[Federal Register Volume 79, Number 14 (Wednesday, January 22, 2014)]
[Rules and Regulations]
[Pages 3483-3495]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01061]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101 and 102

RIN 3142-AA08


Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: This final rule rescinds the amendments to the National Labor 
Relations Board's (the Board's) representation case procedures adopted 
by the Board's final rule of December 22, 2011, consistent with the 
district court's decision in Chamber of Commerce of the U.S. v. NLRB 
setting aside that rule. On December 9, 2013, the Court of Appeals for 
the District of Columbia Circuit dismissed the Board's appeal of the 
district court's decision, pursuant to the parties' stipulation. Now 
that the district court's decision is no longer subject to appellate 
review, this final rule restores the relevant language in the CFR to 
that which existed before the Board issued the December 22, 2011 final 
rule.

DATES: Effective Date: January 22, 2014.

FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary, 
National Labor Relations Board, 1099 14th Street, NW., Washington, DC 
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 
(TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Introduction

    On December 22, 2011, the National Labor Relations Board (Board or 
NLRB) published a final rule amending its regulations governing 
representation case procedures. 76 FR 80138. The final rule was 
immediately challenged in Federal district court. See Chamber of 
Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012). 
On May 14, 2012, the court struck down the rule on only one ground: 
that the Board lacked a quorum when it issued the final rule because 
Member Hayes (one of the Board's three Members at the time of the 
rule's publication) was ``absent'' from the vote--rather than 
``abstaining'' from the vote, as the Board asserted. Id. at 28-30. On 
July 27, 2012, the court denied the Board's motion for reconsideration 
of its opinion. Id. at 30-35.
    The Board appealed to the D.C. Circuit. On December 9, 2013, the 
D.C. Circuit dismissed the Board's appeal of the district court's 
decision pursuant to a joint stipulation of the parties. As there is no 
longer a possibility that the district court's opinion will be 
overturned on appeal, there is no basis for the language in the CFR to 
continue to reflect the amendments made by the Board's December 22, 
2011 final rule.

II. Changes to the CFR

    Pursuant to the Board's December 22, 2011 final rule, the CFR was 
changed in the following ways. In part 101, subpart C, consisting of 
Sec. Sec.  101.17 through 101.21, was removed and reserved. In part 
101, subpart D, Sec. Sec.  101.23 and 101.25 were amended. In part 101, 
subpart E, Sec. Sec.  101.28, 101.29 and 101.30 were amended. In part 
102, subpart C, Sec. Sec.  102.62, 102.63, 102.64, 102.65, 102.66, 
102.67 and 102.69 were amended. In part 102, subpart D, Sec.  102.77 
was amended. In part 102, subpart E, Sec. Sec.  102.85 and 102.86 were 
amended.
    To implement the district court's decision, this rule makes some 
changes to the regulatory text. Specifically, the changes detailed in 
this rule restore the language of each of those subparts to that which 
existed prior to the December 22, 2011 amendments, with the exception 
of certain non-substantive changes required for publication by the 
Office of the Federal Register, such as spelling corrections and 
formatting changes.
    The Board finds that notice and comment are unnecessary for these 
changes because they implement the final decision of the District Court 
of the District of Columbia, which set aside the

[[Page 3484]]

December 2011 final rule. Even when the requirements of the 
Administrative Procedure Act (APA) for notice of proposed rulemaking 
(NPRM) and opportunity for public comment would otherwise be 
applicable, the APA provides an exception when an agency ``for good 
cause finds * * * that notice and public procedure * * * are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(B). The restoration of the sections detailed above in 29 
CFR Parts 101 and 102, conforms the Board's statements of procedures 
and rules and regulations to the district court's mandate that 
``representation elections will have to continue under the old 
procedures.'' Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 
at 30. The APA exception is appropriate because the Board lacks any 
policy discretion in implementing this mandate. For the same reason, 
the Board finds good cause for these changes to take immediate effect.

 III. Regulatory Procedures

Regulatory Flexibility Act

    The Board is not required to prepare a final regulatory flexibility 
analysis for this final rule under the Regulatory Flexibility Act, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, 5 U.S.C. 601, et seq., because the Agency has not issued an NPRM 
prior to this action. As addressed above, promulgation of this final 
rule is strictly technical in that it restores the NLRB's statements of 
procedures and rules and regulations in accord with a nondiscretionary 
judicial mandate, and conforms the regulations to current agency 
practice.

Paperwork Reduction Act

    This final rule would not impose any information collection 
requirements under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq.

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.

    In consideration of the foregoing, the National Labor Relations 
Board amends Chapter I of title 29, Code of Federal Regulations, as 
follows:

PART 101--STATEMENTS OF PROCEDURES

0
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).


0
2. Add Subpart C to Part 101 to read as follows:

Subpart C--Representation Cases Under Section 9(c) of the Act and 
Petitions for Clarification of Bargaining Units and for Amendment 
of Certifications Under Section 9(b) of the Act

Sec.
101.17 Initiation of representation cases and petitions for 
clarification and amendment.
101.18 Investigation of petition.
101.19 Consent adjustments before formal hearing.
101.20 Formal hearing.
101.21 Procedure after hearing.

Sec.  101.17  Initiation of representation cases and petitions for 
clarification and amendment.

