 
appending thereto copies of any offer of proof, including copies of any 
affidavits or other documentary evidence, it has timely submitted to 
the Regional Director and which were not included in the decision. 
Documentary evidence so appended shall thereupon become part of the 
record in the proceeding. Failure to append that evidence to its 
submission to the Board in the representation proceeding as provided 
above, shall preclude a party from relying on such evidence in any 
subsequent unfair labor proceeding.
    (e) Revised tally of ballots. In any case under this section in 
which the Regional Director or the Board, upon a ruling on challenged 
ballots, has directed that such ballots be opened and counted and a 
revised tally of ballots issued, and no objection to such revised tally 
is filed by any party within 5 business days after the revised tally of 
ballots has been made available, the Regional Director shall forthwith 
issue to the parties certification of the results of the election, 
including certifications of representative where appropriate, with the 
same force and effect as if issued by the Board.
    (f) Format of filings with Regional Director. All documents filed 
with the Regional Director under the provisions of this section shall 
be filed double spaced, on 8\1/2\- by 11-inch paper, and shall be 
printed or otherwise legibly duplicated. Extra copies of 
electronically-filed papers need not be filed. Briefs in support of 
exceptions or answering briefs shall not exceed 50 pages in length, 
exclusive of subject index and table of cases and other authorities 
cited, unless permission to exceed that limit is obtained from the 
Regional Director by motion, setting forth the reasons therefor, filed 
pursuant to the procedures set forth in Sec.  102.2(c). Where any brief 
filed pursuant to this section exceeds 20 pages, it shall contain a 
subject index with page references and an alphabetical table of cases 
and other authorities cited.
    (g) Extensions of time. Requests for extensions of time to file 
exceptions, requests for review, supporting briefs, or answering 
briefs, as permitted by this section, shall be filed pursuant to Sec.  
102.2(c) with the Board or the Regional Director, as the case may be. 
The party filing the request for an extension of time shall serve a 
copy thereof on the other parties and, if filed with the Board, on the 
Regional Director. A statement of such service shall be filed with the 
document.
    (h) Final disposition. For the purposes of filing a request for 
review pursuant to Sec.  102.67(c) or paragraph (c)(2) of this section, 
a case is considered to have reached final disposition when the 
Regional Director dismisses the petition or issues a post-election 
decision that will result in the issuance of a certification of results 
(including, where appropriate, a certification of representative) 
absent the filing of a request for review.

0
14. Revise Sec.  102.71 to read as follows:


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

    (a) If, after a petition has been filed and at any time prior to 
the close of hearing, it shall appear to the Regional Director that no 
further proceedings are warranted, the Regional Director may dismiss 
the petition by administrative action and shall so advise the 
petitioner in writing, setting forth a simple statement of the 
procedural or other grounds for the dismissal, with copies to the other 
parties to the proceeding. Any party may obtain a review of such action 
by filing a request therefor with the Board in Washington, DC, in 
accordance with the provisions of paragraph (c) of this section. A 
request for review from an action of a Regional Director pursuant to 
this subsection may be granted only upon one or more of the following 
grounds:
    (1) That a substantial question of law or policy is raised because 
of:
    (i) The absence of; or
    (ii) A departure from, officially reported Board precedent.
    (2) There are compelling reasons for reconsideration of an 
important Board rule or policy.
    (3) The request for review is accompanied by documentary evidence 
previously submitted to the Regional Director raising serious doubts as 
to the Regional Director's factual findings, thus indicating that there 
are factual issues which can best be resolved upon the basis of the 
record developed at a hearing.
    (4) The Regional Director's action is, on its face, arbitrary or 
capricious.
    (5) The petition raises issues which can best be resolved upon the 
basis of a record developed at a hearing.
    (b) Where the Regional Director dismisses a petition or 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, in accordance with the provisions of 
paragraph (c) of this section. A review of an action of a Regional 
Director pursuant to this subsection may be granted only upon one or 
more of the following grounds:
    (1) That a substantial question of law or policy is raised because 
of:
    (i) The absence of; or
    (ii) A departure from, officially reported Board precedent.
    (2) There are compelling reasons for reconsideration of an 
important Board rule or policy.
    (3) The Regional Director's action is, on its face, arbitrary or 
capricious.
    (c) A request for review must be filed with the Board in 
Washington, DC, and a copy filed with the Regional Director and copies 
served on all the other parties within 10 business days of service of 
the notice of dismissal or notification that the petition is to be held 
in abeyance. The request shall contain a complete statement setting 
forth facts and reasons upon which the request is based. The request 
shall be printed or otherwise legibly duplicated. Extra copies of 
electronically-filed papers need not be filed. The request must comply 
with the formatting requirements set forth in Sec.  102.67(i)(1). 
Requests for an extension of time within which to file the request for 
review shall be filed pursuant to Sec.  102.2(c) with the Board in 
Washington, DC, and a certificate of service shall accompany the 
requests.

[[Page 69600]]

    (d) Any party may, within 5 business days after the last day on 
which the request for review must be filed, file with the Board a 
statement in opposition to the request for review. An opposition must 
be filed with the Board in Washington, DC, and a copy filed with the 
Regional Direction and copies served on all the other parties. The 
opposition must comply with the formatting requirements set forth in 
Sec.  102.67(i)(1). Requests for an extension of time within which to 
file the opposition shall be filed pursuant to Sec.  102.2(c) with the 
Board in Washington, DC, and a certificate of service shall accompany 
the requests. The Board may grant or deny the request for review 
without awaiting a statement in opposition. No reply to the opposition 
may be filed except upon special leave of the Board.

    Dated: December 10, 2019.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2019-26920 Filed 12-13-19; 8:45 am]
 BILLING CODE 7545-01-P