[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36811-36847]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15307]



[[Page 36811]]

Vol. 76

Wednesday,

No. 120

June 22, 2011

Part IV





National Labor Relations Board





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29 CFR Parts 101, 102 and 103





Representation--Case Procedures; Proposed Rule

Federal Register / Vol. 76 , No. 120 / Wednesday, June 22, 2011 / 
Proposed Rules

[[Page 36812]]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102 and 103

RIN 3142-AA08


Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: As part of its ongoing efforts to more effectively administer 
the National Labor Relations Act (the Act or the NLRA) and to further 
the purposes of the Act, the National Labor Relations Board (the Board) 
proposes to amend its rules and regulations governing the filing and 
processing of petitions relating to the representation of employees for 
purposes of collective bargaining with their employer. The Board 
believes that the proposed amendments would remove unnecessary barriers 
to the fair and expeditious resolution of questions concerning 
representation. The proposed amendments would simplify representation-
case procedures and render them more transparent and uniform across 
regions, eliminate unnecessary litigation, and consolidate requests for 
Board review of regional directors' pre- and post-election 
determinations into a single, post-election request. The proposed 
amendments would allow the Board to more promptly determine if there is 
a question concerning representation and, if so, to resolve it by 
conducting a secret ballot election.

DATES: Comments regarding this proposed rule must be received by the 
Board on or before August 22, 2011. Comments replying to comments 
submitted during the initial comment period must be received by the 
Board on or before September 6, 2011. Reply comments should be limited 
to replying to comments previously filed by other parties. No late 
comments will be accepted. The Board intends to issue a notice of 
public hearing to be held in Washington, DC, on July 18-19, at which 
interested persons would be invited to share their views on the 
proposed amendments and to make any other proposals concerning the 
Board's representation case procedures.

ADDRESSES: You may submit comments identified by 3142-AA08 only by the 
following methods:
    Internet--Federal eRulemaking Portal. Electronic comments may be 
submitted through http://www.regulations.gov. To locate the proposed 
rule, search ``documents open for comment'' and use key words such as 
``National Labor Relations Board'' or ``representation-case 
procedures'' to find documents accepting comments. Follow the 
instructions for submitting comments.
    Delivery--Comments should be sent by mail or hand delivery to: 
Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 
1099 14th Street, NW., Washington, DC 20570. Because of security 
precautions, the Board continues to experience delays in U.S. mail 
delivery. You should take this into consideration when preparing to 
meet the deadline for submitting comments. The Board encourages 
electronic filing. It is not necessary to send comments if they have 
been filed electronically with regulations.gov. If you send comments, 
the Board recommends that you confirm receipt of your delivered 
comments by contacting (202) 273-1067 (this is not a toll-free number). 
Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD).
    Only comments submitted through http://www.regulations.gov, hand 
delivered, or mailed will be accepted; ex parte communications received 
by the Board will be made part of the rulemaking record and will be 
treated as comments only insofar as appropriate. Comments will be 
available for public inspection at http://www.regulations.gov and 
during normal business hours (8:30 a.m. to 5 p.m. EST) at the above 
address.
    The Board will post, as soon as practicable, all comments received 
on http://www.regulations.gov without making any changes to the 
comments, including any personal information provided. The Web site 
http://www.regulations.gov is the Federal eRulemaking portal, and all 
comments posted there are available and accessible to the public. The 
Board requests that comments include full citations or Internet links 
to any authority relied upon. The Board cautions commenters not to 
include personal information such as Social Security numbers, personal 
addresses, telephone numbers, and e-mail addresses in their comments, 
as such submitted information will become viewable by the public via 
the http://www.regulations.gov Web site. It is the commenter's 
responsibility to safeguard his or her information. Comments submitted 
through http://www.regulations.gov will not include the commenter's e-
mail address unless the commenter chooses to include that information 
as part of his or her comment.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, 1099 14th Street, NW., 
Washington, DC 20570, (202) 273-1067 (this is not a toll-free number), 
1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 7 of the National Labor Relations Act (the Act or the 
NLRA), 29 U.S.C. 157, vests in employees the right ``to bargain 
collectively through representatives of their own choosing * * * and to 
refrain from * * * such activity.'' The Act vests in the National Labor 
Relations Board (the Board) a central role in the effectuation of that 
right when employers, employees, and labor organizations are unable to 
agree on whether the employer should recognize a labor organization as 
the representative of the employees. Section 9 of the Act, 29 U.S.C. 
159, gives the Board authority to determine if such a ``question of 
representation'' exists and, if so, to resolve the question by 
conducting ``an election by secret ballot.''
    Congress left the procedures for determining if a question of 
representation exists and for conducting secret ballot elections almost 
entirely within the discretion of the Board. The Supreme Court has 
repeatedly recognized that ``Congress has entrusted the Board with a 
wide degree of discretion in establishing the procedure and safeguards 
necessary to insure the fair and free choice of bargaining 
representatives by employees.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 
330 (1946). ``The control of the election proceeding, and the 
determination of the steps necessary to conduct that election fairly 
were matters which Congress entrusted to the Board alone.'' NLRB v. 
Waterman S.S. Co., 309 U.S. 206, 226 (1940); see also Southern S.S. Co. 
v. NLRB, 316 U.S. 31, 37 (1942).
    Since 1935, the Board has exercised its discretion to establish 
standard procedures in representation cases largely through 
promulgation and revision of rules and regulations or internal 
policies.\1\ Thus, 29 CFR part

[[Page 36813]]

102, subpart C sets forth the Board's Rules and Regulations governing 
``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.'' Subparts D and E set forth related rules and 
regulations governing ``Procedures for Unfair Labor Practice and 
Representation Cases Under Section 8(b)(7) and 9(c) of the Act'' and 
``Procedure for Referendum Under Section 9(e) of the Act.'' 29 CFR part 
101, subparts C, D and E set forth the Board's Statements of Procedures 
in the same three types of cases. The Board's Casehandling Manual at 
Sections 11000 through 11886 describes procedures in representation 
cases in greater detail, including the mechanics of elections.\2\
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    \1\ The Board's failure to rely on rulemaking in other areas has 
met widespread scholarly criticism. See R. Alexander Acosta, 
Rebuilding the Board: An Argument for Structural Change, over Policy 
Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 351-52 (2010); Merton 
C. Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the 
Administrative Procedure Act, 79 Yale L.J. 571 (1970); Samuel 
Estreicher, Policy Oscillation at the Labor Board: A Plea for 
Rulemaking, 37 Admin. L. Rev. 163 (1985); Jeffrey S. Lubbers, The 
Potential of Rulemaking by the NLRB, 5 FIU L. Rev. 411, 414-17, 435 
(Spring 2010); Kenneth Kahn, The NLRB and Higher Education: The 
Failure of Policymaking Through Adjudication, 21 UCLA L. Rev. 63 
(1973); Charles J. Morris, The NLRB in the Dog House--Can an Old 
Board Learn New Tricks?, 24 San Diego L. Rev. 9 (1987); Cornelius 
Peck, The Atrophied Rulemaking Powers of the National Labor 
Relations Board, 70 Yale L.J. 729 (1961); Cornelius J. Peck, A 
Critique of the National Labor Relations Board's Performance in 
Policy Formulation: Adjudication and Rule-Making, 117 U. Pa. L. Rev. 
254 (1968); David L. Shapiro, The Choice of Rulemaking or 
Adjudication in the Development of Administrative Policy, 78 Harv. 
L. Rev. 921 (1965); Carl S. Silverman, The Case for the National 
Labor Relations Board's Use of Rulemaking in Asserting Jurisdiction, 
25 Lab. L.J. 607 (1974); and Berton B. Subrin, Conserving Energy at 
the Labor Board: The Case for Making Rules on Collective Bargaining 
Units, 32 Lab. L.J. 105 (1981).
    \2\ The Casehandling Manual is prepared by the Board's General 
Counsel and is not binding on the Board. Hempstead Lincoln, 349 NLRB 
552, 552 n.4 (2007); Pacific Grain Products, 309 NLRB 690, 691 n.5 
(1992).
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    Congress intended that the Board adopt procedures that permit 
questions concerning representation to be resolved both quickly and 
fairly. As the Supreme Court has noted, ``[T]he Board must adopt 
policies and promulgate rules and regulations in order that employees' 
votes may be recorded accurately, efficiently and speedily.'' A.J. 
Tower Co., 329 U.S. at 330-31. The Board has repeatedly recognized 
``the Act's policy of expeditiously resolving questions concerning 
representation.'' \3\ ``In * * * representation proceedings under 
Section 9,'' the Board has observed, ``time is of the essence if Board 
processes are to be effective.'' \4\ Indeed, the Board's Casehandling 
Manual stresses that ``[t]he expeditious processing of petitions filed 
pursuant to the Act represents one of the most significant aspects of 
the Agency's operations.'' \5\
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    \3\ See, e.g., Northeastern University, 261 NLRB 1001, 1002 
(1982).
    \4\ Tropicana Products, Inc., 122 NLRB 121, 123 (1958).
    \5\ Pt. 2, Representation Proceedings, Section 11000.
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    Expeditious resolution of questions concerning representation is 
central to the statutory design because Congress found that ``refusal 
by some employers to accept the procedure of collective bargaining 
lead[s] to strikes and other forms of industrial strife and unrest, 
which have the intent or the necessary effect of burdening and 
obstructing commerce.'' \6\ Thus, Congress found that the Board's 
expeditious processing of representation petitions and, when 
appropriate, conduct of elections would ``safeguard[] commerce from 
injury, impairment or interruption.'' \7\
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    \6\ 29 U.S.C. 151.
    \7\ Id.
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    One of the primary purposes of the original Wagner Act was to avoid 
``the long delays in the procedure * * * resulting from applications to 
the federal appellate courts for review of orders for elections.'' AFL 
v. NLRB, 308 U.S. 401, 409 (1940). The Senate Committee Report 
explained that one of the ``weaknesses in existing law'' was ``that the 
Government can be delayed indefinitely before it takes the first step 
toward industrial peace'' by conducting an election.\8\ For this 
reason, Congress did not provide for direct judicial review of either 
interlocutory orders or final certifications or dismissals in 
representation proceedings conducted under section 9 of the Act. 
Rather, in order to insure that elections were conducted promptly, 
judicial review was permitted only after issuance of an order under 
section 10 relying, in part, on the Board's certification under section 
9.
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    \8\ S. Rep. No. 573, 74th Cong., 1st Sess. pp. 5-6. See also H. 
Rep. No. 1147, 74th Cong., 1st Sess. p. 6.
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A. Evolution of Board Regulation of Representation Case Procedures

1. Legislative and Administrative Delegation of Authority To Process 
Petitions in Order To Expedite Resolution of Questions Concerning 
Representation
    The Board initially exercised its discretion over the conduct of 
representation elections through a procedure under which, in the event 
the parties could not agree concerning the conduct of an election, an 
employee of one of the Board's regional offices would develop a record 
at a pre-election hearing.\9\ At the close of the hearing, the record 
was forwarded to the Board in Washington, DC, which either directed an 
election or made some other disposition of the matter.\10\ However, 
requiring the Board itself to address all of the myriad disputes 
arising out of the thousands of representation petitions filed annually 
resulted in significant delays.
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    \9\ 29 CFR 102.63 and 102.64 (1959).
    \10\ 29 CFR 102.67 and 102.68 (1959).
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    Accordingly, in 1959, as part of the amendments of the NLRA 
effected by the Labor-Management Reporting and Disclosure Act, Congress 
revised Section 3(b) of the Act to authorize the Board to delegate its 
election-related duties to the directors of the Board's regional 
offices, subject to discretionary Board review.\11\ Section 3(b) 
provides:
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    \11\ Public Law 86-257 (codified as amended in 29 U.S.C. 
153(b)).

    The Board is * * * authorized to delegate to its regional 
directors its powers under section 9 to determine the unit 
appropriate for the purpose of collective bargaining, to investigate 
and provide for hearings, and determine whether a question of 
representation exists, and to direct an election or take a secret 
ballot under subsection (c) or (e) of section 9 and certify the 
results thereof, except that upon the filing of a request therefor 
with the Board by any interested person, the Board may review any 
action of a regional director delegated to him under this paragraph, 
but such a review shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
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director.

    As Senator Goldwater, a member of the Conference Committee which 
added the new section to the amendments, explained, ``[Section 3(b)] is 
a new provision, not in either the House or Senate bills, designed to 
expedite final disposition of cases by the Board, by turning over part 
of its caseload to its regional directors for final determination. * * 
* This authority to delegate to the regional directors is designed, as 
indicated, to speed the work of the Board.'' \12\
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    \12\ 105 Cong. Rec. 19770.
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    Soon after the authorizing amendment was adopted in 1959, the Board 
made the permitted delegation to its regional directors by amending its 
rules and regulations.\13\ Since the delegation, the Board's regional 
directors have resolved pre-election disputes and directed elections, 
subject to a procedure through which aggrieved parties can seek Board 
review of regional directors' pre-election decisions.\14\ The Board's 
amended rules made such review discretionary, only to be granted in 
compelling circumstances, and that process was subsequently upheld by 
the Supreme Court.\15\
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    \13\ 26 FR 3885 (May 4, 1961).
    \14\ 29 CFR 102.67 (1961).
    \15\ Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).
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    As intended by Congress, the implementation of the new procedure 
led to a significant decrease in the time it took to conduct 
representation

[[Page 36814]]

elections. Immediately following the Board's amendment of its rules in 
1961, the median number of days necessary to process election petitions 
to a decision and direction of election was roughly cut in half.\16\ By 
1975, the Board was conducting elections in a median of 50 days from 
the filing of an election petition.\17\
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    \16\ See NLRB Office of the General Counsel, Summaries of 
Operations (Fiscal Years 1961-1962) (reporting that the ``median 
average'' number of days from petition to a decision and direction 
of election was reduced from 82 days in 1960 to 43 days in 1962).
    \17\ See U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE, 
COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, FACT-
FINDING REPORT, 68, 82 (1994) (``Dunlop Commission Fact Finding'').
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    The Board's next major improvement in the efficiency of its 
election procedures came in 1977. After a decade and a half of 
experience with the request for review procedure, the Board again 
amended its rules to reduce delay in elections after the Board granted 
review of a regional director's decision and direction of election or a 
preliminary ruling.\18\ Specifically, the Board established a procedure 
whereby the regional directors would proceed to conduct elections as 
directed, notwithstanding the Board's decision to grant review, unless 
the Board ordered otherwise. Under this procedure, the regional 
director impounds the ballots at the conclusion of the election, and 
delays tallying them until the Board issues its decision. Although this 
change did not have a significant effect on the overall median number 
of days from petition to election, it substantially decreased the time 
it took to conduct elections in the small number of cases in which the 
Board granted review.\19\ These procedures remain in place today.
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    \18\ See 42 FR 41117 (Aug. 15, 1977); Chairman's Task Force on 
the NLRB for 1976, Volume 1, Board Action on Recommendations of the 
Chairman's Task Force Memorandum to the Task Force, 3 (May 25, 
1977); Chairman's Task Force, Volume 7, Task Force Report Memorandum 
to the Board, 10-15 (January 28, 1977).
    \19\ See Dunlop Commission Fact Finding, 82. Comparing the 
change in figures from 1975 to 1985 demonstrates that the percentage 
of total elections conducted more than 60 days from the filing of a 
petition decreased from 20.1 percent to 16.5 percent, and the 
percentage of total elections conducted more than 90 days from the 
filing of a petition decreased from 11 percent to 4.1 percent.
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    The Board continued to focus on processing representation petitions 
expeditiously in the years following implementation of the vote and 
impound procedure. As a result, more than 90 percent of elections were 
conducted within 56 days of the filing of a petition during the last 
decade, with a median time of 37-38 days between petition and 
election.\20\
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    \20\ See NLRB Office of the General Counsel, Summary of 
Operations (Fiscal Years 2002-2010).
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    Notably, however, the nature of the Board's review of regional 
directors' decisions varies, depending on whether the decision was 
issued before or after the election.\21\ As described above, the Board 
has exercised its authority to delegate to its regional directors the 
task of processing petitions through the conduct of an election subject 
only to discretionary Board review. In contrast, the current rules 
provide that any party, unless it has waived the right in a pre-
election agreement, may in most cases obtain Board review of a regional 
director's resolution of any post-election dispute, whether concerning 
challenges to the eligibility of a voter or objections to the conduct 
of the election or conduct affecting the results of an election. The 
right to review of regional directors' post-election decisions has 
caused extended delay of final certification of election results in 
many instances.\22\
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    \21\ This is the case even when the issue addressed by the 
regional director is precisely the same one as, for example, when an 
eligibility issue is raised, litigated and decided pre-election and 
when the same issue is raised through a challenge and litigated and 
decided post-election.
    \22\ See, e.g., Manhattan Crowne Plaza, 341 NLRB 619 (2004) 
(exceptions concerning alleged threat contained in single, written 
memorandum pending before the Board for almost three years).
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2. Limiting the Pre-Election Hearing to Issues Genuinely in Dispute and 
Material to Determining if a Question Concerning Representation Exists
a. Identification and Joinder of Issues
    Other than the petition, the parties to a representation proceeding 
under section 9 of the Act are not required to file any other form of 
pleading. The current regulations do not provide for any form of 
responsive pleading, in the nature of an answer, through which non-
petitioning parties are required to give notice of the issues they 
intend to raise at a hearing. As a consequence, the petitioner is not 
required to join any such issues.
    The Board has, nevertheless, developed administrative practices in 
an effort to identify and narrow the issues in dispute before or at a 
pre-election hearing. The regional director's initial letter to an 
employer following the filing of a petition asks the employer to state 
its position ``as to the appropriateness of the unit described in the 
petition.'' \23\ In some cases, regions will conduct pre-hearing 
conferences either face-to-face or by telephone in an effort to 
identify and narrow the issues in dispute. Further, section 11217 of 
the Casehandling Manual provides, ``Prior to the presentation of 
evidence or witnesses, parties to the hearing should succinctly state 
on the record their positions as to the issues to be heard.'' However, 
none of these practices is mandatory, and they are not uniformly 
followed in the regions.
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    \23\ Casehandling Manual section 11009.1(e).
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    In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board 
observed, ``in order to effectuate the purposes of the Act through 
expeditiously providing for a representation election, the Board should 
seek to narrow the issues and limit its investigation to areas in 
dispute.'' In Bennett, the Board sustained a hearing officer's ruling 
preventing an employer from introducing evidence relevant to the 
supervisory status of two classes of employees and included employees 
in the two classes in the unit without further factual inquiry when the 
employer refused to take a position concerning whether the employees 
were supervisors. The Board reasoned:

    The Board's duty to ensure due process for the parties in the 
conduct of the Board proceedings requires that the Board provide 
parties with the opportunity to present evidence and advance 
arguments concerning relevant issues. However, the Board also has an 
affirmative duty to protect the integrity of the Board's processes 
against unwarranted burdening of the record and unnecessary delay. 
Thus, while the hearing is to ensure that the record contains as 
full a statement of the pertinent facts as may be necessary for 
determination of the case (NLRB Statement of Procedure Sec. 
101.20(c)), hearings are intended to afford parties ``full 
opportunity to present their respective positions and to produce the 
significant facts in support of their contentions.'' (emphasis 
added).

Id.
    In Allen Health Care Services, 332 NLRB 1308 (2000), however, the 
Board held that even when an employer refuses to take a position on the 
appropriateness of a petitioned-for unit, the regional director must 
nevertheless take evidence on the issue unless the unit is 
presumptively appropriate. The Board held that, ``absent a stipulated 
agreement, presumption, or rule, the Board must be able to find--based 
on some record evidence--that the proposed unit is an appropriate one 
for bargaining before directing an election in that unit.'' Id. at 
1309. The Board did not make clear in Allen whether a party that 
refuses to take a position on the appropriateness of a petitioned-for 
unit must nevertheless be permitted to introduce evidence relevant to 
the issue. The Casehandling Manual provides that parties should be 
given the following, equivocal notice in such circumstances: ``If a 
party refuses to state its position on an issue and no controversy 
exists, the

[[Page 36815]]

party should be advised that it may be foreclosed from presenting 
evidence on that issue.'' Section 11217.
b. Identification of Genuine Disputes as to Material Facts
    The current regulations also do not expressly provide for any form 
of summary judgment or offer-of-proof procedures through which the 
hearing officer can determine if there are genuine disputes as to any 
material facts, the resolution of which requires the introduction of 
evidence at a pre-election hearing.
    The Board has developed such a procedure in reviewing post-election 
objections to the conduct of an election or conduct affecting the 
results of an election. The current regulations provide that any party 
filing such objections shall also file, within seven days, ``the 
evidence available to it to support the objections.'' 29 CFR 102.69(a). 
Casehandling Manual section 1132.6 further specifies, ``In addition to 
identifying the nature of the misconduct on which the objections are 
based, this submission should include a list of the witnesses and a 
brief description of the testimony of each.'' If an objecting party 
fails to file such an offer of proof or if the offer fails to describe 
evidence which, if introduced at a hearing, could require the election 
results to be overturned, the regional director dismisses the objection 
without a hearing. In the post-election context, the courts of appeals 
have uniformly endorsed the Board's refusal to hold a hearing when no 
party has created a genuine dispute as to any material fact. See, e.g., 
NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir. 1967), cert. denied, 
389 U.S. 917 (1967); NLRB v. Air Control Products of St. Petersburg, 
Inc., 335 F.2d 245, 249 (5th Cir. 1964).
    The Board has also endorsed an offer-of-proof procedure in pre-
election hearings when the petitioned-for unit is presumptively 
appropriate. See, e.g., Laurel Associates, Inc., 325 NLRB 603 (1998); 
Mariah, Inc., 322 NLRB 586, 587 (1996). In such circumstances, the 
Board has sustained a hearing officer's refusal to hear evidence after 
an employer has either refused to make an offer of proof or offered 
proof not sufficient to create a genuine dispute as to facts material 
to the question of whether the presumption of appropriateness can be 
rebutted.
    Because the current regulations do not describe a procedure for 
identifying genuine disputes as to material facts, there has been 
continuing uncertainty concerning the circumstances under which an 
evidentiary hearing is necessary. In Angelica Healthcare Services 
Group, Inc., 315 NLRB 1320 (1995), for example, the Board reversed the 
decision of an acting regional director to direct an election without a 
hearing when an incumbent union contended there was no question 
concerning representation because its collective-bargaining agreement 
with the employer barred an election. The Board stated, ``We find that 
the language of Section 9(c)(1) of the Act and Section 102.63(a) of the 
Board's Rules required the Acting Regional Director to provide `an 
appropriate hearing' prior to finding that a question concerning 
representation existed and directing an election.'' Id. at 1321. But 
the Board noted expressly, ``[W]e find it unnecessary to decide in this 
case the type of hearing that would be necessary to satisfy the Act's 
`appropriate hearing' requirement.'' Id. at 1321 n. 6.
c. Deferral of Litigation and Resolution of Issues Not Relevant to the 
Determination of Whether a Question Concerning Representation Exists
    Section 9(c) of the Act provides that, after the filing of a 
petition,

the Board shall investigate such petition and if it has reasonable 
cause to believe that a question of representation affecting 
commerce exists, it 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.