    The investigation of the question as to whether a union represents 
a majority of an appropriate grouping of employees is initiated by the 
filing of a petition by any person or labor organization acting on 
behalf of a substantial number of employees or by an employer when one 
or more individuals or labor organizations present a claim to be 
recognized as the exclusive bargaining representative. If there is a 
certified or currently recognized representative, any employee, or 
group of employees, or any individual or labor organization acting in 
their behalf may also file decertification petitions to test the 
question of whether the certified or recognized agent is still the 
representative of the employees. If there is a certified or currently 
recognized representative of a bargaining unit and there is no question 
concerning representation, a party may file a petition for 
clarification of the bargaining unit. If there is a unit covered by a 
certification and there is no question concerning representation, any 
party may file a petition for amendment to reflect changed 
circumstances, such as changes in the name or affiliation of the labor 
organization involved or in the name or location of the employer 
involved. The petition must be in writing and signed, and either must 
be notarized or must 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 or her knowledge and belief. It is filed 
with the Regional Director for the Region in which the proposed or 
actual bargaining unit exists. Petition forms, which are supplied by 
the Regional Office upon request, provide, among other things, for a 
description of the contemplated or existing appropriate bargaining 
unit, the approximate number of employees involved, and the names of 
all labor organizations which claim to represent the employees. If a 
petition is filed by a labor organization seeking certification, or in 
the case of a petition to decertify a certified or recognized 
bargaining agent, the petitioner must supply, within 48 hours after 
filing but in no event later than the last day on which the petition 
might timely be filed, evidence of representation. Such evidence is 
usually in the form of cards, which must be dated, authorizing the 
labor organization to represent the employees or authorizing the 
petitioner to file a decertification petition. If a petition is filed 
by an employer, the petitioner must supply, within 48 hours after 
filing, proof of demand for recognition by the labor organization named 
in the petition and, in the event the labor organization named is the 
incumbent representative of the unit involved, a statement of the 
objective considerations demonstrating reasonable grounds for believing 
that the labor organization has lost its majority status.


Sec.  101.18  Investigation of petition.

    (a) Upon receipt of the petition in the Regional Office, it is 
docketed and assigned to a member of the staff, usually a field 
examiner, for investigation. The field examiner conducts an 
investigation to ascertain:
    (1) Whether the employer's operations affect commerce within the 
meaning of the Act,
    (2) The appropriateness of the unit of employees for the purposes 
of collective bargaining and the existence of a bona fide question 
concerning representation within the meaning of the Act,
    (3) Whether the election would effectuate the policies of the Act 
and reflect the free choice of employees in the appropriate unit, and
    (4) Whether, if the petitioner is a labor organization seeking 
recognition, there is a sufficient probability, based on the evidence 
of representation of the petitioner, that the employees have selected 
it to represent them. The evidence of representation submitted by the 
petitioning labor organization or by

[[Page 3485]]

the person seeking decertification is ordinarily checked to determine 
the number or proportion of employees who have designated the 
petitioner, it being the Board's administrative experience that in the 
absence of special factors the conduct of an election serves no purpose 
under the statute unless the petitioner has been designated by at least 
30 percent of the employees. However, in the case of a petition by an 
employer, no proof of representation on the part of the labor 
organization claiming a majority is required and the Regional Director 
proceeds with the case if other factors require it unless the labor 
organization withdraws its claim to majority representation. The field 
examiner, or other member of the staff, attempts to ascertain from all 
interested parties whether or not the grouping or unit of employees 
described in the petition constitutes an appropriate bargaining unit. 
The petition may be amended at any time prior to hearing and may be 
amended during the hearing in the discretion of the hearing officer 
upon such terms as he or she deems just.
    (b) The petitioner may on its own initiative request the withdrawal 
of the petition if the investigation discloses that no question of 
representation exists within the meaning of the statute, because, among 
other possible reasons, the unit is not appropriate, or a written 
contract precludes further investigation at that time, or where the 
petitioner is a labor organization or a person seeking decertification 
and the showing of representation among the employees is insufficient 
to warrant an election under the 30-percent principle stated in 
paragraph (a) of this section.
    (c) For the same or similar reasons the Regional Director may 
request the petitioner to withdraw its petition. If the petitioner, 
despite the Regional Director's recommendations, refuses to withdraw 
the petition, the Regional Director then dismisses the petition, 
stating the grounds for dismissal and informing the petitioner of its 
right of appeal to the Board in Washington, DC. The petition may also 
be dismissed in the discretion of the Regional Director if the 
petitioner fails to make available necessary facts which are in its 
possession. The petitioner may within 14 days appeal from the Regional 
Director's dismissal by filing such request with the Board in 
Washington, DC; after a full review of the file with the assistance of 
its staff, the Board may sustain the dismissal, stating the grounds of 
its affirmance, or may direct the Regional Director to take further 
action.


Sec.  101.19  Consent adjustments before formal hearing.

    The Board has devised and makes available to the parties three 
types of informal consent procedures through which representation 
issues can be resolved without recourse to formal procedures. These 
informal arrangements are commonly referred to as consent-election 
agreement followed by Regional Director's determination, stipulated 
election agreement followed by Board certification, and full consent 
agreement, in which the parties agree that all pre- and postelection 
disputes will be resolved with finality by the Regional Director. Forms 
for use in these informal procedures are available in the Regional 
Offices.
    (a)(1) The consent-election agreement followed by the Regional 
Director's determination of representatives is one method of informal 
adjustment of representation cases. The terms of the agreement 
providing for this form of adjustment are set forth in printed forms, 
which are available upon request at the Board's Regional Offices. Under 
these terms the parties agree with respect to the appropriate unit, the 
payroll period to be used as the basis of eligibility to vote in an 
election, and the place, date, and hours of balloting. A Board agent 
arranges the details incident to the mechanics and conduct of the 
election. For example, the Board agent usually arranges preelection 
conferences in which the parties check the list of voters and attempt 
to resolve any questions of eligibility. Also, prior to the date of 
election, the holding of such election shall be adequately publicized 
by the posting of official notices in the establishment whenever 
possible or in other places, or by the use of other means considered 
appropriate and effective. These notices reproduce a sample ballot and 
outline such election details as location of polls, time of voting, and 
eligibility rules.
    (2) The actual polling is always conducted and supervised by Board 
agents. Appropriate representatives of each party may assist them and 
observe the election. As to the mechanics of the election, a ballot is 
given to each eligible voter by the Board's agents. The ballots are 
marked in the secrecy of a voting booth. The Board agents and 
authorized observers have the privilege of challenging for reasonable 
cause employees who apply for ballots.
    (3) Customarily the Board agents, in the presence and with the 
assistance of the authorized observers, count and tabulate the ballots 
immediately after the closing of the polls. A complete tally of the 
ballots is made available to the parties upon the conclusion of the 
election.
    (4) If challenged ballots are sufficient in number to affect the 
results of the election, the Regional Director conducts an 
investigation and rules on the challenges. Similarly, if objections to 
the conduct of the election are filed within 7 days after the tally of 
ballots has been prepared, the Regional Director likewise conducts an 
investigation and rules on the objections. If, after investigation, the 
objections are found to have merit, the Regional Director may void the 
election results and conduct a new election.
    (5) This form of agreement provides that the rulings of the 
Regional Director on all questions relating to the election (for 
example, eligibility to vote and the validity of challenges and 
objections) are final and binding. Also, the agreement provides for the 
conduct of a runoff election, in accordance with the provisions of the 
Board's Rules and Regulations, if two or more labor organizations 
appear on the ballot and no one choice receives the majority of the 
valid votes cast.
    (6) The Regional Director issues to the parties a 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.
    (b) The stipulated election agreement followed by a Board 
determination provides that disputed matters following the agreed-upon 
election, if determinative of the results, can be the basis of a formal 
decision by the Board instead of an informal determination by the 
Regional Director, except that if the Regional Director decides that a 
hearing on objections or challenged ballots is necessary the Director 
may direct such a hearing before a hearing officer, or, if the case is 
consolidated with an unfair labor practice proceeding, before an 
administrative law judge. If a hearing is directed, such action on the 
part of the Regional Director constitutes a transfer of the case to the 
Board. Thus, except for directing a hearing, it is provided that the 
Board, rather than the Regional Director, makes the final determination 
of questions raised concerning eligibility, challenged votes, and 
objections to the conduct of the election. If challenged ballots are 
sufficient in number of affect the results of the election, the 
Regional Director conducts an investigation and issues a report on the 
challenges instead of ruling thereon, unless the Director elects to 
hold a hearing. Similarly, if objections to the conduct of the election 
are filed within 7 days after the tally of ballots has been prepared, 
the Regional Director likewise

