[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Rules and Regulations]
[Pages 80138-80189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32642]
[[Page 80137]]
Vol. 76
Thursday,
No. 246
December 22, 2011
Part IV
National Labor Relations Board
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29 CFR Parts 101 and 102
Representation--Case Procedures; Final Rule
Federal Register / Vol. 76 , No. 246 / Thursday, December 22, 2011 /
Rules and Regulations
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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: On June 22, 2011, the National Labor Relations Board (the
Board) issued a Notice of Proposed Rulemaking proposing various
amendments of 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. This document
explains which of the proposed amendments the Board is adopting at this
time in the final rule and sets forth the Board's responses to comments
concerning those proposals.
The Board believes that the final rule will reduce unnecessary
litigation in representation cases and thereby enable the Board to
better fulfill its duty to expeditiously resolve questions concerning
representation. The final rule will also save time and resources for
the parties and the agency. The final rule will focus pre-election
hearings on those issues relevant to determining if there is a question
concerning representation, provide for pre-election briefing only when
it will assist the decision makers, reduce piecemeal appeals to the
Board, consolidate requests for Board review of regional directors'
pre- and post-election determinations into a single, post-election
request, make Board review of post-election regional determinations
discretionary, and eliminate duplicative regulations. The final rule
will 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 and certifying the results.
DATES: This rule will be effective on April 30, 2012.
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 on the Rulemaking
The National Labor Relations Board administers the National Labor
Relations Act, which, among other things, governs the formation of
collective-bargaining relationships between employers and groups of
employees in the private sector. Section 7 of the Act, 29 U.S.C. 157,
gives employees the right ``to bargain collectively through
representatives of their own choosing * * * and to refrain from * * *
such activity.''
When employees and their employer are unable to agree whether the
employees should be represented for purposes of collective bargaining,
Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to
resolve the question of representation.
The Act itself sets forth only the basic steps for resolving a
question of representation. First, a petition is filed by an employee,
a labor organization, or an employer. Second, if there is reasonable
cause, a hearing is held to determine whether a question of
representation exists, unless the parties agree that an election should
be conducted and agree concerning election details. Third, if there is
such a question, an election by secret ballot is conducted. Fourth, the
results of the election are certified.
Aside from these general requirements, however, the statute says
very little about representation case procedures. Instead, Congress
left these procedures within the broad discretion of the Board.
The Board has exercised this discretion through two mechanisms.
First, the Board has promulgated binding rules of procedure, most of
which are found in 29 CFR part 102, subpart C. Second, the Board has
interpreted and occasionally altered or created its representation case
procedures through adjudication.\1\ In addition, the Board's General
Counsel has prepared a non-binding Casehandling Manual describing
representation case procedures in detail. The relevant sections of the
Casehandling Manual are Sections 11000 through 11886.\2\
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\1\ See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 770,
777, 779 (1969).
\2\ NLRB Casehandling Manual (Part Two) Representation
Proceedings.
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Within the framework of the current rules, the Board, the General
Counsel and the agency's regional directors \3\ have sought to achieve
efficient, fair, uniform, and timely resolution of representation
cases. But under the current rules, inefficiency, abuse of the process,
and delay still hamper resolution of many questions of representation.
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\3\ Pursuant to Section 3(b) of the Act, the Board has delegated
to its regional directors the authority to conduct pre-election
hearings, to determine whether questions of representation exist, to
direct elections, and to certify election results. 29 U.S.C. 153(b).
The General Counsel administratively oversees the regions. 29 U.S.C.
153(d).
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In this final rule, the Board makes eight amendments to its
regulations governing representation case procedures. The amendments
are intended to eliminate unnecessary litigation, delay, and
duplicative regulations. The final rule follows an extensive
consultation with the public initiated by the Board's Notice of
Proposed Rulemaking (NPRM) on June 22, 2011. 76 FR 36812. As explained
below, the final rule adopts some of the proposed amendments and leaves
the remainder for further deliberation.
A. Summary of Current Procedures \4\
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\4\ For a more complete discussion and citations, see the NPRM.
76 FR 36812.
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When an employee, union, employer, individual, or organization
wants the Board to determine whether employees wish to bargain
collectively through a union, that party must file, in the Board's
regional office, a petition, which the regional director then serves on
other interested parties. An employee or union petitioner must also,
ordinarily, provide evidence that a substantial number of employees
support the petition. Board agents then conduct an ex parte
investigation to determine if there is enough interest to justify
further processing of the petition.
In further processing, three general types of disputes can arise
among the parties. First are pre-election disputes. These may concern
whether the employees at issue may be represented as a group--that is,
whether they are ``an appropriate unit.'' At this stage, the parties
may also disagree about the Board's jurisdiction, whether an election
is barred by the Act or Board law, and the time, place, and other
details of the election itself.
Second, disputes can also arise during the election about whether
particular persons are eligible to vote. These disputes arise through
``challenges'' to the disputed individuals' ballots. When this occurs,
the ballots of challenged voters are segregated from the other ballots
in a manner that will not disclose the voters' identity.
Third, disputes can arise after the election about whether actions
of the parties or the Board agents--or some other circumstance--made
the election unfair. These disputes are brought before the Board by the
filing of ``objections.''
In the vast majority of cases, the parties, often with Board agent
assistance, are able to resolve pre-election disputes without
litigation. In these cases, either a ``consent''
[[Page 80139]]
agreement or a ``stipulation'' agreement is entered into. Both kinds of
agreements fully resolve pre-election disputes, but in a consent
agreement the parties also waive the right to Board review of the
regional director's disposition of any challenges or objections, while
in a stipulation agreement the parties provide for Board disposition of
such disputes.\5\
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\5\ In the alternative, a third type of agreement, called a
``full consent'' agreement, may also be entered into. This occurs
when the parties disagree about pre-election issues but are willing
to permit the regional director to resolve them as well as any post-
election disputes with finality. Full consent agreements are rare.
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If no agreement on pre-election issues can be reached, a hearing
must be held. The hearing officer, the Board agent in charge of the
hearing, takes evidence relevant to the issues in dispute, and the
parties often file briefs. The regional director then issues a
decision, either dismissing the petition or directing an election. The
regional director does not have to resolve all voter eligibility
questions before the election, but can defer those questions by
permitting employees whose eligibility is disputed to vote subject to
challenge.
If an election is directed, the regional director typically
schedules it no sooner than 25 days after the decision, so that the
Board can rule on any interlocutory request for review that might be
filed. Such interlocutory requests are rarely granted, still more
rarely result in the regional director's decision being reversed, and
virtually never result in elections being stayed. If the Board does not
rule on the request before the election date, the election is held, and
the ballots are impounded pending a Board ruling.
After the regional director's decision directing an election, the
employer must provide the regional office a list of eligible voters and
their home addresses. The regional office gives the list to the
parties. The parties use the list for two purposes: To communicate with
eligible voters about the election, and to determine whether to
challenge a particular voter.
Elections are decided by a majority of the valid votes cast. As
mentioned, during the election, the parties may challenge ballots cast
by voters. A tally of ballots generally takes place shortly after the
polls close. If the challenged ballots are too few in number to change
the outcome of the election, the challenges will not be litigated or
resolved.
Within one week after the tally, parties may file objections with
the regional director. Within one additional week, the objecting party
must furnish evidence in support of its objections.
The regional director has discretion to investigate any potentially
determinative challenges or objections or to immediately direct a
hearing. If the director conducts an investigation, he will set a
hearing only if the challenges or objections raise substantial and
material questions of fact. If no hearing is held, the regional
director will issue a supplemental decision or a report disposing of
the challenges or objections.
If a post-election hearing is held, the parties have the
opportunity to present evidence to a hearing officer. The hearing
officer will issue a report resolving any credibility issues and
containing findings of fact and recommendations.
In cases involving consent elections, the regional director's
rulings on challenges and objections are final. In cases involving
stipulated elections or elections directed by a regional director, the
parties generally have the right to obtain review by the Board, by
filing exceptions to the report disposing of the objections and/or
challenges. If a regional director directs an election and subsequently
determines that the challenges or objections warrant a hearing, the
regional director may direct that the hearing officer's recommendation
be made directly to the Board, in which case a party has the right to
Board review. On the other hand, if the regional director orders that
the hearing officer's recommendations be made directly to him or her,
parties can file exceptions to the hearing officer's report to the
regional director, but thereafter can seek Board review of the regional
director's determination only through the discretionary request-for-
review procedure. Similarly, if the regional director decides to
resolve the challenges and objections without directing a hearing, he
or she can choose to issue a report, in which case parties have a right
to Board review, or the regional director can choose to issue a
supplemental decision, in which case parties may only request Board
review. By contrast, if the parties enter into a stipulated election
agreement, the parties are entitled to Board review of the regional
director's or hearing officer's disposition of the post-election
matters.
B. Problems Identified and Amendments Proposed
The Board published an NPRM on June 22, 2011, 76 FR 36812,
proposing a number of changes to these procedures. These proposals are
set forth at length in the NPRM. The purpose of this brief summary is
to introduce the more complete discussion of the final rule. The
proposed amendments are presented in the chronological order of a
typical representation case.
First, under current procedures, the petitioner must file the
petition in hard copy. The Board proposed to also permit electronic
filing of the petition.
Second, under current procedures, the petition is filed by the
petitioner and then served by the regional office on the other
interested parties. The Board proposed that the petitioner would
directly serve a copy of the petition.
Third, under current procedures, the petitioner may wait 48 hours
before providing evidence that the employees support the petition (the
``showing of interest''). The Board proposed that the petitioner be
required to file the petition and the showing of interest
simultaneously. The Board also asked for comments concerning whether
electronic signatures should be accepted in support of the showing of
interest.
Fourth, under current procedures, after a petition is filed, the
regional director asks the employer to voluntarily post a generic
notice of employee rights. The Board proposed that the notice describe
the type of petition that has been filed, the name of the petitioner,
the petitioned-for unit, and the procedures that will follow, and that
the employer be required to post the notice.
Fifth, under current procedures, some regional offices routinely
schedule pre-election hearings to commence seven days after the
petition is filed, while other regions wait longer. The Board proposed
that the regional director set the hearing to commence seven days after
the filing of the petition absent ``special circumstances.'' The Board
also proposed that the hearing be continued from day to day absent
extraordinary circumstances.
Sixth, under current procedures, prior to or at the opening of the
pre-election hearing, regional personnel typically ask the parties what
position they will take on the common subjects of pre-election
disputes, such as jurisdiction, the appropriateness of the proposed
unit, and any bars to an election. The Board proposed that non-
petitioning parties be required to file, no later than the opening of
the hearing, a statement of position setting forth their position on
these issues. The Board also proposed that the employer's statement
include a list of employees in the petitioned-for unit.
Seventh, under current procedures, the hearing officer may ask the
parties to clarify their positions on issues
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potentially in dispute. Although the hearing officer can prohibit a
party from introducing evidence when it refuses to take a position on
an issue, hearing officers' practice is not uniform. The Board proposed
that the hearing process be made uniform through use of the following
procedures at the commencement of the pre-election hearing. First, the
petitioner would have to respond to (or ``join'') the issues raised by
the other parties in their statements of position. Second, if there is
a dispute between the parties, each would describe what evidence they
would introduce in support of their position. The hearing officer would
not permit a party to present evidence related to an issue concerning
which the party had failed to take a position or concerning which there
was no genuine dispute of material fact. However, parties could contest
individual employees' eligibility or inclusion for the first time
through a challenge during the election. In addition, the petitioner
would be permitted to present evidence relevant to the appropriateness
of the unit even if the non-petitioning parties declined to take a
position on that issue. Finally, any party could contest the Board's
jurisdiction at any time.
Eighth, under current procedures, the hearing officer takes
evidence at the pre-election hearing on any individual eligibility
issue raised, even though these issues need not be decided pre-
election, and the regional director and Board commonly defer resolution
of the issues until after the election via the challenge procedure. The
Board proposed that the hearing officer exclude evidence relevant only
to individual employees' voting eligibility or inclusion in the unit,
subject to an exception where the dispute involves a total of more than
20 percent of the unit employees.
Ninth, under the current procedures, the parties have a right in
most kinds of cases to file post-hearing briefs at any time up to seven
days after the close of the hearing. The Board proposed to vest the
hearing officer with discretion concerning whether to permit post-
hearing briefs and, if permitted, over their contents and timing.
Tenth, under current procedures, after the pre-election hearing the
regional director can choose to transfer the case to the Board without
deciding it. The Board proposed to eliminate the transfer procedure.
Eleventh, under current procedures, if the regional director
directs an election, the parties are required to request Board review
within 14 days or they waive the right to later raise any issues that
could have been raised at that time. The Board proposed to eliminate
the requirement to request review before the election, instead
permitting the request to be filed after the election and consolidated
with any request for review of the regional director's disposition of
post-election challenges and objections.
Twelfth, under current procedures, parties can request special
permission to appeal both from a ruling of the hearing officer to the
regional director and from a ruling of the hearing officer or the
regional director to the Board, but the regulations establish no
standard for the grant of such requests. The Board proposed a strict
standard for the grant of such requests.