The statutory purpose of a pre-election hearing is thus to determine if 
a question concerning representation exists. If such a question exists, 
the Board conducts an election in order to answer the question.
    Whether individual employees are eligible to vote may or may not 
affect the outcome of an election, but it is not ordinarily relevant to 
the preliminary issue of whether a question concerning representation 
exists that an election is needed to answer. For that reason, the Board 
has consistently sustained regional directors' decisions to defer 
resolving questions of individual employees' eligibility to vote until 
after an election (in which the disputed employees may cast challenged 
ballots). In Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004), 
the Board characterized this procedure as the ``tried-and-true `vote 
under challenge procedure.' '' See also HeartShare Human Services of 
New York, Inc., 320 NLRB 1 (1995). The Eighth Circuit has stated that 
``deferring the question of voter eligibility until after an election 
is an accepted NLRB practice.'' Bituma Corp. v. NLRB, 23 F.3d 1432, 
1436 (8th Cir. 1994). Even when a regional director resolves such a 
dispute pre-election, the Board, when a request for review is filed, 
often defers review of the resolution, permitting the disputed 
individuals to vote subject to challenge. See, e.g., Medlar Elec., 
Inc., 337 NLRB 796, 796 (2002); Interstate Warehousing of Ohio, LLC, 
333 NLRB 682, 682-83 (2001); American Standard, Inc., 237 NLRB 45, 45 
(1978).
    In Barre-National, Inc., 316 NLRB 877 (1995), however, the Board 
considered whether a regional director had acted properly when he 
deferred both litigation and a decision concerning the eligibility of 
24 line and group leaders (constituting eight to nine percent of the 
unit) until after an election, over the objection of the employer 
contending that the leaders were supervisors. Quoting both section 
102.66(a) and 101.20(c) of the existing regulations, the Board held 
that the two sections ``entitle parties at [pre-election] hearings to 
present witnesses and documentary evidence in support of their 
positions.'' Id. at 878. For that reason, the Board held that the 
regional director had erred by deferring the taking of the employer's 
testimony until after the election. But the Board did not hold in 
Barre-National that the disputed issue had to be resolved before the 
regional director directed an election. In fact, the Board expressly 
noted, ``[O]ur ruling concerns only the entitlement to a preelection 
hearing, which is distinct from any claim of entitlement to a final 
Agency decision on any issue raised in such a hearing.'' Id. at 879 n. 
9. The Board further noted that ``reviewing courts have held that there 
is no general requirement that the Board decide all voter eligibility 
issues prior to an election.'' Id.
3. Provision of a List of Eligible Voters
    In elections conducted under Section 9 of the Act, there is no list 
of employees or potentially eligible voters generally available to 
interested parties other than the employer and, typically, an incumbent 
representative. The Board addressed this issue in Excelsior Underwear, 
Inc., 156 NLRB 1236, 1239-40 (1966), where it held:

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


[[Page 36816]]


    Although several Justices of the Supreme Court expressed the view 
that the requirement to produce what has become known as an ``Excelsior 
list'' should have been imposed through rulemaking rather than 
adjudication, the Court upheld the substantive requirement in NLRB v. 
Wyman-Gordon Co., 394 U.S. 759, 768 (1969).
    In Excelsior, the Board explained the primary rationale for 
requiring production of an eligibility list:

    As a practical matter, an employer, through his possession of 
employee names and home addresses as well as his ability to 
communicate with employees on plant premises, is assured of the 
continuing opportunity to inform the entire electorate of his views 
with respect to union representation. On the other hand, without a 
list of employee names and addresses, a labor organization, whose 
organizers normally have no right of access to plant premises, has 
no method by which it can be certain of reaching all the employees 
with its arguments in favor of representation, and, as a result, 
employees are often completely unaware of that point of view. This 
is not, of course, to deny the existence of various means by which a 
party might be able to communicate with a substantial portion of the 
electorate even without possessing their names and addresses. It is 
rather to say what seems to us obvious--that the access of all 
employees to such communications can be insured only if all parties 
have the names and addresses of all the voters.

156 NLRB at 1240-41 (footnote omitted). The Supreme Court endorsed this 
rationale in Wyman-Gordon, 394 U.S. at 767, ``The disclosure 
requirement furthers this objective [to ensure the fair and free choice 
of bargaining representatives] by encouraging an informed employee 
electorate and by allowing unions the right of access to employees that 
management already possesses.''
    The Board also articulated a second reason for requiring production 
of an eligibility list in Excelsior:

    The [voter] list, when made available, not infrequently contains 
the names of employees unknown to the union and even to its employee 
supporters. The reasons for this are, in large part, the same as 
those that make it difficult for a union to obtain, other than from 
the employer, the names of all employees; i.e., large plants with 
many employees unknown to their fellows, employees on layoff status, 
sick leave, military leave, etc. With little time (and no home 
addresses) with which to satisfy itself as to the eligibility of the 
``unknowns,'' the union is forced either to challenge all those who 
appear at the polls whom it does not know or risk having ineligible 
employees vote. The effect of putting the union to this choice, we 
have found, 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. Prompt disclosure of employee names 
as well as addresses will, we are convinced, eliminate the necessity 
for challenges based solely on lack of knowledge as to the voter's 
identity. Furthermore, bona fide disputes between employer and union 
over voting eligibility will be more susceptible of settlement 
without recourse to the formal and time-consuming challenge 
procedures of the Board if such disputes come to light early in the 
election campaign rather than in the last few days before the 
election when the significance of a single vote is apt to loom large 
in the parties' calculations. Thus the requirement of prompt 
disclosure of employee names and addresses will further the public 
interest in the speedy resolution of questions of representation.

156 NLRB at 1242-43.
    Since Excelsior was decided, almost 50 years ago, the Board has not 
significantly altered its requirements despite significant changes in 
communications technology, including that used in representation 
election campaigns, and identification of avoidable problems in 
administering the requirement, for example, delays in the regional 
offices' transmission of the eligibility list to the parties.

B. Evolution of the Board's Electronic Filing and Service Requirements

    The Board's effort to promote expeditious case processing under the 
NLRA by utilizing advances in communications technology is nearly a 
decade old. The Board first began a pilot project in 2003, permitting 
the electronic filing of documents with the Agency.\24\ Thereafter, the 
use and scope of electronic filing by parties to NLRB proceedings 
expanded significantly. By January 2009, more than 12,000 documents had 
been filed electronically with the Board and its regional offices.\25\ 
The Board currently permits most documents in both unfair labor 
practice and representation proceedings to be filed electronically with 
only a limited number of expressly specified exceptions.\26\ The NLRB 
public Web site sets out instructions for the Agency's E-filing 
procedures in order to facilitate their use, and the instructions 
``strongly encourage parties or other persons to use the Agency's E-
filing program.'' \27\ However, included among documents that may not 
currently be filed electronically are representation petitions.\28\
---------------------------------------------------------------------------

    \24\ See 74 FR 5618, 5619 (Jan. 30, 2009), revising Sec.  
102.114 of the Board's Rules and Regulations, corrected 74 FR 8214 
(Feb. 24, 2009).
    \25\ Id., 74 FR at 5619.
    \26\ See NLRB Rules and Regulations Section 102.114(i); http://www.nlrb.gov, under Cases & Decisions/File Case Documents/E-file.
    \27\ See http://www.nlrb.gov, under E-filing Rules.
    \28\ See http://www.nlrb.gov, under What Documents Can I E-file?
---------------------------------------------------------------------------

    In 2008, the Board initiated another pilot project to test the 
ability of the Agency to electronically issue its decisions and those 
of its administrative law judges.\29\ Parties who register for 
electronic service of decisions in their cases receive an e-mail 
constituting formal notice of the decision and an electronic link to 
the decision. The NLRB public Web site sets out instructions for 
signing up for the Agency's electronic issuance program.\30\
---------------------------------------------------------------------------

    \29\ See 74 FR at 5619.
    \30\ See http://www.nlrb.gov, under What is E-Service?
---------------------------------------------------------------------------

    In 2009, the Board revised its regulations to require that service 
of e-filed documents on other parties to a proceeding be effectuated by 
e-mail whenever possible, which aligned Board service procedures more 
closely with those in the federal courts, and acknowledged the widely 
accepted use of e-mail for legal and official communications.\31\
---------------------------------------------------------------------------

    \31\ See 74 FR 8214 (Feb. 24, 2009), correcting 74 FR 5618; NLRB 
Rules & Regulations Sec.  102.114(a) and (i).
---------------------------------------------------------------------------

    In 2010, the Board took further notice of the spread of electronic 
communications in its decision in J. Piccini Flooring, 356 NLRB No. 9 
(2010), to require that respondents in unfair labor practice cases 
distribute remedial notices electronically when that is their customary 
means of communicating with employees. The Board recognized that the 
use of e-mail, internal and external Web sites, and other electronic 
communication tools, is now the norm for the transaction of business in 
many workplaces, among unions, and by the government and the public it 
serves. The Board concluded that its ``responsibility to adapt the Act 
to changing patterns of industrial life'' \32\ required it to align its 
remedial requirements with ``the revolution in communications 
technology that has reshaped our economy and society.'' J. Piccini 
Flooring, slip op. at 4.
---------------------------------------------------------------------------

    \32\ NLRB v. Weingarten, 420 U.S. 251, 266 (1975).
---------------------------------------------------------------------------

C. Purposes of the Proposed Amendments

    The Board now proposes to revise its rules and regulations to 
better insure ``that employees' votes may be recorded accurately, 
efficiently and speedily'' and to further ``the Act's policy of 
expeditiously resolving questions concerning representation.'' \33\
---------------------------------------------------------------------------

    \33\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946); 
Northeastern University, 261 NLRB 1001, 1002 (1982).

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

[[Page 36817]]

    The proposed amendments would remove unnecessary barriers to the 
fair and expeditious resolution of questions concerning representation. 
In addition to making the Board processes more efficient, the proposed 
amendments are intended to simplify the procedures, to increase 
transparency and uniformity across regions, and to provide parties with 
clearer guidance concerning the representation case procedure.
    The proposed amendments would provide for more timely and complete 
disclosure of information needed by both the Board and the parties to 
promptly resolve matters in dispute. The proposed amendments are also 
intended to eliminate unnecessary litigation concerning issues that may 
be, and often are, rendered moot by election results. In addition, the 
proposed amendments would consolidate Board review of regional 
directors' determinations in representation cases in a single, post-
election proceeding and would make review discretionary after an 
election as it currently is before an election. The Board anticipates 
that the proposed amendments would leave a higher percentage of final 
decisions about disputes arising out of representation proceedings with 
the Board's regional directors who are members of the career civil 
service. Finally, the proposed amendments are intended to modernize the 
Board's representation procedures, in particular, through use of 
electronic communications technology to speed communication among the 
parties, and between the parties and the Board, and to facilitate 
communication with voters.
    Given the variation in the number and complexity of issues that may 
arise in a representation proceeding, the amendments do not establish 
inflexible time deadlines or mandate that elections be conducted a set 
number of days after the filing of a petition. Rather, the amendments 
seek to avoid unnecessary litigation and establish standard and fully 
transparent practices while leaving discretion with the regional 
directors to depart from those practices under special circumstances.
    Consistent with Executive Order 13563, Improving Regulation and 
Regulatory Review, section 6(a) (January 18, 2011), the proposed 
amendments would eliminate redundant and outmoded regulations.\34\ The 
proposed amendments would eliminate one entire section of the Board's 
current regulations and consolidate the regulations setting forth 
procedures under section 9 of the Act, currently spread across three 
separate parts of the regulations, into a single part. The Board 
anticipates that, if the proposed amendments are adopted, the cost of 
invoking and participating in the Board's representation case 
procedures would be reduced for parties, and public expenditure in 
administering section 9 of the Act would be similarly reduced.
---------------------------------------------------------------------------

    \34\ While the Executive Order is not binding on the Board as an 
independent agency, the Board has, as requested by the Office of 
Management and Budget, given ``consideration to all of its 
provisions.'' Office of Management and Budget, Memorandum for the 
Heads of Executive Departments and Agencies, and of Independent 
Regulatory Agencies: Executive Order 13563, ``Improving Regulation 
and Regulatory Review'' 11-12 (Feb. 2, 2011), http://www.whitehouse.gov/omb/memoranda. In regard to section 2(c) of the 
Order, concerning seeking the views of those who are likely to be 
affected prior to publication of a notice of proposed rulemaking, 
the Board determined that public participation would be more orderly 
and meaningful if it was based on the specific proposals described 
herein and thus the Board has provided for the comment and reply 
periods and public hearing described above.
---------------------------------------------------------------------------

    While the proposed amendments are designed to eliminate unnecessary 
barriers to the speedy processing of representation cases, the proposed 
amendments, like previous congressional and administrative reforms 
aimed at expediting the conduct of elections, do not in any manner 
alter existing regulation of parties' campaign conduct or restrict any 
party's freedom of speech.
    The Board invites comments on each of the proposed rule changes 
described below.\35\
---------------------------------------------------------------------------

    \35\ The Board has provided for an initial 60-day comment period 
followed by a 14-day reply period. In addition, the Board intends to 
issue a notice of public hearing to be held in Washington, DC on 
July 18-19 during the initial comment period in order to receive 
oral comments on the proposed amendments. The Board believes that 
all persons interested in the proposed amendments--including those 
best able to provide informed comment on the details of the Board's 
representation case procedures, the attorneys and other 
practitioners who regularly participate in representation 
proceedings--will have ample time and opportunities to do so within 
the two comment periods and at the public hearing.
---------------------------------------------------------------------------

D. Summary of Current Representation Case Procedures

    Every year, thousands of election petitions are filed in NLRB 
regional offices by employees, unions, and employers to determine if 
employees wish to be represented by a labor organization for purposes 
of collective bargaining with their employer.\36\ A lesser number are 
filed by employees to determine whether the Board should decertify an 
existing representative.\37\ Under current procedures, the petitioner 
is not required to serve the petition on other interested parties. For 
example, a labor organization is not required to serve a petition 
through which it seeks to be certified as the representative of a unit 
of employees on the employees' employer. Rather, that task is imposed 
on the regional office. In addition, the petitioner is not required, at 
the time of filing, to supply evidence of the type customarily required 
by the Board to process the petition. For example, a labor organization 
is not required to file, along with its petition, evidence that a 
substantial number of employees support the petition (the ``showing of 
interest''). Rather, the petitioner is permitted to file such evidence 
within 48 hours of the filing of the petition.
---------------------------------------------------------------------------

    \36\ In 2010, 2,447 such petitions were filed. See Chart 9--
Representation Elections (RC) and Chart 11--Employer petitioned 
Elections (RM), http://www.nlrb.gov/chartsdata/petitions.
    \37\ In 2010, 530 such petitions were filed. See Chart 10--
Decertification Elections (RD), http://www.nlrb.gov/chartsdata/petitions.
---------------------------------------------------------------------------

    After a petition is filed, the regional director serves the 
petition on the parties and also submits additional requests to the 
employer. The regional director serves on the employer a generic notice 
of employees' rights,\38\ with a request that the employer post the 
notice, and a commerce questionnaire, seeking information relevant to 
the Board's jurisdiction to process the petition,\39\ which the 
employer is requested to complete. The regional director also asks the 
employer to provide a list of the names of employees in the unit 
described in the petition, together with their job classifications, for 
the payroll period immediately preceding the filing of the petition. 
Finally, the regional director solicits the employer's position on the 
appropriateness of the unit described in the petition.
---------------------------------------------------------------------------

    \38\ Form NLRB-5492, Notice to Employees.
    \39\ Form NLRB-5081.
---------------------------------------------------------------------------

    After the filing of a petition, Board agents conduct an ex parte, 
administrative investigation to determine if the petition is supported 
by the required form of showing. In the case of a petition seeking 
representation or seeking to decertify an existing representative, for 
example, this showing would be that 30 percent of employees in the unit 
support the petition.
    Shortly after a petition is filed, the regional director serves a 
notice on the parties named in the petition setting a pre-election 
hearing. In many cases, the parties, often with Board agent assistance, 
are able to reach agreement regarding the composition of the unit and 
the date, time, place, and other mechanics of the election, thereby

[[Page 36818]]

eliminating the need for a hearing and a formal decision and direction 
of election by the regional director.\40\ Parties may enter into three 
types of pre-election agreements: A ``consent-election agreement 
followed by a regional director's determination of representatives,'' 
providing for final resolution of post-election disputes by the 
regional director; a ``stipulated election-agreement followed by a 
Board determination,'' providing for resolution of post-election 
disputes by the Board; and a ``full consent-election agreement,'' 
providing for final resolution of both pre- and post-election disputes 
by the regional director.\41\ In cases in which parties are unable to 
reach agreement, a Board agent conducts a hearing at which the parties 
may introduce evidence on issues including: (1) Whether the Board has 
jurisdiction to conduct an election; (2) whether there are any bars to 
an election in the form of existing contracts or prior elections; (3) 
whether the election is sought in an appropriate unit of employees; and 
(4) the eligibility of particular employees in the unit to vote. 
Parties can file briefs with the regional director within one week 
after the close of the hearing.
---------------------------------------------------------------------------

    \40\ In the last decade, between 86 and 92 percent of 
representation elections have been conducted pursuant to either a 
consent agreement or stipulation. NLRB Office of the General 
Counsel, Summaries of Operations (Fiscal Years 2002-2010).
    \41\ See 29 CFR 101.19.
---------------------------------------------------------------------------

    After the hearing's close, the regional director will issue a 
decision either dismissing the petition or directing an election in an 
appropriate unit. The regional director may defer the resolution of 
whether certain employees are eligible to vote until after the 
election, and those employees will be permitted to vote under 
challenge.
    Parties have a right to request Board review of a regional 
director's decision and direction of election within 14 days after it 
issues. Neither the filing nor grant of a request for review operates 
as a stay of the direction of election unless the Board orders 
otherwise. If the Board does not rule on the request before the 
election, the ballots are impounded pending a Board ruling. Consistent 
with the Board's current Statements of Procedures, the regional 
director ``will normally not schedule an election until a date between 
the 25th and 30th day after the date of the decisions, to permit the 
Board to rule on any request for review which may be filed.'' \42\
---------------------------------------------------------------------------

    \42\ 29 CFR 101.21(d).
---------------------------------------------------------------------------

    Within seven days after the regional director's decision issues, 
the employer must file a list of employees in the bargaining unit and 
their home addresses with the regional director. The regional director, 
in turn, makes the list available to all other parties in order to 
allow all parties to communicate with eligible employees about the 
upcoming election and to reduce the necessity for election-day 
challenges based solely on the parties' lack of knowledge of voters' 
identities. The non-employer parties must have this list at least ten 
days before the date of the election unless they waive that right.
    The regional director has discretion to set the dates, times, and 
location of the election. The regional director typically exercises 
that discretion after consultation with the parties and solicitation of 
their positions on the election details.
    Once the regional director sets the dates, times, and locations of 
the election, the regional office prepares a notice of election to 
inform eligible voters of those details.\43\ The regional director 
serves the notice on the employer, which is responsible for posting the 
notice in the workplace for at least three days before the election.
---------------------------------------------------------------------------

    \43\ Form NLRB-707 or Form NLRB-4910 (in the case of a mail 
ballot election).
---------------------------------------------------------------------------

    If a manual election is held, each party to the election may be 
represented at the polling site by an equal number of observers who are 
typically employees of the employer. Observers have the right to 
challenge the eligibility of any voter for cause, and the Board agent 
conducting the election must challenge any voter whose name is not on 
the eligibility list. Ballots of challenged voters, including any 
voters whose eligibility was disputed at the pre-election hearing but 
not resolved by the regional director, are segregated from the other 
ballots in a manner that will not disclose the voter's identity.
    Representatives of all parties may choose to be present when 
ballots are counted. Elections are decided by a majority of votes cast. 
Challenges may be resolved by agreement before the tally. If the number 
of unresolved challenged ballots is insufficient to affect the results 
of an election in which employees voted to be represented, the unit 
placement of any individuals whose status was not resolved may be 
resolved by the parties in collective bargaining or determined by the 
Board if a petition for unit clarification is filed. If the number of 
unresolved challenged ballots is insufficient to affect the results of 
an election in which employees voted not to be represented, the results 
are certified unless objections are filed.
    Within one week after the tally of ballots has been prepared, 
parties may file with the regional director objections to the conduct 
of the election or to conduct affecting the results of the election. A 
party filing objections has an additional week to file a summary of the 
evidence supporting the objections.
    The regional director may initiate an investigation of any such 
objections and unresolved, potentially outcome-determinative 
challenges, and notice a hearing only if they raise substantial and 
material factual issues. If they do not, the regional director will 
issue a supplemental decision or a report disposing of the challenges 
or objections. If there are material factual issues that must be 
resolved, the regional director will notice a post-election hearing 
before a hearing officer to give the parties an opportunity to present 
evidence concerning the objections or challenges. After the hearing's 
close, the hearing officer will issue a report resolving any 
credibility issues and containing findings of fact and recommendations. 
Depending upon the type of election, a party may file exceptions to the 
hearing officer's report either with the regional director or the 
Board, whereupon the regional director or the Board will issue a 
decision. If the right is not waived in a pre-election agreement, a 
party may appeal a regional director's disposition of election 
objections or challenges by filing exceptions with the Board.

II. Authority

    Section 6 of the NLRA, 29 U.S.C. 156, provides, ``The Board shall 
have authority from time to time to make, amend, and rescind, in the 
manner prescribed by subchapter II of chapter 5 of Title 5 [the 
Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations 
as may be necessary to carry out the provisions of this Act.'' The 
Board interprets Section 6 as authorizing the proposed amendments to 
its existing rules.
    The Board believes that the proposed amendments relate almost 
entirely to ``rules of agency organization, procedure or practice'' and 
are therefore exempt from the Administrative Procedure Act's notice and 
comment requirements under 5 U.S.C. 553(b)(A), but the Board has 
decided nevertheless to issue this Notice of Proposed Rulemaking and 
seek public comments.

III. Overview of the Amendments

Part 101, Subparts C-E

    The Board's current regulations are divided into part 102, 
denominated Rules and Regulations, and part 101, denominated Statement 
of Procedures. Because the regulations in part 102 are procedural, 
however, the two sets of provisions governing representation

[[Page 36819]]

proceedings in Sec. Sec.  102.60-102.88 and 101.17-101.30 are almost 
entirely redundant. Describing the same representation procedures in 
two separate parts of the regulations may create confusion.
    Section 101.1 states that part 101 is a statement of ``the general 
course and method by which the Board's functions are channeled and 
determined'' and is issued pursuant to 5 U.S.C. 552(a)(1)(B). The Board 
believes that such a description of procedures would better serve the 
statutory purpose of informing the public concerning Agency procedures 
and practices if it were incorporated into the Board's procedural rules 
in part 102. The proposed amendments would thus eliminate those 
sections of part 101 related to representation cases, Sec. Sec.  101.17 
through 101.30, and incorporate into part 102 the few provisions of 
current part 101 that are not redundant or superfluous.
    A separate statement of ``the general course and method by which 
the Board's functions are channeled and determined'' in representation 
proceedings is also set forth in section I(D) above. To the extent any 
amendments are adopted by the Board, the preamble of the final rule 
will contain a statement of the general course and method by which the 
Board's functions will be channeled and determined under the 
amendments. Moreover, the Board will continue to publish and update its 
detailed Casehandling Manual, Part Two of which describes the Board's 
representation case procedures. The Manual is currently available on 
the Board's Web site.
Part 102, Subpart C--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

Sec. 102.60 Petitions

    The proposed amendments would permit parties to file petitions 
electronically. In conformity with ordinary judicial and administrative 
practice, the amendments also require that the petitioner serve a copy 
of the petition on all other interested parties. For example, a labor 
organization filing a petition seeking to become the representative of 
a unit of employees is required to serve the petition on the employer 
of the employees. This will insure that the earliest possible notice of 
the pendency of a petition is given to all parties.
    The proposed amendments would also require service of two 
additional documents that would be available to petitioners in the 
regional offices and on the Board's public Web site. The first 
document, which would substitute for and be an expanded version of the 
Board's Form 4812, would inform interested parties of their rights and 
obligations in relation to the representation proceeding. The second 
document the petitioner would serve along with the petition would be a 
Statement of Position form, which would substitute for NLRB form 5081, 
the Questionnaire on Commerce Information. The contents and purpose of 
the proposed Statement of Position form is described further below in 
relation to Sec.  102.63.