[[Page 3486]]

conducts an investigation and issues a report instead of ruling on the 
validity of the objections, unless the Director elects to hold a 
hearing. The Regional Director's report is served on the parties, who 
may file exceptions thereto within 14 days with the Board in 
Washington, DC. The Board then reviews the entire record made and may, 
if a substantial issue is raised, direct a hearing on the challenged 
ballots or the objections to the conduct of the election. Or, the Board 
may, if no substantial issues are raised, affirm the Regional 
Director's report and take appropriate action in termination of the 
proceedings. If a hearing is ordered by the Regional Director or the 
Board on the challenged ballots or objections, all parties are heard 
and a report containing findings of fact and recommendations as to the 
disposition of the challenges or objections, or both, and resolving 
issues of credibility is issued by the hearing officer and served on 
the parties, who may file exceptions thereto within 14 days with the 
Board in Washington, DC. The record made on the hearing is reviewed by 
the Board with the assistance of its staff counsel and a final 
determination made thereon. If the objections are found to have merit, 
the election results may be voided and a new election conducted under 
the supervision of the Regional Director. If the union has been 
selected as the representative, the Board or the Regional Director, as 
the case may be, issues its certification and the proceeding is 
terminated. If upon a decertification or employer petition the union 
loses the election, the Board or the Regional Director, as the case may 
be, certifies that the union is not the chosen representative.
    (c) The full consent-election agreement followed by the Regional 
Director's determination of representatives is another method of 
informal adjustment of representation cases.
    (1) Under these terms the parties agree that if they are unable to 
informally resolve disputes arising with respect to the appropriate 
unit and other issues pertaining to the resolution of the question 
concerning representation; the payroll period to be used as the basis 
of eligibility to vote in an election, the place, date, and hours of 
balloting, or other details of the election, those issues will be 
presented to, and decided with finality by the Regional Director after 
a hearing conducted in a manner consistent with the procedures set 
forth in Sec.  101.20.
    (2) Upon the close of the hearing, the entire record in the case is 
forwarded to the Regional Director. The hearing officer also transmits 
an analysis of the issues and the evidence, but makes no 
recommendations as to resolution of the issues. All parties may file 
briefs with the Regional Director within 7 days after the close of the 
hearing. The parties may also request to be heard orally. After review 
of the entire case, the Regional Director issues a final decision, 
either dismissing the petition or directing that an election be held. 
In the latter event, the election is conducted under the supervision of 
the Regional Director in the manner already described in this section.
    (3) All matters arising after the election, including determinative 
challenged ballots and objections to the conduct of the election shall 
be processed in a manner consistent with paragraphs (a)(4), (5), and 
(6) of this section.


Sec.  101.20  Formal hearing.

    (a) If no informal adjustment of the question concerning 
representation has been effected and it appears to the Regional 
Director that formal action is necessary, the Regional Director will 
institute formal proceedings by issuance of a notice of hearing on the 
issues, which is followed by a decision and direction of election or 
dismissal of the case. In certain types of cases, involving novel or 
complex issues, the Regional Director may submit the case for advice to 
the Board before issuing notice of hearing.
    (b) The notice of hearing, together with a copy of the petition, is 
served on the unions and employer filing or named in the petition and 
on other known persons or labor organizations claiming to have been 
designated by employees involved in the proceeding.
    (c) The hearing, usually open to the public, is held before a 
hearing officer who normally is an attorney or field examiner attached 
to the Regional Office but may be another qualified Agency official. 
The hearing, which is nonadversary in character, is part of the 
investigation in which the primary interest of the Board's agents is to 
ensure that the record contains as full a statement of the pertinent 
facts as may be necessary for determination of the case. The parties 
are afforded full opportunity to present their respective positions and 
to produce the significant facts in support of their contentions. In 
most cases a substantial number of the relevant facts are undisputed 
and stipulated. The parties are permitted to argue orally on the record 
before the hearing officer.


Sec.  101.21  Procedure after hearing.