Thirteenth, under current procedures, the regional director is
instructed not to schedule an election sooner than 25 days after his or
her decision, so that the Board can rule on any interlocutory request
for review that might be filed. The Board proposed to eliminate the 25-
day waiting period.
Fourteenth, under current procedures, the employer must give the
region a list of eligible voters within seven days of the regional
director's decision, and the region then gives the list to the other
parties. The Board proposed to codify this requirement, to shorten the
time to two days, and to provide for direct service by the employer on
the other parties.
Fifteenth, under current procedures, the eligibility list contains
only names and home addresses. The Board proposed that the list should
also include available telephone numbers and email addresses, as well
as the work location, shift, and classification for each employee.
Sixteenth, under current procedures, when a charge is filed
alleging the commission of unfair labor practices that could compromise
the fairness of the election, the regional director has discretion to
delay (or ``block'') the election until the issue can be resolved. In
the NPRM, the Board asked for comments on whether the Board should
change its blocking charge policy.
Seventeenth, under current procedures, after the tally of ballots
from the election, the parties have seven days to file a pleading with
the regional director specifying any objections. Objecting parties then
have an additional seven days to describe the evidence supporting their
objections. The Board proposed that the offer of proof be filed
simultaneously with the objections.
Eighteenth, under current procedures, regional directors have
discretion over the scheduling of a hearing concerning challenges or
objections. The Board proposed that the hearing be held fourteen days
after the tally of ballots, or as soon as practicable thereafter.
Nineteenth, under current procedures, in most instances, parties
have a right to appeal a regional director's or hearing officer's
disposition of challenges or objections to the Board. The Board
proposed to make Board review of post-election regional dispositions
discretionary, as is the case with pre-election rulings.
Twentieth, the current regulations are redundant in a number of
places and located in various parts of Title 29 of the Code of Federal
Regulations. The Board proposed to eliminate redundant regulations and
consolidate and reorganize the regulations so that they may be more
easily understood.
C. The Final Rule and a Concise, General Statement of Its Basis and
Purpose
As explained in the NPRM, the Board proposed various revisions to
its rules and regulations to further ``the Act's policy of
expeditiously resolving questions concerning representation'' \6\ and
to better ensure ``that employees' votes may be recorded accurately,
efficiently and speedily.'' \7\ Over 65,000 public comments were filed
in response to the NPRM. Many of the comments focused primarily on a
few of the proposed amendments, most notably the proposed changes
concerning the scheduling of the pre-election hearing, the requirement
of a statement of position, and the content and timing of eligibility
lists. In light of this commentary, further Board deliberation
concerning those proposals (and some others) is necessary at this time.
However, a number of the proposals were less controversial. The Board
has had the opportunity to fully consider all the comments and to
deliberate concerning the proposed amendments and believes it is
appropriate to adopt some of the proposals in this final rule and leave
the others for further consideration. The Board considers the
amendments adopted in this final rule to be severable from the
remainder of the proposals, and from each other.\8\
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\6\ Northeastern University, 261 NLRB 1001, 1002 (1982),
enforced, 707 F.2d 15 (1st Cir. 1983).
\7\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
\8\ Each of the major changes adopted in this final rule is
independently justified, and thus the Board has decided to adopt
each of them, while also deciding to deliberate further on the
remaining proposals. Although, at a very high level of generality,
the various proposals in the NPRM shared a common purpose to improve
``efficiency,'' in fact, each of the proposals addressed discrete
sources of inefficiency in the rules, and it is clear that the
amendments will serve their functions whether adopted in whole or in
part, together or one at a time. For this reason as well, each of
the amendments in this final rule would be adopted by the Board
independently of the others.
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For the reasons explained below, the Board has decided to adopt the
following eight proposals at this time.
First, the Board has decided to amend Sec. 102.64 in order to
expressly construe Section 9(c) of the Act and to state that the
statutory purpose of a pre-election hearing is to determine if a
question of representation exists. Second, the Board has decided to
amend Sec. 102.66(a) and eliminate Sec. 101.20(c) (along with all of
Part 101, Subpart C) in order to ensure that hearing officers presiding
over pre-election hearings have the authority to limit the presentation
of evidence to that which supports a party's contentions and which is
relevant to the existence of a question concerning representation.
Third, the Board has decided to amend Sec. 102.66(d) to afford hearing
officers presiding over pre-election hearings discretion over the
filing of post-hearing briefs, including over the subjects to be
addressed and the time for filing. Fourth, the Board has decided to
amend Sec. Sec. 102.67 and 102.69 to eliminate the parties' right to
file a pre-election request for review of a regional director's
decision and direction of election, and instead to defer all requests
for Board review until after the election, when any such request can be
consolidated with a request for review of any post-election rulings.
Fifth, the Board has decided to eliminate the recommendation in Sec.
101.21(d) (as stated, along with all of Part 101, Subpart C) that the
regional director should ordinarily not schedule an election sooner
than 25 days after the decision and direction of election in order to
give the Board an opportunity to rule on a pre-election request for
review. Sixth, the Board has decided to amend Sec. 102.65 to make
explicit and narrow the circumstances under which a request for special
permission to appeal to the Board will be granted. Seventh, the Board
has decided to amend Sec. Sec. 102.62(b) and 102.69 to create a
uniform procedure for resolving election objections and potentially
outcome-determinative challenges in stipulated and directed election
cases and to provide that Board review of regional directors'
resolution of such disputes is discretionary. Eighth, as mentioned, the
Board has decided to eliminate part 101, subpart C of its regulations,
which is redundant. The remainder of the amendments merely conform
other sections of the Board's Rules and Regulations to the eight
amendments described above. The Board has concluded, after careful
review of all public comments and after deliberation, that adopting
those eight proposals in a final rule will eliminate wholly unnecessary
litigation and delay in the processing of petitions filed under Section
9 of the Act and thus in the resolution of questions of
representation.\9\
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\9\ The Board has not, in each instance, adopted the precise
rule language proposed in the NPRM. To the extent alternative
language has been adopted in the final rule, the Board sets forth
its rationale in Part IV below.
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The current rules have been interpreted to give parties a right to
present evidence at a pre-election hearing relating to matters that
need not be addressed in order for the hearing to fulfill its statutory
function of creating a record based on which the regional director can
determine if there is a question of representation that should be
answered via an election. Furthermore, the current rules have been
understood to give parties a right to present evidence at a pre-
election hearing concerning such matters even though neither the
regional director nor the Board must address those matters prior to the
election, and a decision on such matters is commonly deferred until
after the election. In other words, such litigation is wholly
unnecessary prior to an election. Moreover, the issues in dispute in
such litigation are often rendered moot by the election results or
resolved by the parties post-election, thus eliminating the need for
litigation of the issues. Therefore, the Board has determined that
amending Sec. 102.64(a) to expressly construe the statutory purpose of
the hearing and amending Sec. 102.66(a) to vest hearing officers with
authority to limit the presentation of evidence to that supporting a
party's contentions and relevant to the existence of a question
concerning representation will eliminate unnecessary litigation and
delay.
After the pre-election hearing, the filing of post-hearing briefs
often delays issuance of the regional director's decision and direction
of election, thereby delaying resolution of the question of
representation even when the issue or issues in dispute can be
accurately and fairly resolved without briefing. Given the recurring
and often familiar and uncomplicated legal and factual issues arising
in pre-election hearings, the filing of briefs, which also imposes
financial costs on the parties, is not necessary in every case to
permit the parties to fully and fairly present their positions or to
facilitate prompt and accurate decisions. Therefore, the Board has
decided to amend Sec. 102.66(d) to vest hearing officers presiding
over pre-election hearings with authority to provide for the filing of
post-hearing briefs only in those instances when they would be of
assistance to the decision-maker and to control the subjects addressed
in, and the time for filing of, any such briefs. The Board has
determined that amending the rules to give the hearing officer
discretion to permit the filing of post-hearing briefs will eliminate
unnecessary expense and delay.
The Board's current rules require parties to file a request for
review of the regional director's decision and direction of election
before the election is held in order to preserve their right to raise
disputed issues in post-election proceedings, even though the issues in
dispute are often rendered moot by the election results or resolved by
the parties post-election thus eliminating the need for litigation of
the issues at any time. The pre-election request for review procedure
is inconsistent with judicial procedures, which limit interlocutory
appeals in order to avoid unnecessary litigation and delay. In
addition, Sec. 101.21(d) of the Board's current Statements of
Procedure provides that elections ``normally'' are delayed for a period
of at least 25 days after the regional director directs that an
election should be conducted, ``to permit the Board to rule on any
request for review which may be filed.'' This provision effectively
stays the conduct of all elections for at least 25 days despite
Congress's instruction in Section 3(b) of the Act that even the grant
of review by the Board ``shall not, unless specifically ordered by the
Board, operate as a stay of any action taken by the regional
director.'' Furthermore, even in the cases in which a request for
review is filed, review is granted only rarely and the Board almost
never stays the conduct of the election either before or after granting
review, instead permitting employees to vote and then impounding the
ballots. For these reasons, the waiting period unnecessarily delays the
resolution of questions of representation in all cases, and the delay
is not justified by the only purpose articulated in the Board's
Statements of Procedure. Therefore, the Board has determined that
amending the rules to defer the right to file requests for review of
the direction of the election until after the election and to eliminate
the mandatory waiting period will eliminate unnecessary litigation and
delay.
Consistent with the effort to avoid piecemeal appeals to the Board,
the Board has also decided to amend Sec. 102.65 to provide that a
request for special permission to appeal to the Board will only be
granted under
[[Page 80142]]
extraordinary circumstances, when it appears that the issue will
otherwise evade review. To further discourage piecemeal appeals, the
amendments provide that a party need not seek special permission to
appeal in order to preserve an issue for review post-election.
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
Board has determined that narrowing the circumstances under which a
request for special permission to appeal will be granted will eliminate
unnecessary litigation and delay.
Under the current rules, the nature of Board review of a regional
director's disposition of pre- and post-election disputes varies, but
for no articulated reason. Pre-election review is discretionary, while
post-election review is ordinarily mandatory. This is the case even
though many post-election disputes raise no question of policy and
often turn on the application of well-established principles of law to
particular facts. In addition, the procedures for post-election review
vary from case to case even though the nature of the issues is the
same. Therefore, the Board has decided to amend Sec. Sec. 102.62(b)
and 102.69 to create a uniform procedure in both stipulated and
directed election cases, whereby parties may file exceptions to any
hearing officer's report with the regional director, and file a request
for review of the regional director's disposition of the post-election
matters with the Board. That request may be consolidated with a request
for review of the regional director's decision and direction of
election, if any. Permitting the Board to deny review when a party's
request raises no compelling grounds for review will eliminate the most
significant source of administrative delay in achieving finality of
election results. The Board has determined that amending the rules to
create this uniform procedure for handling pre- and post-election
disputes will eliminate unnecessary litigation and delay.
Finally, the Board currently has two sets of regulations describing
its procedures in representation cases, one in Part 102, Subpart C of
its Rules and Regulations and the other in Part 101, Subpart C of its
Statements of Procedure. 29 CFR Part 102, Subpart C; 29 CFR Part 101,
Subpart C. The two sets of regulations are almost entirely redundant.
This redundancy is a potential source of confusion. The Board has
determined that eliminating Part 101, Subpart C will reduce such
confusion.
II. The Rulemaking Process
A. A Brief History of Board Rulemaking
As the NPRM explains, the Board has amended its representation case
procedures repeatedly over the years as part of a continuing effort to
improve the process and eliminate unnecessary delays. Indeed, the Board
has amended its representation case procedures more than three dozen
times since they were published in the very first volume of the Federal
Register, 1 FR 207 (April 18, 1936), and has only rarely utilized the
Administrative Procedures Act's notice-and-comment rulemaking
procedures; most often the Board simply implemented the changes without
prior notice or request for public comment.
In fact, the Board has seldom acted through notice-and-comment
rulemaking on any subject. The Board typically makes substantive policy
determinations in the course of adjudication rather than through
rulemaking, a practice that has occasionally drawn the ire of academic
commentators and the courts.\10\
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\10\ 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); see also NLRB
v. Bell Aerospace Co., 416 U.S. 267, 295 (1974); NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 764, 770, 777, 779, 783 n.2 (1969). The
Portland Cement Association (PCA) contends, as it did in another
recent Board rulemaking, that the Board should place these and other
law review articles discussed in the NPRM online for the public to
read for free on regulations.gov. Just as the Board replied in that
prior rulemaking, 76 FR 54014, the Board has placed these articles
in the hard copy docket, but has not uploaded these articles to the
electronic docket because such an action could violate copyright
laws. It should also be noted that these materials are generally
available in libraries.
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The Board has thus asked for public comments on few proposed rules
of any kind. A review of prior Board rulemaking procedures reveals that
the Board has not held a public hearing attended by all Board Members
for at least half a century. In the rulemaking proceedings that
resulted in adoption of rules defining appropriate units in acute care
hospitals, the Board directed an administrative law judge to hold a
series of public hearings to take evidence concerning the proposed
rules, but no Board Members participated in the hearings. In fact, even
in the course of adjudication, the Board has not held oral argument
since 2007 and has held only two oral arguments in the last decade. The
last open meeting of the Board, prior to the open meeting on November
30, 2011, to discuss and vote on whether to adopt any of the proposed
amendments in a final rule in this proceeding, was held in 1989 and
also concerned the acute care hospital bargaining-unit rule.
