Representation-Case Procedures
| Citation | 84 FR 69524 |
| Record Number | 2019-26920 |
| Published date | 18 December 2019 |
| Section | Rules and Regulations |
| Court | National Labor Relations Board |
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.
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\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.
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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.
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\10\ A.J. Tower, 329 U.S. at 330.
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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.
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\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.
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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\
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\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.
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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\
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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).
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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.
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\24\ 82 FR 11748 et seq.
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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\
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\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.
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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.
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\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).
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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.
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\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.
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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.
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\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.
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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.
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\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.
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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.
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\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.
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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.
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\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'').
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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\
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\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.
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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\
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\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'').
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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?
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\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'').
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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\
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\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.
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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.
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\49\ The required contents of the Statement of Position can be
found in Sec. 102.63(b).
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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.
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\50\ See fn. 16, supra, for statistics regarding the rate of
election agreements before and after the 2014 amendments.
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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).
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\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.
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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.
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\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.
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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\
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\53\ For example, the 2014 amendments noted comments proposing
periods ranging from 14 to 30 days. 79 FR 74375.
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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\
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\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).
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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.
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\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).
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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\
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\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.
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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\
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\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.
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[[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\
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\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.
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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.
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\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.
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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).
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\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.
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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.
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\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.''
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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.
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\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.
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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).
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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.
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\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).
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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.
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\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\
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\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.
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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).
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\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.
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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.
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\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).
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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\
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\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.'').
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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.
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\92\ These amendments are, however, severable, and we would
adopt each of them independently of the other.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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.
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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).
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\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).
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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\
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\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'').
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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.
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\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'').
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\120\ The Board's practice since the 2015 implementation of the
2014 amendments has reflected the same view of ``final
disposition.''
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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.
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\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).
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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)).
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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.
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\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).
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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.
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\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.
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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.
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\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).
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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\
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\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).
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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.
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\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.
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[[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.
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\137\ Representation-Case Procedures, 79 FR 74308 (Dec. 15,
2014).
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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.
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\138\ See Regional Director Committee's Response (RDs' Response)
to 2017 Request for Information concerning the 2014 Rule p.4.
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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.
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\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%).
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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\
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\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).
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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\
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\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.
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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\
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\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.
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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\
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\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).
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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.
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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.
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\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.
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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.
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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\
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\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.
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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.
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\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).
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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\
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\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).
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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.
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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\
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\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.
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\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.
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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.
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\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.
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\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\
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\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.''
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[[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\
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\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.
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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\
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\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.
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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'').
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\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\
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\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\
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\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).'').
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[[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\
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\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\
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\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.
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[[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\
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\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).
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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.
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\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.
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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\
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\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\
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\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.
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\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\
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\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.
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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.
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\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).
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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\
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\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).
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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\
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\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).
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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.
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\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.
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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.
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\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.'').
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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\
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\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.
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[[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.
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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\
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\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.
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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\
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\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.).
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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.
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\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.'').
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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).
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\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.'').
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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\
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\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.
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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.'').
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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.
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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
