Representation-Case Procedures

CourtNational Labor Relations Board
Citation84 FR 69524
Record Number2019-26920
Published date18 December 2019
Federal Register, Volume 84 Issue 243 (Wednesday, December 18, 2019)
[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 IIINational Labor Relations Board-----------------------------------------------------------------------29 CFR Part 102Representation-Case Procedures; Final Rule
                Federal Register / Vol. 84 , No. 243 / Wednesday, December 18, 2019 /
                Rules and Regulations
                [[Page 69524]]
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                NATIONAL LABOR RELTATIONS BOARD
                29 CFR Part 102
                RIN 3142-AA12
                Representation-Case Procedures
                AGENCY: National Labor Relations Board.
                ACTION: Final rule.
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                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\
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                 \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.
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                 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).
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                 \3\ The General Counsel administratively oversees the regional
                directors. 29 U.S.C. 153(d).
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                 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.
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                 \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).
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                 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:
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                 \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).
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                 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\
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                 \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.
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                 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
                

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