B. The Process of This Rulemaking
On June 22, 2011, the Board issued a Notice of Proposed Rulemaking.
The Notice provided 60 days for comments and 14 additional days for
reply comments, and announced a public hearing to be held on July 18
and 19, 2011. The Board issued press releases about the proposals and
hearings, and placed summaries, answers to frequently asked questions,
and other more detailed information on its Web site (www.nlrb.gov).
The Board Members also held two days of hearings in Washington, DC,
on July 18 and 19, 2011, where 66 individuals representing diverse
organizations and groups gave oral statements and answered questions
asked by the Board Members. The purpose of all of these procedures was
to give the Board the benefit of the views of the public. In this the
Board was quite successful, receiving 65,958 written comments and
taking 438 transcript pages of oral testimony.
Nonetheless, a number of comments criticize the Board's process:
Some claim there should have been some pre-notice-and-comment notice
and opportunity to comment; some criticize the length of the hearing (2
full days), the location of the hearing (Washington, DC), or the timing
of the hearing (halfway through the comment period); some criticize the
length of the comment periods (60 days plus 14 days).
1. The Pre-NPRM Process
The comment of the Chamber of Commerce of the United States of
[[Page 80143]]
America (the Chamber) provides a representative example of criticism of
the pre-NPRM process. The Chamber believes that the Board missed ``an
opportunity to explore whether a consensus could have been reached'' on
the rule among stakeholder groups through forums such as the American
Bar Association's Labor and Employment Law Section. The Chamber
concedes that stakeholders ``have widely divergent views,'' but argues
that a consensus on at least some changes might have been reached. The
Chamber suggests that the Board should withdraw the NPRM and publish a
more open-ended Advanced Notice of Proposed Rulemaking.
The Chamber cites Executive Order 13563 Section 2(c) (``Improving
Regulation and Regulatory Review''), 76 FR 51735, as support. Section
2(c) of the Executive Order states that ``[b]efore issuing a proposed
regulation, each agency, where feasible and appropriate, shall seek the
views of those who are likely to be affected * * *.'' Id. In the NPRM,
the Board explained the decision to issue a set of specific proposals,
rather than a more open-ended Advanced NPRM, by stating that ``public
participation would be more orderly and meaningful if it was based on *
* * specific proposals.'' 76 FR 36829. The Chamber incorrectly suggests
the Board conceded that it violated the Executive Order, and questions
whether the comment process actually was more orderly or meaningful.
Some other comments suggest that the Board should have engaged in
negotiated rulemaking, or that the pre-NPRM process was insufficiently
transparent.\11\
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\11\ See, e.g., joint comment of HR Policy Association and
Society for Human Resource Management (collectively, SHRM); Greater
Easley Chamber of Commerce; Georgia Association of Manufacturers
(GAM).
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The Board continues to believe that it has followed a lawful, fair,
and open process that succeeded in eliciting broad and informed public
participation to a greater extent than ever before in connection with
the Board's representation (or unfair labor practice) case procedures.
An agency generally has discretion over its pre-NPRM procedures,
including whether to use advanced NPRMs, negotiated rulemaking, or
other pre-NPRM consultation. See Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978).
Moreover, as recognized by the American Hospital Association (AHA), the
Board is not directly subject to E.O. 13563, nor is its language
pertaining to pre-NPRM procedures mandatory in any event. As explained
in the NPRM, in this instance, the Board concluded that beginning the
process of public comment by issuing a NPRM would be the most effective
method of proceeding.
The course of proceedings since issuance of the NPRM has confirmed
the Board's initial judgment. The notice of the two-day public hearing
published in the Federal Register on June 27, 2011, specifically
invited interested members of the public to appear and comment on the
proposals set forth in the NPRM and to ``make other proposals for
improving representation case procedures.'' 76 FR 37291. Yet at the
public hearing, while the Board heard a considerable amount of valuable
testimony concerning the specific proposals in the NPRM, it received
almost no suggestions unrelated to those proposals. Similarly, in the
NPRM, while the Board proposed specific rule language related to most
of the problems it identified, in several areas the Board identified a
problem or question and invited comment without proposing specific rule
language. For example, the Board specifically invited comments on
whether the Board should take any action related to the use of
electronic signatures in relation to the showing of interest supporting
certain forms of petitions. 76 FR 36812, 36819. The Board also
specifically invited comments ``on whether any final amendments should
include changes in the current blocking charge policy.'' 76 FR 36812,
36827. The NPRM specifically invited comments on whether the Board
should change that policy in several respects or leave the policy
unchanged. Id. While the Board received many meaningful comments on the
specific proposals in the NPRM, it received very few comments in
response to the more open-ended inquiries, and the comments that were
received were less specific and less helpful in analyzing the
procedural questions at stake.
The Board also is doubtful about the Chamber's suggestion that a
broad consensus might have been reached through a different process. As
the Chamber concedes, the labor-management bar is polarized on many of
the relevant issues. Given the degree of polarization reflected both at
the public hearing and in the comments, the Board continues to believe
that following the notice-and-comment procedures set forth in the APA--
and thereby giving formal notice of specific proposals to all members
of the public at the same time in the Federal Register and permitting
all members of the public to comment on those proposals through the
same procedures and during the same time periods--was the fairest and
soundest method of proceeding.
In sum, the Board's pre-NPRM process was lawful and appropriate.
2. The Length, Timing, and Location of the Hearing
The Board Members held a two-day public hearing in Washington, DC,
approximately halfway through the initial comment period, i.e., about
one month after publication of the NPRM and one month before the
initial comment period closed. All Board Members heard five-minute
statements from 66 individuals, representing diverse organizations and
groups, and then actively questioned the speakers for an additional
period of time.\12\ This hearing was not legally required.
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\12\ After the public hearing, the transcript of each speaker's
testimony along with any Board questioning of the speaker was made
part of the record of the rulemaking as a separate comment. Any such
testimony discussed in this final rule is cited as follows:
``Testimony of [name of speaker].''
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Some comments compare this proceeding to the hospital unit
rulemaking and essentially argue that the Board should have held 14
days of hearings around the country over the course of years.\13\ For
example, the National Association of Manufacturers (NAM)--and many
nearly identical form comments by member companies--claim that the
``relative rush'' of these hearings ``is a departure from past Board
practice that will result in both an inadequate opportunity for
stakeholders to address the merits of the rules and inadequate
information and data for the Board to make a prudential judgment
regarding the rules.''
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\13\ See, e.g., Coalition for a Democratic Workplace (CDW);
Council on Labor Law Equality (COLLE); SHRM. By contrast, scholars
have described the Board's procedures in the earlier rulemaking as
``procedural overkill.'' See Mark H. Grunewald, The NLRB's First
Rulemaking: An Exercise in Pragmatism, 41 Duke L. J. 274, 319
(1991).
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Agencies are not bound to use the same procedures in every
rulemaking proceeding. Otherwise, agencies could neither learn from
experience, e.g., what rulemaking procedures are helpful and what
procedures are simply wasteful, nor adopt procedures suited to the
precise question at stake. The procedures the Board has employed in
order to obtain public input on proposed rules have, in fact, varied
considerably, and the Board has substantial discretion to use
procedures suited to the matter under consideration. Indeed, the Board
has adopted amendments to its representation case procedures without
any notice or opportunity for comment or with opportunities
considerably more
[[Page 80144]]
limited than in the instant matter.\14\ In contrast to the subject
matter of the acute care hospital unit proceeding, the proposals at
issue in this proceeding involve a matter uniquely within the Board's
own expertise: the operation of the Board's own procedural rules.
---------------------------------------------------------------------------
\14\ In its run-off election rulemaking proceedings, for
example, the Board provided only two weeks for comments, with a
short hearing on the final day of the comment period. 8 FR 10031-32
(1943).
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The Board believes that the hearing not only exceeded the
requirements of the APA, it was fair, appropriate, and useful. Holding
the hearing in Washington, DC was appropriate because many of the
Board's major stakeholders are either headquartered in DC or are
represented by counsel in the city or who frequently appear in the
city.\15\
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\15\ No party informed the Board that it wished to appear at the
hearing but was unable to send a representative to Washington, DC.
---------------------------------------------------------------------------
The hearing was also properly noticed and appropriately timed
during the initial comment period. The NPRM was published on June 22,
2011, and informed the public that the Board intended to hold a public
hearing on July 18 and 19. A subsequent notice published in the Federal
Register on June 27, 2011 informed the public of the details of the
hearing. 76 FR 37291. In fact, the Board accommodated all parties who
wished to appear at the hearing, even those whose requests to appear
were made after the deadline.\16\ That the public notice was sufficient
to permit interested parties to appear is evidenced by the fact that 66
individuals appeared at the hearing, representing many major management
and labor organizations as well as many other groups. No individual or
organization informed the Board that it was unable to participate due
to the shortness of time between the June 22 and June 27 notices and
the hearing. The two-day hearing was held about a month after the NPRM
was published, giving participants adequate time to carefully read the
proposal, consult with each other and with clients, and develop
detailed positions. And the five minutes that speakers were given was
supplemented by substantial time for questioning and the opportunity
for written comments. Some speakers gave 2,000 words or more of well-
informed testimony during their allotted time. In total, the hearings
resulted in more than 400 pages of transcript (promptly made available
to the public on the Board's Web site \17\). The Board found that the
speakers provided informed, thorough, and thoughtful analysis, and the
back-and-forth dialogue with the Board Members demonstrated the wide-
ranging familiarity of the speakers with the proposals.
---------------------------------------------------------------------------
\16\ The Board did, however, limit organizations to presenting
one speaker at the hearing.
\17\ The hearing was also streamed live on the Board's Web site.
---------------------------------------------------------------------------
Some comments suggest that the hearing should have been held after
the comment period closed so that the speakers could address arguments
presented in the written comments. But holding the hearing first made
the subsequent written comments more informed, thoughtful, and
technically sophisticated, and many commenters, such as the Chamber,
took the opportunity to cite extensively from the hearing transcripts
for support and to respond to arguments made at the hearing. The Board
believes the chosen sequence--the hearing followed by the close of the
initial comment period and then the reply period--produced more
meaningful public comments than the proposed alternative because
written comments are better suited to the technical issues at stake and
thus appropriately came after the public hearing.
In sum, the Board believes that the two-day public hearing attended
by all Board Members was highly valuable, was of an appropriate length,
and was held at an appropriate time and in an appropriate location.
3. The Length and Timing of the Comment Periods
The Board provided an initial comment period of 60 days beginning
June 22, followed by a reply comment period of 14 days that ended on
September 6, 2011. No late comments were accepted.
COLLE describes the NLRB's comment period as ``the bare-minimum 60-
day[s],'' but the APA provides no minimum comment period, and many
agencies, including the Board in some recent rulemaking proceedings,
have afforded comment periods of only 30 days. The agency has
discretion to provide still shorter periods, and is simply ``encouraged
to provide an appropriate explanation for doing so.'' Administrative
Conference of the United States (ACUS), Recommendation 2011-2 at 3
(June 16, 2011). Indeed, for procedural rules, such as the final rule
here, no comment period at all is required.
Sixty days has become the benchmark period for comments on
significant substantive rules. Id. Countless NPRMs provide 60 days for
comments.
Nevertheless, a number of comments opposing the rule assert that
the comment period was inadequate. For example, SHRM characterized the
comment period as ``hurried, abridged and clandestine.'' But the
Montana Chamber of Commerce--though opposing the rule--states that
``[t]his 60-day window seems like a very reasonable timeframe to allow
ample comments and statements from all interested parties, whether they
are supportive of these sweeping changes or not.''
In practice, the Montana Chamber of Commerce proved correct on this
point: 60 days was quite ample. The Board received hundreds of
detailed, informed, and thoughtful comments. Many were submitted by the
very same parties that asserted the comment period should have been
longer, such as the 88-page comment--and hundreds of accompanying
nearly identical form comments--submitted by SHRM and its members. The
U.S. Chamber states that it needed more time to ``study Board data''
and conduct ``rigorous'' economic analysis. But the Chamber did provide
detailed discussions of data and many studies in its comment. Although
the desire for additional time to gather additional support and develop
arguments is understandable, agencies must set some end to the comment
period: ``Agencies should set comment periods that consider the
competing interests of promoting optimal public participation while
ensuring that the rulemaking is conducted efficiently.'' ACUS 2011-2 at
3.
Fourteen days were given for reply comments. The Chamber suggested
that 14 days was insufficient time to review tens of thousands of
comments, and noted that some of the comments submitted were not
available to the public until some time after the close of the initial
comment period. Neither the APA nor any other law requires an
opportunity to reply to initial public comments. Moreover, while some
comments were not available to the public immediately upon the close of
the initial comment period, the comments that were unavailable were
largely identical ``postcard comments,'' tens of thousands supporting
the proposal in general terms, and tens of thousands opposing the
proposal in general terms.\18\ And the purpose of the reply period was
not to afford interested
[[Page 80145]]
parties an opportunity to read and reply to all of the comments
submitted, but to provide an opportunity to read the most significant
comments and respond to the arguments raised in them.