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

    Section 102.61 describes the contents of the various forms of 
petitions that may be filed to initiate a representation proceeding 
under section 9 of the Act. The Board would continue to make each form 
of petition available at the Board's regional offices and on its Web 
site. The proposed amendments would add to the contents of the 
petitions in two respects. First, the revised petition would contain 
the allegation required in section 9. In the case of a petition seeking 
representation, for example, the petition would contain a statement 
that ``a substantial number of employees * * * wish to be represented 
for collective bargaining.'' 29 U.S.C. 159(c)(1)(a)(i). Second, the 
petitioner would be required to designate, in the revised petition, the 
individual who will serve as the petitioner's representative in the 
proceeding, including for purposes of service of papers.
    The proposed amendments would also require that the petitioner file 
with the petition whatever form of evidence is an administrative 
predicate of the Board's processing of the petition rather than 
permitting an additional 48 hours after filing to supply the evidence. 
When filing a petition seeking to be certified as the representative of 
a unit of employees, for example, petitioners would be required 
simultaneously to file the showing of interest supporting the petition. 
The Board's preliminary view is that parties should not file petitions 
without whatever form of evidence is ordinarily necessary for the Board 
to process the petition. However, the proposed amendments are not 
intended to prevent a petitioner from supplementing its showing of 
interest, consistent with existing practice, so long as the 
supplemental filing is timely. Also consistent with existing practice, 
the amendments do not require that such a showing be served on other 
parties. The amendments are not intended to change the Board's 
longstanding policy of not permitting the adequacy of the showing of 
interest to be litigated. See, e.g., Plains Cooperative Oil Mill, 123 
NLRB 1709, 1711 (1959) (``[T]he Board has long held that the 
sufficiency of a petitioner's showing of interest is an administrative 
matter not subject to litigation.''); O.D. Jennings & Co., 68 NLRB 516 
(1946). Nor are the proposed amendments intended to alter the Board's 
current internal standards for determining what constitutes an adequate 
showing of interest.\44\
---------------------------------------------------------------------------

    \44\ See Casehandling Manual section 11023.1.
---------------------------------------------------------------------------

    The proposed amendments are not intended to permit or proscribe the 
use of electronic signatures to support a showing of interest under 
Sec.  102.61(a)(12) and (c)(11) as well as under Sec.  102.84. The 
Board continues to study the use of such signatures for these purposes. 
See Government Paperwork Elimination Act, Public Law 105-277 section 
1704(2) (1998) (providing that Office of Management and Budget shall 
ensure that, commencing not later than five years after the date of 
enactment of the Act, executive agencies provide ``for the use and 
acceptance of electronic signatures, when practicable''); OMB, 
Implementation of the Government Paperwork Elimination Act, available 
at http://www.whitehouse.gov/omb/fedreg_gpea2/; Electronic Signatures 
in Global and National Commerce Act, Public Law 106-229 sections 
104(b)(1) and (2) (2000). The Board specifically seeks comments on the 
question of whether the proposed regulations should expressly permit or 
proscribe the use of electronic signatures for these purposes.

Sec. 102.62 Election agreements; voter list

    Existing Sec.  102.62 describes the three types of agreements 
parties may enter into following the filing of a petition. The proposed 
amendments would not in any manner limit parties' ability to enter into 
such agreements, including the two forms of agreement that entirely 
eliminate the need for a pre-election hearing. In fact, the Board 
anticipates that the proposed amendments would facilitate parties' 
entry into these forms of election agreements through an

[[Page 36820]]

earlier and more complete identification of disputes and disclosure of 
relevant information. The proposed amendments explain the common 
designations used to refer to each type of agreement in current Sec.  
101.19 in order to more clearly inform the public what each form of 
agreement provides. The proposed amendments would revise the second 
type of agreement, described in Sec.  102.62(b) (the so-called 
stipulated election agreement), to eliminate parties' ability to agree 
to have post-election disputes resolved by the Board and to provide 
instead that the parties may agree that Board review of a regional 
director's resolution of such disputes may be sought through a request 
for review. This is consistent with the changes proposed in Sec. Sec.  
102.65 and 102.67 eliminating the authority of regional directors to 
transfer cases to the Board at any time and making Board review of 
regional directors' disposition of post-election disputes discretionary 
in cases where the parties have not addressed the matter in a pre-
election agreement.
    The proposed amendments (in Sec.  102.62 as well as in Sec.  
102.67(j)) would codify and revise the requirement created in Excelsior 
Underwear, Inc., 156 NLRB 1236 (1966), and approved by the Supreme 
Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 768 (1969), for 
production and service of a list of eligible voters. The proposed 
amendments would require that both telephone numbers and, where 
available, e-mail addresses be included along with each unit employee's 
name and address on the eligibility list. The proposed amendments would 
further require that the list include each employee's work location, 
shift, and classification. The changes in the existing requirement for 
provision of a list of eligible voters embodied in the proposed 
amendments are intended to better advance the two objectives 
articulated by the Board in Excelsior.
    The provision of only a physical address no longer serves the 
primary purpose of the Excelsior list. Communications technology and 
campaign communications have evolved far beyond the face-to-face 
conversation on the doorstep imagined by the Board in Excelsior. As 
Justice Kennedy observed in Denver Area Educational Telecommunications 
Consortium, Inc. v. FTC, 518 U.S. 727, 802-803 (1996) (Kennedy, J., 
dissenting):

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

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

    While * * * traditional means of communication remain in use, 
email, postings on internal and external websites, and other 
electronic communication tools are overtaking, if they have not 
already overtaken, bulletin boards as the primary means of 
communicating a uniform message to employees and union members. 
Electronic communications are now the norm in many workplaces, and 
it is reasonable to expect that the number of employers 
communicating with their employees through electronic methods will 
continue to increase. Indeed, the Board and most other government 
agencies routinely and sometimes exclusively rely on electronic 
posting or email to communicate information to their employees. In 
short, ``[t]oday's workplace is becoming increasingly electronic.''

    The same evolution is taking place in pre-election campaign 
communication. The Board's experience with campaigns preceding 
elections conducted under section 9 of the Act indicates that employers 
are, with increasing frequency, using e-mail to communicate with 
employees about the vote. See, e.g., Humane Society for Seattle, 356 
NLRB No. 13, slip op. at 4 (2010) (``On September 27, the Employer's 
CEO, Brenda Barnette, sent an e-mail to employees asking that they 
consider whether ACOG was the way to make changes at SHS. On September 
29, HR Director Leader e-mailed employees a link to a third-party 
article regarding `KCACC Guild's petition and reasons the Guild would 
be bad for SHS.''); Research Foundation of the State University of New 
York at Buffalo, 355 NLRB No. 170, slip op. at 19 (2010) (``On January 
12, Scuto sent the first in a series of e-mail's [sic] to all Employer 
postdoctoral associates concerning the Petitioner's efforts to form a 
Union at the Employer[,]. * * * explaining the Employer's position on 
unionization * * *.''); Black Entertainment Television, 2009 WL 
1574462, at *1 (NLRB Div. of Judges June 5, 2009) (employer notified 
several employees by e-mail to attend a meeting in which senior vice-
president spoke one-on-one with the employees regarding the election 
scheduled for the following day). For these reasons, the proposed rule 
would require that both telephone numbers and, where available, e-mail 
addresses be included on the Excelsior list.\45\
---------------------------------------------------------------------------

    \45\ In Trustees of Columbia University, 350 NLRB 574, 576 
(2007), the Board rejected an objection based on an employer's 
refusal to include e-mail addresses in the Excelsior list of 
employees on board a ship that was at sea for most of the pre-
election period. In so doing, the Board held only that, ``given the 
Employer's undisputed compliance with its Excelsior obligations as 
they stood as of the date of the Union's request, we are unwilling, 
on the facts of this case, to characterize that compliance as 
objectionable conduct.'' Id. at 576.
---------------------------------------------------------------------------

    In addition, the list currently required under Excelsior does 
little to further the second purpose for requiring its production--to 
identify issues concerning eligibility and, if possible, to resolve 
them without the necessity of a challenge. In many cases, the names on 
the list are unknown to the parties. The parties may not know where the 
listed individuals work or what they do. Only through further factual 
investigation, for example, consulting other employees who may work 
with the listed, unknown employees or contacting the unknown employees 
themselves at their home addresses, can the parties potentially 
discover the facts needed to assess eligibility. It would further the 
purpose of narrowing the issues in dispute--and thereby avoid 
unnecessary challenges and litigation--if the list also contained work 
location, shift, and classification.
    The proposed amendments would further require that the eligibility 
list be provided in electronic form unless the employer certifies that 
it does not possess the capacity to produce the list in the required 
form. In 1966, most employers maintained employee lists only on paper. 
Today, many, if not most, employers maintain electronic records. Yet 
when producing an Excelsior list, employers are still permitted to 
print out a copy of their electronic records and provide a paper list 
to the regional office which, in turn, mails or faxes a copy to the 
other parties. Requiring production of the list in electronic form 
would further both purposes of the Excelsior requirement.
    The proposed amendments would require that the employer serve the 
eligibility list on the other parties electronically at the same time 
it is filed with the regional office. The Board's existing rule, as 
announced in Excelsior, requires only that the employer file the list 
with the regional director. 156 NLRB at 1240 (1966). Excelsior further 
provides that the regional director shall make the list available to 
all parties. It is the Board's experience in administering elections 
that this two-step process has caused needless administrative burden, 
avoidable delay in receipt of the list, and unnecessary litigation when 
the regional office, for a variety of reasons, has not promptly made 
the list available to all parties. See, e.g., Special Citizens Futures

[[Page 36821]]

Unlimited, 331 NLRB 160, 160-62 (2000); Alcohol & Drug Dependency 
Services, 326 NLRB 519, 520 (1998); Red Carpet Bldg. Maintenance Corp., 
263 NLRB 1285, 1286 (1982); Sprayking, Inc., 226 NLRB 1044, 1044 
(1976). If adopted, the proposed amendments would eliminate this 
unnecessary administrative burden--as well as potential source of delay 
and resulting litigation--by providing for direct service of the list 
by the employer on all other parties. The regional office would make 
the list available upon request to the parties.
    The proposed amendments would also shorten the time for production 
of the eligibility list from the current seven days to two days, absent 
agreement of the parties to the contrary or extraordinary circumstances 
specified in the direction. The Board's preliminary view is that 
advances in electronic recordkeeping and retrieval, combined with the 
provision of a preliminary list as described below in relation to Sec.  
102.63, render the full seven-day period unnecessary. This conclusion 
is also supported by the fact that the median size of units ranged 
between 23 and 26 employees from 2001 to 2010.
    Finally, the proposed amendments would also impose a restriction on 
the use of the eligibility list, barring parties from using it for any 
purposes other than the representation proceeding and related 
proceedings. The Board specifically seeks comments regarding what, if 
any, the appropriate sanction should be for a party's noncompliance 
with the restriction.

Sec. 102.63 Investigation of petition by regional director; notice of 
hearing; service of notice; Initial Notice to Employees of Election; 
Statement of Position form; withdrawal of notice

    The proposed amendments provide that, absent special circumstances, 
the regional director would set the hearing to begin seven days after 
service of the notice of hearing. This provision reflects the current 
practice of some regions, but would make the practice explicit and 
uniform, thereby rendering Board procedures more transparent and 
predictable. Under the proposed amendments, parties served with a 
petition and description of representation procedures, as described 
above in relation to Sec.  102.60, will thus be able to predict with a 
high degree of certainty when the hearing will commence even before 
service of the notice. The Board intends that the proposed amendments 
would be implemented consistent with the Board's decision in Croft 
Metal, Inc., 337 NLRB 688, 688 (2002), requiring that, ``absent unusual 
circumstances or clear waiver by the parties,'' parties ``receive 
notice of a hearing not less than 5 days prior to the hearing, 
excluding intervening weekends and holidays.'' The proposed amendments 
would thus not require any party to prepare for a hearing in a shorter 
time than permitted under current law. Rather, as the Board held in 
Croft Metal, 337 NLRB at 688, ``By providing parties with at least 5 
working days' notice, we make certain that parties to representation 
cases avoid the Hobson's choice of either proceeding unprepared on 
short notice or refusing to proceed at all.'' The Board specifically 
seeks comments on the feasibility and fairness of this time period and 
all other such periods proposed in this Notice as well as the wording 
and scope of the exceptions thereto.
    The proposed amendments provide that, with the notice of hearing, 
the regional director would serve a revised version of the Board's Form 
5492, currently headed Notice to Employees. Under the proposed 
amendments, the revised form would bear the heading Initial Notice to 
Employees of Election, would specify that a petition has been filed as 
well as the type of petition, the proposed unit, and the name of the 
petitioner, and would briefly describe the procedures that will follow. 
The Board anticipates that the Initial Notice would also provide 
employees with the regional office's Web site address, through which 
they can obtain further information about the processing of the 
petition, including obtaining a copy of any direction of election and 
Final Notice to Employees of Election as soon as they issue. Employers 
would be required to post the revised Initial Notice to Employees of 
Election unlike current Form 5492.
    The proposed amendments further provide that the regional director 
would serve the petition, the description of procedures in 
representation cases, and the Statement of Position form on all non-
petitioning parties.
    The proposed amendments would further require that the regional 
director specify in the notice of hearing the due date for Statements 
of Position. The Statements of Position would be due no later than the 
date of the hearing. In relation to small units, the regional director 
may choose to make the Statements of Position due on the date of the 
hearing and they may be completed at that time with the assistance of 
the hearing officer.
    The Statement of Position form would replace NLRB Form 5081, the 
Questionnaire on Commerce Information. Under the proposed rules, its 
completion would be mandatory only insofar as failure to state a 
position would preclude a party from raising certain issues and 
participating in their litigation. The statement of position 
requirement is modeled on the mandatory disclosures described in Fed. 
R. Civ. P. 26(a) as well as on contention interrogatories commonly 
propounded in civil litigation.
    The Board anticipates that early receipt of the Statement of 
Position form will assist parties in identifying issues that must be 
resolved at a pre-election hearing and thereby facilitate entry into 
election agreements. Parties who enter into one of the forms of 
election agreement described in Sec.  102.62 would not be required to 
complete a Statement of Position under the proposed amendments.
    The Statement of Position form would solicit the parties' position 
on the Board's jurisdiction to process the petition; the 
appropriateness of the petitioned-for unit; any proposed exclusions 
from the petitioned-for unit; the existence of any bar to the election; 
the type, dates, times, and location of the election; and any other 
issues that a party intends to raise at hearing. In those cases in 
which a party takes the position that the proposed unit is not an 
appropriate unit, the party would also be required to state the basis 
of the contention and identify the most similar unit it concedes is 
appropriate.\46\ In those cases in which a party intends to contest at 
the pre-election hearing the eligibility of individuals occupying 
classifications in the proposed unit, the party would be required to 
both identify the individuals (by name and classification) and state 
the basis of the proposed exclusion, for example, because the 
identified individuals are supervisors. Finally, parallel to the 
amendment to the contents of petitions described in relation to Sec.  
102.61 above, the non-petitioning parties would be required to 
designate, in their Statement of Position, the individual who will 
serve as the party's representative in the proceeding, including for 
service of papers.
---------------------------------------------------------------------------

    \46\ This requirement would codify parties' existing practice 
where they contend that the petitioned-for unit is not appropriate 
because the smallest appropriate unit includes additional 
classifications or facilities. See, e.g., Westinghouse Electric 
Corp., 137 NLRB 332 (1962).
---------------------------------------------------------------------------

    The Board believes that the Statement of Position form would ask 
parties to do no more than they currently do in preparing for a pre-
election hearing. In addition, the Board's preliminary belief is that, 
by guiding such preparation, the proposed Statement of Position form

[[Page 36822]]

would reduce the time and other resources expended in preparing to 
participate in representation proceedings.
    In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board 
observed, ``[I]n order to effectuate the purposes of the Act through 
expeditiously providing for a representation election, the Board should 
seek to narrow the issues and limit its investigation to areas in 
dispute.'' The Board's regional offices currently attempt to identify 
and narrow the issues through a number of procedures. In some cases, 
regions will conduct pre-hearing conferences either face-to-face or by 
telephone in an effort to identify and narrow the issues in dispute. 
Further, section 11217 of the Casehandling Manual provides, ``Prior to 
the presentation of evidence or witnesses, parties to the hearing 
should succinctly state on the record their positions as to the issues 
to be heard.'' The proposed amendments would incorporate the principles 
underlying these commendable practices, but would give all parties 
clear, advance notice of their obligations, both in the rules 
themselves and in the statement of procedures and Statement of Position 
form. The amendments are not intended to preclude any other formal or 
informal methods used by the regional offices to identify and narrow 
the issues in dispute prior to or at pre-election hearings.
    The proposed amendments provide that, as part of its Statement of 
Position, the employer would be required to provide a list of all 
individuals employed by the employer in the petitioned-for unit. The 
list would include the same information described above in relation to 
Sec.  102.62 except that the list served on other parties would not 
include contact information.
    As explained above in section I(A)(3) and in relation to Sec.  
102.62, a central purpose of requiring the employer to prepare and file 
an eligibility list is to insure that all parties have access to the 
information they need to evaluate whether individuals should be in the 
unit and are otherwise eligible to vote, so that the parties can 
attempt to resolve disputes concerning eligibility rather than prolong 
them ``based solely on lack of knowledge.'' Excelsior, 156 NLRB at 
1243. The Board further observed in Excelsior that ``bona fide disputes 
between employer and union over voting eligibility will be more 
susceptible of settlement without recourse to the formal and time-
consuming challenge procedures of the Board if such disputes come to 
light early in the election campaign rather than in the last few days 
before the election.'' But that purpose is not well served by provision 
of the list of eligible voters seven days after a decision and 
direction of election. It is prior to and during the hearing that the 
parties are most actively engaged in attempting to resolve such 
disputes. For this reason, the proposed amendments would require filing 
and service of a list of individuals providing services to the employer 
in the petitioned-for unit by a date no later than the opening of the 
pre-election hearing.
    For the same reasons, the proposed amendments further provide that, 
if the employer contends that the petitioned-for unit is not 
appropriate, the employer also would be required to file and serve a 
similar list of individuals in the most similar unit that the employer 
concedes is appropriate.
    Under the proposed amendments, the list filed with the regional 
office, but not the list served on other parties, would contain 
available e-mail addresses, telephone numbers, and home addresses. The 
regional office could then use this additional information to begin 
preparing the electronic distribution of the Final Notice of Election 
discussed below in relation to Sec.  102.67.

Sec. 102.64 Conduct of Hearing

    The proposed amendments to Sec.  102.64 are intended to insure that 
the hearing is conducted efficiently and is no longer than necessary to 
serve the statutory purpose of determining if there is a question 
concerning representation. Congress instructed the Board to conduct a 
pre-election hearing to determine if there is a question concerning 
representation that should be resolved through an election. But 
Congress did not intend the hearing to be used by any party to delay 
the conduct of such an election. The proposed amendments would make 
clear that, ordinarily, resolution of disputes concerning the 
eligibility or inclusion of individual employees is not necessary in 
order to determine if a question of representation exists and, 
therefore, that such disputes will be resolved, if necessary, post-
election. The proposed amendments would also make clear that the duty 
of the hearing officers is to create an evidentiary record concerning 
only genuine disputes as to material facts. Finally, the proposed 
amendments would provide that the hearing shall continue from day to 
day until completed absent extraordinary circumstances.

Sec. 102.65 Motions; Interventions

    Consistent with the effort to avoid piecemeal appeal to the Board, 
as discussed below in relation to Sec.  102.67, the proposed amendments 
to Sec.  102.65 would narrow the circumstances under which a request 
for special permission to appeal will be granted. The proposed 
amendments provide that such an appeal would only be granted under 
extraordinary circumstances when it appears that the issue will 
otherwise evade review. To further discourage piecemeal appeal, the 
amendments provide that a party need not seek special permission to 
appeal in order to preserve an issue for review post-election. Finally, 
consistent with current practice, the amendments provide that neither 
the filing of a request for special permission to appeal nor the grant 
of such a request will stay an election or any other action or require 
impounding of ballots unless specifically ordered by the Board.
    The proposed amendments provide that any intervenors, like the 
original non-petitioning parties, would be required to file or make a 
Statement of Position.
    The proposed amendments also make clear that neither a regional 
director nor the Board will automatically delay any decision or action 
during the time permitted for filing motions for reconsideration, 
rehearing, and to reopen the record.

Sec. 102.66 Introduction of Evidence; Rights of Parties at Hearing; 
Subpoenas

    The proposed amendments to Sec.  102.66 are intended to limit the 
evidence offered at hearings to that evidence which is relevant to a 
genuine dispute as to a fact material to an issue in dispute. The 
amendments would thus give parties the right to introduce evidence 
``relevant to any genuine dispute as to any material fact.'' This 
standard was derived from Rule 56 of the Federal Rules of Civil 
Procedure. The proposed amendments would not prevent any party from 
presenting evidence concerning any relevant issue if there is a genuine 
dispute as to any material fact. In other words, the proposed 
amendments would accord parties full due process of law consistent with 
that accorded in the federal courts.
    The amendments would further describe a process to be followed by 
the hearing officer to identify issues in dispute and determine if 
there are genuine disputes as to facts material to those issues. The 
hearing officer would open the hearing by reviewing, or assisting the 
non-petitioning parties to

[[Page 36823]]

make, Statements of Position. The petitioner would then be required to 
respond to any issues raised in the non-petitioning parties' Statements 
of Position, thereby joining the issues. No party would be permitted to 
offer evidence or cross-examine witnesses concerning an issue it did 
not raise in its Statement of Position or did not join in response to 
another party's Statement of Position. However, any party would be 
permitted to present evidence as to statutory jurisdiction,\47\ and the 
petitioner would be permitted to present evidence as to the 
appropriateness of the unit if the nonpetitioning parties decline to 
take a position on that issue. In addition, the hearing officer would 
retain discretion to permit parties to amend their Statements of 
Position and responses for good cause, such as newly discovered 
evidence.
---------------------------------------------------------------------------

    \47\ Under the proposed amendments, the Board will continue its 
longstanding practice of presuming that an employer satisfies the 
Board's discretionary jurisdictional standards when the employer 
refuses to voluntarily provide information requested by the Board in 
order to apply those standards. See, e.g., Seaboard Warehouse 
Terminals, Inc., 123 NLRB 378, 382-83 (1959); Tropicana Products, 
Inc., 122 NLRB 121, 123-24 (1958).
---------------------------------------------------------------------------

    Consistent with the amendment's intent to defer both litigation and 
consideration of disputes concerning the eligibility or inclusion of 
individual employees until after the election, no party would be 
precluded from challenging the eligibility or inclusion of any voter 
during the election on the grounds that no party raised the issue in a 
Statement of Position or response thereto.
    The proposed amendments would implement the decision in Bennett 
Industries, Inc., 313 NLRB 1363 (1994). The proposed amendments would 
also be consistent with Allen Health Care Services, 332 NLRB 1308 
(2000), in which the Board held that even when an employer refuses to 
take a position on the appropriateness of a petitioned-for unit, the 
regional director must nevertheless take evidence on the issue unless 
the unit is presumptively appropriate. The proposed amendments would 
thus permit the petitioner to offer evidence in such circumstances and 
merely preclude non-petitioners, which have refused to take a position 
on the issue, from offering evidence or cross-examining witnesses.
    Consistent with both Bennett Industries and Allen Health Care, the 
proposed amendments would preclude any party from subsequently raising 
an issue or offering evidence or cross-examining witnesses at the pre-
election hearing related to an issue (other than statutory 
jurisdiction) it did not raise or join in a Statement of Position or 
response thereto. In the case of exclusions from the proposed unit, for 
example, if no party timely asserts that an individual should be 
excluded, the Board would include the individual subject to challenge 
during the election, as explained above. If no party objects to a 
proposed exclusion, the Board would exclude the individual. In relation 
to the appropriateness of the unit, if all parties agree the unit is 
appropriate, the Board would so find unless it appears on its face to 
be a statutorily inappropriate unit or to be inconsistent with settled 
Board policy. If any party refuses to take a position on the 
appropriateness of the unit, that party would be precluded from 
contesting the appropriateness and offering evidence relating to the 
appropriateness of the unit. Such preclusion is consistent with 
existing precedent and clarifies parties' rights under Allen Health 
Care.
    Under the proposed amendments, after the issues are properly 
joined, the hearing officer would require the parties to make an offer 
of proof concerning any relevant issue in dispute and would not proceed 
to take evidence unless the parties' offers create a genuine issue of 
material fact. An offer of proof may take the form of an oral or 
written statement of the party or its counsel identifying the witnesses 
it would call to testify and summarizing their testimony. The 
requirement of an offer of proof is thus similar to that which exists 
under current procedures for a party filing objections post-
election.\48\ The requirement is also consistent with existing practice 
in relation to a presumptively appropriate unit. See, e.g., Laurel 
Associates, Inc., 325 NLRB 603 (1998); Mariah, Inc., 322 NLRB 586, 587 
(1996). The proposed amendments thus adopt standard practice in the 
federal and state courts and before other agencies. See, e.g., Fed. R. 
Civ. P. 56. The proposed amendments rest on the proposition that, if no 
disputed issues are identified or there are no disputed facts material 
to such issues, there is no need for an evidentiary hearing.
---------------------------------------------------------------------------

    \48\ See Casehandling Manual section 1132.6 (``In addition to 
identifying the nature of the misconduct on which the objections are 
based, this submission should include a list of the witnesses and a 
brief description of the testimony of each.'')
---------------------------------------------------------------------------

    The Board's preliminary view is that ``an appropriate hearing'' 
does not mean an evidentiary hearing when either no issues are in 
dispute or no party has been able to make an offer of proof creating a 
genuine dispute as to any material fact. As Judge Learned Hand observed 
in 1949,

    Neither the statute, nor the Constitution, gives a hearing where 
there is no issue to decide * * *. The Constitution protects 
procedural regularity, not as an end in itself, but as a means of 
defending substantive interests. Every summary judgment denies a 
trial upon issues formally valid. Where, as here, the evidence on 
one side is unanswerable, and the other side offers nothing to match 
or qualify it, the denial of a trial invades no constitutional 
privilege. These considerations are particularly appropriate when we 
consider that the Board must conduct its duties in a summary way; 
not, we hasten to add, without observing all the essentials of fair 
administration, but with as much dispatch as is consistent with 
those.

