[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14913-14916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04839]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA12


Representation Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule; stay.

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SUMMARY: The National Labor Relations Board (Board) is staying two 
provisions of its 2019 final rule (``Final Rule'') amending its 
representation case procedures to account for new court decisions. The 
two provisions, which have never been in effect, are stayed until 
September 10, 2023. This stay is necessary to accommodate pending 
litigation over remaining challenges to the Final Rule and because the 
Board is currently considering whether to revise or repeal the Final 
Rule, including potential revisions to the two provisions.

DATES: As of March 10, 2023, the amendments to 29 CFR 102.64(a) and 29 
CFR 102.67(b) in the final rule that published at 84 FR 69524, on 
December 18, 2019, and delayed at 85 FR 17500, March 30, 2020, are 
stayed from May 31, 2020, until September 10, 2023.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half St. SE, 
Washington, DC 20570-0001, (202) 273-2940 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: On December 18, 2019, the National Labor 
Relations Board published a final rule amending various aspects of its 
representation-case procedures. (84 FR 69524, Dec. 18, 2019.) The Board 
published the Final Rule as ``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.' '' 84 FR at 69587. On 
March 30, 2020, the Board delayed the effective date of the final rule 
to May 31, 2020, upon request of the United States District Court for 
the District of Columbia and to ``facilitate the resolution of the 
legal challenges that have been filed with respect to the rule.'' (85 
FR 17500, Mar. 30, 2020.)
    On May 30, 2020, the United States District Court for the District 
of Columbia issued an order in AFL-CIO v. NLRB, Civ. No. 20-cv-0675, 
vacating five provisions of the Final Rule and enjoining their 
implementation. 466 F. Supp. 3d 68 (D.D.C. 2020). The District

[[Page 14914]]

Court concluded that each of the five provisions was substantive in 
nature, not procedural, and that the Board therefore violated the 
Administrative Procedure Act by failing to use notice and comment 
rulemaking. Id. at 92.
    On January 17, 2023, the United States Court of Appeals for the 
District of Columbia Circuit issued a decision and order reversing the 
District Court as to two of the five provisions, agreeing with the 
Board that those provisions were procedural in nature and not subject 
to notice and comment rulemaking. AFL-CIO v. NLRB, 57 F.4th 1023, (D.C. 
Cir., 2023). The two provisions are: (1) an amendment to 29 CFR 
102.64(a) allowing the parties to litigate disputes over unit scope and 
voter eligibility prior to the election; \1\ and (2) an amendment to 29 
CFR 102.67(b) instructing Regional Directors not to schedule elections 
before the 20th business day after the date of the direction of 
election.\2\ The D.C. Circuit remanded the case to the District Court 
to consider two counts in the complaint that challenge these two 
provisions and that remain viable in light of its decision.
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    \1\ 84 FR at 69593.
    \2\ 84 FR at 69595.
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    Due to the District Court's injunction, these two provisions have 
never taken effect. The time for filing a petition for rehearing with 
the D.C. Circuit under Federal Rule of Appellate Procedure 40 has 
passed, and, once the District of Columbia Circuit's mandate issues on 
or about March 10, 2023, the District Court's injunction will be 
lifted. At that point, the two previously enjoined provisions will go 
into effect pursuant to the original May 31, 2020 effective date. The 
District Court will also begin its consideration of the challenges to 
the two provisions remaining for decision.
    The Board has decided to stay the effective date of the two 
provisions to September 10, 2023, six months from the expected issuance 
of the District of Columbia Circuit's mandate. The Board has determined 
that staying those provisions until September 10, 2023 would 
accommodate the pending legal challenges before the District Court. 5 
U.S.C. 705. Moreover, a stay is necessary and appropriate because the 
Board is currently considering whether to revise or repeal the Final 
Rule, including potential revisions to these two provisions. Delayed 
implementation of these provisions will permit further consideration by 
the Board of the merits of the Final Rule and will avoid the possible 
waste of administrative resources and public uncertainty if the 
provisions were to go into effect only for a short period of time 
before being impacted by forthcoming revisions. The stay of the two 
provisions' effective date merely extends the status quo.
    We disagree with the dissenting position of Member Kaplan, who 
argues a stay in the effective date of the two provisions is 
unwarranted. His position is based on his view of the policy merits of 
the provisions and the legal merits of the pending challenge to them in 
the District Court. At this juncture, however, consideration of the 
provisions' merits by the Board is premature. Resolution of the legal 
challenge to the provisions, in turn, is a matter for the District 
Court. As explained, a stay of the effective date of the provisions 
facilitates both processes, by preserving the status quo.
    This stay is published as a final rule. The Board considers this 
rule to be a procedural rule that is exempt from notice and public 
comment, pursuant to 5 U.S.C. 553(b)(3)(A), because it concerns a rule 
of ``agency organization, procedure, or practice.'' AFL-CIO v. NLRB, 57 
F.4th at 1035.