---------------------------------------------------------------------------
\18\ By August 24, 2011, the day after the close of the initial
comment period, 29,236 timely filed initial comments were available
electronically for review. The Board believes, based on its staff's
investigation, that initial comments that were not available at that
time fall into one of three categories: (1) Timely filed form
letters submitted by the AFL-CIO, (2) timely filed form letters
submitted by Americans for Prosperity or CDW or mailed by individual
businesses using a common form, and (3) late-filed comments
submitted electronically.
---------------------------------------------------------------------------
This the Chamber and others did quite successfully within the 14
days provided. For example, the Service Employees International Union
(SEIU) cited and replied to over twenty unique, detailed, and lengthy
comments submitted by other parties. Others, such as the Association of
Corporate Counsel (ACC), took the opportunity to focus on elaborating
one particular issue of special importance. Both approaches were quite
helpful, and served the purpose for which the Board afforded the reply
period.
The over 65,000 comments submitted and the depth of analysis they
provided are ample testament to the adequacy of the opportunities for
public participation in the rulemaking process.
4. The Final Rule
In light of the procedural concerns voiced in some of the comments,
it seems likely that some stakeholders will believe that the period of
time between the close of the reply comment period and the issuance of
the final rule was too short, and that the Board was required to spend
additional time considering the comments. This concern is suggested by
NAM in its reply comment, stating that ``failure to give due
consideration to the public comments would nonetheless render * * * the
rules * * * arbitrary and capricious * * *. Absent due consideration of
all the comments, the Board would be unable to certify that it has
examined and considered all relevant arguments and data.''
In order to allay this concern, the Board assures all those who
provided comments that the Board, through its Members personally or
staff acting at the Members' direction, read every non-duplicative
comment.\19\ The comments were coded so that all comments addressing
specific issues could be electronically identified. All specific
arguments raised in the comments were identified, grouped by subject
matter, and analyzed. Through this process, the Board has read and
carefully considered every relevant argument, datum, or suggestion in
the comments.
---------------------------------------------------------------------------
\19\ Using electronic means, the Board identified all identical
comments and read only one of each group of identical comments. More
than 90 percent of the over 65,000 comments were duplicates, near
duplicates, devoid of analysis, or irrelevant. In this connection,
see ACUS 2011-1 ] 1(a)(1): While 5 U.S.C. 553 requires agencies to
consider all comments received, it does not require agencies to
ensure that a person reads each one of multiple identical or nearly
identical comments.
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Finally, the Board has decided to take additional time to
deliberate concerning the majority of the proposals in the NPRM,
including many of those that generated the most comments and
controversy.
The Board thoroughly considered and deliberated about all
substantive comments relevant to the final rule.
Some comments expressed the view that the rulemaking procedure
suggested a fait accompli, or created an appearance of favoritism.\20\
Any sense of a fait accompli could have mistakenly arisen only from the
detailed specificity of most of the proposed amendments, as compared
with the open-ended queries concerning several subjects. However, as
explained above, the comments addressing the proposals accompanied by
proposed rule text and detailed explanation far exceeded in number and
quality those addressing the open-ended questions unaccompanied by such
specifics, bearing out the Board's judgment that a more specific
proposal would promote more useful public participation in the process.
And contrary to any suggestion of favoritism, the process was
completely transparent and provided multiple opportunities for any
member of the public to participate. The process resulted in
significant changes to the proposed rule as well as a decision not to
proceed with all the proposals at this time. In short, the process was
fair, open, and successful.
---------------------------------------------------------------------------
\20\ See, e.g., CDW; Indiana Chamber of Commerce.
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5. Board Membership
Some comments question whether a divided three-member Board can or
should issue a final rule, arguing that the Board lacks the authority
to do so or that such action would be contrary to the Board's
traditions or otherwise imprudent.\21\ Certain comments contend that a
Board Member serving a recess appointment may not, or should not,
participate in any action that represents a change in Board law or
practice.\22\ After careful consideration, the Board rejects these
arguments.
---------------------------------------------------------------------------
\21\ See, e.g., Chamber; SHRM; Associated Builders & Contractors
(ABC).
\22\ See, e.g., National Grocers Association (NGA); Testimony of
Harold Weinrich.
---------------------------------------------------------------------------
Under the National Labor Relations Act, a lawful quorum of the
Board consists of three Members (out of the five Members provided for
by the statute). Section 3(b) of the Act expressly provides that:
A vacancy in the Board shall not impair the right of the
remaining members to exercise all of the powers of the Board, and
three members of the Board shall, at all times, constitute a quorum
of the Board * * *.
29 U.S.C. 153(b). See generally New Process Steel L.P. v. NLRB, ----
U.S. ----, 130 S.Ct. 2635, 2639-42 (2010) (analyzing quorum
requirement). Rulemaking is one of the ``powers of the Board,'' as
Section 6 of the Act provides. See 29 U.S.C. 156. Adoption of the final
rule, then, reflects the proper exercise of the Board's powers by the
majority of a lawful quorum of three Members.
Nothing in the text of the Act or its legislative history suggests
that, even if the Board has a lawful quorum, certain Board powers may
be exercised only if approved by at least three Members. Put somewhat
differently, there is no statutory basis to argue that a three-Member
quorum of the Board must act unanimously--as opposed to acting by
majority vote as is typical--in order properly to exercise the Board's
powers. During the many periods in which the Board consisted of only
three Members, including the period since August 27, 2011, it routinely
has issued non-unanimous decisions in adjudicated cases. See, e.g.
Arkema, Inc., 357 NLRB No. 103 (Oct. 31, 2011); Allied Mechanical
Services, Inc., 357 NLRB No. 101 (Oct. 25, 2011).
The Board does have a tradition of not overruling its own prior
decisions through adjudication with fewer than three votes to do so.
See Hacienda Resort Hotel & Casino, 355 NLRB No. 154, slip op. at 2, 2
n.1 (2010) (concurring opinion of Chairman Liebman and Member Pearce)
(listing cases dating to 1985). This tradition--which is not unbroken
\23\--is not based on the Act itself, nor has it been codified in a
Board rule or statement of procedure.
---------------------------------------------------------------------------
\23\ See Mathews Readymix, Inc., 324 NLRB 1005, 1008 n. 14
(1997), enforced, 165 F.3d 74 (DC Cir. 1999) (two-member majority
overrules precedent); Service Employees Local 87 (Cresleigh Mgmt.),
324 NLRB 774, 775 n.3 (1997) (same).
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While the rationale for this tradition does not appear to have been
clearly set forth in any Board decision, it was recently articulated by
a Federal appellate court. In Hacienda Resort, supra--where the Board
had deadlocked 2-2 and thus decided the case under existing law,
despite a prior court remand directing reconsideration--the U.S. Court
of Appeals for the Ninth Circuit reversed the Board's decision, while
acknowledging the Board's traditional approach to overruling precedent
in adjudication:
We recognize the Board's interest in protecting the stability of
its legal precedent. Unlike other federal agencies, the NLRB
[[Page 80146]]
promulgates nearly all of its legal rules through adjudication
rather than rulemaking * * *. Under such a scheme, the Board's rules
would be of little assistance to employers and unions in following
the NLRA if the Board's rules interpreting the Act were subject to
routine, frequent change. The Board reasonably has decided that
requiring a three-member majority to overturn precedent provides for
the necessary stability of its rules, and we defer to that judgment.
Local Joint Executive Bd. of Las Vegas v. NLRB, 657 F.3d 865, 872 (9th
Cir. 2011).
The Ninth Circuit's statement underscores a critical aspect of the
Board's tradition: It has been followed in the Board's adjudication of
cases, as opposed to in notice-and-comment rulemaking. The notice-and-
comment process of rulemaking does not implicate the same concerns
about the stability of legal rules that adjudication does, because it
does not permit ``routine, frequent change'' in the words of the court.
The greater stability inherent in notice-and-comment rulemaking has
been cited by ACUS in recommending increased use of rulemaking by the
Board. See ACUS, Recommendation 91-5, Facilitating the Use of
Rulemaking by the National Labor Relations Board (adopted June 14,
1991), 56 FR 33851 (July 24, 1991).
Whatever its limited legal weight may be, the Board's traditional
practice with respect to overruling precedent through adjudication is
simply not implicated here for several reasons. The final rule is the
product of notice-and-comment rulemaking, not adjudication. Moreover,
the final rule reverses no prior Board decisions. It amends rules that
themselves are not the product of adjudication, and, indeed, were in
large measure adopted without notice-and-comment rulemaking. Finally,
the final rule is purely procedural. Procedural rules, governing such
subjects as whether parties have a right to file a post-hearing brief,
do not implicate the sorts of reliance interests that underlie the
Board's tradition. Under all these circumstances, the Board construes
its unwritten tradition of not overruling precedent in adjudication
absent three votes to not apply here.
In addition, the Board rejects the argument that the presence of a
Member serving on the Board under a recess appointment has any bearing
on the adoption of the final rule. There is no basis in the Act, in
administrative law, or in the Constitution for distinguishing between
Members of the Board serving under a recess appointment and Members
confirmed by the Senate. The Board itself has no rule, statement of
procedure, or tradition that would bar a recess appointee from
participating in an adjudication or a rulemaking or that requires some
minimum number of Senate-confirmed Members to exercise the Board's
powers. Notably, the Board has overruled precedent in cases where the
majority consisted entirely of recess appointees. See MV
Transportation, 337 NLRB 770 (2002). Recess appointees have been
essential to a majority vote to overrule precedent in many decisions
issued by prior Boards. See, e.g., Randall Warehouse of Arizona, 347
NLRB 591 (2006) (two recess appointees among three-member majority);
Dana Corp., 351 NLRB 434 (2007) (one recess appointee). If effective
administration of the Act is the goal, treating recess appointees as
lesser Members of the Board or deferring action until the Board has
some particular number of Senate-confirmed Members is untenable.
In sum, the present Board has full authority to adopt the final
rule.
6. The Dissent
The final rule has been approved by a two-Member majority of the
Board. The Board currently has three Members, a lawful quorum under
Section 3(b) of the Act, as explained above.
Member Hayes has effectively indicated his opposition to the final
rule by voting against publication of the NPRM and voting against
proceeding with the drafting of the final rule at the Board's public
meeting on November 30, 2011. Although Member Hayes has not yet
supplied a dissent or similar statement in connection with the final
rule itself, the Board has authorized the publication of such a
document in the Federal Register, together with any separate concurring
opinion, when they are made available. The Board has delayed the
effective date of the final rule so that Member Hayes will have over 90
days after he received a final draft of this final rule to write a
dissent and have it published prior to the effective date of the rule.
The Board believes that this procedure will provide Member Hayes with a
reasonable period of time to express his views in a timely, formal, and
public manner.
The Board has no desire to prevent Member Hayes from expressing his
views in any manner he deems appropriate. Indeed, the Board has
facilitated Member Hayes' expression of a dissenting view in earlier
instances of rulemaking, including the initial stage of this
proceeding.\24\ The Board has also invited and attempted to facilitate
Member Hayes' expression of his views to his fellow Board Members
through all appropriate means, including at the public meeting on
November 30. At the same time, under the circumstances involved in this
rulemaking, the Board does not believe that it is required, either by
law or agency practice, to delay the adoption and publication of a
final rule in order to accommodate a dissenting Member.\25\ Nothing in
the APA compels that course of action, nor does the National Labor
Relations Act demand it.\26\
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\24\ Member Hayes dissented from the Board's Notice of Proposed
Rulemaking (NPRM) in this proceeding, and his dissent was published
as part of the NPRM. 76 FR 36812, 36829 (June 22, 2001) (dissenting
view of Member Brian E. Hayes).
Member Hayes also dissented from the Board's final rule
regarding notification of employee rights under the National Labor
Relations Act, and his dissent was published with the final rule. 76
FR 54006, 54037 (Aug. 30, 2011) (dissenting view of Member Brian E.
Hayes). Member Hayes had earlier dissented from the NPRM in that
proceeding. 75 FR 80410, 80415 (Dec. 22, 2010) (dissenting view of
Member Brian E. Hayes).
\25\ The Board's decision in this regard is informed by the
possibility that after Member Becker's service ends at the end of
the current congressional session, no later than January 3, 2012,
the Board will be reduced to two Members, and under the Supreme
Court's recent New Process decision, supra, may be unable to act on
the proposed rule for a considerable period of time.
\26\ See Jeffrey S. Lubbers, The Potential of Rulemaking by the
NLRB, 5 FIU L. Rev. 411, 431 n.102 (2010) (``[T]he APA does not
address the possibility of dissents in agency rulemakings, and
agencies seem to have widely different practices in this regard.'').
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Neither do the Board's rules, statements of procedure, internal
operating procedures, or traditional practices, which do not address
the internal process of rulemaking, compel such action. In its 76-year
history, the Board--which has interpreted and administered the National
Labor Relations Act primarily through adjudication--has engaged in
notice-and-comment rulemaking only rarely.\27\ The rarity of Board
rulemaking explains why the sole internal Board rule establishing a
timetable for decision-making addresses only the adjudication of cases.