    (a) Pursuant to section 3(b) of the Act, the Board has delegated to 
its Regional Directors its powers under section 9 of the Act 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. These powers include the issuance of such 
decisions, orders, rulings, directions, and certifications as are 
necessary to process any representation or deauthorization petition. 
Thus, by way of illustration and not of limitation, the Regional 
Director may dispose of petitions by administrative dismissal or by 
decision after formal hearing; pass upon rulings made at hearings and 
requests for extensions of time for filing of briefs; rule on 
objections to elections and challenged ballots in connection with 
elections Directed by the Regional Director or the Board, after 
administrative investigation or formal hearing; rule on motions to 
amend or rescind any certification issued after the effective date of 
the delegation; and entertain motions for oral argument. The Regional 
Director may at any time transfer the case to the Board for decision, 
but until such action is taken, it will be presumed that the Regional 
Director will decide the case. In the event the Regional Director 
decides the issues in a case, the decision is final subject to the 
review procedure set forth in the Board's Rules and Regulations.
    (b) Upon the close of the hearing, the entire record in the case is 
forwarded to the Regional Director or, upon issuance by the Regional 
Director of an order transferring the case, to the Board in Washington, 
DC. The hearing officer also transmits an analysis of the issues and 
the evidence, but makes no recommendations in regard to resolution of 
the issues. All parties may file briefs with the Regional Director or, 
if the case is transferred to the Board at the close of the hearing, 
with the Board, within 7 days after the close of the hearing. If the 
case is transferred to the Board after the close of the hearing, briefs 
may be filed with the Board within the time prescribed by the Regional 
Director. The parties may also request to be heard orally. Because of 
the nature of the proceedings, however, permission to argue orally is 
rarely granted. After review of the entire case, the Regional Director 
or the Board issues a decision, either dismissing the petition or 
directing that an election be held. In the latter event, the election 
is

[[Page 3487]]

conducted under the supervision of the Regional Director in the manner 
already described in Sec.  101.19 of this subpart.
    (c) With respect to objections to the conduct of the election and 
challenged ballots, the Regional Director has discretion:
    (1) To issue a report on such objections and/or challenged ballots 
and transmit the issues to the Board for resolution, as in cases 
involving stipulated elections to be followed by Board certifications, 
or
    (2) To decide the issues on the basis of the administrative 
investigation or after a hearing, with the right to transfer the case 
to the Board for decision at any time prior to disposition of the 
issues on the merits. In the event the Regional Director adopts the 
first procedure, the parties have the same rights, and the same 
procedure is followed, as has already been described in connection with 
the postelection procedures in cases involving stipulated elections to 
be followed by Board certifications. In the event the Regional Director 
adopts the second procedure, the parties have the same rights, and the 
same procedure is followed, as has already been described in connection 
with hearings before elections.
    (d) 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. As to administrative 
dismissals prior to the close of hearing, see Sec.  101.18(c) of this 
subpart.
    (e) If the election involves two or more labor organizations and if 
the election results are inconclusive because no choice on the ballot 
received the majority of valid votes cast, a runoff election is held as 
provided in the Board's Rules and Regulations.

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

0
3. Revise Sec.  101.23 to read as follows:


Sec.  101.23  Initiation and investigation of a petition in connection 
with a case under section 8(b)(7).

    (a)(1) A representation petition \1\ involving the employees of the 
employer named in the charge is handled under an expedited procedure 
when the investigation of the charge has revealed that:
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    \1\ The manner of filing of such petition and the contents 
thereof are the same as described in Sec.  101.17 of this part, 
except that the petitioner is not required to allege that a claim 
was made on the employer for recognition or that the union 
represents a substantial number of employees.
---------------------------------------------------------------------------

    (i) The employer's operations affect commerce within the meaning of 
the Act;
    (ii) Picketing of the employer is being conducted for an object 
proscribed by section 8(b)(7) of the Act;
    (iii) Subparagraph (C) of that section of the Act is applicable to 
the picketing; and
    (iv) The petition has been filed within a reasonable period of time 
not to exceed 30 days from the commencement of the picketing.
    (2) In these circumstances, the member of the Regional Director's 
staff to whom the matter has been assigned investigates the petition to 
ascertain further: the unit appropriate for collective bargaining; and 
whether an election in that unit would effectuate the policies of the 
Act.
    (b) If, based on such investigation, the Regional Director 
determines that an election is warranted, the Director may, without a 
prior hearing, direct that an election be held in an appropriate unit 
of employees. Any party aggrieved may file a request with the Board for 
special permission to appeal that action to the Board, but such review, 
if granted, will not, unless otherwise ordered by the Board, stay the 
proceeding. If it is determined that an election is not warranted, the 
Director dismisses the petition or makes other disposition of the 
matter. Should the Regional Director conclude that an election is 
warranted, the Director fixes the basis of eligibility of voters and 
the place, date, and hours of balloting. The mechanics of arranging the 
balloting, the other procedures for the conduct of the election, and 
the postelection proceedings are the same, insofar as appropriate, as 
those described in Sec.  101.19 of this part, except that the Regional 
Director's rulings on any objections to the conduct of the election or 
challenged ballots are final and binding, unless the Board, on an 
application by one of the parties, grants such party special permission 
to appeal from the Regional Director's rulings. The party requesting 
such review by the Board must do so promptly, in writing, and state 
briefly the grounds relied on. Such party must also immediately serve a 
copy on the other parties, including the Regional Director. Neither the 
request for review by the Board nor the Board's grant of such review 
operates as a stay of any action taken by the Regional Director, unless 
specifically so ordered by the Board. If the Board grants permission to 
appeal, and it appears to the Board that substantial and material 
factual issues have been presented with respect to the objections to 
the conduct of the election or challenged ballots, it may order that a 
hearing be held on such issues or take other appropriate action.
    (c) If the Regional Director believes, after preliminary 
investigation of the petition, that there are substantial issues which 
require determination before an election may be held, the Director may 
order a hearing on the issues. This hearing is followed by Regional 
Director or Board decision and direction of election, or other 
disposition. The procedures to be used in connection with such hearing 
and posthearing proceedings are the same, insofar as they are 
applicable, as those described in Sec. Sec.  101.20 and 101.21 of this 
part, except that the parties may not file briefs with the Regional 
Director or the Board unless special permission therefore is granted, 
but may state their respective legal positions fully on the record at 
the hearing, and except that any request for review must be filed 
promptly after issuance of the Regional Director's decision.
    (d) Should the parties so desire, they may, with the approval of 
the Regional Director, resolve the issues as to the unit, the conduct 
of the balloting, and related matters pursuant to informal consent 
procedures, as described in Sec.  101.19(a) of this part.
    (e) 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.