Dissenting Opinion of Member Kaplan

    In 2019, the Board issued a final rule \1\ amending certain 
provisions of its representation-case rules, which had been extensively 
modified in a final rule enacted in 2014.\2\ It did so without first 
issuing a notice of proposed rulemaking because it viewed the 
amendments as pertaining to ``rules of agency . . . procedure,'' and 
such ``procedural rules'' are exempt from notice-and-comment 
requirements under 5 U.S.C. 553(b)(3)(A). The AFL-CIO challenged the 
2019 Rule in the United States District Court for the District of 
Columbia on several grounds, including that five provisions of the 2019 
Rule were not procedural and therefore not exempt from notice-and-
comment rulemaking. The district court agreed with the AFL-CIO and 
vacated all five.\3\ Recently, a divided Court of Appeals for the 
District of Columbia Circuit (``D.C. Circuit'' or ``court of appeals'') 
reversed in part, holding that two of the five are procedural but three 
are not.\4\ ``Those three provisions,'' said the court, ``must remain 
vacated unless and until the Board repromulgates them with notice and 
comment.'' \5\ In dissent, Judge Rao said that the majority had applied 
an ``obsolete legal standard'' and that ``[u]nder the correct 
standard,'' all five ``are classic procedural rules.'' \6\
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    \1\ ``Representation-Case Procedures,'' 84 FR 69524 (Dec. 18, 
2019) (the ``2019 Rule'').
    \2\ ``Representation-Case Procedures,'' 79 FR 74307 (Dec. 15, 
2014) (the ``2014 Rule'').
    \3\ AFL-CIO v. NLRB, 466 F. Supp. 3d 68 (D.D.C. 2020).
    \4\ AFL-CIO v. NLRB, 57 F.4th 1023, 1034-1046 (D.C. Cir. 2023).
    \5\ Id. at 1049.
    \6\ Id. at 1050 (Rao, J., concurring in the judgment in part and 
dissenting in part).
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    In a separate final rule issued today, my colleagues rescind the 
three provisions of the 2019 Rule that the D.C. Circuit held to be not 
procedural. As I explain in my dissent to that rule, I would have asked 
the Solicitor General to file a petition for certiorari from the D.C. 
Circuit's decision because the controlling legal test for determining 
when rulemaking is procedural and therefore exempt from notice-and-
comment requirements under the Administrative Procedure Act presents 
``an important question of federal law that has not been, but should 
be, settled by'' the Supreme Court.\7\ But since my colleagues did not 
join me in that regard, I would pursue the option the D.C. Circuit 
suggested and repromulgate the three provisions the court held not 
procedural for notice-and-comment rulemaking.\8\ I would do so because 
I believe, subject to comments, that those three provisions are 
superior to the rules that my colleagues have snapped back into place.
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    \7\ Supreme Court Rule 10(c).
    \8\ The D.C. Circuit also vacated a fourth provision of the 2019 
Rule, which mandated impoundment of ballots if a request for review 
of a regional director's decision and direction of election is filed 
within 10 days of issuance of the decision and direction, and the 
Board has either granted or not ruled on the request for review 
before the conclusion of the election. The court held this provision 
unlawful as contrary to Sec. 3(b) of the Act. Interpreting Sec. 3(b) 
differently than the majority, Judge Rao would have upheld this 
provision as well. Although I agree with Judge Rao's interpretation, 
I recognize that repromulgating the ballot-impoundment provision for 
notice and comment is not an option.
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    In the instant final rule, the majority addresses the two 
provisions of the 2019 Rule that the D.C. Circuit held to be procedural 
and therefore properly implemented without notice and comment. The AFL-
CIO's challenge to those two provisions was not limited to its claim 
that they are not procedural, but the district court, having vacated 
them (erroneously) as not procedural, did not address the AFL-CIO's 
remaining contentions. Accordingly, the D.C. Circuit remanded the two 
provisions to the district court to address those contentions. 
Meanwhile, because the D.C. Circuit has held that those two provisions 
are procedural and therefore were properly enacted without notice and 
comment, they will take effect when the court of appeals issues its 
mandate. To prevent that from happening, my colleagues issue this rule 
to stay the effective date of the two provisions to September 10, 2023.

[[Page 14915]]