Executive Secretary's Memorandum No. 01-1 (``Timely Circulation of
Dissenting/Concurring Opinions''), issued to Board staff on January 19,
2001, provides that a Board decision in an adjudicated case may issue
without a dissent if 90 days have passed following the circulation of a
majority-approved draft without action by the remaining Board Member or
Members. Notably, the Memorandum provides that ``[f]or good cause, the
Board has the discretion to allow departure from these procedures on a
case-by-case basis.'' Like Memorandum
[[Page 80147]]
No. 01-1, which superseded them, prior memoranda from the Executive
Secretary addressing the circulation of individual opinions by Board
Members refer only to the adjudication of cases and make no mention of
rulemaking. Rather, the Board has treated each rulemaking proceeding as
unique and adopted internal procedures suited to the particular matter.
In any event, to the extent that the 90-day period for dissents
reflected in Memorandum 01-1 could be regarded as establishing a
traditional norm that applies not only to routine adjudication, but
also to the rare rulemaking proceedings at the Board, the Board has
honored that norm by authorizing a dissent to be submitted and
published during the more than 90-day period between publication of the
final rule and its effective date.\28\
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\27\ See generally Administrative Conference of the United
States, Recommendation 91-5, Facilitating the Use of Rulemaking by
the National Labor Relations Board (adopted June 14, 1991), 56 FR
33851 (July 24, 1991).
\28\ While the Board construes its Memorandum governing its own
internal, operating procedures not to apply to rulemaking, it also
finds good cause to depart from those procedures in this proceeding
in the manner and for the reasons explained in the text.
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The notice-and-comment rulemaking process, which the Board has
followed in this proceeding, is distinct from adjudication in its
iterative nature (a proposed rule, followed by a final rule) and the
high degree of public participation it involves. The focus of the
process is, in effect, a dialogue between the administrative agency and
the public--not an intramural debate between or among agency officials.
As explained, the final rule adopted today has been approved by a
majority of a lawful quorum of the Board, in full compliance with the
APA and other applicable statutes. That action follows both full public
participation and extensive internal deliberations by the Members of
the Board.
Member Hayes has in no respect been excluded from the rulemaking
process. Rather, Member Hayes has had every opportunity to participate
in the Board's extensive internal deliberations concerning the final
rule and to express his views to the other Members of the Board and to
the public. To a highly unusual, indeed, unprecedented and unfortunate,
degree, the Board's internal deliberations have become public, although
not disclosed by the Board itself. Those communications have already
revealed that Member Hayes has been kept fully informed at every
significant stage in the conception and development of the final rule
(an undertaking of more than one year) and that he has been repeatedly
invited to share his views with his fellow Board Members over the
course of that process. Member Hayes was briefed on internal proposals
to revise the Board's representation case procedures. He was provided
with a draft NPRM and was offered a briefing before the NPRM was
published (along with his dissent) on June 22, 2011.\29\ When the Board
held a public hearing on the proposed rule on July 18-19, 2011, Member
Hayes attended and actively participated in questioning witnesses.
Following the close of the initial public comment period (August 22,
2011) and of the period for reply comments (September 6, 2011), Member
Hayes and his staff (which comprises more than 25 attorneys) had access
to all public comments filed with the Board as soon as they were filed.
When the Board's review and coding of comments began, Member Hayes was
invited to have his staff participate. He did not respond to that
invitation, and no member of his staff participated in the laborious
comment-review process. Nevertheless, Member Hayes was specially
provided with copies of those comments considered by the other Members
and their senior staff to be the most extensive, detailed, and useful;
with computer-generated reports identifying particular issues raised in
the comments that had been coded ``most significant'' or
``significant'' by Board staff; with instructions on how to locate any
of the more than 65,000 comments on the Board's shared computer system;
and with lists of issues raised in the comments grouped by subject
matter. On November 30, 2011, the Board held a public meeting to
discuss the rulemaking, at which a majority voted to proceed to a final
rule. Member Hayes attended, participated fully, and voted against
proceeding.
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\29\ 76 FR 36812, 36829 (June 22, 2001) (dissenting view of
Member Brian E. Hayes).
---------------------------------------------------------------------------
In sum, Member Hayes has been afforded a full opportunity to
participate in the deliberative process by which this final rule was
developed. While the Board respects any Member's right to disagree and
to express that disagreement at appropriate times and in an appropriate
form, the Board perceives no basis--in law, in policy, or in
tradition--for indefinitely postponing adoption of the final rule and
for, in essence, permitting one Member to exercise what would amount to
a minority veto over a proper exercise of the Board's rulemaking
authority. Such a course of action would be plainly inconsistent with
the operation of a multi-member independent agency that is, and always
has been, governed by majority vote.
III. Comments on General Issues
Before turning to comments on specific provisions of the final
rule, the Board addresses a number of general issues: (a) The Board's
rulemaking authority; (b) the procedural nature of the final rule; (c)
the justification for any changes to the rules; (d) employers'
opportunity to campaign; and (e) effects on employee representation and
the economy.
A. Board Authority To Promulgate Election Rules
The Board's rulemaking authority is well established, as recognized
by comments both opposing and supporting the proposed rule. For
example, NAM states that ``it is undisputed that the Board has the
authority to promulgate rules and regulations,'' and the American
Federation of Labor and Congress of Industrial Organizations (AFL-CIO)
states that ``[t]he NLRB has specific and express statutory authority
to engage in rule-making to regulate its election process.''
Congress delegated both general and specific rulemaking authority
to the Board. Generally, Section 6 of the National Labor Relations Act,
29 U.S.C. 156, provides that the Board ``shall have authority from time
to time to make, amend, and rescind, in the manner prescribed by the
Administrative Procedure Act * * * such rules and regulations as may be
necessary to carry out the provisions of this Act.'' In addition,
Section 9(c), 29 U.S.C. 159 (c)(1), specifically contemplates election
procedure rules, stating that elections will be held ``in accordance
with such regulations as may be prescribed by the Board.''
As the Supreme Court unanimously held in American Hospital
Association v. NLRB, 499 U.S. 606, 609-10 (1991), the Act authorizes
the Board to adopt both substantive and procedural rules governing
representation case proceedings. The Board's rules are entitled to
deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843-44 (1984); NLRB v. A.J. Tower Co., 329 U.S. 324, 330
(1946). Representation case procedures are uniquely within the Board's
expertise and discretion, and Congress has made clear that the Board's
control of those procedures is exclusive and complete. See NLRB v. Bell
Aerospace Co., 416 U.S. 267, 290 n.21 (1974); AFL v. NLRB, 308 U.S.
401, 409 (1940). ``The control of the election proceeding, and the
determination of the steps necessary to conduct that election fairly
were matters which Congress entrusted to the
[[Page 80148]]
Board alone.'' NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940);
see also Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971).
In A.J. Tower, 329 U.S. at 330, the Supreme Court noted that
``Congress has entrusted the Board with a wide degree of discretion in
establishing the procedure and safeguards necessary to insure the fair
and free choice of bargaining representative by employees.'' The Act
enshrines a democratic framework for employee choice and, within that
framework, charges the Board to ``promulgate rules and regulations in
order that employees' votes may be recorded accurately, efficiently and
speedily.'' Id. at 331 (emphasis added). ``[T]he determination of
whether a majority in fact voted for the union must be made in
accordance with such formal rules of procedure as the Board may find
necessary to adopt in the sound exercise of its discretion.'' Id. at
333. As the Eleventh Circuit stated:
We draw two lessons from A.J. Tower: (1) the Board, as an
administrative agency, has general administrative concerns that
transcend those of the litigants in a specific proceeding; and, (2)
the Board can, indeed must, weigh these other interests in
formulating its election standards designed to effectuate majority
rule. In A.J. Tower, the Court recognized ballot secrecy, certainty
and finality of election results, and minimizing dilatory claims as
three such competing interests.
Certainteed Corp. v. NLRB, 714 F.2d 1042, 1053 (11th Cir. 1983). As
explained above, the final rule is based upon just such concerns,
specifically finality and the minimizing of dilatory claims.
Some comments allege that the Board lacks authority to issue these
rules.\30\ As discussed, the Supreme Court's interpretation of Section
6 clearly forecloses this argument.
---------------------------------------------------------------------------
\30\ See, e.g., Testimony of Harold Weinrich; ACC.
---------------------------------------------------------------------------
In sum, the Board clearly has authority to amend its election
rules.
B. The Final Rule Is Procedural
Rules of procedure are exempt from the requirement of notice and
comment under the APA. See 5 U.S.C. 553(b)(3)(A). In the NPRM, the
Board stated that the ``vast majority of the amendments proposed * * *
are procedural in nature, and the Board was not required to proceed by
notice and comment with respect to them.'' 76 FR 36812, 36828 (proposed
June 22, 2011). But see id. at 36830 n. 63 (Member Hayes, dissenting).
The final rule is wholly procedural. It does not change any substantive
law and does not impose any new substantive rules of conduct on
parties.
Moreover, the final rule amends rules of procedure applicable only
in representation proceedings that are themselves exempt from the
requirements of the APA. See 5 U.S.C. 554(a)(6). For both of these
reasons, when the Board promulgated the regulations delegating
authority under Section 9 of the Act to its regional directors in 1961,
it concluded that the rulemaking provisions of the APA did not apply.
See Wallace Shops, Inc., 133 NLRB 36, 38-39 (1961).
C. Purpose of the Final Rule
Some comments received in response to the Board's NPRM argue that
the Board failed to present sufficient justification for the proposed
amendments. For example, SHRM asserts that the Board ``failed to
articulate a legitimate justification for the significant changes set
forth in the NPRM'' and that the proposed amendments are therefore
arbitrary and capricious.\31\ As discussed above, however, the
amendments the Board has decided to adopt at this time are designed to
streamline Board procedures in order to eliminate wholly unnecessary
barriers to the expeditious resolution of questions concerning
representation. They thus effectuate employee free choice and safeguard
commerce from industrial strife. Furthering these statutory goals
constitutes a legitimate and substantial justification for the Board's
amendments of its representation case procedures. In addition, the
amendments will reduce unnecessary litigation and thus the burdens of
litigation both on parties and the Board. Finally, the amendments
eliminate duplicative regulations. Furtherance of all of these
objectives supports issuance of the final rule.
---------------------------------------------------------------------------
\31\ Many comments additionally charge that the Board's motives
for issuing the rule are improper in that the Board seeks to act as
an advocate for unions (rather than as a neutral overseer of the
process), to drive up the rates of union representation, and to
``stack the deck'' against employers in union organizing campaigns.
Similar concerns were raised by Member Hayes in his dissent to the
NPRM. The Board responds that its reasons for issuing the rule are
fully set forth in the NPRM and in this preamble.
---------------------------------------------------------------------------
Numerous comments contend more generally that there is no need for
revision of the Board's representation procedures because, as argued by
NAM, there is no evidence contradicting the Board's own data showing
that the present timeframes for processing representation cases are
among the most expeditious in the Board's history, and further that the
Board currently meets its own internal time targets for processing
representation cases.\32\ Both Congress and the Board have sought to
improve the efficiency of representation case procedures over time, as
discussed in detail in the NPRM. The amendments the Board has chosen to
adopt represent a continuation of this incremental process, rather than
a radical departure from Board practice as asserted by, for example,
the CDW and Associated Builders and Contractors (ABC). Past
improvements do not and should not preclude the Board's consideration
and adoption of further improvements. Likewise, the current time
targets set by the Board's General Counsel for the processing of
representation petitions reflect the provisions of the Board's current
rules. That the Board seeks to, and does, meet those targets in most
instances is irrelevant to whether additional improvements may be made
by amending the rules.
---------------------------------------------------------------------------
\32\ This point was also advanced by the AHA; American Council
on Education (ACE); COLLE; CDW; Associated Oregon Industries;
National Marine Manufacturers Association; The Bluegrass Institute;
and the Chamber.
---------------------------------------------------------------------------
Many of these same comments, for example, those of Delhaize
America, Associated General Contractors of America (AGCA), Society of
Independent Gasoline Marketers of America, Indiana Chamber of Commerce,
ABC, and Permanent Solutions Labor Consultants, also cite the rate of
union success in elections as evidence that the current procedures are
fair and not in need of revision. While the Board has considered these
comments, so long as election results accurately reflect employees'
free choice, the Board views the results as irrelevant to the question
of whether its representation case procedures are fulfilling their
statutory purpose as fully and efficiently as possible.
Contrasted with the comments endorsing the current system,
primarily from employers and associated groups, comments from various
labor organizations, including the AFL-CIO, SEIU, Laborers
International Union of North America (LIUNA), and the International
Brotherhood of Electrical Workers (IBEW), argue that the current system
is subject to manipulation, causing significant pre-election delay and
leading to petitions being withdrawn prior to an election in over 35
percent of cases, frustration of employee free choice, and avoidance of
Board processes altogether. Many labor organizations cited research
finding that a longer period between the filing of a petition and an
election permits commission of more unfair labor practices with
corresponding infringement upon employee free
[[Page 80149]]
choice, while a shorter period leads to fewer unfair labor
practices.\33\ The National Employment Law Project (NELP) asserts that
low-wage workers are particularly susceptible to pre-election
misconduct.