Fay v. Douds, 172 F.2d 720, 725 (2d Cir. 1949).\49\
---------------------------------------------------------------------------

    \49\ Although Judge Hand's analysis of the issue discussed in 
the text remains sound, the jurisdictional basis for Fay being heard 
in federal court prior to a final order in an unfair labor practice 
case has been ``effectively discarded by all circuits'' in 
subsequent decisions. Robert A. Gorman & Matthew W. Finkin, Labor 
Law: Unionization and Collective Bargaining Sec.  4.11 (2d ed. 
2004). See, e.g., NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 
99, 107 (3d Cir. 1979); Squillacote v. International Bhd. of 
Teamsters, Local 344, 561 F.2d 31, 39 (7th Cir. 1977) (collecting 
cases).
---------------------------------------------------------------------------

    The common type of joinder of issues and offer-of-proof procedures 
set forth in the proposed amendments, which parallel even more common 
pleading and summary judgment procedures in the federal and state 
courts, are fully consistent with the statutory requirement of ``an 
appropriate hearing'' and all parties' rights to due process of law.
    The proposed amendments would make clear that, although the 
Statement of Position form asks the non-petitioning parties to state 
their positions on the type, dates, times, and location of the 
election, and the eligibility period, and that the hearing officer 
should solicit all parties' positions on these issues, consistent with 
existing practice, the resolution of these issues remains within the 
discretion of the regional director, and the hearing officer shall not 
permit them to be litigated.
    The proposed amendments would provide that, if, at any time during 
the hearing, the hearing officer determines that the only genuine 
issues remaining in dispute concern the eligibility or inclusion of 
individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the hearing officer will close 
the hearing.
    Congress specified that a hearing take place before an election in 
order to insure that the Board determine that a question concerning 
representation exists prior to directing that an election

[[Page 36824]]

be held in order to resolve the question. Thus, Section 9(c) provides 
that, after the filing of a petition,

the Board shall investigate such petition and if it has reasonable 
cause to believe that a question of representation affecting 
commerce exists, it 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.

Congress did not, however, direct that every disputed issue related to 
the conduct of an election be litigated in the pre-election hearing or 
resolved prior to the conduct of the election.
    Litigation and resolution of individual eligibility issues prior to 
elections is not the norm within our political system. In Board-
supervised elections, it often results in unnecessary litigation and a 
waste of administrative resources as the eligibility of potential 
voters is litigated and 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 
moot. If, on the other hand, a majority of employees choose 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 and, if they cannot do so, either party may file a 
unit clarification petition to bring the issue back before the 
Board.\50\ As the Eighth Circuit observed, ``The NLRB's practice of 
deferring the eligibility decision saves agency resources for those 
cases in which eligibility actually becomes an issue.'' Bituma Corp. v. 
NLRB, 23 F.3d 1432, 1436 (8th Cir. 1994). The Sixth Circuit similarly 
found that ``[s]uch a practice enables the Board to conduct an 
immediate election.'' Medical Center at Bowling Green v. NLRB, 712 F.2d 
1091, 1093 (6th Cir. 1983).
---------------------------------------------------------------------------

    \50\ See New York Law Publishing Co., 326 NLRB No. 93, slip op. 
at 2 (2001) (``The parties may agree through the course of 
collective bargaining on whether the classification should be 
included or excluded. Alternatively, in the absence of such an 
agreement, the matter can be resolved in a timely invoked unit 
clarification petition.'')
---------------------------------------------------------------------------

    The proposed revision of this section of the rules together with 
the elimination of section 101.20(c) removes the basis for the Board's 
holding in Barre-National, Inc., 316 NLRB 877 (1995), that the hearing 
officer must permit full litigation of all eligibility issues in 
dispute prior to the direction of an election, absent consent of all 
parties to defer litigation of the issues. Congress specified that a 
hearing must be held to determine if ``a question concerning 
representation exists.'' Adjudication of the eligibility of the 24 
individuals at issue in Barre-National was not necessary to determine 
whether a question concerning representation existed. Moreover, the 
Board did not hold in Barre-National that the disputed issue had to be 
resolved before the regional director directed and conducted an 
election. In fact, the Board expressly noted, ``our ruling concerns 
only the entitlement to a preelection hearing, which is distinct from 
any claim of entitlement to a final agency decision on any issue raised 
in such a hearing.'' Id. at 878 n. 9. The Board further noted that 
``reviewing courts have held that there is no general requirement that 
the Board decide all voter eligibility issues prior to an election.'' 
Id. As observed above, the Board has frequently deferred final 
adjudication of such issues until after election, permitting disputed 
individuals to vote subject to challenge. Thus, the Board's holding in 
Barre-National required that an evidentiary hearing be held on the 
eligibility issue, potentially delaying the conduct of the election for 
a significant period of time, but the Board both in that case and in 
many others has permitted resolution of the issue to be deferred until 
after the election. Such an outcome serves no apparent purpose. 
Therefore, the proposed amendments would revise the regulations that 
formed the basis of the holding in Barre-National to permit deferral of 
both litigation and resolution of disputes that need not be resolved in 
order to determine that a question of representation exists.
    The unit's scope must be established and found to be appropriate 
prior to the election. But the Board is not required to and should not 
decide all questions concerning the eligibility or inclusion of 
individual employees prior to an election. The Board's preliminary view 
is that deferring both the litigation and resolution of eligibility and 
inclusion questions affecting no more than 20 percent of eligible 
voters represents a reasonable balance of the public's and parties' 
interest in prompt resolution of questions concerning representation 
and employees' interest in knowing precisely who will be in the unit 
should they choose to be represented.
    The proposed amendments are consistent with, but seek to improve, 
the Board's current practice concerning post-election rulings on 
eligibility and inclusion. In a variety of circumstances, most 
typically when the Board has granted a pre-election request for review 
concerning the scope of the unit or employee eligibility, but not ruled 
on the merits until after the election, the Board has addressed the 
question of when a post-election change in the unit described in the 
notice of election requires a new election. The Board has uniformly 
held that a change representing no more than 20 percent of the unit 
does not require a new election. See, e.g., Morgan Manor Nursing and 
Rehabilitation Center, 319 NLRB 552 (1995) (20 percent); Toledo 
Hospital, 315 NLRB 594 (1994) (19.5 percent). In Morgan Manor, the 
Board stated that ``the exclusion of one classification from a 
facilitywide service and maintenance unit comprised of employees in 
nine other specifically named classifications, represents a numerical 
change which we * * * do not view as signifying a sufficient change in 
unit size to warrant setting aside of the election.'' 319 NLRB at 553. 
Similarly, in Toledo Hospital, the Board found, ``We do not view the 
change in the size of the unit here (19.5 percent * * *) as signifying 
a sufficiently significant change in character and scope to warrant 
setting aside the election.'' 315 NLRB at 594. In a small number of 
cases,\51\ courts of appeals have reversed the Board's conclusion that 
a new election was not necessary when the size of the unit was altered 
by less than 20 percent.\52\ These courts have based their holdings on 
the particular nature of the change in the unit, concluding that it 
significantly altered the scope or character of the original unit. More 
importantly, these courts found that, by informing employees that they 
were voting to be represented in one unit and then changing the scope 
and character of the unit after the election, the Board was 
``misleading the voters as to the scope of the unit.'' NLRB v. Lorimar 
Productions, Inc., 771 F.2d 1294, 1302 (9th Cir. 1985) (involving 
approximately 35 percent reduction in size of unit); see also NLRB v. 
Beverly Health and Rehabilitation Services,, 120 F.3d 262 (4th Cir. 
1977) (per curiam) (unpublished) (``Where employees are led to believe 
that they are voting on a particular bargaining unit and that 
bargaining unit is subsequently modified post-election, such that the 
bargaining unit, as modified, is fundamentally different in scope or

[[Page 36825]]

character * * *, the employees have effectively been denied the right 
to make an informed choice in the representation election.'')
---------------------------------------------------------------------------

    \51\ The Board has identified only two such cases, cited in the 
following footnote.
    \52\ See NLRB v. Beverly Health and Rehabilitation Services, 120 
F.3d 262 (4th Cir. 1997) (per curiam) (unpublished) (reversing 
Morgan Manor, cited in text, involving a 20 percent reduction in 
size of unit); NLRB v. Parsons School of Design, 793 F.2d 503 (2d 
Cir. 1986) (involving a less than 10 percent reduction in size of 
unit).
---------------------------------------------------------------------------

    The Board's preliminary view is that adoption of a bright-line 
numerical rule requiring that questions concerning the eligibility or 
inclusion of individuals constituting no more than 20 percent of all 
potentially eligible voters be litigated and resolved, if necessary, 
post-election, best serves the interests of the parties and employees 
as well as the public interest in efficient administration of the 
representation case process.\53\ In order to insure that prospective 
voters are in no way misled as to the scope of the unit, under the 
proposed amendments, if resolution of eligibility or inclusion disputes 
is deferred, the Final Notice to Employees of Election would so inform 
employees (including an explanation of how the dispute will be 
resolved) and the disputed employees would be permitted to vote subject 
to challenge as explained below in relation to Sec.  102.67.
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    \53\ The Board has permitted regional directors to defer 
resolution of the eligibility of an even higher percentage of 
potential voters. See, e.g., Northeast Iowa Telephone, 341 NLRB 670, 
671 (2004) (``While we recognize that allowing 25 percent of the 
electorate to vote subject to challenge is not optimal, the 
Employer's opportunity to raise its supervisory issues remains 
preserved through appropriate challenges and objections to the 
election or through a subsequent unit clarification petition.'')
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    Consistent with existing practice, the proposed amendments also 
provide that a party that has been served with a subpoena may be 
required to file or orally present a motion to quash prior to the five 
days provided in section 11(1) of the Act. Both the Board and federal 
courts have construed the five days provided in the Act as a maximum, 
not a minimum. The Casehandling Manual provides:

    There is case authority which holds that the 5-day period is a 
maximum and not a minimum. Absent a showing of prejudice, the 
subpoenaed party may be required to file and argue its petition to 
revoke and, if ordered by the Administrative Law Judge or hearing 
officer, produce subpoenaed testimony and documents at hearing in 
less than 5 days from receipt of the subpoena. See Packaging 
Techniques, Inc., 317 NLRB 1252, 1253-54 (1995) and NLRB v. 
Strickland, 220 F.Supp. 661, 665-66 (D.C.W. Tenn., 1962), affd. 321 
F.2d 811, 813 (6th Cir. 1963).

Section 11782.4; see also Brennan's French Restaurant, 129 NLRB 52, 54 
n.2 (1960) (judge's ruling found moot by Board). The proposed 
amendments would codify existing practice vesting discretion in the 
hearing office to determine how much time a party served with a 
subpoena should be accorded to move to quash up to the statutory 
maximum of five days. As the judge reasoned in Packaging Techniques, 
317 NLRB at 1254, ``the case law suggests a common sense application of 
the rule.''
    Finally, the proposed amendments provide that at the close of the 
hearing, parties would be permitted to make oral arguments on the 
record. Parties would be permitted to file briefs only with the 
permission of the hearing officer and within the time permitted by and 
subject to any other limitations imposed by the hearing officer. Given 
the recurring and often uncomplicated legal and factual issues arising 
in pre-election hearings, it is the Board's preliminary view that 
briefs are not needed in every case to permit the parties to fully and 
fairly present their positions or to facilitate prompt and accurate 
decisions.

Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; 
Action by the Regional Director; Review of Action by the Regional 
Director; Statement in Opposition To Appeal; Final Notice of Election; 
Voter List

    Consistent with the proposed amendment to Sec.  102.66, the 
proposed amendments to Sec.  102.67 would provide that if the regional 
director finds at any time that the only issues remaining in dispute 
concern the eligibility or inclusion of employees who would constitute 
less than 20 percent of the unit if they were found to be eligible to 
vote, the regional director shall direct that those individuals be 
permitted to vote subject to challenge. The proposed amendments would 
further provide that the Final Notice to Employees of Election shall 
explain that such individuals are being permitted to vote subject to 
challenge and the procedures through which their eligibility will be 
resolved.
    The proposed amendments would give the regional director discretion 
to issue a direction of election with a decision to follow no later 
than the time of the tally of votes. Because the proposed amendments 
would defer the parties' right to request Board review of pre-election 
rulings until after the election, in order to avoid delaying the 
conduct of the election, regional directors may exercise their 
discretion to defer issuance of the decision up to the time of the 
tally without prejudice to any party.
    Because the parties will have fully stated their positions on the 
type, dates, times, and locations of the election either in their 
Statements of Position or at the hearing, under the proposed amendments 
the regional director would address these election details in the 
direction of election and issue the Final Notice to Employees of 
Election with the direction. Consistent with both the statutory purpose 
for conducting elections and existing practice, the proposed amendments 
would provide that the regional director shall set the election for the 
earliest date practicable.
    Both the decision and direction of election and the Final Notice to 
Employees of Election would be electronically transmitted to all 
parties when they have provided e-mail addresses to the regional 
office. When the parties have provided e-mail addresses of affected 
employees, the regional office would also transmit the notice 
electronically to those employees.\54\ In addition, the employer would 
be required to post the Final Notice to Employees of Election in those 
places where it customarily posts notices to employees as well as 
electronically if the employer customarily uses electronic means to 
communicate with its employees. Because of the potential unfairness of 
conclusively presuming that the employer received the notice if it does 
not inform the region to the contrary within five work days, the 
proposed amendments would also eliminate the provision in Sec.  103.20 
creating such a conclusive presumption.
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    \54\ The proposed rules provide in Sec. Sec.  102.62, 102.63, 
and 102.67 that both the preliminary and final eligibility lists 
include telephone numbers as well as e-mail addresses (when 
available) both to facilitate use of the final list for the purposes 
described in Excelsior and to permit the regions potentially to test 
the use of automated phone calls for the purpose of providing prompt 
notice of the election to each eligible voter.
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    Because of the provision of a mandatory and more detailed initial 
notice of election, as described in relation to Sec.  102.60 above, for 
manual and electronic posting of the final notice by employers, and for 
electronic transmission of the final notice of election to individual, 
eligible voters, in all cases where such notice is feasible, the 
proposed rules would also reduce the minimum time between the posting 
of the final notice and the election from three to two work days.
    The Board anticipates that continuing advances in electronic 
communications and continuing expanded use of e-mail may, in the near 
future, enable regional offices in virtually all cases to transmit the 
final notice of election directly to all eligible voters, rendering 
employer posting of the final notice of election unnecessary. The Board 
similarly anticipates that the proposed amendments' adoption of dual 
notice procedures will be an interim measure. During this interim 
period, while the employer remains obligated to post the

[[Page 36826]]

final notice of election, the Board does not intend that the failure of 
a regional office to provide electronic notice to any eligible voter 
would be the basis for overturning the results of an election under the 
proposed amendments.
    The proposed amendments would make the same changes in the form, 
content, and service of the list of eligible voters that the employer 
must file after a direction of election as were described above in 
relation to Sec.  102.62 after entry into any form of consent or 
stipulated election agreement. In addition, because of advances in 
recordkeeping technology and because in most cases the employer will 
have provided a preliminary list of employees in the proposed or 
alternative units as described in relation to Sec.  102.63 above, the 
proposed amendments would also reduce the time during which the list 
must be filed and served from seven days to two work days. Consistent 
with existing practice, reflected in Mod Interiors, Inc., 324 NLRB 164 
(1997), and Casehandling Manual section 11302.1, an election shall not 
be scheduled for a date earlier than ten days after the date by which 
the eligibility list must be filed and served, unless this requirement 
is waived by the petitioner and any other parties whose names will 
appear on the ballot.
    The proposed amendments would eliminate the regional director's 
authority to transfer a case at any time to the Board for decision. 
This authority has rarely been used and, when it has been used, has led 
to extended delays in the disposition of petitions. See, e.g., 
Centurion Auto Transport, Inc., 329 NLRB 394 (1999) (transferred 
December 1994, decided September 1999); Roadway Package System, Inc., 
326 NLRB 842 (1998) (transferred May 1995, decided August 1998); PECO 
Energy Co., 322 NLRB 1074 (1997) (transferred Sept 1995, decided 
February 1997); Johnson Controls, Inc., 322 NLRB 669 (1996) 
(transferred June 1994, decided December 1996).
    As under the current rules, if the regional director dismisses the 
petition, parties would be permitted to file a request for review with 
the Board. If the regional director directs an election, however, the 
proposed amendments would defer all parties' right to request Board 
review until after the election. The proposed amendments would retain 
the provisions for a request for special permission to appeal a 
determination by the regional director, modified as described above in 
relation to Sec.  102.65 above.
    The Board's current Statements of Procedures provide that elections 
``normally'' are delayed for a period of at least 25 days after the 
regional director directs that an election should be conducted, in 
order to provide the parties an opportunity to request Board review of 
the regional director's determinations.

    The parties have the right to request review of any final 
decision of the Regional Director, within the times set forth in the 
Board's Rules and Regulations, on one or more of the grounds 
specified therein. Any such request for review must be a self-
contained document permitting the Board to rule on the basis of its 
contents without the necessity of recourse to the record, and must 
meet the other requirements of the Board's Rules and Regulations as 
to its contents. The Regional Director's action is not stayed by the 
filing of such a request or the granting of review, unless otherwise 
ordered by the Board. Thus, the Regional Director may proceed 
immediately to make any necessary arrangements for an election, 
including the issuance of a notice of election. However, unless a 
waiver is filed, the Director will normally not schedule an election 
until a date between the 25th and 30th days after the date of the 
decision, to permit the Board to rule on any request for review 
which may be filed.

29 CFR 101.21(d).
    Thus, while the rules provide for discretionary review and 
expressly provide that requesting such review shall not operate as a 
stay of the election, the Statements of Procedures suggest that there 
should normally be a waiting period of 25-30 days. This is the case 
even though such requests are filed in a small percentage of cases, are 
granted in an even smaller percentage,\55\ and result in orders staying 
the conduct of elections in virtually no cases at all. For these 
reasons, such a waiting period appears to serve little purpose even 
under the existing rules permitting a pre-election request for review.
---------------------------------------------------------------------------

    \55\ A comparison of the total number of elections to the total 
number of grants of review (including grants of review after 
petitions were dismissed) during the period 2002 to 2009 reveals 
that review was granted in less than 1.3 percent of all 
representation cases in which an election was conducted and in 
approximately 15 percent of those cases in which a request was 
filed. See NLRB Annual Reports (Fiscal Years 2001-2009) and NLRB 
Office of the General Counsel, Summaries of Operations (Fiscal Years 
2002-2009 with 2002 including summary for 2001).
---------------------------------------------------------------------------

    The proposed amendments would eliminate the pre-election request 
for review and the accompanying waiting period. All pre-election 
rulings would remain subject to review post-election if they have not 
been rendered moot.
    The Board anticipates that the proposed amendments would eliminate 
unnecessary litigation concerning issues that may be and often are 
rendered moot by the election results and thereby reduce the expense of 
participating in representation proceedings for the parties as well as 
the government. Similarly, by consolidating all Board review post-
election, the proposed rules would relieve parties of the burden of 
petitioning for pre-election review in order to preserve issues that 
may be rendered moot by the election results and, even if that is not 
the case, would allow parties to raise all issues in a single petition 
and thereby preserve both private and public resources. In other words, 
the Board anticipates that the proposed amendments would not simply 
shift litigation from before to after elections, but would 
significantly reduce the total amount of litigation.
Section 102.68 Record; What Constitutes; Transmission to Board
    The proposed amendments to this section would conform its contents 
to the amendments to other sections.