0
4. Revise Sec.  101.25 to read as follows:


Sec.  101.25  Appeal from the dismissal of a petition, or from the 
refusal to process it under the expedited procedure.

    If it is determined after investigation of the representation 
petition that further proceedings based thereon are not warranted, the 
Regional Director,

[[Page 3488]]

absent withdrawal of the petition, dismisses it, stating the grounds 
therefore. If it is determined that the petition does not meet the 
requirements for processing under the expedited procedure, the Regional 
Director advises the petitioner of the determination to process the 
petition under the procedures described in subpart C of this part. In 
either event, the Regional Director informs all the parties of such 
action, and such action is final, although the Board may grant an 
aggrieved party permission to appeal from the Regional Director's 
action. Such party must request such review promptly, in writing, and 
state briefly the grounds relied on. Such party must also immediately 
serve a copy on the other parties, including the Regional Director. 
Neither the request for review by the Board, nor the Board's grant of 
such review, operates as a stay of the action taken by the Regional 
Director, unless specifically so ordered by the Board.

Subpart E--Referendum Cases Under Section 9(e)(1) and (2) of the 
Act

0
5. Revise Sec.  101.28 to read as follows:


Sec.  101.28  Consent agreements providing for election.

    (a) The Board makes available to the parties three types of 
informal consent procedures through which authorization issues can be 
resolved without resort to formal procedures. These informal agreements 
are commonly referred to as consent-election agreement followed by 
Regional Director's determination, stipulated election agreement 
followed by Board certification, and full consent-election agreement 
providing for the Regional Director's determination of both pre- and 
postelection matters. Forms for use in these informal procedures are 
available in the Regional Offices.
    (b) The procedures to be used in connection with a consent-election 
agreement providing for the Regional Director's determination, a 
stipulated election agreement providing for Board certification, and 
the full consent-election agreement providing for the Regional 
Director's determination of both pre- and postelection matters are the 
same as those already described in subpart C of this part in connection 
with similar agreements in representation cases under section 9(c) of 
the Act, except that no provision is made for runoff elections.


0
6. Revise Sec.  101.29 to read as follows:


Sec.  101.29  Procedure respecting election conducted without hearing.

    If the Regional Director determines that the case is an appropriate 
one for election without formal hearing, an election is conducted as 
quickly as possible among the employees and upon the conclusion of the 
election the Regional Director makes available to the parties a tally 
of ballots. The parties, however, have an opportunity to make 
appropriate challenges and objections to the conduct of the election 
and they have the same rights, and the same procedure is followed, with 
respect to objections to the conduct of the election and challenged 
ballots, as has already been described in subpart C of the Statements 
of Procedure in connection with the postelection procedures in 
representation cases under section 9(c) of the Act, except that no 
provision is made for a runoff election. If no such objections are 
filed within 7 days and if the challenged ballots are insufficient in 
number to affect the results of the election, the Regional Director 
issues to the parties a certification of the results of the election, 
with the same force and effect as if issued by the Board.


0
7. Revise Sec.  101.30 to read as follows:


Sec.  101.30  Formal hearing and procedure respecting election 
conducted after hearing.

    (a) The procedures are the same as those described in subpart C of 
the Statements of Procedure respecting representation cases arising 
under section 9(c) of the Act. If the preliminary investigation 
indicates that there are substantial issues which require determination 
before an appropriate election may be held, the Regional Director will 
institute formal proceedings by issuance of a notice of hearing on the 
issues which, after hearing, is followed by Regional Director or Board 
decision and direction of election or dismissal. The notice of hearing 
together with a copy of the petition is served on the petitioner, the 
employer, and any other known persons or labor organizations claiming 
to have been designated by employees involved in the proceeding.
    (b) The hearing, usually open to the public, is held before a 
hearing officer who normally is an attorney or field examiner attached 
to the Regional Office but may be another qualified Agency official. 
The hearing, which is nonadversary in character, is part of the 
investigation in which the primary interest of the Board's agents is to 
insure that the record contains as full a statement of the pertinent 
facts as may be necessary for determination of the case. The parties 
are afforded full opportunity to present their respective positions and 
to produce the significant facts in support of their contentions. In 
most cases a substantial number of the relevant facts are undisputed 
and stipulated. The parties are permitted to argue orally on the record 
before the hearing officer.
    (c) Upon the close of the hearing, the entire record in the case is 
then forwarded to the Regional Director or the Board, together with an 
informal analysis by the hearing officer of the issues and the evidence 
but without recommendations. All parties may file briefs with the 
Regional Director or the Board within 7 days after the close of the 
hearing. If the case is transferred to the Board after the close of the 
hearing, briefs may be filed with the Board within the time prescribed 
by the Regional Director. The parties may also request to be heard 
orally. Because of the nature of the proceeding, however, permission to 
argue orally is rarely granted. After review of the entire case, the 
Board issues a decision either dismissing the petition or directing 
that an election be held. In the latter event, the election is 
conducted under the supervision of the Regional Director in the manner 
already described in Sec.  101.19 of this part.
    (d) The parties have the same rights, and the same procedure is 
followed, with respect to objections to the conduct of the election and 
challenged ballots as has already been described in connection with the 
postelection procedures in representation cases under section 9(c) of 
the Act.

PART 102--RULES AND REGULATIONS, SERIES 8

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

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


0
9. Revise the heading to Subpart C of Part 102 to read as follows:

[[Page 3489]]

Subpart C--Procedure Under Section 9(c) of the Act for the 
Determination of Questions Concerning Representation of Employees 
\2\ and for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act
---------------------------------------------------------------------------

    \2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the 
Act is governed by subpart D of this part.