---------------------------------------------------------------------------
\33\ John Logan, Erin Johansson, & Ryan Lamare, ``New Data: NLRB
Process Fails to Ensure A Fair Vote'' (2011), http://laborcenter.berkeley.edu/laborlaw/NLRB_Process_June2011.pdf.; Kate
Bronfenbrenner & Dorian Warren, ``The Empirical Case for
Streamlining the NLRB Certification Process: The Role of Date of
Unfair Labor Practice Occurrence'' (2011), http://iserp.columbia.edu/sites/default/files/working_papers/working_paper_cover_2011-01-final.pdf.; Kate Bronfenbrenner, ``No Holds
Barred: The Intensification of Employer Opposition to Organizing''
(2009), http://www.epi.org/page/-/pdf/bp235.pdf?nocdn=1; Commission
on the Future of Worker-Management Relations, ``The Dunlop
Commission on the Future of Worker-Management Relations: Final
Report'' (1994), available at http://digitalcommons.ilr.cornell.edu/key_workplace/2/(``Dunlop Commission Final Report''). Some
comments, for example, from the Chamber and ABC, question the
validity of such studies.
---------------------------------------------------------------------------
These comments reveal that the stakeholders in the Board's
representation process have starkly divergent views of its efficiency
and fairness. Labor organizations and employee advocacy groups view
significant elements of the representation procedure as largely
unsatisfactory, while the comments of individual employers and
associated groups such as the GAM, the National Mining Association
(NMA), and the PCA consistently assert that the current procedures work
well.\34\
---------------------------------------------------------------------------
\34\ Comments received from individuals largely reflect this
divide.
---------------------------------------------------------------------------
The Board, having carefully considered these pointedly contrasting
comments, adopts neither position. The final rule is intended to
continue the Board's course of incrementally improving its procedures
in order to better perform its statutory functions within the framework
established by Congress. The final rule is not intended to, and does
not, alter the basic representation case procedures. Rather, as
explained more fully below, each element of the final rule is intended
to correct a specific, identified problem in the current procedures.
Indeed, it is the Board's statutory duty to adapt and improve its
processes based on experience and that is what the final rule
accomplishes.
Other comments acknowledge that the Board's procedures have been
subject to misuse in some cases, but suggest that such cases were rare
and do not form an adequate basis for the Board's proposals. The
National Retail Federation (NRF) and Printing Industries of America,
Inc. (PIA), for example, suggest that the rules should be amended only
to address the more egregious cases. Relatedly, many comments cite the
high rate of voluntary election agreements (reached in over 90 percent
of cases), which obviate the need for pre-election hearings, as
evidence that the representation case procedures are working well in
the overwhelming majority of cases. The Board has considered this view,
but has concluded that the eight amendments adopted in the final rule
address systemic problems in the representation case procedures, which
affect not only contested cases that proceed to a pre-election hearing,
but also those cases in which the parties enter into election
agreements.
For example, without clear regulatory language giving the hearing
officer authority to limit the presentation of evidence to that
relevant to the existence of a question of representation, the
possibility of using unnecessary litigation to gain strategic advantage
exists in every case. That specter, sometimes articulated as an express
threat according to some comments,\35\ hangs over all negotiations of
pre-election agreements. In other words, bargaining takes place in the
shadow of the law, and so long as the law, as embodied in the Board's
regulations, does not limit parties to presenting evidence relevant to
the existence of a question of representation, some parties will use
the threat of protracted litigation to extract concessions concerning
the election details, such as the date, time, and type of election, as
well as the definition of the unit itself. Comments by the United Food
and Commercial Workers International Union (UFCW), LIUNA, AFT, NELP,
and Retired Field Examiner Michael D. Pearson all point to the impact
of that specter of unnecessary litigation on negotiations of pre-
election agreements. The temptation to use the threat of unnecessary
litigation to gain such strategic advantage is heightened by both the
right to take up to seven days to file a post-hearing brief and the 25-
day waiting period. Every experienced participant in the Board's
representation proceedings who wishes to delay the conduct of an
election in order to gain strategic advantage knows that once the
hearing opens, at least 32 days (seven days after the close of the
hearing and 25 days after a decision and direction of election) will
pass before the election can be conducted. The incentive to insist on
presenting evidence, even though there are no disputes as to facts
relevant to the existence of a question of representation, is thus not
simply the delay occasioned by the hearing process, but also the
additional mandatory 32-day delay, not to mention the amount of time it
will take the regional director to review the hearing transcript and
write a decision--a task that has added a median of 21 days to the
process over the past decade.
---------------------------------------------------------------------------
\35\ See American Federation of Teachers (AFT); IBEW; LIUNA.
---------------------------------------------------------------------------
Many comments acknowledge that the expeditious resolution of
questions concerning representation is a central purpose of the Act,
but argue that the Board did not consider other statutory policies in
proposing the amendments.\36\ In fact, the Board did do so, both in
proposing amendments to its rules in the NPRM and in deciding to
proceed at this time with the eight amendments in the final rule. The
Board considered the statute as a whole, as well as the various
policies underlying its enactment and amendment. Most centrally, the
Board considered the statutory requirement that the pre-election
hearing be an ``appropriate hearing'' and the parties' constitutional,
statutory, and regulatory rights in relation to the hearing. As
explained in detail below, the final rule makes the hearing more, not
less, ``appropriate'' to its statutory purpose. The final rule also
fully respects the procedural rights of the parties. In fact, it
permits the parties to fully exercise their procedural rights more
efficiently and with less burden and expense. Similarly, the Board
considered employees' statutory right under Section 7 to ``bargain
collectively through representatives of their own choosing'' and ``to
refrain from any or all such activities.'' 29 U.S.C. 157. As explained
in detail below, the eight amendments adopted in the final rule do not
establish inflexible time deadlines or mandate that elections be
conducted in a set number of days after the filing of a petition. The
time between petition and election will continue to be determined by
whether the parties can reach a pre-election agreement, the scheduling
of a hearing, the amount of evidence that must be received in order for
the regional director to determine if a question of representation
exists, the complexity of the issues and extent of the record the
regional director must consider in reaching a decision, and the sound
discretion of the regional director in setting an election date.
Further, the amendments do not in any manner alter existing regulation
of parties' campaign conduct or restrict freedom of speech. The
amendments apply with equal force to both union-certification
proceedings
[[Page 80150]]
and union-decertification proceedings. The Board has also carefully
considered the possibility that the amendments might somehow reduce the
time between the filing of the petition and the election so drastically
as to threaten the communication, association, and deliberation needed
by employees in order to truly exercise freedom of choice. It has
concluded the amendments pose no such risk, as more fully explained
below.
---------------------------------------------------------------------------
\36\ See, e.g., Assisted Living Foundation of America (ALFA);
COLLE; SHRM; Seyfarth Shaw.
---------------------------------------------------------------------------
Finally, many comments argue that the proposed amendments did not
address the most serious causes of delay in Board proceedings. Some
comments point to delay in the Board's own adjudication of cases.\37\
Other comments point to the Board's blocking charge policy.\38\ Of
course, an administrative agency, like a legislative body, is not
required to address all procedural or substantive problems at the same
time. It need not ``choose between attacking every aspect of a problem
or not attacking the problem at all.'' Dandridge v. Williams, 397 U.S.
471, 486-487 (1970). Rather, the Board ``may select one phase of one
field and apply a remedy there, neglecting the others.'' FCC v. Beach
Communications, 508 U.S. 307, 316 (1993) (quoting Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 489 (1955)). ``[T]he reform may
take one step at a time.'' Id.\39\
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\37\ See, e.g., NAM; PIA.
\38\ See, e.g., AHA; PIA; SHRM; Chamber; CDW; Professor Samuel
Estreicher.
\39\ These same principles have been applied to administrative
action. See, e.g., United Hosp. v. Thompson, 383 F.3d 728, 733 (8th
Cir. 2008) (the equal protection clause does not require the
government to attack every aspect of the problem or refrain from
regulating at all); Great American Houseboat Co. v. U.S., 780 F.2d
741, 749 (9th Cir. 1986) (same).
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The Board is aware that, in too many instances, it has taken too
long to decide both representation and unfair labor practice cases. The
final rule takes steps to address those delays at the Board level by
eliminating pre-election requests for review by the Board and making
Board review of all regional directors' post-election dispositions
discretionary. The first of the amendments will lead to fewer disputes
coming before the Board, because many pre-election disputes will be
rendered moot by the election or will be resolved by the parties post-
election. It will also often permit the remaining pre-election disputes
to be presented to the Board together with any post-election disputes
and thus to be disposed of more efficiently. Similarly, making Board
review of post-election dispositions discretionary will permit the
Board to more promptly, and with less expenditure of time and other
resources, dispose of post-election requests for review that do not
raise substantial issues meriting Board review. The amendments will
thus both directly speed Board processing of representation cases and,
by reducing the number of such cases coming before the Board for full
review, free Board resources to more promptly decide all cases.
The NPRM specifically asked for comments on various proposed
revisions of the Board's blocking charge policy. While the Board
received some comments relevant to the matter, it has decided to
deliberate further before deciding what, if any, changes should be made
in the policy, just as it has decided to deliberate further on many of
the other proposals contained in the NPRM. As explained in the NPRM,
the blocking charge policy is not codified in the current regulations.
Rather, it is the product of adjudication and is described in the non-
binding Casehandling Manual. See Casehandling Manual Sections 11730 to
11734.
As explained in section 11730 of 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.'' There are significant exceptions to the general policy
of having a charge ``block'' a petition. See Casehandling Manual
Section 11731. Accordingly, the filing of an unfair labor practice
charge does not automatically cause a petition to be held in abeyance.
Furthermore, ``the policy is not intended to be misused by a party as a
tactic to delay the resolution of a question concerning representation
raised by a petition.'' Id. at Section 11730.
Some of the comments that point to blocking charges as a serious
source of delay argue that incumbent unions file such charges in order
to delay decertification elections.\40\ The General Counsel has in
place procedures requiring the expedited investigation of blocking
charges in an effort to ensure that non-meritorious charges do not
delay elections. Under the agency's Impact Analysis system for
prioritizing the processing of cases, blocking charge cases are
designated as Category III (Exceptional) cases, which have the highest
priority and the shortest time goals for disposition. See Casehandling
Manual Section 11740. Recent improvement in case processing procedures
in some regional offices appears to have contributed, at least in part,
to a significant reduction in the number of decertification elections
blocked by the filing of unfair labor practice charges. Thus, there
were 112 decertification elections blocked by unfair labor practice
charges in Fiscal Year (FY) 2007, 100 in 2008, 71 in 2009, 64 in 2010,
and just 31 to date in 2011. The Board anticipates that there will be a
further reduction in the number of decertification elections blocked by
unfair labor practice charges, as well as a more expeditious processing
of all blocking charges, as these best practices are adopted more
uniformly. Nevertheless, the Board intends to continue to deliberate
concerning the proposal to revise the blocking charge policy via
rulemaking.
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\40\ National Right to Work Legal Defense Foundation (NRTWLDF);
Chamber. Between 2001 and 2010, the number of decertification
elections conducted annually by the Board has ranged from 246 to 488
while the number of certification elections has ranged from 1,335 to
2,645. Of course, when a union files a petition seeking to be
certified as the employees' representative, it can simply withdraw
the petition if it does not want the election to take place.
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D. The Employer's Opportunity To Campaign
Many comments filed by employers and employer organizations argue
that the proposed rule changes in the NPRM would drastically shorten
the time between the filing of petitions and elections and thereby
effectively reduce employers' opportunity to communicate with their
employees concerning whether they should choose to be represented for
purposes of collective bargaining. These comments make both legal and
policy arguments based on that claim.
But many of these comments address the proposed adoption of
amendments that have not been adopted as part of this final rule. For
instance, most comments raising these arguments focus on the Board's
proposals to: (1) Set pre-election hearings to open seven days from the
notice of hearing absent special circumstances; (2) shorten the time
period for production of a final voter list from seven days to two days
following a regional director's approval of an election agreement or
direction of an election; and (3) shorten the time period during which
the Board's final notice of election must be posted prior to the
election. None of the cited proposals is included in the final rule.
However, to the extent that the concerns about the employer's
opportunity to campaign are relevant to the rule changes adopted today,
the Board has concluded that the final rule will advance the statutory
objective of promptly resolving questions of
[[Page 80151]]
representation without in any way compromising employee free choice or
any other statutory mandate or policy.
The final rule simply removes unnecessary barriers to prompt
resolution of questions of representation by reducing needless
litigation. It does not establish any rigid timelines for the conduct
of elections. Under the final rule, how fast an election will occur
will vary from case to case, just as it did under the prior rules.