Sec. 102.69 Election Procedure; Tally of Ballots; Objections; Requests 
for Review of Directions of Elections, Hearings; Hearing Officer 
Reports on Objections and Challenges; Exceptions to Hearing Officer 
Reports; Requests for Review of Regional Director Reports or Decisions 
in Stipulated or Directed Elections

    The proposed amendments to Sec.  102.69 would maintain the current 
time period (seven days after the tally) for the filing of objections 
to the conduct of the election or to conduct affecting the results of 
the election. The current rules provide a filing party with an 
additional seven days to file an offer of proof. The proposed 
amendments would require that a party filing objections simultaneously 
file a written offer of proof supporting the objections as described 
above in relation to Sec.  102.66(b). The proposed change is based on 
the view that objections to a secret-ballot election should not be 
filed by any party lacking factual support for the objections and, 
therefore, that a filing party should be able to describe the facts 
supporting its objections at the time of filing. The proposed 
amendments codify existing practice permitting parties to file, but not 
serve, evidence in support of objections.
    The proposed amendments would also codify existing practice 
permitting the regional director to investigate the objections by 
examining evidence offered in support thereof to determine if a hearing 
is warranted. Thus, if there are potentially determinative challenges 
or the regional director determines that objections together with an 
accompanying offer of proof raise a genuine issue of material fact, the 
proposed amendments would require that the regional director serve a 
notice

[[Page 36827]]

of hearing setting the matters for hearing within 14 days of the tally 
or as soon thereafter as practicable. If the resolution of questions 
concerning the eligibility of individuals in the unit was deferred by 
the hearing officer, as described in Sec.  102.66 above, and the votes 
of such individuals are potentially outcome determinative, the deferred 
questions would be addressed in the post-election hearing. The proposed 
amendments would further provide that any such hearing would open with 
the parties stating their positions on any challenges and objections, 
followed by offers of proof as described above in relation to Sec.  
102.66.
    The proposed amendments would provide that if no potentially 
determinative challenges exist and no objections are filed, any party 
may file a request for review of the regional director's decision and 
direction of election within 14 days of the tally. If there are 
potentially determinative challenges or objections, a request for 
review of the regional director's decision and direction of election 
may be filed within 14 days of the regional director's disposition of 
the post-election disputes and may be consolidated with any request for 
review of post-election rulings.
    The proposed amendments would create a uniform procedure in those 
cases in which there are potentially outcome determinative challenges 
or the regional director determines that objections together with an 
accompanying offer of proof raise genuine issues of material fact that 
must be resolved. Adopting the procedure currently contained in 
Sec. Sec.  102.69(d) and (e), the proposed amendments would provide 
that, in such cases, the regional director shall provide for a hearing 
before a hearing officer who shall, after such hearing, issue a report 
containing recommendations as to the disposition of the issues. Within 
14 days after issuance of such a report, any party may file exceptions 
with the regional director. Finally, consistent with the proposed 
changes described above in relation to Sec.  102.62, the proposed 
amendments would make Board review of a regional director's resolution 
of post-election disputes discretionary in cases involving directed 
elections as well as those involving stipulated elections.\56\ The 
Board anticipates that this proposed change would leave a higher 
percentage of final decisions concerning disputes arising out of 
representation proceedings with the Board's regional directors who are 
members of the career civil service.
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    \56\ The Board anticipates that permitting it to deny review of 
regional directors' resolution of post-election disputes--when a 
party's request raises no compelling grounds for granting such 
review--would eliminate the most significant source of 
administrative delay in the finality of election results. Together 
with simultaneous filing of objections and offers of proof and 
prompt scheduling of post-election hearings, when they are 
necessary, the Board anticipates that the proposed amendments would 
reduce the period of time between the tally of votes and 
certification of the results. Such an outcome would reduce the time 
during which employers are uncertain about their legal obligations 
because, after a tally showing a majority vote in favor of 
representation, employers violate the duty to bargain by 
unilaterally changing the status quo only if a representative is 
ultimately certified. See Mike O'Conner Chevrolet, 209 NLRB 701, 703 
(1974).
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Subparts D and E, Sec. Sec.  102.73 Through 102.88, Procedures for 
Unfair Labor Practice and Representation Cases Under Section 8(b)(7) 
and 9(c) of the Act and Procedures for Referendum Under Section 9(e) of 
the Act

    The proposed amendments in these two subparts are intended solely 
to conform their provisions to the amendments in Subpart C described 
above.

Subpart I--Service and Filing of Papers

Sec. 102.112 Date of Service; Date of Filing

    The proposed amendments would correct an omission concerning the 
effective date of service by electronic mail.

Sec. 102.113 Methods of Service of Process and Papers by the Agency; 
Proof of Service

    The proposed amendments would add electronic mail as an approved 
method of service of Board papers other than complaints, compliance 
specifications, final decisions and orders in unfair labor practice 
cases, and subpoenas. The existing rules include regular mail, private 
delivery service and facsimile transmission (with consent), along with 
personal service and certified and registered mail. Section 102.114 has 
provided for service of parties' papers by electronic mail since 2009.

Sec. 102.114 Filing and Service of Papers; Form of Papers; Manner and 
Proof of Filing and Service; Electronic Filings

    The proposed amendments to this section are intended solely to 
conform its provisions to the amendments in Subpart C described above.
Part 103, Subpart B--Election Procedures

Sec. 103.20 Posting of Election Notices

    The proposed amendments eliminate this section, the only section of 
part 103 of the regulations governing procedures in representation 
proceedings, and integrate its contents into part 102, modified as 
explained above in relation to Sec.  102.67.
 Request for Comment Regarding Blocking Charges
    Just as the Board seeks through the proposed amendments to prevent 
any party from using the hearing process established under section 9 of 
the Act to delay the conduct of an election though unnecessary 
litigation, the Board also believes that no party should use the unfair 
labor practice procedures established under sections 8 and 10 to 
unnecessarily delay the conduct of an election. As set forth in the 
Casehandling Manual, ``The Agency has a general policy of holding in 
abeyance the processing of a petition where a concurrent unfair labor 
practice charge is filed by a party to the petition and the charge 
alleges conduct that, if proven, would interfere with employee free 
choice in an election, were one to be conducted.'' Section 11730. This 
``blocking charge'' policy is not set forth or implemented in the 
current rules, but it has been applied by the Board in the course of 
adjudication.\57\
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    \57\ See, e.g., Bally's Atlantic City, 338 NLRB 443 (2002). See 
generally Berton B. Subrin, The NLRB's Blocking Charge Policy: 
Wisdom or Folly?, 39 LAB. L.J. 651 (1988).
---------------------------------------------------------------------------

    The Board therefore specifically invites comment on whether any 
final amendments should include changes in the current blocking charge 
policy as described in sections 11730 to 11734 of the Casehandling 
Manual or whether any changes in that policy should be made by the 
Board through means other than amendment of the rules. The Board 
further specifically invites interested parties to comment on whether 
the Board should provide that (1) any party to a representation 
proceeding that files an unfair labor practice charge together with a 
request that it block the processing of the petition shall 
simultaneously file an offer of proof of the type described in relation 
to Sec. Sec.  102.66(b) and 102.69(a); (2) if the regional director 
finds that the party's offer of proof does not describe evidence that, 
if introduced at a hearing, would require that the processing of the 
petition be held in abeyance, the regional director shall continue to 
process the petition; (3) the party seeking to block the processing of 
a

[[Page 36828]]

petition shall immediately make the witnesses identified in its offer 
of proof available to the regional director so that the regional 
director can promptly investigate the charge as required by section 
11740.2(c) of the Casehandling Manual; (4) unless the regional director 
finds that there is probable cause to believe that an unfair labor 
practice was committed that requires that the processing of the 
petition be held in abeyance, the regional director shall continue to 
process the petition; (5) if the Regional Director is unable to make 
such a determination prior to the date of the election, the election 
shall be conducted and the ballots impounded; (6) if the regional 
director finds that there is probable cause to believe that an unfair 
labor practice was committed that would require that the processing of 
the petition be held in abeyance under current policy, the regional 
director shall instead conduct the election and impound the ballots; 
(7) if the regional director finds that there is probable cause to 
believe that an unfair labor practice was committed that would require 
that the petition be dismissed under section 11730.3 of the 
Casehandling Manual, the regional director shall instead conduct the 
election and impound the ballots; (8) the blocking charge policy is 
eliminated, but the parties may continue to object to conduct that was 
previously grounds for holding the processing of a petition in abeyance 
and the objections may be grounds for both overturning the elections 
results and dismissing the petition when appropriate; or (9) the 
blocking charge policy should be altered in any other respect.

 IV. Response to Dissent

    The dissent, which is printed below, criticizes both the procedure 
followed by the Board in proposing and seeking public comment on the 
possible reforms set forth in this Notice and the content of the 
proposed amendments. Many of these criticisms are based on inaccurate 
characterizations of this rulemaking proceeding, the substance of the 
proposed amendments, and the historical context in which they arise. 
However, to the extent that the dissent reflects the legitimate 
concerns of participants in the Board's representation case procedures 
and of other members of the public affected by those procedures, it 
offers precisely the kind of commentary that the Board hopes and 
expects to receive during the comment period and will consider 
carefully before issuing any final rule.
    The dissent acknowledges that this rulemaking is being conducted in 
full compliance with all of the numerous and substantial legal 
requirements governing such proceedings. Yet it declares such 
compliance with congressional commands ``utterly beside the point,'' 
seeking to portray this proceeding as an attempt to deny interested 
members of the public the opportunity to communicate to the Board their 
views on the subjects addressed by the proposed amendments. In fact, 
this proceeding has been designed to elicit the broadest and most 
detailed public input on the subject of representation case procedure 
in the 76-year history of the agency.
    The Board's procedures relating to the conduct of elections were 
first established in 1935. They have since been changed 
administratively on at least three dozen occasions. The Board has only 
rarely utilized the Administrative Procedure Act's notice-and-comment 
rulemaking procedure; most often the Board simply implemented the 
changes without prior notice or request for public comment. This 
procedure was permissible because notice and comment is not required in 
order to promulgate or amend ``rules of agency organization, procedure, 
or practice.'' See 5 U.S.C. 553(b)(A). The vast majority of the 
amendments proposed herein are procedural in nature, and the Board was 
not required to proceed by notice and comment with respect to them. The 
Board has nevertheless, in the interest of maximizing public 
participation, chosen to give notice and seek public comment as to all 
of the proposed amendments.\58\
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    \58\ The Board's approach here is consistent with its recent 
solicitations of briefs from the broader labor-management community 
in connection with pending cases. See, e.g., Specialty Healthcare, 
356 NLRB No. 56 (2010). There, the Board majority stated its strong 
belief ``that asking all interested parties to provide [the Board] 
with information and argument * * * is the fairest and soundest 
method of deciding whether our rules should remain the same or be 
changed and, if the latter, what the new rules should be.'' Slip op. 
at 2. In dissent, Member Hayes disagreed, arguing that ``copious 
information is already available in-house'' and predicting that 
``what [the Board] will receive will be mostly subjective or 
partisan justification for changing the law rather than any useful 
information.'' Id. at 5. See also Rite-Aid Store 6473-Lamons Gasket 
Co., 355 NLRB No. 157, slip op. at 5 (dissent of Members Schaumber 
and Hayes) (observing that in response to invitation to file briefs, 
``Board will predictably receive mostly subjective and partisan 
claims'' critical of current precedent and that ``Board already has 
its own reliable and objective empirical data for evaluation'').
---------------------------------------------------------------------------

    The dissent criticizes the Board's publication of the text of 
proposed amendments prior to soliciting public comments on their 
subject matter, characterizing it as a limitation on public 
participation in the rulemaking process. In fact, the publication of 
proposed rules greatly enhances the opportunity for interested members 
of the public to submit meaningful comments. This level of disclosure 
is not required by the Administrative Procedure Act; it would suffice 
legally for the Board simply to describe the substance of the proposed 
amendments. However, the Board has chosen to maximize the openness of 
the process by disclosing in as much detail as possible its thinking at 
this preliminary stage of the rulemaking process. It is expected that 
providing proposed rule text in addition to more general descriptions 
and explanations will enable interested members of the public to 
understand the proposals in greater depth and to submit more specific 
and useful comments. It is because of the value that the Board places 
on public comment that it has elected to provide notice of the proposed 
rulemaking in the most detailed form possible.
    The dissent's use of the Board's health-care unit rulemaking 
proceeding as a benchmark is inapt. Even that proceeding generated 
fundamental disagreement among the Board members about the purpose and 
possible value of rulemaking.\59\ For all of its length and complexity, 
that proceeding led not to consensus among stakeholders, or even to 
grudging acceptance of the Board's rule, but to litigation that 
culminated only with a Supreme Court decision upholding the Board's 
action. American Hospital Ass'n v. NLRB, 499 U.S. 606 (1991). Nor is it 
clear that the procedure followed by the Board--described by one 
commentator as ``procedural overkill''--actually generated more useful 
information, in a cost-effective way, than a simpler, shorter 
proceeding would have provided.\60\ In any case, the

[[Page 36829]]

contrast between the subject matter of the health care rulemaking--the 
nature and organization of work in a complex industry on a nationwide 
basis--and the current proceeding could not be greater. No party 
possesses greater knowledge of the Board's own procedures than the 
Board itself.\61\ Parties to representation cases would of course be 
affected by changes in the Board's procedures, including in ways that 
may not be obvious to the Board; their detailed written commentary is 
therefore being solicited and will be carefully considered before any 
changes are effectuated. In addition, the Board intends to issue a 
notice of public hearing to be held in Washington, DC, on July 18-19, 
at which it will hear public comments on the proposed amendments as 
well as such other ideas as speakers may wish to offer for improvement 
of the representation case process. But the suggestion that a 
proceeding similar to the one conducted for purposes of health-care 
unit rulemaking is needed here fails to consider the differences in the 
subject matters in the respective proceedings.
---------------------------------------------------------------------------

    \59\ See Mark H. Grunewald, The NLRB's First Rulemaking: An 
Exercise in Pragmatism, 41 Duke L.J. 274, 290 (1991). (``The 
disagreement over the usefulness of rulemaking became even more 
contentious when the discussion turned to the question of whether to 
include a specific proposal in the notice of proposed rulemaking or 
merely to indicate an intent to make a rule on the subject of health 
care units.'').
    \60\ As one scholar observed, in a study prepared for the 
Administrative Conference of the United States:
    Almost two years elapsed between the time when the Board decided 
to engage in rulemaking and when it issued the final rule. During 
this period, substantial staff time, including a significant amount 
of high-level staff time, was used to manage the rulemaking and to 
assist in the analysis of the product of the hearings and comment 
periods. * * * Not only was the time commitment significant as an 
absolute matter, but also because regular staff rather than special 
rulemaking staff was used, this staff time was thus invested at a 
cost to other matters. * * * Moreover, a portion of the two years 
was consumed with a procedure not required for notice and comment 
rulemaking--multi-location hearings with an opportunity for a form 
of cross-examination. * * * Under the circumstances of this 
rulemaking, particularly its novelty for the Board, the hearings 
were probably a desirable choice. Certainly as a legal matter, 
however, and perhaps as a practical matter, the hearings were 
procedural overkill and the burdens created by the number and 
structure of the hearings would have to be considered as part of the 
overall cost-benefit evaluation of the rulemaking.
    Grunewald, NLRB's First Rulemaking, supra, 41 Duke L.J. at 319-
320.
    \61\ The Supreme Court has made clear that, ``[a]bsent 
constitutional constraints or extremely compelling circumstances,'' 
it is a ``very basic tenet of administrative law that agencies 
should be free to fashion their own rules of procedure,'' consistent 
with statutory requirements. Vermont Yankee Nuclear Power Corp. v. 
Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978).
---------------------------------------------------------------------------

    This misapprehension also leads the dissent to criticize the 
opportunities for public comment provided here as too brief. Our 
colleague concedes that the initial 60-day period violates no statutory 
or other requirement that applies to the rulemaking process. Indeed, a 
60-day period has become a common benchmark. See, e.g., E.O. No. 13563 
(``Improving Regulation and Regulatory Review''), 76 FR 3821 (Jan. 18, 
2011); E.O. No. 12866 (``Regulatory Planning and Review''), 58 FR 51735 
(Sept. 30, 1993). Measured against the comment periods adopted by other 
agencies, the period provided for here is hardly abnormally short. See 
Steven J. Balla, Brief Report on Economically Significant Rules and the 
Duration of Comment Periods, http://www.acus.gov/wp-content/uploads/downloads/2011/04/COR-Balla-Supplemental-Research-Brief.pdf (2011) (the 
average duration of the comment periods for proposed actions that are 
economically significant is 45.1 days, and 38.7 days for all other 
types of actions). Moreover, the 60-day initial comment period will be 
followed by a 14-day reply period and will be supplemented with a 
public hearing.
    As to the substance of the proposed amendments, the dissent raises 
a number of important questions of policy. These questions will be 
considered carefully in arriving at a final rule. However, the dissent 
also contains several errors that are worth pointing out:
    The dissent states that the proposed amendments will 
``substantially limit the opportunity for full evidentiary hearing or 
Board review on contested issues.'' In fact, the proposed amendments 
simply import the norms of modern civil procedure from the federal 
judicial system and apply them to adjudication of representation-case 
issues. The proposed amendments would require the parties to identify 
the issues that separate them and the evidence supporting their 
respective positions and permit an evidentiary hearing only as to 
triable issues of material fact. Like the Federal Rules of Civil 
Procedure, the proposed amendments would do away with litigation for 
the sake of litigation, allowing only litigation that is genuinely 
needed to resolve disputed issues material to the outcome of the case. 
The Board expects that this reform alone would result in substantial 
savings to both the parties and the agency, given the high cost of 
litigation. As to Board review, there is no issue as to which any 
party's right to seek Board review is proposed to be eliminated. 
Rather, in the interest of efficiency, requests for Board review would 
be consolidated into a single post-dismissal or post-election request 
instead of the pre-election request and post-election exceptions 
permitted under current practice, and review of regional director's 
resolution of post-election disputes would be discretionary as is 
currently the case in relation to pre-election disputes. Again, it is 
expected that the proposed reform would result in substantial savings 
to the parties and the public.
    The dissent also contends that the proposed amendments will 
``substantially shorten the time between the filing of the petition and 
the election date,'' and that the purpose of this change is ``to 
effectively eviscerate an employer's legitimate opportunity to express 
its views about collective bargaining'' in order to increase the 
election success rate of unions. That accusation is unwarranted. The 
Board seeks to gain the efficiency and savings that would result from 
streamlining of its procedures. What effect the proposed changes would 
have on the outcome of elections is both unpredictable and immaterial. 
The dissent's charges ignore important facts about the proposed 
amendments: (1) The proposed rules would apply equally to all parties 
and to both elections seeking to certify and to decertify a 
representative of employees; (2) the limitations on evidentiary 
hearings would apply equally to pre- and post-election hearings; (3) 
the proposed rules would likely shorten post-election proceedings by 
avoiding altogether litigation of issues that are mooted by election 
results, among other efficiencies, eliminating unnecessary litigation, 
and by substituting a request for review procedure for the current 
exceptions procedure; and (4) the proposed rules do not impose any 
limitations on the election-related speech of any party.
    Finally, the dissent relies heavily on the fact that the agency has 
met its own time targets for the processing of representation cases. 
But those time targets have been set in light of the agency's current 
procedures, including their built-in inefficiencies. The history of 
congressional and administrative efforts in the representation-case 
area has consisted of a progression of reforms to reduce the amount of 
time required to ultimately resolve questions concerning 
representation, which, as Congress has found, can disrupt the workplace 
and interfere with interstate commerce. With each reform, the waiting 
time has been reduced, the result has been widely viewed as progress, 
and the achievement of the full measure of time savings by agency 
employees has been lauded as success. The Board conceives of the 
proposed amendments as the next step for the agency in improving its 
performance of this critical part of its statutory mission.

V. Dissenting View of Member Brian E. Hayes

    Member Hayes, dissenting,
    Today, my colleagues undertake an expedited rulemaking process in 
order to implement an expedited representation election process. 
Neither process is appropriate or necessary. Both processes, however, 
share a common purpose: To stifle full debate on matters that demand 
it, in furtherance of a belief that employers should have little or no 
involvement in the resolution of questions concerning representation. 
For my part at least, I can and do dissent.
    First, the rulemaking process:
    The last substantive rulemaking effort of comparable scale involved 
the determination of appropriate bargaining

[[Page 36830]]

units in the health care industry. The need for this effort was 
obvious, based on years of litigation highlighting specific problems 
and differences among the Board, the courts of appeals, and health care 
industry constituents. The initial July 2, 1987 notice of proposed 
rulemaking was followed by a series of four public hearings, the last 
one held over a 7-day period, in October 1987. Thereafter, the written 
comment period was extended. Another rulemaking notice followed on 
September 1, 1988. It reviewed the massive amount of oral testimony 
(3545 pages and 144 witnesses) and written comments (1500 pages filed 
by 315 individuals and organizations) received during the prior year 
and announced a revised rule with another 6-week period for written 
comment. The final rule was published on April 21, 1989, almost 2 years 
after the initial notice.
    In marked contrast to the health care unit rulemaking, my 
colleagues put forth proposals on their own initiative, not in response 
to any petition for rulemaking or in response to any specific problems 
defined by prior litigation. The need for their proposed electoral 
reform, which directly affects every employer and employee in every 
industry subject to Board jurisdiction, is far from obvious. The 
proposed revisions largely reflect the narrow concerns and proposals of 
a few academicians.\62\ Rather than proceeding with the preparation and 
publication of rules responsive to just this one small and 
ideologically homogenous group, it was incumbent on the Board to have a 
far more inclusive public discussion of the need for electoral reform 
before determining what rule revisions to propose formally in the 
Federal Register.\63\ In this regard, President Obama's Executive Order 
13563 specifically states that ``[b]efore issuing a notice of proposed 
rulemaking, each agency, where feasible and appropriate, shall seek the 
views of those who are likely to be affected, including those who are 
likely to benefit from and those who are potentially subject to such 
rulemaking.'' \64\ While this Order is not binding on the Board, as an 
independent agency, ``such agencies are encouraged to give 
consideration to all of its provisions, consistent with their legal 
authority.'' \65\
---------------------------------------------------------------------------

    \62\ E.g., Charles Craver, The National Labor Relations Act at 
75: In Need of a Heart Transplant, 27 Hofstra Lab. & Emp. L.J. 311 
(2010); William B. Gould, The Employee Free Choice Act of 2009, 
Labor Law Reform, and What Can Be Done About the Broken System of 
Labor-Management Relations Law in the United States, 43 U.S.F.L. 
Rev. 291 (2008); Charles J. Morris, Renaissance at the NLRB--
Opportunity and Prospect for Non-Legislative Procedural Reform at 
the Labor Board, 23 Stetson L. Rev. 101 (1993).
    \63\ I disagree with my colleagues' characterization of the 
proposed rule revisions as ``almost entirely'' procedural in nature. 
Accordingly, I find that the notice and comment procedure is 
mandatory, not discretionary.
    \64\ E.O. 13563, 76 FR 3821, 3821-23 (Jan. 21, 2011) (emphasis 
added).
    \65\ Office of Management and Budget Memo 11-10, Memorandum for 
the Heads of Executive Departments and Agencies, and of Independent 
Regulatory Agencies: Executive Order 13563, ``Improving Regulation 
and Regulatory Review'' (February 2, 2011), available at http://www.whitehouse.gov/omb/memoranda.
---------------------------------------------------------------------------

    It was both ``feasible and appropriate'' for the Board to seek the 
views of those likely to be affected before issuing the notice of 
proposed rulemaking. At the very least, the proposals should have been 
previewed for comment by the Board's standing Rules Revision Committee, 
a group of agency officials specifically identified as responsible for 
considering and recommending modifications in existing rules and 
proposed new rules,\66\ and by the Practice and Procedures Committee of 
the American Bar Association, a group representative of the broad 
spectrum of private and public sector labor-management professionals 
that frequently serves as a sounding board for revisions of our Rules. 
I believe the Board should also have exercised its discretion to hold 
an open meeting under the Government in Sunshine Act \67\ when voting 
to authorize a rule revision proposal.\68\ Alternatively, the Board 
could have undertaken negotiated rulemaking.\69\ Any of the suggested 
processes could have encouraged consensus in rulemaking, rather than 
the inevitably divisive approach my colleagues have chosen by 
publishing their proposed rules with no advance notice or public 
discussion of their purpose or content.
---------------------------------------------------------------------------

    \66\ See May 23, 2011, letter from Board Executive Secretary 
submitting the Board's Preliminary Plan to Review Significant 
Regulations to the OMB Office of Information and Regulatory Affairs 
in response to Section 6 of Executive Order 13563, available at 
http://www.slideshare.net/whitehouse/national-labor-relations-board-preliminary-reform-board.
    \67\ Government in the Sunshine Act, 5 U.S.C. 552b.
    \68\ My point is not that the process followed to date is 
impermissible. It is that a more open public process would be far 
more preferable and consistent with Executive Order guidelines.
    \69\ See Negotiated Rulemaking Act, 5 U.S.C. 561 et seq.
---------------------------------------------------------------------------

    The limitation on public participation in this process continues 
with my colleagues' choice of a 60-day written comment period, a 14-day 
reply period, and one public hearing for discussion about the proposed 
rules. Again, the contrast with health care unit rulemaking is marked. 
While I do not suggest that the proposed rulemaking process needs to 
last 2 years, I think it manifest that 2 and a half months in the dead 
of summer is too little time, and written comment with a single hearing 
is too limited a method, for public participation in discussing the 
myriad issues raised. There needs to be a more extended comment period 
and a full opportunity for broad stakeholder input through multiple 
public hearings on proposed rules of this magnitude.
    It is utterly beside the point, and should be of little comfort to 
the majority, that its actions may be in technical compliance with the 
requirements of the Administrative Procedure Act (APA) and other 
regulations bearing on the rulemaking process. President Obama's 
Memorandum on Transparency and Open Government, issued on January 21, 
2009,\70\ makes clear that independent agencies have an obligation to 
do much more than provide minimum due process in order to assure that 
our regulatory actions implement the principles of transparency, 
participation, and collaboration. As explained in the subsequent 
directive from the Director of the Office of Management and Budget, 
these principles ``form the cornerstone of an open government.'' \71\ 
Sadly, my colleagues reduce that cornerstone to rubble by proceeding 
with a rulemaking process that is opaque, exclusionary, and 
adversarial.\72\ The sense of fait accompli is inescapable.
---------------------------------------------------------------------------