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


Sec.  102.62  Consent-election agreements.

    (a) 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 a consent-election agreement leading to a determination by 
the Regional Director of the facts ascertained after such consent 
election. Such 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 consent election shall be 
conducted under the direction and supervision of the Regional Director. 
The method of conducting such consent election shall be consistent with 
the method followed by the Regional Director in conducting elections 
pursuant to Sec. Sec.  102.69 and 102.70 of this subpart 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) 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 a waiver of hearing and a consent 
election leading to a determination by the Board of the facts 
ascertained after such consent election, if such a determination is 
necessary. Such 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 
consent 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 of this subpart.
    (c) 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 providing for a hearing pursuant to Sec. Sec.  
102.63, 102.64, 102.65, 102.66 and 102.67 of this subpart to resolve 
any issue necessary to resolve the question concerning representation. 
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 
consent election shall be consistent with the method followed by the 
Regional Director in conducting elections pursuant to Sec. Sec.  102.69 
and 102.70 of this subpart, 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.


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


Sec.  102.63  Investigation of petition by regional director; notice of 
hearing; service of notice; withdrawal of notice.

    (a) After a petition has been filed under Sec.  102.61(a), (b), or 
(c) of this subpart, if no agreement such as that provided in Sec.  
102.62 of this subpart 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 the 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. A copy of the petition 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.
    (b) After a petition has been filed under Sec.  102.61(d) or (e) of 
this subpart, 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 
this paragraph (b) shall be in conformance with Sec. Sec.  102.64 
through 102.68 of this subpart whenever applicable, except where the 
unit or certification involved arises out of an agreement as provided 
in Sec.  102.62(a) of this subpart, 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 of this subpart. The 
regional director's dismissal shall be by decision, and a request for 
review therefrom may be obtained under Sec.  102.67 of this subpart, 
except where an agreement under Sec.  102.62(a) of this subpart is 
involved.


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


Sec.  102.64  Conduct of hearing.

    (a) 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. It shall be the duty of the hearing officer to 
inquire fully into all matters and issues necessary to obtain a full 
and complete record upon which the Board or the regional director may 
discharge their duties under section 9(c) of the Act.
    (b) The hearing officer may, in his discretion, continue the 
hearing from day to day, or adjourn it to a later date or to a 
different place, by announcement

[[Page 3490]]

thereof at the hearing or by other appropriate notice.


0
13. 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 case 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 case to the Board, all motions shall be filed with the 
Board. Such motions shall be printed or otherwise legibly duplicated: 
Provided, however, That carbon copies of typewritten matter shall not 
be filed and if submitted will not be accepted. 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 
of this subpart. 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.
    (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(c) of this subpart. 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 appeal pursuant to Sec.  102.67 (b), (c), and (d) of this 
subpart or whenever the case is transferred to it for decision: 
Provided, however, That if the regional director has issued an order 
transferring the case to the Board for decision such rulings may be 
appealed directly to the Board by special permission of the Board. 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, together with the appeal from such ruling, shall 
be filed promptly, in writing, and shall briefly state the reasons 
special permission should be granted and the grounds relied on for the 
appeal. The moving party shall immediately serve a copy of the request 
for special permission and of the appeal on the other parties and on 
the regional director. Any statement in opposition or other response to 
the request and/or to the appeal shall be filed promptly, in writing, 
and shall be served immediately on the other parties and on the 
regional director. 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.
    (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 
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.
    (2) Any motion for reconsideration or for rehearing pursuant to 
this paragraph 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, except that, if the motion states with 
particularity that the granting thereof will affect the eligibility to 
vote of specific employees, the ballots of such employees shall be 
challenged and impounded in any election conducted while such motion is 
pending. A motion for reconsideration, for rehearing, or to reopen the 
record need not be filed to exhaust administrative remedies.


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


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

    (a) 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. Witnesses shall be examined orally under oath. The rules of 
evidence prevailing in courts of law or equity shall not be 
controlling. Stipulations of fact may be introduced in evidence with 
respect to any issue.
    (b) Any objection with respect to the conduct of the hearing, 
including any objection to the introduction of evidence, may be stated 
orally or in

[[Page 3491]]

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.
    (c) 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, 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 rules 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. 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.
    (d) 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.
    (e) The hearing officer may submit an analysis of the record to the 
regional director or the Board but he shall make no recommendations.
    (f) Witness fees and mileage shall be paid by the party at whose 
instance the witness appears.


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


Sec.  102.67  Proceedings before the regional director; further 
hearing; briefs; action by the regional director; appeals from action 
by the regional director; statement in opposition to appeal; transfer 
of case to the Board; proceedings before the Board; Board action.

    (a) 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 the unit appropriate for 
the purpose of collective bargaining, to determine whether a question 
concerning representation exists, and to direct an election, dismiss 
the petition, or make other disposition of the matter. Any party 
desiring to submit a brief to the regional director shall file the 
original and one copy thereof, which may be a typed carbon copy, within 
7 days after the close of the hearing: Provided, however, That prior to 
the close of the hearing and for good cause the hearing officer may 
grant an extension of time not to exceed an additional 14 days. Copies 
of the brief shall be served on all other parties to the proceeding and 
a statement of such service shall be filed with the regional director 
together with the brief. No reply brief may be filed except upon 
special leave of the regional director.
    (b) A decision by the regional director upon the record shall set 
forth his findings, conclusions, and order or direction. The decision 
of the regional director shall be final: Provided, however, That within 
14 days after service thereof any party may file a request for review 
with the Board in Washington, DC The regional director shall schedule 
and conduct any election directed by the decision notwithstanding that 
a request for review has been filed with or granted by the Board. The 
filing of such a request shall not, unless otherwise ordered by the 
Board, operate as a stay of the election or any action taken or 
directed by the regional director: Provided, however, That if a pending 
request for review has not been ruled upon or has been granted ballots 
whose validity might be affected by the final Board decision shall be 
segregated in an appropriate manner, and all ballots shall be impounded 
and remain unopened pending such decision.
    (c) 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 proceeding has resulted in prejudicial error.
    (4) That there are compelling reasons for reconsideration of an 
important Board rule or policy.
    (d) 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 ground (2), 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) 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 (k) 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) 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