Variables affecting the timing will include (as in the past) whether
the parties are able to reach a pre-election agreement; the scheduling
of the pre-election hearing; the length of the hearing; the number and
complexity of the issues the regional director must address in order to
determine if there is a question of representation; and the regional
director's exercise of discretion, considering the preferences of the
parties, in setting the election date. Moreover, the final rule will
apply to petitions seeking certification of a new representative,
petitions seeking decertification of an existing representative, and
employer petitions filed after a union requests recognition.
1. NLRA Section 8(c) and the First Amendment
Many employer comments contend that the rule changes reflected in
the NPRM would be inconsistent with Section 8(c) of the Act \41\ and
the First Amendment.\42\ But neither the proposed rule nor the more
limited final rule in any way restricts the speech of any party.
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\41\ See, e.g., SHRM; Sheppard, Mullin, Richter & Hampton LLP
(Sheppard Mullin); and the National Retail Federation (NRF).
\42\ See, e.g., NGA; Waste Connections; ALFA.
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Section 8(c) of the Act provides:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
29 U.S.C. 158(c). On its face, Section 8(c)'s only purpose is to
prevent speech from ``constitut[ing] or be[ing] evidence of an unfair
labor practice.'' Accordingly, the Board has repeatedly held that
Section 8(c) applies only in unfair labor practice and not in
representation proceedings. See, e.g., Hahn Property Management Corp.,
263 NLRB 586, 586 (1982); Rosewood Mfg. Co., Inc., 263 NLRB 420, 420
(1982); Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1787 fn. 11 (1962).
Because the final rule, which addresses representation case procedures,
does not in any way permit the use of speech as evidence of an unfair
labor practice, Section 8(c) is not implicated.
Nor does the final rule implicate concerns grounded in the First
Amendment. Aside from the accurate statement that speech about unions
is protected by the First Amendment,\43\ the comments do not appear to
argue that the proposed amendments would violate the First Amendment.
In any event, neither the proposed nor the final rule restricts speech
in any manner. The rule does not eliminate the opportunity for the
parties to campaign before an election, nor does it impose any
restrictions on campaign speech. As under the current rules, employers
remain free to express their views on unionization whenever and as
often as they desire, both before and after the petition is filed, so
long as they refrain from threats or coercion. As the Supreme Court
stated in 1941, ``The employer * * * is as free now as ever to take any
side it may choose on this controversial issue.'' NLRB v. Virginia
Electric & Power Co., 314 U.S. 469, 477 (1941). Likewise, the rule does
not impose any new limitations on union speech. Accordingly, the
Board's effort to simplify and streamline the representation case
process does not infringe the speech rights of any party. The comments
do not contend that employers will be prevented from expressing their
opinions on unionization, but only that, because there may be less time
between petition and election in some cases, employers will have fewer
opportunities to express their opinions before the Board concludes its
investigation under Section 9. 29 U.S.C. 159. This does not rise to the
level of an unconstitutional restriction on speech.
---------------------------------------------------------------------------
\43\ Thomas v. Collins, 323 U.S. 516, 537-38 (1945).
---------------------------------------------------------------------------
2. Congressional Inaction in 1959
ACC points out that Congress, in enacting the Labor-Management
Reporting and Disclosure Act (LMRDA) in 1959, rejected a proposal that
would have permitted an election to take place before a hearing when
there were no issues warranting adjudication, so long as the election
was not held sooner than 30 days after the petition was filed. The
proposal, contained in the Senate version of the bill, would have
permitted a so-called ``pre-hearing election,'' barred by the 1947
Taft-Hartley amendments to the Act. S. 1555, 86th Cong., 1st Sess. 705
(as passed by Senate, Apr. 25, 1959). The Senate Report on the bill in
the prior session suggested that a 30-day period would provide a
``safeguard against rushing employees into an election where they are
unfamiliar with the issues.'' S. Rep. No. 1684, 85th Cong., 2d Sess.
27-28 (1958). The House bill, however, never contained a parallel
provision, and it was not enacted into law.
Nevertheless, ACC argues that the proposed amendments described in
the NPRM are inconsistent with congressional intent because they do not
guarantee a minimum of 30 days between petition and election. To the
extent that ACC's argument bears on the final rule, the Board rejects
it. Report language and statements of individual legislators on a
provision that was not enacted in 1959 are entitled to little if any
weight in assessing the meaning of legislation adopted in 1935 and
amended in 1947. In fact, the Supreme Court has clearly stated that
``failed legislative proposals are a particularly dangerous ground on
which to rest an interpretation of a prior statute'' because a bill can
be proposed or rejected for any number of reasons.\44\ Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531
U.S. 159, 169-70 (2001) (internal quotation marks omitted); see also
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 187 (1994). Indeed, the rejection of the proposed
amendment would more reasonably be understood as an indication that
Congress did not believe a minimum time between petition and election
is necessary. However, the legislative history of the LMRDA offers no
guidance on why the provision was rejected, and Congress imposed no
requirements in the LMRDA or at any other time concerning the length of
time that must elapse between petition and election. Accordingly, the
Board finds no indication in this legislative history that the final
rule is in any way contrary to Congress's intent.
---------------------------------------------------------------------------
\44\ For this reason, the Board declines COLLE's similar
suggestion to find relevant Congress' failure to pass the 1978 Labor
Law Reform Act, versions of which provided for varying time frames
for representation elections.
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3. The Statutory Policy in Favor of Free Debate
Although it is clear that the proposed amendments implicate neither
the First Amendment nor Section 8(c) of the Act, many comments
nevertheless suggest that the amendments would leave employers with too
little time to effectively inform their employees about the choice
whether to be represented by
[[Page 80152]]
a union.\45\ They contend that the consequences of a union vote are
longlasting and could significantly affect employees' livelihoods and
careers, and therefore that ensuring that employees have sufficient
time to hear from all sides is critical to the statutory objective of
ensuring employee free choice.\46\ Comments in favor of the amendments
contend, on the other hand, that employers can and do communicate their
views on unions to employees even before a petition has been filed and
will continue to have sufficient time to do so after filing under the
proposed amendment. Some of these comments also argue that a lengthy
election campaign harms the prospects for successful collective
bargaining.\47\
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\45\ See Chamber; COLLE; SHRM; Seyfarth Shaw; Sheppard Mullin;
Baker & McKenzie; John Deere Water; and PIA.
\46\ See NGA; Retail Industry Leaders Association (RILA);
Society of Independent Gasoline Marketers of America (SIGMA);
Ranking Member Michael B. Enzi of the U.S. Senate Committee on
Health, Education, Labor & Pensions, and Republican Senators;
National Meat Association (NMA).
\47\ See AFL-CIO and SEIU.
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a. NLRB v. Gissel Packing
The Supreme Court's decision in NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), which upheld the Board's authority to order an
employer to bargain with a union that had not been certified as the
result of an election, is relevant to this issue. In Gissel, the
employers argued that the Board could not order an employer to bargain
with the union, even when the union's majority support was demonstrated
through employees' authorization cards and the employer's unfair labor
practices had rendered a free and fair election impossible, because a
union could solicit such cards before the employer had an adequate
opportunity to communicate with employees. The Court rejected this
argument:
The employers argue that their employees cannot make an informed
choice because the card drive will be over before the employer has
had a chance to present his side of the unionization issues.
Normally, however, the union will inform the employer of its
organization drive early in order to subject the employer to the
unfair labor practice provisions of the Act; the union must be able
to show the employer's awareness of the drive in order to prove that
his contemporaneous conduct constituted unfair labor practices on
which a bargaining order can be based if the drive is ultimately
successful. See, e. g., Hunt Oil Co., 157 NLRB 282 (1966); Don Swart
Trucking Co., 154 NLRB 1345 (1965). Thus, in all of the cases here
but [one,] the employer, whether informed by the union or not, was
aware of the union's organizing drive almost at the outset and began
its antiunion campaign at that time; and even in the [one] case,
where the recognition demand came about a week after the
solicitation began, the employer was able to deliver a speech before
the union obtained a majority.
Id. at 603. The Supreme Court has thus recognized that the concern
expressed in the comments ``normally'' does not arise even when there
is no election and the organizing effort does not proceed beyond the
signing of authorization cards.
b. Chamber of Commerce v. Brown
The Supreme Court recognized in Chamber of Commerce v. Brown, 554
U.S. 60 (2008), that the Act embodies a general ``congressional intent
to encourage free debate on issues dividing labor and management.''
\48\ Id. at 68 (quoting Linn v. Plant Guard Workers, 383 U.S. 53, 62
(1966) (a defamation case)). Some comments contend that this case
demonstrates that the Board must now provide a definite period of time
after the petition in which parties can campaign prior to the election.
In fact, however, Chamber of Commerce v. Brown held only that the Act
preempted a state law that prohibited the use of state funds to
encourage or discourage employees from seeking representation. What the
Court suggested in the quoted language is that Congress intended to
leave speech concerning labor relations unregulated; in the Court's
words, to ``shield a zone of activity from regulation.'' Id. The Court
concluded that the California law at issue in Brown ``indirectly
regulate[d] such conduct by imposing spending restrictions on the use
of state funds.'' Id. at 69. In short, the Court held the state law
regulated speech and was thus preempted. The final rule in no way
regulates speech. It is fully consistent with congressional intent as
articulated in Brown.
---------------------------------------------------------------------------
\48\ 554 U.S. 60, 68 (2008).
---------------------------------------------------------------------------
Even adopting the more expansive view of the statutory policy
articulated in Brown urged by some comments--that Congress intended not
only to insulate and protect speech concerning labor relations, but to
affirmatively facilitate such speech--the final rule is fully
consistent with that objective as explained below.
c. Employer Pre-Petition Knowledge
Numerous comments contend that any shortening of the time period
between the petition and election will be detrimental to employers
because employers are often unaware that an organizing campaign is
underway until the petition is filed.\49\ These comments contend that
the union will have had a head start in the campaign because it will,
necessarily, have already obtained authorization cards from at least 30
percent of employees in the petitioned-for unit, and will have been
able to delay filing the petition for whatever amount of time it
believed was advantageous in order to communicate with employees.\50\
For example, the Chamber comments that union petitions ``catch[] many
if not most employers off guard and ill-prepared to immediately respond
* * * '' The Board was presented with no reliable empirical evidence,
however, suggesting that employers are frequently unaware of an
organizing drive before the filing of a petition,\51\ and the Board's
experience and recent scholarly research suggest the opposite.
---------------------------------------------------------------------------
\49\ See, e.g., Chamber; CDW; National Ready-Mixed Concrete
Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark
Legal Foundation; and Vigilant.
\50\ NGA; NMA. See also Spartan Motors, Inc.; Cook Illinois
Corporation; Arizona Hospital and Healthcare Association; Constangy,
Brooks & Smith, LLP; Sheppard Mullin; Ranking Member Michael B. Enzi
of the U.S. Senate Committee on Health, Education, Labor & Pensions,
and Republican Senators; Specialty Steel Industry of North America;
International Foodservice Distributors Association; NAM; Chamber;
NRTWLDF.
\51\ COLLE acknowledges this in its comment.
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First, Board precedent is replete with cases in which there was
clear evidence that the employer was aware of the organizing campaign
well before the petition was filed. For example, unions often give the
employer formal notice of the campaign before filing the petition,
either by demanding recognition or by providing the employer with a
list of employees on the organizing committee.\52\ In other cases, the
employer's knowledge of the campaign is apparent from the fact that the
employer committed unfair labor practices targeting employees'
organizing activity before the filing of the petition.\53\
---------------------------------------------------------------------------
\52\ See, e.g., Flamingo Hilton-Laughlin, 324 NLRB 72, 76 (1997)
(union informed employer of campaign and committee members on
January 26 and filed petition on March 26), enf. granted in part,
denied in part 148 F.3d 1166 (DC Cir. 1998); Keco Industries, 306
NLRB 15, 16 (1992) (union informed employer of campaign in January
and filed petition on October 31); Mariposa Press, 273 NLRB 528, 533
(1984) (union informed employer of campaign on September 25 and
filed petition on October 6); Comet Corp., 261 NLRB 1414, 1418, 1422
(1982) (union informed employer of campaign and committee members on
July 23 and filed petition on August 23); Quebecor Group, Inc., 258
NLRB 961, 964 (1981) (union informed employer of campaign on
November 17 and filed petition on November 28).
\53\ See, e.g., Ryder Truck Rental, 341 NLRB 761, 765 fn. 9,
766-67 (2004) (petition filed in December; in November, employer
invited employees to report any harassment by union), enfd. 401 F.3d
815 (7th Cir. 2005); Dlubak Corp., 307 NLRB 1138, 1141, 1147 (1992)
(threats and discriminatory discharges occurred October 5-13;
petition filed October 24), enfd. mem. 5 F.3d 1488 (3d Cir. 1993);
Spring City Knitting Co., 285 NLRB 426, 432, 449, 450, 456 (1987)
(unfair labor practices occurred March 1, 14, and 29; petition filed
May 3); Well-Bred Loaf, Inc., 280 NLRB 306, 308, 317 (1986)
(threats, interrogation, and unlawful discharges occurred August 22
and 23, at a time when union activity was already common knowledge;
petition filed October 6); Dilling Mechanical Contractors, 318 NLRB
1140, 1143, 1156 (1995) (union informed employer of campaign on
January 4, but employer had threatened employees with discharge in
December if they engaged in union activity), enfd. 107 F.3d 521 (7th
Cir. 1997), cert. denied 522 U.S. 862 (1997).