    \70\ 74 FR 4685, 4685-86 (Jan. 26, 2009).
    \71\ Office of Management and Budget Memo 10-06, Memorandum for 
the Heads of Executive Departments and Agencies: Open Government 
Directive (February 2, 2011), available at http://www.whitehouse.gov/omb/memoranda.
    \72\ The majority suggests an inconsistency between my 
dissenting position in Specialty Healthcare and Rehabilitation 
Center of Mobile, 356 NLRB No. 56 (2010), and in the present 
rulemaking scenario. In both instances, I find that the majority has 
provided an insufficient explanation for reexamining extant law and 
procedure. In Specialty, an adjudicatory proceeding, I further 
objected to the expansion of inquiry far beyond the issues 
specifically raised by the parties. That inquiry, if undertaken, 
should have entailed the rulemaking process.
---------------------------------------------------------------------------

    Now, to the proposed rules themselves:
    Parts of what my colleagues propose seem reasonable enough. On the 
other hand, the whole of proposed reform is much, much more than the 
sum of its parts and out of all proportion to specific problems with 
the Board's current representation casehandling procedures. While the 
preamble frequently refers to the Board's interest in the expeditious 
resolution of questions concerning representation,

[[Page 36831]]

there is no certainty that the rule revisions even address the problems 
that have caused undue delay in a very small number of representation 
cases or that they will shorten the overall timeframe for processing an 
election case from the filing of a petition until final resolution. 
What is certain is that the proposed rules will (1) substantially 
shorten the time between the filing of the petition and the election 
date, and (2) substantially limit the opportunity for full evidentiary 
hearing or Board review on contested issues involving, among other 
things, appropriate unit, voter eligibility, and election misconduct. 
Thus, by administrative fiat in lieu of Congressional action, the Board 
will impose organized labor's much sought-after ``quickie election'' 
option, a procedure under which elections will be held in 10 to 21 days 
from the filing of the petition. Make no mistake, the principal purpose 
for this radical manipulation of our election process is to minimize, 
or rather, to effectively eviscerate an employer's legitimate 
opportunity to express its views about collective bargaining.
    It may be best to begin a substantive analysis of the proposed 
rules with an accounting of the Board's current representation 
casehandling procedures. The Acting General Counsel's summary of 
operations for Fiscal Year 2010 took special note of facts that: (1) 
95.1 percent of all initial elections were conducted within 56 days of 
the filing of the petition; (2) initial elections were conducted in a 
median of 38 days from the filing of the petition; and (3) the agency 
closed 86.3 percent of all representation cases within 100 days, 
surpassing an internal target rate of 85 percent.\73\ The Acting 
General Counsel described the achievement of these results as 
``outstanding.'' \74\
---------------------------------------------------------------------------

    \73\ General Counsel Memorandum 11-03 at ``Introduction'' (Jan. 
10, 2011), available at http://www.nlrb.gov/publications/general-counsel-memos. Agency performance has continued at essentially the 
same level for the first 3 months of fiscal year 2011. See GC Memo 
11-09, supra at 18.
    \74\ GC Memo11-03, supra at ``Introduction.''
---------------------------------------------------------------------------

    The Board's total representation case intake for Fiscal Year 2010 
(including all categories of election petitions) was 3,204, a 10 
percent increase from the Fiscal Year 2009 intake of 2,912. For all 
petitions filed, the average time to an election was 31 days. Voluntary 
election agreements were obtained in 92 percent of the merit petitions. 
In contested cases, Regional Directors issued 185 pre-election 
decisions after hearing in a median of 37 days, well below the target 
median of 45 days. In 56 cases, post-election objections and/or 
challenges were filed that required an investigative hearing. Decisions 
or Supplemental Reports issued in those cases after hearing in 70 
median days from the election or the filing of objections. In 32 cases, 
post-election objections and/or challenges could be resolved without a 
hearing. Decisions or Supplemental Reports in those cases issued in 22 
median days. The General Counsel's goal in hearing cases is 80 median 
days and 32 days in non-hearing cases.\75\
---------------------------------------------------------------------------

    \75\ GC Memo11-09, supra at 18.
---------------------------------------------------------------------------

    It is not at all apparent from the foregoing statistical picture 
why my colleagues have decided that it is now necessary to (1) 
eliminate pre-election evidentiary hearings, as much as is statutorily 
permissible (or arguably well beyond that point), (2) eliminate pre-
election requests for review and defer decision on virtually all issues 
heretofore decided at the preelection stage in the small percentage of 
contested cases, (3) impose pleading requirements and minimal response 
times on election parties, most notably on employers, who risk 
forfeiture of the right to contest issues if they fail timely to comply 
with these requirements, and (4) eliminate any automatic right to post-
election Board review of contested issues.
    I absolutely agree that the Board should be concerned about 
unreasonable delay in any case, particularly in those involving 
questions concerning representation. It should never take 424 days from 
the filing of a petition to resolve pre-election issues, as happened 
with respect to one case in Fiscal Year 2010;\76\ nor should it take 
years to resolve post-election objections, as it did in a trio of 
recently-decided Board cases.\77\ However, as measured by the Board and 
General Counsel's own time targets and performance goals, such delay is 
the exception rather than the norm. Notably, my colleagues make no 
reference to these time targets while drastically departing from them 
when reducing the number of days from petition filing to an election. 
Further, the majority makes no effort whatsoever to identify the 
specific causes of delay in those cases that were unreasonably delayed. 
Without knowing which cases they were, I cannot myself state with 
certainty what caused delay in each instance, but I can say based on 
experience during my tenure as Board member that vacancies or partisan 
shifts in Board membership and the inability of the Board itself to 
deal promptly with complex legal and factual issues have delayed final 
resolution far more often than any systemic procedural problems or 
obstructionist legal tactics. That was the situation in each of the 
aforementioned extremely delayed cases, and in none of those cases 
would the majority's current proposals have yielded a different result.
---------------------------------------------------------------------------

    \76\ Kansas City Repertory Theatre, 17-CA-12647.
    \77\ Jury's Boston Hotel, 356 NLRB No. 114 (2011), Mastec/Direct 
TV, 356 NLRB No. 110 (2011), and Independence Residences, Inc., 355 
NLRB No. 153 (2010).
---------------------------------------------------------------------------

    Further, it is far from clear that shortening the time period from 
the filing of a petition to the conduct of an election will have the 
corresponding effect of shortening the median time from filing to final 
resolution, which should be the primary goal of any revision of the 
rules. Again, the majority provides no explanation. By impeding the 
process of timely resolving pre-election issues and eliminating any 
right to automatic Board review of regional decisions, the proposed 
revisions seemingly discourage parties from entering into any form of 
election agreement, thereby threatening the current high percentage of 
voluntary election agreements. In addition, at least in those cases 
where the union wins the election, the deferral of pre-election issues 
seems merely to add time from the pre-election period to the post-
election period, with no net reduction in overall processing time. This 
will not save time or money for the parties or the Board. Finally, the 
proposed rule revision permitting up to 20 percent of individuals whose 
eligibility is contested to cast challenged ballots casts a cloud of 
uncertainty over the election process. Employees who do belong in the 
bargaining unit may be so mislead about the unit's scope or character 
that they cannot make an informed choice, instead basing their vote on 
perceived common interests or differences with employee groups that 
ultimately do not belong in the unit.\78\
---------------------------------------------------------------------------

    \78\ As stated by the Fourth Circuit in NLRB v. Beverly Health 
and Rehabilitation Services, Inc., No. 96-2195, 1997 WL 457524, at 
*4 (4th Cir. 1997):
     Where employees are led to believe that they are voting on a 
particular bargaining unit and that bargaining unit is subsequently 
modified post-election, such that the bargaining unit, as modified, 
is fundamentally different in scope or character from the proposed 
bargaining unit, the employees have effectively been denied the 
right to make an informed choice in the representation election. See 
NLRB v. Parsons Sch. of Design, 793 F.2d 503, 506-08 (2d Cir.1986); 
Lorimar Productions, 771 F.2d at 1301-02; Hamilton Test Sys., 743 
F.2d at 140-42. Thus, the Board may not ``inform employees that they 
are voting for representation in [one] unit and later * * * consider 
the ballot as a vote for representation in a [different] unit.'' 
Hamilton Test Sys., 743 F.2d at 140; see also Lorimar Productions, 
771 F.2d at 1301 (quoting Hamilton Test Sys.).
---------------------------------------------------------------------------

    The oft-repeated aim of the Board to resolve questions concerning 
representation expeditiously does not mean that we must conduct 
elections in as short a time as possible In truth, the

[[Page 36832]]

``problem'' which my colleagues seek to address through these rule 
revisions is not that the representation election process generally 
takes too long. It is that unions are not winning more elections. The 
perception that this is a problem is based on the premise, really more 
of an absolute article of faith, that employer unfair labor practices 
greatly distort the representation election process. This leads to the 
conclusion that the more limited a role an employer has in this 
process, the less opportunity it will have to coerce employees, and the 
greater the prospect that the election results will reflect employees' 
``true'' choice on collective-bargaining representation, which will 
presumably mean a much higher percentage of union election victories. 
Inasmuch as unions prevailed in 67.6 percent of elections held in 
calendar year 2010 and in 68.7 percent of elections held in calendar 
year 2009,\79\ the percentage of union victories contemplated by the 
majority in the revised rules must be remarkably high.
---------------------------------------------------------------------------

    \79\ ``Number of NLRB Elections Held in 2010 Increased 
Substantially from Previous Year,'' Daily Lab. Rep. (BNA), No. 85, 
at B-1 (May 3, 2011).
---------------------------------------------------------------------------

    One way to limit employer participation is to shorten the time from 
petition filing to election date. Of course, limiting the election 
period does not operate selectively to deter unlawful coercive employer 
speech or conduct.\80\ It broadly limits all employer speech and 
thereby impermissibly trenches upon protections that Congress 
specifically affirmed for the debate of labor issues when it enacted 
Section 8(c) in 1947. As the Supreme Court stated in Chamber of 
Commerce v. Brown, 554 U.S. 60, 67-68 (2008):
---------------------------------------------------------------------------

    \80\ Indeed, the ``quickie'' election procedure may not deter 
such conduct at all. Employers who are wont to use impermissible 
means to oppose unionization will simply be encouraged to act at the 
first hint of organizational activity, prior to the filing of an 
election petition.

    From one vantage, Sec.  8(c) ``merely implements the First 
Amendment,'' NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 
1918, 23 L.Ed.2d 547 (1969), in that it responded to particular 
constitutional rulings of the NLRB. See S.Rep. No. 80-105, pt. 2, 
pp. 23-24 (1947). But its enactment also manifested a 
``congressional intent to encourage free debate on issues dividing 
labor and management.'' Linn v. Plant Guard Workers, 383 U.S. 53, 
62, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). It is indicative of how 
important Congress deemed such ``free debate'' that Congress amended 
the NLRA rather than leaving to the courts the task of correcting 
the NLRB's decisions on a case-by-case basis. We have characterized 
this policy judgment, which suffuses the NLRA as a whole, as 
``favoring uninhibited, robust, and wide-open debate in labor 
disputes,'' stressing that ``freewheeling use of the written and 
spoken word * * * has been expressly fostered by Congress and 
approved by the NLRB.'' Letter Carriers v. Austin, 418 U.S. 264, 
---------------------------------------------------------------------------
272-73, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974).

Admittedly, the Court recognized the Board's right to police ``a narrow 
zone of speech to ensure free and fair elections,'' \81\ but neither 
the Court's reasoning nor the congressional intent to encourage free 
debate can be squared with my colleagues' proposal generally to limit 
the opportunity for employers to engage in a legitimate pre-election 
campaign opposing unionization.
---------------------------------------------------------------------------

    \81\ Chamber of Commerce v. Brown, supra at 74.
---------------------------------------------------------------------------

    Another way to limit employer participation is to reduce 
opportunities for litigation of contested issues before the Board. That 
is the transparent purpose of the proposed rules' transformation of 
discretionary questionnaires into mandatory pleading requirements and 
the imposition of limitations on full evidentiary hearings, briefing, 
and Board review. All of these revisions are focused on preventing 
parties, primarily employers, from litigating issues in representation 
proceedings, even when legitimate issues are raised and a full record 
and Board review would seem to be essential.
    It is difficult to identify which proposed rule change is most 
egregious, but a solid candidate for that dishonor might be the 
expanded, mandatory ``questionnaire'' process. As described by the 
majority,\82\ the proposed Statement of Position Form would require an 
employer to state its position on:
---------------------------------------------------------------------------

    \82\ The form itself is not appended to the notice of proposed 
rulemaking, as one might logically expect it to be.

the appropriateness of the petitioned-for unit; any proposed 
exclusions from the petitioned-for unit; the existence of any bar to 
the election; the type, dates, times, and location of the election; 
and any other issues that a party intends to raise at hearing. In 
those cases in which a party takes the position that the proposed 
unit is not an appropriate unit, the party would also be required to 
state the basis of the contention and identify the most similar unit 
it concedes is appropriate. In those cases in which a party intends 
to contest at the pre-election hearing the eligibility of 
individuals occupying classifications in the proposed unit, the 
party would be required to both identify the individuals (by name 
and classification) and state the basis of the proposed exclusion, 
for example, because the identified individuals are supervisors.
    Such matters deserve inquiry and definition, hopefully leading to 
resolution, in the preelection process. However, the proposed rules 
further mandate that a hearing be held 7 days from service of the 
petition and the Statement of Position Form, and they bar a party from 
offering evidence or cross-examining witnesses as to any issue it did 
not raise in its own statement or in response to the statement of 
another party. In effect, a party must raise issues and state its basis 
for raising them in a maximum of 7 days or forfeit all legal right to 
pursue those issues. It may be that employers of a certain size have 
legal counsel or labor consultants readily available to evaluate the 
election petition and proposed bargaining unit, identify any issues to 
be contested, and prepare the required statement in a week or less. 
However, the Board conducts many representation elections among 
employees of small business owners who have no such counsel readily at 
hand, have no idea how to obtain such counsel in short order, and are 
themselves unaware of such legal arcania as appropriate unit, contract 
bar, statutory supervisory status, and voter eligibility. The proposed 
rules, if implemented, will unconscionably and impermissibly deprive 
these small business owners of legal representation and due 
process.\83\
---------------------------------------------------------------------------

    \83\ The majority relies in part on conformity of the proposed 
rules with practices under the Federal Rules of Civil Procedure, 
which are, of course, not binding on administrative agency 
proceedings and which the Board has steadfastly refused for decades 
to follow with respect to prehearing discovery in unfair labor 
practice proceedings.
---------------------------------------------------------------------------

    There is yet another aspect of the proposed rules' impact on 
employers that deserves mention. Under current law, an employer's 
obligation to bargain with a union attaches from the election date. 
Thus, an employer acts at its peril when making any unilateral changes 
pending resolution of post-election issues if the Board ultimately 
certifies the union's representative status.\84\ Those post-election 
issues have heretofore been limited to election objections and 
challenges. Now, with the shift of virtually all pre-election issues to 
the post-election phase, the majority substantially increases the 
potential costs to all employers who have the temerity to attempt to 
conduct normal business operations while contesting legitimate election 
issues. Of course, there is no comparable burden on unions.
---------------------------------------------------------------------------

    \84\ See Mike O'Conner Chevrolet, 209 NLRB 701, 703 (1974).
---------------------------------------------------------------------------

    The proposed rule revisions are cause enough for dissent. However, 
one cannot help but wonder if they are a prelude to further changes. 
The same academicians whose treatises have inspired the current 
proposal have also advocated a host of other initiatives

[[Page 36833]]

designed to give unions greater access to employees and to limit 
further the opportunities for employers to communicate their views on 
collective bargaining representation. These initiatives include 
requiring an employer to provide access to employees on its premises 
and conducting elections off-site, by mail ballot, or by electronic 
vote. Finally, proceeding on a parallel adjudicatory course, my 
colleagues have signaled a willingness to entertain petitions for 
bargaining units that have heretofore not been found appropriate under 
Section 9(b) and 9(c)(5) of the Act.\85\ The Board has not finally 
decided any of these issues, but the mere pendency of them should raise 
substantial concerns among those commenting on the proposed election 
rule revisions. There exists the possibility that the Board has only 
just begun an unprecedented campaign to supplant congressional action, 
subvert legal precedent, and return labor relations law to the supposed 
``golden era'' of the Wagner Act's early years.\86\
---------------------------------------------------------------------------

    \85\ See Specialty Healthcare, supra.
    \86\ See Charles J. Morris, The Blue Eagle at Work: Reclaiming 
Democratic Rights in the American Workplace (Cornell Univ. Press 
2005).
---------------------------------------------------------------------------

    In sum, the Board and General Counsel are consistently meeting 
their publicly-stated performance goals under the current 
representation election process, providing an expeditious and fair 
resolution to parties in the vast majority of cases, less than 10 
percent of which involve contested preelection issues. Without any 
attempt to identify particular problems in cases where the process has 
failed, the majority has announced its intent to provide a more 
expeditious preelection process and a more limited postelection process 
that tilts heavily against employers' rights to engage in legitimate 
free speech and to petition the government for redress. Disclaiming any 
statutory obligation to provide any preliminary notice and opportunity 
to comment, the majority deigns to permit a limited written comment 
period and a single hearing when the myriad issues raised by the 
proposed rules cry out for far greater public participation in the 
rulemaking process both before and after formal publication of the 
proposed rule. The majority acts in apparent furtherance of the 
interests of a narrow constituency, and at the great expense of 
undermining public trust in the fairness of Board elections. I dissent 
from this undertaking, and I anticipate that many public voices will 
join in opposing it in spite of the limited opportunity to comment.

VI. Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et 
seq., requires agencies promulgating proposed rules to prepare an 
initial regulatory flexibility analysis and to develop alternatives, 
wherever possible, when drafting regulations that will have a 
significant impact on a substantial number of small entities. The focus 
of the RFA is to ensure that agencies ``review rules to assess and take 
appropriate account of the potential impact on small businesses, small 
governmental jurisdictions, and small organizations, as provided by the 
[RFA].'' E.O. 13272, Sec. 1, 67 FR 53461 (``Proper Consideration of 
Small Entities in Agency Rulemaking''). An agency is not required to 
prepare an initial regulatory flexibility analysis for a proposed rule 
if the Agency head certifies that the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b).
    As explained below, the Board concludes that the proposed 
amendments will not affect a substantial number of small entities. In 
any event, the Board further concludes that the proposed amendments 
will not have a significant economic impact on such small entities. 
Accordingly, the Agency Chairman has certified to the Chief Counsel for 
Advocacy of the Small Business Administration (``SBA'') that the 
proposed amendments will not have a significant economic impact on a 
substantial number of small entities.
    The RFA does not define either ``significant economic impact'' or 
``substantial'' as it relates to the number of regulated entities. 5 
U.S.C. 601. In the absence of specific definitions, ``what is 
`significant' or `substantial' will vary depending on the problem that 
needs to be addressed, the rule's requirements, and the preliminary 
assessment of the rule's impact.'' See A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act, Office of Advocacy, 
U.S. Small Business Administration at 17 (available at www.sba.gov) 
(``SBA Guide'').
    The Board has determined that the proposed amendments would not 
affect a substantial number of small entities within the meaning of 5 
U.S.C. 605(b). There are approximately six million private employers in 
the United States, the vast majority of which are classified as small 
entities under the Small Business Administration's standards.\87\ 
Nearly all of those employers are subject to the Board's 
jurisdiction.\88\ Because, under section 9 of the Act, parties have 
filed fewer than 4,000 petitions per year for the past five years and 
the Board has conducted fewer than 2,500 elections per year for the 
past five years,\89\ the number of small employers participating in 
representation proceedings each year is less than one-tenth of one 
percent of the small employers in this country. Moreover, the employers 
that would be affected by the proposed amendments are not concentrated 
in one or a few sectors, but are found in every sector and industry 
subject to the Board's jurisdiction. Accordingly, the Board finds that 
the proposed amendments would not affect a substantial number of small 
entities within the meaning of 5 U.S.C. 601.
---------------------------------------------------------------------------

    \87\ The Small Business Administration estimates that of the 
roughly six million private sector employers in 2007, all but about 
18,300 were small businesses with fewer than 500 employees. Source: 
SBA Office of Advocacy estimates based on data from the U.S. 
Department of Commerce, Bureau of the Census, and trends from the 
U.S. Department of Labor, Bureau of Labor Statistics, Business 
Employment Dynamics.
    \88\ The principal private sector employers exempt from the 
Board's jurisdiction are employers of agricultural laborers and 
firms covered by the Railway Labor Act, 45 U.S.C. 151. See section 2 
of the National Labor Relations Act, 29 U.S.C. 152(2), (3). 
Employers whose connection to interstate commerce is so slight that 
they do not satisfy the Board's discretionary jurisdictional 
standards are also treated as exempt. See 29 U.S.C. 164(c); An 
Outline of Law and Procedure in Representation Cases, Chapter 1, 
found on the Board's Web site, http://www.nlrb.gov.
    \89\ See NLRB Office of the General Counsel, Summaries of 
Operations (Fiscal Years 2006-2010) (reporting that the annual 
number of representation elections conducted decreased from 2,296 to 
1,790).
---------------------------------------------------------------------------

    In any event, the Board estimates that the net effect of the 
proposed amendments could be to decrease costs for small entities. 
While certain of the proposed amendments--when viewed in isolation--
could result in small cost increases, those costs should be more than 
offset by the many efficiencies in the Board's representation 
procedures created by the proposed amendments. For example, by 
permitting electronic filing, providing greater transparency and 
compliance assistance, reducing the length of evidentiary hearings, 
deferring litigation of issues that may be rendered moot by elections, 
deferring requests for review that may be rendered moot by elections, 
consolidating requests for review into a single proceeding, and making 
such review discretionary, the proposed amendments should help small 
entities conserve resources that they might otherwise expend when they 
are involved in a representation case under the Board's current rules 
and regulations.
    To the extent that any individual requirements--isolated from the

[[Page 36834]]

proposed amendments' overall efficiencies--could impose additional 
costs on small entities, those added costs would be de minimus. Indeed, 
even when aggregated, the potential additional costs that a small 
entity could face in a given representation proceeding would still be 
minimal. For example, four new requirements in the proposed amendments 
might impose a cost on small employers: (1) Posting and electronic 
distribution of the Board's preliminary election notice and electronic 
distribution of the final notice; (2) completing the substantive 
portions of the Statement of Position form at or before any pre-
election hearing; (3) providing the petitioner and the regional 
director with a list of the names and job information, and providing 
the regional director with contact information, for the employees at 
issue at or before any pre-election hearing; and (4) providing the 
petitioner and the regional director with additional job and contact 
information concerning employees eligible to vote following approval of 
an election agreement or issuance of a direction of election.
    The proposed amendments' new notice requirements would involve 
merely posting paper copies of notices that will be sent to the 
employer by the regional director, as well as taking the few minutes to 
electronically distribute electronic versions of those notices, also 
supplied by the regional director, if the employer already regularly 
communicates with its employees over e-mail or via a Web site. The 
substantive portions of the Statement of Position form would only 
require a small employer to reduce to writing the positions on several 
issues that it would need to formulate, in any event, to effectively 
prepare for a pre-election hearing and which parties largely must 
already articulate at such a hearing under the current rules. And by 
entering into an election agreement, as do the vast majority of 
employers under the Board's current rules, a small employer would not 
have to complete the Statement of Position at all. The additional 
information to be supplied regarding voting employees should already be 
contained in employers' records, increasingly in readily retrievable 
electronic form, thereby allowing small employers to assemble such 
electronic lists without expending significant resources. Moreover, the 
typically small sizes of bargaining units at issue in Board elections 
(with medians ranging from 23 to 26 employees over the last decade) 
suggests that small employers will not be significantly burdened by 
having to provide the additional information.
    For these reasons, the Board concludes that several of the proposed 
amendments would result in little to no adverse economic impact on the 
relatively few small entities who participate in representation 
proceedings each year, while the proposed amendments as a whole should 
actually reduce the costs incurred in connection with representation 
proceedings. Accordingly, the proposed amendments will not have a 
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
    These proposed amendments would not impose any information 
collection requirements. Accordingly, they are not subject to the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
    The NLRB is an agency covered by the PRA. 44 U.S.C. 3502(1) and 
(5). The PRA establishes rules for such agencies' ``collection of 
information.'' 44 U.S.C. 3507.
    The Board has considered whether any of the provisions of the 
proposed amendments provide for a ``collection of information'' covered 
by the PRA. Specifically, the Board has considered the following 
proposed provisions that contain petition and response requirements, 
posting requirements, and requirements that lists of employees or 
eligible voters be filed:
    (1) Under the proposed amendments, as under the current rules, 
parties seeking to initiate the Board's representation procedures are 
required to file a petition with the Board containing specified 
information relevant to the Board's adjudication of the specific 
question raised by the filing of the petition. Under the proposed 
amendments, non-petitioning parties to such representation proceedings 
are required to file a Statement of Position setting forth the parties' 
positions and specified information relevant to the Board's 
adjudication of the question raised by the petition. Employers are 
currently asked to supply the portion of the information specified in 
the proposed amendments relating to their participation in interstate 
commerce.
    (2) Under the proposed amendments, employers are required to post 
an initial and final notice to employees of an election. The second 
posting requirement exists currently. Employers are currently asked but 
not required to post the first notice (in a different form).
    (3) Finally, under the proposed amendments, as under current case 
law, employers are required to file a list of eligible voters prior to 
an election. Under the proposed amendments, a preliminary list of 
employees is required at or before the pre-election hearing. For the 
reasons given below, the Board believes that none of these actions 
constitutes a collection of information covered by the PRA.
    The PRA exempts from the definition of ``collection of 
information'' ``a collection of information described under section 
3518(c)(1)'' of the Act. 44 U.S.C. 3502(3)(B).
    Section 3518(c) provides:
     (c)(1) Except as provided in paragraph (2), this 
subchapter shall not apply to the collection of information--
    [cir] (B) During the conduct of--
    [cir] (ii) An administrative action or investigation involving an 
agency against specific individuals or entities;
     (2) This subchapter applies to the collection of 
information during the conduct of general investigations * * * 
undertaken with reference to a category of individuals or entities such 
as a class of licensees or an entire industry.