[[Page 3492]]

related subsequent unfair labor practice proceeding.
    (g) 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) In any case in which it appears to the regional director that 
the proceeding raises questions which should be decided by the Board, 
he may, at any time, issue an order, to be effective after the close of 
the hearing and before decision, transferring the case to the Board for 
decision. Such an order may be served on the parties upon the record of 
the hearing.
    (i) If any case is transferred to the Board for decision after the 
parties have filed briefs with the regional director, the parties may, 
within such time after service of the order transferring the case as is 
fixed by the regional director, file with the Board the brief 
previously filed with the regional director. No further briefs shall be 
permitted except by special permission of the Board. If the case is 
transferred to the Board before the time expires for the filing of 
briefs with the regional director and before the parties have filed 
briefs, such briefs shall be filed as set forth above and served in 
accordance with the requirements of paragraph (k) of this section 
within the time set by the regional director. If the order transferring 
the case is served on the parties during the hearing, the hearing 
officer may, prior to the close of the hearing and for good cause, 
grant an extension of time within which to file a brief with the Board 
for a period not to exceed an additional 14 days. No reply brief may be 
filed except upon special leave of the Board.
    (j) Upon transfer of the case to the Board, the Board shall 
proceed, either forthwith upon the record, or after oral argument or 
the submission of briefs, or further hearing, as it may determine, to 
decide the issues referred to it or to review the decision of the 
regional director and shall direct a secret ballot of the employees or 
the appropriate action to be taken on impounded ballots of an election 
already conducted, dismiss the petition, affirm or reverse the regional 
director's order in whole or in part, or make such other disposition of 
the matter as it deems appropriate.
    (k)(1) All documents filed with the Board under the provisions of 
this section shall be filed in eight copies, double spaced, on 8\1/2\ 
by 11-inch paper, and shall be printed or otherwise legibly duplicated. 
Carbon copies of typewritten materials will not be accepted. 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) 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) 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.


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


Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the regional director; report on challenged ballots; 
report on objections; exceptions; action of the Board; hearing.

    (a) 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. 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, which shall contain a short 
statement of the reasons therefor. 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 
pursuant to Sec.  102.114(f) of this part 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. In addition, 
extra copies need not be filed if the filing is by facsimile pursuant 
to Sec.  102.114(f) of this part. The Regional Director will cause a 
copy of the objections to be served on each of the other parties to the 
proceeding. Within 7 days after the filing of objections, or such 
additional time as the Regional Director may allow, the party filing 
objections shall furnish to the Regional Director the evidence 
available to it to support the objections.
    (b) If no objections are filed within the time set forth above, if 
the challenged ballots are insufficient in number to affect the results 
of the election, and if no runoff election is to be held pursuant to 
Sec.  102.70 of this subpart, 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.
    (c)(1) If timely objections are filed to the conduct of the 
election or to conduct affecting the results of the election, or if the 
challenged ballots are sufficient in

[[Page 3493]]

number to affect the results of the election, the regional director 
shall, consistent with the provisions of Sec.  102.69(d) of this 
subpart, initiate an investigation, as required, of such objections or 
challenges.
    (2) If a consent election has been held pursuant to Sec.  102.62(b) 
of this subpart, the regional director shall prepare and cause to be 
served on the parties a report on challenged ballots or on objections, 
or on both, including his recommendations, which report, together with 
the tally of ballots, he shall forward to the Board in Washington, DC. 
Within 14 days from the date of issuance of the report on challenged 
ballots or on objections, or on both, any party may file with the Board 
in Washington, DC, exceptions to such report, with supporting documents 
as permitted by Sec.  102.69(g)(3) of this subpart and/or a supporting 
brief if desired. Within 7 days from the last date on which exceptions 
and any supporting documents and/or supporting brief may be filed, or 
such further period as the Board may allow, a party opposing the 
exceptions may file an answering brief, with supporting documents as 
permitted by Sec.  102.69(g)(3) of this subpart if desired, with the 
Board in Washington, DC. If no exceptions are filed to such report, the 
Board, 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. The report on challenged ballots may be 
consolidated with the report on objections in appropriate cases.
    (3) If the election has been conducted pursuant to a direction of 
election issued following any proceeding under Sec.  102.67 of this 
subpart, the regional director may:
    (i) Issue a report on objections or on challenged ballots, or on 
both, as in the case of a consent election pursuant to paragraph (b) of 
Sec.  102.62 of this subpart, or
    (ii) Exercise his authority to decide the case and issue a decision 
disposing of the issues, and directing appropriate action or certifying 
the results of the election.
    (4) If the regional director issues a report on objections and 
challenges, the parties shall have the rights set forth in paragraph 
(c)(2) of this section and in Sec.  102.69(f) of this subpart; if the 
regional director issues a decision, the parties shall have the rights 
set forth in Sec.  102.67 of this subpart to the extent consistent 
herewith, including the right to submit documents supporting the 
request for review or opposition thereto as permitted by Sec.  
102.69(g)(3) of this subpart.
    (d) In issuing a report on objections or challenged ballots, or 
both, following proceedings under Sec. Sec.  102.62(b) or 102.67 of 
this subpart, or in issuing a decision on objections or challenged 
ballots, or both, following proceedings under Sec.  102.67 of this 
subpart, the regional director may act on the basis of an 
administrative investigation or upon the record of a hearing before a 
hearing officer. Such hearing shall be conducted with respect to those 
objections or challenges which the regional director concludes raise 
substantial and material factual issues.
    (e) Any hearing pursuant to this section shall be conducted in 
accordance with the provisions of Sec. Sec.  102.64, 102.65, and 102.66 
of this subpart, insofar as applicable, except that, upon the close of 
such hearing, the hearing officer shall, if directed by the regional 
director, 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. In any case in 
which the regional director has directed that a report be prepared and 
served, any party may, within 14 days from the date of issuance of such 
report, file with the regional director the original and one copy, 
which may be a carbon 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, which may be a carbon 
copy, shall be submitted. A copy of such answering brief shall 
immediately be served on the other parties and a statement of service 
filed with the regional director. 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.
    (f) In a case involving a consent election held pursuant to Sec.  
102.62(b) of this subpart, if exceptions are filed, either to the 
report on challenged ballots or on objections, or on both if it be a 
consolidated report, and it appears to the Board that such exceptions 
do not raise substantial and material issues with respect to the 
conduct or results of the election, the Board may decide the matter 
forthwith upon the record or may make other disposition of the case. If 
it appears to the Board that such exceptions raise substantial and 
material factual issues, the Board may direct the regional director or 
other agent of the Board to issue and cause to be served on the parties 
a notice of hearing on said exceptions before a hearing officer. The 
hearing shall be conducted in accordance with the provisions of 
Sec. Sec.  102.64, 102.65, and 102.66 of this subpart insofar as 
applicable. Upon the close of the hearing the agent conducting the 
hearing, if directed by the Board, shall prepare and cause to be served 
on the parties a report resolving questions of credibility and 
containing findings of fact and recommendations to the Board as to the 
disposition of the challenges or objections, or both if it be a 
consolidated report. In any case in which the Board has directed that a 
report be prepared and served, any party may within 14 days from the 
date of issuance of the report on challenged ballots or on objections, 
or on both, file with the Board in Washington, DC, exceptions to such 
report, with supporting brief if desired. Within 7 days from the last 
date on which exceptions and any supporting brief may be filed, or such 
further period as the Board may allow, a party opposing the exceptions 
may file an answering brief with the Board in Washington, DC. If no 
exceptions are filed to such report, the Board, 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. The Board 
shall thereupon proceed pursuant to Sec.  102.67: Provided, however, 
That in any with an unfair labor practice case for purposes of hearing 
the provisions of Sec.  102.46 of this part of these rules shall govern 
with respect to the filing of exceptions or an answering brief to the 
exceptions to the administrative law judge's decision.
    (g)(1)(i) 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, any 
report on such objections, any report on challenged ballots, exceptions 
to any such report, any briefs or other legal memoranda submitted by 
the parties, the decision of the regional director, if any, and the 
record previously made as defined in Sec.  102.68 of this subpart.