    I disagree with their decision to do so. My colleagues state two 
reasons for issuing this stay: to give the district court time to 
consider the AFL-CIO's remaining arguments on remand, and to give 
themselves time to decide whether to revise or repeal the 2019 Rule, 
including the two provisions that have been sent back to the district 
court. I will not take this occasion to mount a comprehensive defense 
of the 2019 Rule. There is not time for me to do so; the court of 
appeals will issue its mandate on March 10, and my colleagues are 
determined to issue this rule before that happens. I will, however, 
explain why the two provisions of the 2019 Rule at issue here should be 
allowed to take effect when the court issues its mandate.
    The two provisions are these: (1) a rule providing that unit scope 
and voter eligibility (including supervisory status) normally will be 
litigated and resolved by the regional director before he or she 
directs the election (the ``unit-scope-and-eligibility rule''), and (2) 
a rule providing that normally, the regional director will not schedule 
an election before the 20th business day after the date of the 
direction of election (the ``20-days rule''). As the Board said in the 
2019 Rule, these two provisions go hand in hand: the regional director 
will resolve disputes over unit scope and voter eligibility before 
directing the election, and the 20-days rule will give the Board time 
to act on a request for review of the regional director's decision if 
one is filed. They should be allowed to take effect when mandate issues 
for two reasons. They promote important interests that the 2014 Rule 
subordinated to speed. And there is no good reason to wait for the 
district court to rule on the AFL-CIO's remaining arguments for 
vacating these provisions because those arguments are meritless.
    The rules at issue promote important interests.
    Under the 2014 Rule, regional directors were instructed to schedule 
elections on ``the earliest date practicable,'' and litigation of 
disputes over unit scope and voter eligibility, including supervisory 
status, were largely postponed until after the election. Speed--i.e., 
shortening the time between the filing of the representation petition 
and the election--was prioritized over other interests. In the 2019 
Rule, the Board acknowledged that speed is an important interest and 
that some of the changes it was making to the Board's representation-
case procedures would unavoidably result in some delay between the 
filing of the petition and the election. But the Board made clear that 
none of the changes had a purpose of delay but were being made to serve 
other important interests.
    Specifically as to the provisions of the 2019 Rule at issue here, I 
cannot improve on the concise explanation the Board furnished there of 
the interests those rules serve. The italics are mine.

    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 permitting 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. . . . 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.

84 FR at 69529. I agree that the unit-scope-and-eligibility rule and 
the 20-days rule serve these important interests, and I believe these 
interests outweigh the interest in speed. Since I can think of no other 
reason my colleagues might have for repealing these rules than once 
again promoting speed at the expense of certainty, finality, and 
transparency, I would not delay their effective date to provide time to 
consider taking that step.
    The AFL-CIO's remaining arguments are meritless.
    The other reason the majority gives for staying of the unit-scope-
and-eligibility rule and the 20-days rule is to provide time for the 
district court to rule on remand concerning the AFL-CIO's remaining 
grounds of attack on those rules. The AFL-CIO contends that both 
provisions must be vacated as arbitrary and capricious, and that the 
20-days rule must additionally be vacated as contrary to Section 3(b) 
of the Act. There is no good reason to wait for the district court to 
dispose of these contentions because they will not succeed.
    Regarding the AFL-CIO's arbitrary-and-capricious attack, one need 
look no further than the D.C. Circuit's decision to see that it will 
fail. The AFL-CIO had also argued before the district court that the 
2019 Rule as a whole was arbitrary and capricious. Affirming the 
district court's dismissal of that argument, the court of appeals wrote 
as follows:

    The Board gives a rational account of how the 2019 Rule advances 
interests apart from speed. For example, the Board adequately 
explains that the election-scheduling provision--which supplements 
the ``earliest date practicable'' language with a default minimum 
period of twenty business days--promotes transparency and uniformity 
by making the timing of elections more predictable for parties. See 
[84 FR] at 69,546. It also explains that the provision regarding 
pre-election litigation of voter eligibility, unit scope, and 
supervisory status could provide employee-voters with more complete 
information about ``who they are voting to join in collective 
bargaining.'' Id. at 69,541.\9\
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    \9\ AFL-CIO v. NLRB, 57 F.4th at 1047.

    In other words, in explaining why the district court correctly 
rejected the AFL-CIO's contention that the 2019 Rule as a whole was 
arbitrary and capricious, the D.C. Circuit singled out the very 
provisions that are now back before the district court to determine 
whether they are arbitrary and capricious. The court of appeals could 
not have sent a clearer signal to the lower court that any other 
resolution besides dismissal is out of the question.
    The AFL-CIO's claim that the 20-days rule is also unlawful as 
contrary to Section 3(b) of the Act also fails. Section 3(b) relevantly 
provides:

    [U]pon the filing of a request therefor with the Board by any 
interested person, the Board may review any action of a regional 
director delegated to him under this paragraph, but such a review 
shall not, unless specifically ordered by the Board, operate as a 
stay of any action taken by the regional director.

29 U.S.C. 159(b). The clear language of this provision indicates that 
it is triggered only ``upon the filing of a request [for review of a 
regional director's action] . . . with the Board.'' Even assuming that 
the 20-days rule ``operate[s] as a stay'' of an action taken by the 
regional director--namely, tallying the ballots--this alleged ``stay'' 
is not triggered by the filing of any request for review with the 
Board. Rather, it results from the 20-days rule

[[Page 14916]]

itself. Section 3(b) does not speak to that delay.\10\
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    \10\ As stated above, the court of appeals found that the 
ballot-impoundment provision in the 2019 Rule is contrary to Sec. 
3(b). That provision, however, is expressly triggered only when a 
party files a request for review within ten business days of the 
issuance of the direction of election and when certain other 
conditions are met.
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    In sum, my colleagues have failed to provide a persuasive reason 
for staying the effective date of the unit-scope-and-eligibility and 
20-days rules. I favor allowing these rules to take effect just as soon 
as the D.C. Circuit issues mandate. Accordingly, from the majority's 
final rule, I dissent.

    Dated: March 6, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023-04839 Filed 3-9-23; 8:45 am]
BILLING CODE 7545-01-P