44 U.S.C. 3518(c). The legislative history of this provision makes 
clear that it is not limited to prosecutorial proceedings. The Senate 
Report on the PRA states, ``Section 3518(c)(1)(B) is not limited to 
agency proceedings of a prosecutorial nature but also include[s] any 
agency proceeding involving specific adversary parties.'' S. Rep. No. 
96-930, at 56 (1980).
    The Board believes that all of the above-described provisions of 
the proposed amendments fall within the exemption created by sections 
3502(3)(B) and 3518(c)(1)(B)(ii). A representation proceeding under 
section 9 of the NLRA is ``an administrative action or investigation 
involving an agency.'' A representation proceeding is also ``against 
specific individuals or entities'' within the meaning of section 
3518(c)(1)(B)(ii). The Board's decisions in representation proceedings 
are binding on and thereby alter the legal rights of the parties to the 
proceedings. For example, the employer of any employees who are the 
subject of a petition is a party to the resulting representation 
proceeding.\90\ If the Board finds in a representation proceeding that 
a petition has been filed concerning an appropriate unit and that 
employees in that unit have voted to be represented, the Board will 
thereafter certify the petitioner as the employees' representative for 
purposes of collective bargaining with the employer. As a direct and 
automatic consequence of the

[[Page 36835]]

Board's certification, the employer is legally bound to recognize and 
bargain with the certified representative. If the employer refuses to 
do so, it commits an unfair labor practice.\91\ If such an employer is 
charged with a refusal to bargain, it is precluded from relitigating in 
the unfair labor practice proceeding any issues that were or could have 
been raised in the representation proceeding.\92\ Finally, if such an 
employer seeks review of the Board's order in the unfair labor practice 
proceeding or the Board seeks to enforce its order in a court of 
appeals, the record from the representation proceeding must be filed 
with the court and ``the decree of the court enforcing, modifying, or 
setting aside in whole or in part the order of the Board shall be made 
and entered upon the pleadings, testimony, and proceedings set forth in 
such transcript.'' 29 U.S.C. 159(d); see also Boire v. Greyhound Corp. 
376 U.S. 473, 477-79 (1964).\93\
---------------------------------------------------------------------------

    \90\ See, e.g., Pace University v. NLRB, 514 F.3d 19, 23 (DC 
Cir. 2008); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 786-88 
(7th Cir. 1953).
    \91\ See, e.g., Country Ford Trucks, Inc. v. NLRB, 229 F.3d 
1184, 1191 (DC Cir. 2000); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 
882, 886 (DC Cir. 1988).
    \92\ See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 
(1941).
    \93\ Similarly, a union that has been certified or recognized as 
the representative of employees in an appropriate unit has a legal 
right to continue to be recognized as the exclusive representative 
of such employees. See Scepter, Inc. v. NLRB, 280 F.3d 1053, 1056 
(DC Cir. 2002). However, if a petition is filed under section 9 
seeking to decertify such a union, which is a party to the resulting 
representation proceeding, see Brom Mach. & Foundry Co. v. NLRB, 569 
F.2d 1042, 1044 (8th Cir. 1978), and at the conclusion of the 
proceeding the Board certifies the results of an election finding 
that less than a majority of the voters cast ballots in favor of 
continued representation by the union, the union loses its legal 
right to represent the employees. Retail Clerks Int'l Ass'n v. 
Montgomery Ward & Co., 316 F.2d 754, 756-57 (7th Cir. 1963).
---------------------------------------------------------------------------

    Three limitations on the filing and posting requirements in the 
proposed amendments lead to the conclusion that they fall within the 
statutory exemption. First, the amendments impose requirements only on 
parties to the representation case proceeding, an administrative action 
or investigation against specific individuals or entities within the 
scope of section 3518(c)(1)(B)(ii). Second, any adverse consequences 
for failing to provide the requested information are imposed only on 
persons and entities that are party to the representation proceeding. 
Third, the possible adverse consequences that may result from 
noncompliance do not reach beyond the representation case proceeding. 
The proposed amendments impose no consequences on any party based on 
its failure to file or provide information requested in a petition or 
statement of position form other than to prevent the party from 
initiating a representation proceeding or to restrict a party's rights 
to raise issues or participate in the adjudication of issues in the 
specific representation proceeding and any related unfair labor 
practice proceeding. Similarly, as is the case currently,\94\ no 
consequences attach to a failure to post either notice or to file the 
eligibility list beyond the overturning of an election conducted as 
part of the specific proceeding.
---------------------------------------------------------------------------

    \94\ See John E. Higgins, Jr., The Developing Labor Law 595, 607 
(5th ed. 2006) (noting that failure to provide Excelsior list or 
post notice of election constitutes grounds for setting aside 
election).
---------------------------------------------------------------------------

    Sections 102.62(e), 102.63(a) and 102.67(i) of the proposed 
amendments require that an employer which is party to a representation 
proceeding post an Initial Notice to Employees of Election subsequent 
to the filing of a petition and, if an election is agreed to or 
directed, a Final Notice to Employees of Election. The Board will make 
available both notices to the employer in paper and electronic form, 
and employers will be permitted to post exact duplicate copies of the 
notices. The Board does not believe these posting requirements are 
subject to the PRA for the reasons explained above. Moreover, the Board 
does not believe that the notice posting requirements constitute a 
``collection of information'' as defined in section 3502(3) of the PRA 
for an additional, independent reason. The notice posting requirements 
do not involve answers to questions or any form of reporting. Nor do 
they involve a ``recordkeeping requirement'' as that term is defined in 
section 3502(13) of the PRA. The proposed notice posting requirements 
do not require any party to ``maintain specified records.'' The Board 
notes that this construction is consistent with the Office of 
Management and Budget's regulations construing and implementing the 
PRA, which provide that ``[t]he public disclosure of information 
originally supplied by the Federal government to [a] recipient for the 
purpose of disclosure to the public'' is not considered a ``collection 
of information'' under the Act. See 5 CFR 1320.3(c)(2). For all of 
these reasons, the Board concludes that the posting requirements are 
not subject to the PRA.
    Accordingly, the proposed amendments do not contain information 
collection requirements that require approval of the Office of 
Management and Budget under the Paperwork Reduction Act.

List of Subjects

29 CFR Part 101

    Administrative practice and procedure, Labor management relations.

29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

29 CFR Part 103

    Labor management relations.

    In consideration of the foregoing, the National Labor Relations 
Board proposes to amend chapter I of title 29, Code of Federal 
Regulations, as follows:

PART 101--STATEMENTS OF PROCEDURES

    1. The authority citation for part 101 continues to read as 
follows:

    Authority:  Sec. 6 of the National Labor Relations Act, as 
amended (29 U.S.C. 151, 156), and sec. 552(a) of the Administrative 
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under 
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).

Subpart C--[Removed and Reserved]

    2. Remove and reserve subpart C, consisting of Sec. Sec.  101.17 
through 101.21.

Subpart D--[Removed and Reserved]

    3. Remove and reserve subpart D, consisting of Sec. Sec.  101.22 
through 101.25.

Subpart E--[Removed and Reserved]

    4. Remove and reserve subpart E, consisting of Sec. Sec.  101.26 
through 101.30.

PART 102--RULES AND REGULATIONS, SERIES 8

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

    Authority: 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 C--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

    6. 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

[[Page 36836]]

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. A person filing a petition by 
facsimile or electronically pursuant to Sec.  102.114(f) or (i) 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 or 
electronically, if otherwise proper. 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 with a certificate of service on all parties named in 
the petition. Along with the petition, the petitioner shall serve a 
description of procedures in representation cases and a Statement of 
Position form. 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 concerning 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.
    7. 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 
other 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, fax number, and e-mail 
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.
    (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.
    (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, fax number, and e-mail 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.
    (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 other 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.
    (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, fax number, and e-mail 
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

[[Page 36837]]

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 other 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.
    (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, fax number, 
and e-mail 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, fax number, 
and e-mail 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 
Sec.  102.61(a)(7), (b)(8), or (c)(8) 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 two days after the facsimile or 
electronic filing.
    8. Revise Sec.  102.62 to read as follows:


Sec.  102.62  Election agreements; voter list.

    (a) Consent election agreements with final regional director 
determinations 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, 
provided further 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 concerning 
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

[[Page 36838]]

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, provided further 
that rulings or determinations by the regional director in respect to 
any amendment of such certification shall also be final.
    (d) Voter lists. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction, within two days after approval of an 
election agreement pursuant to paragraphs (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, home addresses, available telephone numbers, available e-mail 
addresses, work locations, shifts, and job classifications of all 
eligible voters. In order to be timely filed, the list must be received 
by the regional director and the parties named in the agreement or 
direction within two days after the approval of the agreement or 
issuance of the direction. The list of names shall be alphabetized 
(overall or by department) and be in an electronic format generally 
approved by the Board's Executive Secretary unless the employer 
certifies that it does not possess the capacity to produce the list in 
the required form. When feasible, the list shall be filed 
electronically with the regional director and served electronically on 
the other parties named in the petition. Failure to file or serve the 
list within the specified time and in proper format shall be grounds 
for setting aside the election whenever proper objections are filed. 
The regional director shall make the list available upon request to all 
parties in the case on the same day or as soon as practicable after the 
director receives the list from the employer. The parties shall use the 
list exclusively for purposes related to the representation proceeding 
and related Board proceedings.
    (e) Final notices to employees of election. Upon approval of the 
election agreement pursuant to paragraphs (a) or (b) or with the 
direction of election pursuant to paragraph (c), the regional director 
shall promptly transmit the Board's Final Notice to Employees of 
Election to the parties by e-mail, facsimile, or by overnight mail (if 
neither an e-mail address nor facsimile number was provided). The 
regional director shall also electronically transmit the Final Notice 
to Employees of Election to affected employees to the extent 
practicable. The Final Notice to Employees of Election shall be posted 
in accordance with Sec.  102.67(i).
    9. Revise Sec.  102.63 to read as follows:


Sec.  102.63  Investigation of petition by regional director; notice of 
hearing; service of notice; Initial Notice to Employees of Election; 
Statement of Position form; withdrawal of notice.

    (a) Investigations and notices. (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. The regional director shall set the hearing 
for a date 7 days from the date of service of the notice absent special 
circumstances. A copy of the petition, a description of procedures in 
representation cases, an ``Initial Notice to Employees of 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 his own motion.
    (2) The employer shall immediately post the Initial Notice to 
Employees of Election, where notices to employees are customarily 
posted, and shall also distribute it electronically if the employer 
customarily communicates with its employees electronically. The 
employer shall maintain the posting until the petition is dismissed or 
the Initial Notice is replaced by the Final Notice to Employees of 
Election. Failure to properly post and distribute the Initial Notice to 
Employees of Election shall be grounds for setting aside the results of 
the election whenever proper objections are filed.
    (b)(1) Statement of Position in RC cases. After a petition has been 
filed under Sec.  102.61(a) and the regional director has issued a 
notice of hearing, the employer shall file and serve on the parties 
named in the petition its Statement of Position by the date and in the 
manner specified in the notice unless that date is the same as the 
hearing date. If the Statement of Position is due on the date of the 
hearing, its completion shall be the first order of business at the 
hearing before any further evidence is received, and its completion may 
be accomplished with the assistance of the hearing officer.
    (i) The employer's Statement of Position shall state whether the 
employer agrees that the Board has jurisdiction over the petition 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 of the contention that the proposed unit is 
inappropriate, and describe the most similar unit that the employer 
concedes is appropriate; identify any individuals occupying 
classifications in the petitioned-for unit 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 
employer's position concerning the type, dates, times, and location of 
the election and the eligibility period; and describe all other issues 
the employer intends to raise at the hearing.
    (ii) The Statement of Position shall also state the name, title, 
address, telephone number, fax number, and e-mail 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.
    (iii) The Statement of Position shall further state 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 
also state the full names, work locations, shifts, and job 
classifications of all employees in the most similar unit that the 
employer concedes is appropriate. The list of names shall be 
alphabetized (overall or by department) and be in an electronic format 
generally approved by the Board's Executive Secretary unless the 
employer certifies that it does not possess the capacity to produce the 
list in the required form.
    (iv) In addition to the information described in paragraph 
(b)(1)(iii) of this section, the lists filed with the regional 
director, but not served on any other party, shall contain available 
telephone numbers, available e-mail addresses, and home addresses of 
all individuals referred to in paragraph (b)(1)(iii) of this section.

[[Page 36839]]

    (v) The employer shall be precluded from contesting the 
appropriateness of the petitioned-for 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, if the employer fails to timely furnish 
the information described in paragraphs (b)(1)(iii) and (iv) of this 
section.
    (2) Statement of Position in RM cases. If a petition has been filed 
under Sec.  102.61(b), the individual or labor organization which is 
alleged to have presented to the petitioner a claim to be recognized 
shall file and serve on the regional director and 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 on the date 
specified in the notice unless that date is the same as the hearing 
date. If the Statement of Position is due on the date of the hearing, 
its completion shall be the first order of business at the hearing 
before any further evidence is received, and its completion may be 
accomplished with the assistance of the hearing officer.
    (i) Individual or labor organization's Statement of Position. The 
individual or labor organization's Statement of Position shall describe 
all issues the party intends to raise at the hearing.
    (ii) Identification of representative for service of papers. The 
Statement of Position shall also state the name, title, address, 
telephone number, fax number, and e-mail address of the individual who 
will serve as the representative of the individual or labor 
organization and accept service of all papers for purposes of the 
representation proceeding and be signed by a representative of the 
individual or labor organization.
    (iii) Employer's Statement of Position. Within the time permitted 
for filing the Statement of Position, the employer shall file with the 
regional director, and serve on the individual or labor organization, 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 of names shall be alphabetized (overall or by 
department) and be in an electronic format generally approved by the 
Board's Executive Secretary unless the employer certifies that it does 
not possess the capacity to produce the list in the required form.
    (iv) Contact information for individuals in proposed unit. In 
addition to the information described in paragraph (b)(2)(iii) of this 
section, the lists filed with the regional director, but not served on 
any other party, shall contain the full names, available telephone 
numbers, available e-mail addresses, and home addresses of all 
individuals referred to in paragraph (b)(2)(iii) of this section.
    (v) Preclusion. The employer shall be precluded from contesting the 
appropriateness of the 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, if the employer fails to timely furnish the 
information described in paragraphs (b)(2)(iii) and (iv) of this 
section.
    (3) Statement of Position in RD cases. If a petition has been filed 
under Sec.  102.61(c), the employer and the certified or recognized 
representative of employees shall file and serve on the regional 
director and 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 on the date specified in 
the notice unless that date is the same as the hearing date. If the 
Statements of Position are due on the date of the hearing, their 
completion shall be the first order of business at the hearing before 
any further evidence is received, and their completion may be 
accomplished with the assistance of the hearing officer.
    (i) The Statements of Position of the employer and the certified or 
recognized representative shall describe all issues each party intends 
to raise at the hearing.
    (ii) The Statements of Position shall also state the name, title, 
address, telephone number, fax number, and e-mail 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.
    (iii) The employer's Statement of Position shall also state 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 also state the full names, work locations, shifts, and 
job classifications of all individuals in the certified or recognized 
unit. The list of names shall be alphabetized (overall or by 
department) and be in an electronic format generally approved by the 
Board's Executive Secretary unless the employer certifies that it does 
not possess the capacity to produce the list in the required form.
    (iv) In addition to the information described in paragraph 
(b)(3)(iii) of this section, the lists filed with the regional 
director, but not served on any other party, shall contain the full 
names, available telephone numbers, available e-mail addresses, and 
home addresses of all individuals referred to in paragraph (b)(3)(iii) 
of this section.
    (v) The employer shall be precluded from contesting the 
appropriateness of the petitioned-for 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, if the employer fails to timely furnish 
the information described in paragraphs (b)(3)(iii) and (b)(3)(iv) of 
this section.
    (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, he 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 his own motion. All hearing and posthearing 
procedure under paragraph (c) of this section 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 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.
    10. Revise Sec.  102.64 to read as follows:


Sec.  102.64  Conduct of hearing.

    (a) The 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 petition as

[[Page 36840]]

described in section 9(c) of the Act has been filed concerning a unit 
appropriate for the purpose of collective bargaining or, in the case of 
a petition filed under section 9(c)(1)(A)(ii), 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. If, upon the record of the hearing, the regional 
director finds that such a question of representation exists and there 
is no bar to an election, he shall direct an election to resolve the 
question and, subsequent to that election, unless specifically provided 
otherwise in these rules, resolve any disputes concerning the 
eligibility or inclusion of voters that might affect the results of the 
election.
    (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 
genuine disputes as to material facts in order to obtain a full and 
complete record upon which the Board or the regional director may 
discharge their duties under section 9(c) of the Act.
    (c) The hearing officer shall continue the hearing from day to day 
until completed absent extraordinary circumstances.
    11. Revise Sec.  102.65 to read as follows:


Sec.  102.65  Motions; interventions.

    (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. An 
original and two copies of written motions shall be filed and a copy 
thereof immediately shall 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. 
The regional director may rule upon all motions filed with him, causing 
a copy of said ruling to be served on the parties, or he may refer the 
motion to the hearing officer: Provided, 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 him as hereinabove provided, 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.
    (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, as the case may be, may by order permit 
intervention in person or by counsel or other representative to such 
extent and upon such terms as he may deem proper, and such intervenor 
shall thereupon become a party to the proceeding. Any person desiring 
to intervene in any such proceeding shall also complete a Statement of 
Position form.
    (c) 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(g). Unless expressly authorized by 
the Rules and Regulations, rulings by the regional director or by the 
hearing officer shall not be appealed directly to the Board, but shall 
be considered by the Board on appropriate request for review pursuant 
to Sec.  102.67 (b), (c), and (d) or Sec.  102.69. Nor shall rulings by 
the hearing officer be appealed directly to the regional director 
unless expressly authorized by the Rules and Regulations, except by 
special permission of the regional director, but shall be considered by 
the regional director when he reviews the entire record. Requests to 
the regional director, or to the Board in appropriate cases, for 
special permission to appeal from a ruling of the hearing officer or 
the regional director, together with the appeal from such ruling, shall 
be filed promptly, in writing, and shall briefly state the reasons 
special permission should be granted, including why the issue will 
otherwise evade review, 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. 
Neither the Board nor the regional director will grant a request for 
special permission to appeal except in extraordinary circumstances 
where it appears that the issue will otherwise evade review. No party 
shall be precluded from raising an issue at a later time based on its 
failure to seek special permission to appeal. If the Board or the 
regional director, as the case may be, grants the request for special 
permission to appeal, the Board or the regional director may proceed 
forthwith to rule on the appeal. Neither the filing nor the grant of 
such a request shall, unless otherwise ordered by the Board, operate as 
a stay of an election or any action taken or directed by the regional 
director. Notwithstanding a pending request for special permission to 
appeal, the regional director shall not impound ballots cast in an 
election unless otherwise ordered by the Board.
    (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: Provided, 
however, 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 which the regional director or the Board 
believes should have been taken at the hearing will be taken at any 
further hearing.

[[Page 36841]]

    (2) Any motion for reconsideration or for rehearing pursuant to 
this paragraph (e) shall be filed within 14 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 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.
    12. Revise Sec.  102.66 to read as follows:


Sec.  102.66  Introduction of evidence: Rights of parties at hearing; 
subpoenas.