[[Page 3494]]

Materials other than those set out above shall not be a part of the 
record.
    (ii) 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 on objections or on challenged ballots and any exceptions to 
such a report, any regional director's decision on objections or 
challenged ballots and any request for review of such a decision, any 
documentary evidence, excluding statements of witnesses, relied upon by 
the regional director in his decision 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 (g)(3) of this section.
    (2) Immediately upon issuance of a report on objections or 
challenges, or both, upon issuance by the regional director of an order 
transferring the case to the Board, or 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 (g)(1) of this section.
    (3) In a proceeding pursuant to this section in which no hearing is 
held, a party filing exceptions to a regional director's report on 
objections or challenges, a request for review of a regional director's 
decision on objections or challenges, or any opposition thereto, may 
support its submission to the Board by appending thereto copies of 
documentary evidence, including copies of any affidavits, it has timely 
submitted to the regional director and which were not included in the 
report or decision. Documentary evidence so appended shall there upon 
become part of the record in the proceeding. Failure to timely submit 
such documentary evidence to the regional director, or to append that 
evidence to its submission to the Board in the representation 
proceeding as provided above, shall preclude a party from replying on 
such evidence in any subsequent related unfair labor proceeding.
    (h) In any such case in which the regional director or the Board, 
upon a ruling on challenged ballots, has directed that such ballots be 
opened and counted and a revised tally of ballots issued, and no 
objection to such revised tally is filed by any party within 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.
    (i)(1) The action of the regional director in issuing a notice of 
hearing on objections or challenged ballots, or both, following 
proceedings under Sec.  102.62(b) of this subpart shall constitute a 
transfer of the case to the Board, and the provisions of Sec.  
102.65(c) of this subpart shall apply with respect to special 
permission to appeal to the Board from any such direction of hearing.
    (2) Exceptions, if any, to the hearing officer's report or to the 
administrative law judge's decision, and any answering brief to such 
exceptions, shall be filed with the Board in Washington, DC, in 
accordance with paragraph (f) of this section.
    (j)(1) All documents filed with the Board under the provisions of 
this section shall be filed in eight copies, double spaced, on 8\1/2\ 
by 11-inch paper, and shall be printed or otherwise legibly duplicated. 
Carbon copies of typewritten materials will not be accepted. 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 Board 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.
    (2) The party filing with the Board exceptions to a report, a 
supporting brief, or an answering brief 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) Requests for extensions of time to file exceptions to a report, 
supporting briefs, or answering briefs, as permitted by this section, 
shall be filed with the Board on 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, or the 
Regional Director. A statement of such service shall be filed with the 
document.

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

0
17. Amend Sec.  102.77 by revising paragraph (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 of this subpart, it appears to 
the regional director that an expedited election under section 
8(b)(7)(C) 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, including transfer of the case to 
the Board, shall be governed insofar as applicable by Sec. Sec.  102.63 
to 102.68 of this part, inclusive, except that the parties shall not 
file briefs without special permission of the regional director or the 
Board, as the case may be, but shall, however, state their respective 
legal positions upon the record at the close of the hearing, and except 
that any request for review of a decision of the regional director 
shall be filed promptly after the issuance of such decision.

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

0
18. 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 of this 
subpart 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

[[Page 3495]]

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 by the Board.


0
19. Revise Sec.  102.86 to read as follows:


Sec.  102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following 
the hearing, including transfer of the case to the Board, shall be 
governed, insofar as applicable, by Sec. Sec.  102.63 to 102.68 of this 
part, inclusive.

    By direction of the Board.

    Dated: Washington, DC, January 15, 2014.
William B. Cowen,
Solicitor.
[FR Doc. 2014-01061 Filed 1-21-14; 8:45 am]
BILLING CODE 7545-01-P