    (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, and any party and the hearing officer shall have power 
to call, examine, and cross-examine witnesses and to introduce into the 
record documentary and other evidence relevant to any genuine dispute 
as to a material fact. The hearing officer shall identify such disputes 
as follows:
    (1) Joinder in RC cases. In a case arising under Sec.  102.61(a), 
after the employer completes its Statement of Position and prior to the 
introduction of further evidence, the petitioner shall respond to each 
issue raised in the Statement. The hearing officer shall not receive 
evidence relevant to any issue concerning which parties have not taken 
adverse positions: Provided, however, That if the employer fails to 
take a position regarding the appropriateness of the petitioned-for 
unit, the petitioner shall explain why the proposed unit is appropriate 
and may support its explanation with evidence in the form of sworn 
statements or declarations consistent with the requirements stated in 
Sec.  102.60(a) or through examination of witnesses and introduction of 
documentary or other evidence.
    (2) Joinder in RM cases. In a case arising under Sec.  102.61(b), 
after the individual or labor organization completes its Statement of 
Position and prior to the introduction of further evidence, the 
petitioner shall respond to each issue raised in the Statement. The 
hearing officer shall not receive evidence relevant to any issue 
concerning which parties have not taken adverse positions: Provided, 
however, That if the individual or labor organization fails to take a 
position regarding the appropriateness of the petitioned-for unit, the 
petitioner shall explain why the proposed unit is appropriate and may 
support its explanation with evidence in the form of sworn statements 
or declarations consistent with the requirements stated in Sec.  
102.60(a) or through examination of witnesses and introduction of 
documentary or other evidence.
    (3) Joinder in RD cases. In a case arising under Sec.  102.61(c), 
after the employer and the certified or recognized representative of 
employees complete their respective Statements of Position and prior to 
the introduction of further evidence, the petitioner shall respond to 
each issue raised in the Statements. The hearing officer shall not 
receive evidence relevant to any issue concerning which parties have 
not taken adverse positions: Provided, however, That if the employer 
and/or the certified or recognized representative fails to take a 
position regarding whether the petitioned-for unit is coextensive with 
the unit for which a representative is certified or recognized, the 
petitioner shall explain why the proposed unit is appropriate and may 
support its explanation with evidence in the form of sworn statements 
or declarations consistent with the requirements stated in Sec.  
102.60(a) or through examination of witnesses and introduction of 
documentary or other evidence.
    (b) Offers of proof; discussion of election procedure. After 
identifying the issues in dispute pursuant to paragraph (a) of this 
section, the hearing officer shall solicit offers of proof from the 
parties or their counsel as to all such issues. The offers of proof 
shall take the form of a written statement or an oral statement on the 
record identifying each witness the party would call to testify 
concerning the issue and summarizing the witness' testimony. The 
hearing officer shall examine the offers of proof related to each issue 
in dispute and shall proceed to hear testimony and accept other 
evidence relevant to the issue only if the offers of proof raise a 
genuine dispute as to any material fact. Prior to the close of the 
hearing, the hearing officer will:
    (1) Solicit the parties' positions on the type, dates, times, and 
locations of the election and the eligibility period, but shall not 
permit litigation of those issues;
    (2) Inform the parties that the regional director will issue a 
decision, direction of election or both as soon as practicable and that 
the director will immediately transmit the document(s) to the parties' 
designated representatives by e-mail, facsimile, or by overnight mail 
(if neither an e-mail address nor facsimile number was provided); and
    (3) 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.
    (c) 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: Provided, however, that no party shall be precluded from 
contesting or presenting evidence relevant to the Board's statutory 
jurisdiction to process the petition; Provided, further, that no party 
shall be precluded, on the grounds that a voter's eligibility or 
inclusion was not contested at the pre-election hearing, from 
challenging the eligibility of any voter during the election. If a 
party contends that the petitioned-for unit is not appropriate in its 
Statement of Position but fails to state the most similar unit that it 
concedes is appropriate, 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.
    (d) Disputes concerning less than 20 percent of the unit. If at any 
time during the hearing, the hearing officer determines that the only 
issues remaining in dispute concern the eligibility or inclusion of 
individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the hearing officer shall close 
the hearing.
    (e) Witness examination and evidence. Witnesses shall be examined

[[Page 36842]]

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.
    (f) 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.
    (g) 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 days after the date of service of 
the subpoena or by such earlier time as the hearing officer or regional 
director shall determine, 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 director who may either rule 
upon it or refer it for ruling to the hearing officer: Provided, 
however, 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 or, with the permission of the hearing officer, 
presented orally. 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 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 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.
    (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. Briefs shall be filed only upon special permission of the 
hearing officer and within the time the hearing officer permits.
    (i) Hearing officer analysis. The hearing officer may submit an 
analysis of the record to the regional director but he shall make no 
recommendations.
    (j) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.
    13. Revise Sec.  102.67 to read as follows:


Sec.  102.67  Proceedings before the regional director; further 
hearing; action by the regional director; review of action by the 
regional director; statement in opposition; final 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 he may deem proper, to 
determine whether a question concerning representation exists in a unit 
appropriate for purposes of collective bargaining, and to direct an 
election, dismiss the petition, or make other disposition of the 
matter. If the hearing officer has determined during the hearing or the 
regional director determines after the hearing that the only issues 
remaining in dispute concern the eligibility or inclusion of 
individuals who would constitute less than 20 percent of the unit if 
they were found to be eligible to vote, the regional director shall 
direct that those individuals be permitted to vote subject to 
challenge. In the event that the regional director permits individuals 
whose eligibility or inclusion remains in dispute to vote subject to 
challenge, the Final Notice to Employees of Election shall advise 
employees that said individuals are neither included in, nor excluded 
from, the bargaining unit, inasmuch as the regional director has 
permitted them to vote subject to challenge. The election notice shall 
further advise employees that the eligibility or inclusion of said 
individuals will be resolved, if necessary, following the election.
    (b) Directions of elections; dismissals; requests for review. A 
decision by the regional director upon the record shall set forth his 
findings, conclusions, and order or direction: Provided, however, that 
the regional director may direct an election with findings and a 
statement of reasons to follow prior to the tally of ballots. In the 
event that the regional director directs an election, said direction 
shall specify the type, date, time, and place of the election and the 
eligibility period. The regional director shall schedule the election 
for the earliest date practicable consistent with these rules. The 
regional director shall transmit the direction of election to the 
parties' designated representatives by e-mail, facsimile, or by 
overnight mail (if neither an e-mail address nor facsimile number was 
provided). Along with the direction of election, the regional director 
shall also transmit the Board's Final Notice to Employees of Election 
by e-mail, facsimile, or by overnight mail (if neither an e-mail 
address nor facsimile number was provided). The regional director shall 
also electronically transmit the Final Notice to Employees of Election 
to affected employees to the extent practicable. The decision of the 
regional director shall be final: Provided, however, That within 14 
days after service of a decision dismissing a petition any party may 
file a request for review of such a dismissal with the Board in 
Washington, DC: Provided, further, That any party may, after the 
election, file a request for review of a regional director's decision 
to direct an election within the time periods specified and as 
described in Sec.  102.69.
    (c) 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.
    (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 the hearing or any ruling made in 
connection with the

[[Page 36843]]

proceeding has resulted in prejudicial error.
    (4) That there are compelling reasons for reconsideration of an 
important Board rule or policy.
    (d) Contents of request. Any request for review must be a self-
contained document enabling the Board to rule on the basis of its 
contents without the necessity or 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 (c)(2) of this 
section, and other grounds where appropriate, said 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. But 
such request may not raise any issue or allege any facts not timely 
presented to the regional director.
    (e) Opposition to request. Any party may, within 7 days after the 
last day on which the request for review must be filed, file with the 
Board a statement in opposition thereto, which shall be served in 
accordance with the requirements of paragraph (h) of this section. A 
statement of such service of opposition shall be filed simultaneously 
with the Board. The Board may deny the request for review without 
awaiting a statement in opposition thereto.
    (f) Waiver; denial of request. 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.
    (g) Grant of review; briefs. The granting of a request for review 
shall not stay the regional director's decision 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 14 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. Where 
review has been granted, the Board will consider the entire record in 
the light of the grounds relied on for review. 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.
    (h)(1) Format of request. All documents filed with the Board under 
the provisions of this section shall be filed in seven copies, double 
spaced, on 8\1/2\ by 11-inch paper, and shall be printed or otherwise 
legibly duplicated. Requests for review, including briefs in support 
thereof; 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 not less than 5 days, including Saturdays, Sundays, and 
holidays, prior to the date the document is due. Where any brief filed 
pursuant to this section exceeds 20 pages, it shall contain a subject 
index with page authorities cited.
    (2) Service of copies of request. 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 statement of such 
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 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.
    (i) Final notice to employees of election. The employer shall post 
copies of the Board's Final Notice to Employees of Election in 
conspicuous places at least 2 full working days prior to 12:01 a.m. of 
the day of the election and shall also distribute the Final Notice to 
Employees of Election electronically 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. The term working day shall mean an entire 24-hour period 
excluding Saturdays, Sundays, and holidays. A party shall be estopped 
from objecting to nonposting of notices if it is responsible for the 
nonposting. Failure properly to post and 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).
    (j) Voter lists. Absent extraordinary circumstances specified in 
the direction of election, the employer shall, within 2 days after such 
direction, provide to the regional director and the parties named in 
such direction a list of the full names, home addresses, available 
telephone numbers, available e-mail addresses, work locations, shifts, 
and job classifications of all eligible voters. In order to be timely 
filed, the list must be received by the regional director and the 
parties named in the direction within 2 days 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 generally approved by the Board's Executive Secretary 
unless the employer certifies that it does not possess the capacity to 
produce the list in the required form. When feasible, the list shall be 
filed electronically with the regional director and served 
electronically on the other parties named in the petition. Failure to 
file or serve the list within the specified time and in proper format 
shall be grounds for setting aside the election whenever proper 
objections are filed. The regional director shall make the list 
available upon request to all parties in the case on the same day or as 
soon as practicable after the director receives the list from the 
employer. The parties shall use the list exclusively for purposes of 
the representation proceeding and related Board proceedings.
    14. Revise Sec.  102.68 to read as follows:


Sec.  102.68  Record; what constitutes; transmission to Board.

    The record in a proceeding conducted pursuant to the foregoing 
section, or conducted pursuant to Sec.  102.69, shall consist of: The 
petition, notice of hearing with affidavit of service thereof, 
Statements of Position, 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.
    15. Revise Sec.  102.69 to read as follows:

[[Page 36844]]

Sec.  102.69  Election procedure; tally of ballots; objections; 
requests for review of directions of elections, hearings; hearing 
officer reports on objections and challenges; exceptions to hearing 
officer reports; requests for review of regional director reports or 
decisions in stipulated or directed elections.

    (a) Election procedure; tally; objections. 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. All elections shall be by secret ballot. 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: Provided, however, 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. 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. When the election is conducted 
manually, any party may be represented by observers of its own 
selection, subject to such limitations as the regional director may 
prescribe. 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. Upon the 
conclusion of the election the ballots will be counted and a tally of 
ballots prepared and immediately made available to the parties. Within 
7 days after the tally of ballots has been prepared, any party may file 
with the regional director an original and five copies of objections to 
the conduct of the election or to conduct affecting the results of the 
election with a certificate of service on all parties, which shall 
contain a short statement of the reasons therefore and a written offer 
of proof in the form described in Sec.  102.66(b) insofar as 
applicable, but the written offer of proof shall not be served on any 
other party. Such filing must be timely whether or not the challenged 
ballots are sufficient in number to affect the results of the election. 
A person filing objections by facsimile or electronically pursuant to 
Sec.  102.114(f) or (i) 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.  
102.114(f) or (i).
    (b) Requests for review of directions of elections. If the election 
has been conducted pursuant to Sec.  102.67, any party may file a 
request for review of the decision and direction of election with the 
Board in Washington, DC. In the absence of election objections or 
potentially determinative challenges, the request for review of the 
decision and direction of election shall be filed within 14 days after 
the tally of ballots has been prepared. In a case involving election 
objections or potentially determinative challenges, the request for 
review shall be filed within 14 days after the regional director's 
report or supplemental decision on challenged ballots, on objections, 
or on both, and may be combined with a request for review of that 
decision as provided in paragraph (d)(3) of this section. The 
procedures for such request for review shall be the same as set forth 
in Sec.  102.67(c) through (h) insofar as applicable. If no request for 
review is filed, the decision and direction of election is final and 
shall have the same effect as if issued by the Board. 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.
    (c) Certification in the absence of objections, determinative 
challenges and requests for review. If no objections are filed within 
the time set forth in paragraph (a) of this section, if the challenged 
ballots are insufficient in number to affect the results of the 
election, if no runoff election is to be held pursuant to Sec.  102.70, 
and if no request for review is filed pursuant to paragraph (b) of this 
section, the regional director shall forthwith issue to the parties a 
certification of the results of the election, including certification 
of representative where appropriate, with the same force and effect as 
if issued by the Board, and the proceeding will thereupon be closed.
    (d)(1)(i) Reports. 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 
overturning the election if introduced at a hearing, the regional 
director shall issue a report or supplemental decision disposing of 
objections and a certification of the results of the election, 
including certification of representative where appropriate, unless 
there are potentially determinative challenges.
    (ii) Notices of hearing. 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 
overturning the election if introduced at a hearing, or if the 
challenged ballots are sufficient in number to affect the results of 
the election, the regional director shall transmit to the parties' 
designated representatives by e-mail, facsimile, or by overnight mail 
(if neither an e-mail address nor facsimile number was provided) a 
notice of hearing before a hearing officer at a place and time fixed 
therein no later than 14 days after the preparation of the tally of 
ballots or as soon as practicable thereafter: Provided, however, that 
the regional director may consolidate the hearing concerning objections 
and determinative challenges with an unfair labor practice proceeding 
before an administrative law judge.
    (iii) Hearings; hearing officer reports; exceptions to regional 
director. 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, except that, 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 14 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 7 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

[[Page 36845]]

other parties and a statement of service filed with the regional 
director. 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.
    (2) Regional director reports or decisions in consent or full 
consent elections. If the election has been held pursuant to Sec.  
102.62(a) or (c), the report or decision of the regional director shall 
be final and shall include a certification of the results of the 
election, including certification of representative where appropriate.
    (3) Requests for review of regional director reports or decisions 
in stipulated or directed elections. If the election has been held 
pursuant to Sec. Sec.  102.62(b) or 102.67, within 14 days from the 
date of issuance of the regional director's report or decision on 
challenged ballots or on objections, or on both, any party may file 
with the Board in Washington, DC, a request for review of such report 
or decision which may be combined with a request for review of the 
regional director's decision to direct an election as provided in Sec.  
102.67(b). The procedures for post-election requests for review shall 
be the same as set forth in Sec.  102.67(c) through (h) insofar as 
applicable. If no request for review is filed, the report or decision 
is final and shall have the same effect as if issued by the Board. 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. 
Provided, however, that in any proceeding wherein a representation case 
has been consolidated with an unfair labor practice proceeding for 
purposes of hearing 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.
    (e)(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, 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 report or decision on objections or on 
challenged ballots and any request for review of such a report or 
decision, any documentary evidence, excluding statements of witnesses, 
relied upon by the regional director in his decision or report, 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 (e)(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 (e)(1) of this 
section.
    (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 
report or decision on objections, 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 report or 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.
    (f) Revised tally of ballots. In any case under this section in 
which the regional director, 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 7 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. The proceeding shall thereupon be closed.
    (g) 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. 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 
not less than 5 days, including Saturdays, Sundays, and holidays, prior 
to the date the brief is due. 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.
    (h) 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 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.
    16. Revise Sec.  102.71(c) 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.

* * * * *
    (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 14 days of service of the notice 
of dismissal or notification that the petition is to be held in 
abeyance. The request shall be submitted in eight copies and shall 
contain a complete statement setting forth facts and reasons upon which 
the request is based. Such request shall be printed or otherwise 
legibly duplicated. Requests for an extension of time within which to 
file the request for review shall be filed with the Board in 
Washington, DC, and a statement of service shall accompany such 
request.

Subpart D--Procedure for Unfair Labor Practice and Representation 
Cases Under Sections 8(b)(7) and 9(c) of the Act

    17. Revise Sec.  102.76 to read as follows:

[[Page 36846]]

Sec.  102.76  Petition; who may file; where to file; contents.

    When picketing of an employer has been conducted for an object 
proscribed by Section 8(b)(7) of the Act, a petition for the 
determination of a question concerning representation of the employees 
of such employer may be filed in accordance with the provisions of 
Sec. Sec.  102.60 and 102.61, insofar as applicable: Provided, however, 
That if a charge under Sec.  102.73 has been filed against the labor 
organization on whose behalf picketing has been conducted, the petition 
shall not be required to contain 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 union represents a substantial 
number of employees; or that the labor organization is currently 
recognized but desires certification under the act; or that the 
individuals or labor organizations who have been certified or are 
currently recognized by the employer are no longer the representative; 
or, if the petitioner is an employer, that one or more individuals or 
labor organizations have presented to the petitioner a claim to be 
recognized as the exclusive representative of the employees in the unit 
claimed to be appropriate.
    18. Revise Sec.  102.77(b) to read as follows:


Sec.  102.77  Investigation of petition by regional director; directed 
election.

* * * * *
    (b) If after the investigation of such petition or any petition 
filed under subpart C of this part, and after the investigation of the 
charge filed pursuant to Sec.  102.73, it appears to the regional 
director that an expedited election under section 8(b)(7)(C) of the Act 
is warranted, and that the policies of the Act would be effectuated 
thereby, he shall forthwith proceed to conduct an election by secret 
ballot of the employees in an appropriate unit, or make other 
disposition of the matter: Provided, however, That in any case in which 
it appears to the regional director that the proceeding raises 
questions which cannot be decided without a hearing, he may issue and 
cause to be served on the parties, individuals, and labor organizations 
involved a notice of hearing before a hearing officer at a time and 
place fixed therein. In this event, the method of conducting the 
hearing and the procedure following, shall be governed insofar as 
applicable by Sec. Sec.  102.63 to 102.69 inclusive. Provided further, 
however, That if a petition has been filed which does not meet the 
requirements for processing under the expedited procedures, the 
regional director may process it under the procedures set forth in 
subpart C of this part.

Subpart E--Procedure for Referendum Under Section 9(e) of the Act

    19. Revise Sec.  102.83 to read as follows:


Sec.  102.83  Petition for referendum under section 9(e)(1) of the Act; 
who may file; where to file; withdrawal.

    A petition to rescind the authority of a labor organization to make 
an agreement requiring as a condition of employment membership in such 
labor organization may be filed by an employee or group of employees on 
behalf of 30 percent or more of the employees in a bargaining unit 
covered by such an agreement. The petition 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 penalties of the Criminal Code, that its contents 
are true and correct to the best of his knowledge and belief. One 
original of the petition shall be filed with the regional director 
wherein the bargaining unit exists or, if the unit exists in two or 
more Regions, with the regional director for any of such Regions. A 
person filing a petition by facsimile or electronically pursuant to 
Sec.  102.114(f) or (i) 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. The petition may be withdrawn 
only with the approval of the regional director with whom such petition 
was filed. Upon approval of the withdrawal of any petition the case 
shall be closed.
    20. Amend Sec.  102.84 by revising paragraph (i), redesignating 
paragraph (j) as paragraph (k), and adding new paragraphs (j), (l) and 
(m) to read as follows:


Sec.  102.84  Contents of petition to rescind authority.

* * * * *
    (i) The name and address of the petitioner, and the name, title, 
address, telephone number, fax number, and e-mail address of the 
individual who will serve as the representative of the petitioner and 
accept service of all papers for purposes of the proceeding.
    (j) A statement that 30 percent or more of the bargaining unit 
employees covered by an agreement between their employer and a labor 
organization made pursuant to section 8(a)(3) of the Act, desire that 
the authority to make such an agreement be rescinded.
* * * * *
    (l) Evidence supporting the statement that 30 percent or more of 
the bargaining unit employees desire to rescind the authority of their 
employer and labor organization to enter into an agreement made 
pursuant to section 8(a)(3) of the Act. Such evidence shall be filed 
together with the petition, but shall not be served on any other party.
    (m) Evidence filed pursuant to paragraph (l) 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 two days after the 
facsimile or electronic filing.
    21. Revise Sec.  102.85 to read as follows:


Sec.  102.85  Investigation of petition by regional director; consent 
referendum; directed referendum.

    Where a petition has been filed pursuant to Sec.  102.83 and it 
appears to the regional director that the petitioner has made an 
appropriate showing, in such form as the regional director may 
determine, that 30 percent or more of the employees within a unit 
covered by an agreement between their employer and a labor organization 
requiring membership in such labor organization desire to rescind the 
authority of such labor organization to make such an agreement, he 
shall proceed to conduct a secret ballot of the employees involved on 
the question whether they desire to rescind the authority of the labor 
organization to make such an agreement with their employer: Provided, 
however, That in any case in which it appears to the regional director 
that the proceeding raises questions which cannot be decided without a 
hearing, he may issue and cause to be served on the parties a notice of 
hearing before a hearing officer at a time and place fixed therein. The 
regional director shall fix the time and place of the election, 
eligibility requirements for voting, and other arrangements of the 
balloting, but the parties may enter into an agreement, subject to the 
approval of the regional director, fixing such arrangements. In any 
such consent agreements, provision may be made for final determination 
of all questions arising with respect to the balloting by the regional 
director or, upon grant of a request for review, by the Board.
    22. Revise Sec.  102.86 to read as follows:

[[Page 36847]]

Sec.  102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following 
the hearing shall be governed, insofar as applicable, by Sec. Sec.  
102.63 to 102.69 inclusive.

Subpart I--Service and Filing of Papers

    23. Revise Sec.  102.112 to read as follows:


Sec.  102.112  Date of service; date of filing.

    The date of service shall be the day when the matter served is 
deposited in the United States mail, or is deposited with a private 
delivery service that will provide a record showing the date the 
document was tendered to the delivery service, or is delivered in 
person, as the case may be. Where service is made by electronic mail, 
the date of service shall be the date on which the message is sent. 
Where service is made by facsimile transmission, the date of service 
shall be the date on which transmission is received. The date of filing 
shall be the day when the matter is required to be received by the 
Board as provided by Sec.  102.111.
    24. Revise Sec.  102.113(d) to read as follows:


Sec.  102.113  Methods of service of process and papers by the Agency; 
proof of service.

* * * * *
    (d) Service of other documents. Other documents may be served by 
the Agency by any of the foregoing methods as well as regular mail, 
electronic mail or private delivery service. Such other documents may 
be served by facsimile transmission with the permission of the person 
receiving the document.
* * * * *
    25. Revise Sec.  102.114(a), (d), and (g) to read as follows:


Sec.  102.114  Filing and service of papers by parties; form of papers; 
manner and proof of filing or service; electronic filings.

    (a) Service of documents by a party on other parties may be made 
personally, or by registered mail, certified mail, regular mail, 
electronic mail (if the document was filed electronically or if 
specifically provided for in these rules), or private delivery service. 
Service of documents by a party on other parties by any other means, 
including facsimile transmission, is permitted only with the consent of 
the party being served. Unless otherwise specified elsewhere in these 
rules, service on all parties shall be made in the same manner as that 
utilized in filing the document with the Board, or in a more 
expeditious manner; however, when filing with the Board is done by 
hand, the other parties shall be promptly notified of such action by 
telephone, followed by service of a copy in a manner designed to insure 
receipt by them by the close of the next business day. The provisions 
of this section apply to the General Counsel after a complaint has 
issued, just as they do to any other party, except to the extent that 
the provisions of Sec.  102.113(a) or (c) provide otherwise.
* * * * *
    (d) Papers filed with the Board, General Counsel, Regional 
Director, Administrative Law Judge, or Hearing Officer shall be 
typewritten or otherwise legibly duplicated on 8\1/2\ by 11-inch plain 
white paper, shall have margins no less than one inch on each side, 
shall be in a typeface no smaller than 12 characters-per-inch (elite or 
the equivalent), and shall be double spaced (except that quotations and 
footnotes may be single spaced). Nonconforming papers may, at the 
Agency's discretion, be rejected.
* * * * *
    (g) Facsimile transmissions of the following documents will not be 
accepted for filing: Answers to Complaints; Exceptions or Cross-
Exceptions; Briefs; Requests for Review of Regional Director Decisions; 
Administrative Appeals from Dismissal of Petitions or Unfair Labor 
Practice Charges; Objections to Settlements; EAJA Applications; Motions 
for Default Judgment; Motions for Summary Judgment; Motions to Dismiss; 
Motions for Reconsideration; Motions to Clarify; Motions to Reopen the 
Record; Motions to Intervene; Motions to Transfer, Consolidate or 
Sever; or Petitions for Advisory Opinions. Facsimile transmissions in 
contravention of this rule will not be filed.
* * * * *

PART 103--OTHER RULES

    26. The authority citation for part 103 continues to read as 
follows:

    Authority: 29 U.S.C. 156, in accordance with the procedure set 
forth in 5 U.S.C. 553.

Subpart B--[Removed and Reserved]

    27. Remove and reserve subpart B, consisting of Sec.  103.20.

    Signed in Washington, DC, on June 15, 2011.
Wilma B. Liebman,
Chairman.
[FR Doc. 2011-15307 Filed 6-21-11; 8:45 am]
BILLING CODE 7545-01-P