---------------------------------------------------------------------------
[[Page 80153]]
An empirical study conducted by Professors Kate Bronfenbrenner and
Dorian Warren (and submitted with their comment) casts further doubt on
the contention that employers are frequently unaware of a union
campaign until the petition is filed.\54\ The study concluded that in
47 percent of cases involving serious unfair labor practice allegations
against employers that resulted in a settlement or a Board finding that
the law was violated, the alleged unlawful conduct occurred before the
petition was filed; in 60 percent of cases involving allegations of
interrogation and harassment, the conduct occurred before the petition;
and in 54 percent of cases involving allegations of threats and other
coercive statements, the conduct occurred before the petition.
Professor Warren testified at the public hearing that the researchers'
review of the files in these cases indicated that the conduct resulting
in the charge, whether it was actually unlawful or not, evidenced the
employer's knowledge of the organizing campaign. Critics of the study
contend that it inappropriately focuses on mere allegations of
misconduct and that the category of ``charges won'' inappropriately
includes settlements. The importance of the study's findings for
present purposes, however, does not rest on whether or not the charges
had merit, but rather on the fact that they were filed based on pre-
petition conduct and that available information in the case files
suggests the employer had pre-petition knowledge of the organizing
campaign. The study's findings in that regard are consistent with the
Board's experience, and no contrary study relying on empirical evidence
was presented to the Board.
---------------------------------------------------------------------------
\54\ The study was based on a random sample of 1,000 elections
during the period 1999 through 2003 and a survey of 562 campaigns
from that sample. See Bronfenbrenner & Warren, supra at 2.
---------------------------------------------------------------------------
d. Employer Communications in the Absence of a Campaign
The foregoing authority casts doubt on the contention that ``many
if not most'' employers are unaware of an organizing drive prior to the
filing of a petition. But even in the absence of an active organizing
campaign, employers in nonunionized workplaces may and often do
communicate their general views about unionization to both new hires
and existing employees.\55\ Some comments suggest that, prior to
receiving a petition, employers pay little attention to the issue of
union representation, and that general efforts to inform and persuade
employees about unionization in the absence of a petition would be
time-consuming and expensive.\56\ Although some employers may choose
not to discuss unionization until a petition is filed, the Board's
experience suggests that other employers do discuss unionization with
their employees beforehand, often as soon as they are hired.\57\ For
example, some employers distribute employee handbooks or show
orientation videos to all new employees that express the employer's
view on unions or its desire that employees remain unrepresented.\58\
---------------------------------------------------------------------------
\55\ See comments of John Logan, Ph.D., Erin Johansson, M.P.P.,
and Ryan Lamare, Ph.D.; Center for American Progress Action Fund.
\56\ Fox Rothschild LLP; NMA; NRF.
\57\ SHRM suggests that the proposed rule will cause more
employers to express their views on employee representation prior to
active campaigns. Given the number of petitions filed each year, the
Board does not view this as likely. In any event, such expressive
activity is consistent with the Act so long as it does not convey a
threat or promise of benefit.
\58\ See, e.g., U-Haul Co. of California, 347 NLRB 375, 378
(2006) (employee handbook, distributed to all new employees,
included a section entitled, ``What about Unions?''; the section
stated the employer's preference to be union-free and asserted that
employees do not need a union or outside third party to resolve
workplace issues); SNE Enterprises, 347 NLRB 472, 473 (2006)
(employee handbook stated, ``The Company believes a union is not
necessary and not in the best interest of either the Company or its
Team Members.''), enfd. 257 Fed. Appx. 642 (4th Cir. 2007); Overnite
Transportation Co., 343 NLRB 1431, 1455 (2004) (employee handbook
stated: ``It is important for you to know that the Company values
union-free working conditions. We believe that true job security can
come only from you and the management of this company working
together in harmony to produce a quality product. A union-free
environment allows this kind of teamwork to develop.''); MEMC
Electronic Materials, Inc., 342 NLRB 1172, 1188 (2004) (employee
handbook stated that remaining ``union-free'' is an objective of the
company); Noah's New York Bagels, 324 NLRB 266, 272 (1997) (section
of employee handbook entitled ``Unions'' states: ``At Noah's Bagels
we believe that unions are not necessary. We believe this for many
reasons[.] First, there is no reason why you should have to pay
union initiation fees, union dues, and union assessments for what
you already have * * * Second, there is no reason why you or your
family should fear loss of income or job because of strikes or other
union-dictated activity. Third, we believe that the best way to
achieve results is to work and communicate directly with each other
without the interference of third parties or unions * * * The
Federal government gives employees the right to organize and join
unions. It also gives employees the right to say `no' to union
organizers and not join unions. Remember, a union authorization card
is a power of attorney which gives a union the right to speak and
act for you. If you should be asked to sign a union authorization
card, we are asking you to say `no.' ''); American Wire Products,
313 NLRB 989, 994 (1994) (employee handbook states, ``Our Company is
a non-union organization and it is our desire that we always will
be''; the same section also requests employees to direct union-
related questions to a supervisor); Heck's, Inc., 293 NLRB 1111,
1119 (1989) (employee handbook's ``Union Policy'' read: ``As a
Company, we recognize the right of each individual Employee, their
freedom of choice, their individuality and their needs as a worker
and a fellow human being. For these reasons and others, we do not
want any of our Employees to be represented by a Union * * * When
you thoroughly understand Heck's liberal benefit programs, the
desire to assist you in your job progress and willingness to discuss
your job-related problems, you surely will agree there is no need
for a union or any other paid intermediary to stand between you and
your company.'') Thus, employees may be well aware of their
employer's opposition to unions even before any campaign begins.
---------------------------------------------------------------------------
Several comments contend that an employer's general ability to
communicate with employees regarding unions is not a complete
substitute for the ability to communicate regarding a specific petition
and a known petitioner.\59\ The Board concludes that the opportunity
for generalized communications together with the opportunities that
will continue to exist post-petition under the final rule will ensure
employee free choice even in those cases where employers are unaware of
the organizing drive until the petition is filed.
---------------------------------------------------------------------------
\59\ See SHRM; COLLE; NAM; Seyfarth Shaw; and ALFA.
---------------------------------------------------------------------------
Finally, even in the absence of any pre-petition campaign,
employees have experience with the existing labor-management regime in
their workplace, which informs their choice of whether to alter it. In
unionized workplaces in which the incumbent union faces a
decertification petition or a rival union petition, the incumbent union
will be appropriately judged by its performance to date. Thus, eligible
voters have a preexisting base of knowledge and experience with which
to evaluate the incumbent. The same is true in workplaces where
employees are unrepresented. Employees there have experience with
labor-management relations in the absence of union representation. In
both cases, employees base their choice, at least in part, on the
relationship they are being asked to change.
e. Post-Petition Communication
Although the Board has concluded that the record does not establish
that pre-petition employer ignorance of an organizing campaign is the
norm, the Board accepts that, in at least some cases, employers may, in
fact, be unaware of an organizing campaign until a petition is filed.
For example, COLLE cites union campaign strategy
[[Page 80154]]
documents that allegedly call for ``stealth'' campaigns. In such cases,
the union may indeed have a ``head start'' in the campaign, in the
sense that it begins communicating its specific message to the unit
employees before the employer does so.\60\
---------------------------------------------------------------------------
\60\ See also comment of RILA, contending that ``stealth
campaigns'' are common in the retail industry.
---------------------------------------------------------------------------
In relation to the opportunities for post-petition communication,
the Board notes initially that the final rule will apply to
decertification elections as well as certification elections, and
therefore that incumbent unions will suffer the same disadvantages in
relation to a petitioner as will employers.\61\ In fact, because unions
typically do not have any on-going presence in the workplace, incumbent
unions are much less likely to know about the circulation of a
decertification petition than employers are to know about a union
organizing drive.\62\
---------------------------------------------------------------------------
\61\ SEIU argues that the time frames in the proposed amendments
should not apply in cases involving decertification petitions,
because employers can withdraw recognition in certain circumstances
without having to go through the election process. To the extent
that SEIU's comment is still relevant to the limited changes
implemented by the final rule, the Board disagrees. Employers can
also voluntarily recognize unions as the collective-bargaining
representatives of their employees without going through the
election process, yet the Board has a duty to expeditiously resolve
questions concerning representation when employers will not
voluntarily recognize unions. Thus, the NLRA provides a means for
employees to engage in collective bargaining with their employer
even if their employer would prefer not to do so. Similarly, the
NLRA does not require employees to depend on their employer to end
unwanted representation. The Board takes seriously its
responsibility to expeditiously resolve questions concerning
representation in the decertification context just as in an initial
organizing context.
\62\ Cf. United Kiser Services, 355 NLRB No. 55, slip op. at 1
(2010) (union representative only visited the represented shop four
times over 17-month period); Moeller Bros. Body Shop, 306 NLRB 191,
191 (1992) (union official ``rarely'' visited respondent's body
shop, including every three years for contract renewal
negotiations); Pullman Bldg. Co., 251 NLRB 1048, 1051-52 (1980)
(union official visited worksite to commence investigation only
after receiving complaint that employer was violating labor
agreement), enfd. 691 F.2d 507 (9th Cir. 1982).
---------------------------------------------------------------------------
The Board finds, moreover, that as a general matter, employers are
able to communicate their message to employees quickly and effectively.
The median bargaining unit size from 2001 to 2010 was 23 to 26
employees. Given this relatively small size, effective communication
with all voters can be accomplished in a short period of time.\63\ In
addition, some provisions of the Board's rules give a ``head start'' to
the employer that, in the Board's view, more than counterbalances any
perceived union advantage. For instance, under extant precedent, not
altered by the final rule, the employer is not required to provide the
union with the names and addresses of eligible voters until seven days
after the Regional Director approves the parties' election agreement or
issues a Decision and Direction of Election. After the filing of the
petition and until that time--which, in contested cases over the last
decade, is often at least six weeks--the employer is in many cases the
only party that knows who all the eligible voters are likely to be and
how to contact them. In addition to having a record of eligible
employees' names, phone numbers, and email addresses, the employer
knows their work locations and work schedules. Even after it provides
the eligibility list to the other parties, the employer often remains
the only party with access to all employees' contact information other
than their home addresses.
---------------------------------------------------------------------------
\63\ RILA and NRF argue that sufficient time to campaign is
particularly critical in the retail industry, where employees work
on different shifts, often are seasonal or part-time, are less
accessible during the workday because they are on the sales floor,
and often are unavailable outside normal working hours due to other
commitments. NRF contends, however, that more than 98 percent of all
retailers employ fewer than 100 workers, and RILA contends that most
petitions seek elections in single-store units and that front-line
managers typically constitute 10 to 20 percent of the workforce in
each store.
NRMCA makes a similar argument that its industry has unique
features such as isolated plant locations, unpredictable delivery
hours, and dispersed employees. But it, too, states that the vast
majority of employers in the industry are small businesses.
Therefore, most bargaining units in the retail and ready-mixed
concrete industries are likely to be quite small, which should
enable employer communication to take place in a relatively short
period of time and, certainly, much more easily than union
communication because unions often lack knowledge of all work
locations, employee shifts and hours, and even the identity of all
employees. In addition, as explained in the text, under extant
precedent, these employers (and others) can require all employees to
attend a meeting or multiple meetings outside their normal work
hours, in a central location, in order to ensure they receive the
employer's message prior to the election.
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Moreover, as noted in the testimony of Professor Joseph McCartin,
the employer has unlimited access to employees during every workday and
has the ability to compel employees to attend meetings on working time
at the employer's convenience.\64\ The employer can also communicate
its views to employees while they are working, even in settings where
the employees have no choice but to listen. See, e.g., Frito Lay, Inc.,
341 NLRB 515, 515 (2004) (``In the 2 months between the filing of the
petition and the election, the Employer wanted to provide an
opportunity for the employees to obtain information relevant to the
drivers' upcoming voting decision. Because the Employer's ability to
communicate with its drivers at the facility was constrained, the
Employer sent `guests' along on their runs to provide information and
answer any questions the drivers might have. These `ride-alongs'
averaged approximately 10-12 hours, due to the length of the drivers'
day runs, and each truckdriver averaged approximately 3 ride-alongs in
the 2 months before the election.''). In fact, the employer can even
compel such attendance outside employees' normal work hours and
locations. See, e.g., Curtin Matheson Scientific, 310 NLRB 1090, 1090
(1993) (employer required employees to attend campaign meeting in
hotel); Ideal Elevator Corp., 295 NLRB 347, 351 (1989) (employer
required all employees to attend meeting after working hours to listen
to its president's speech).\65\ Under current law, such compelled
attendance at meetings at which employees are often expressly urged to
vote against representation is generally neither objectionable nor an
unfair labor practice.\66\ The employer may require individual
employees or small groups to attend such meetings at any time up until
employees enter the polling area or
[[Page 80155]]
are waiting in line to vote.\67\ Thus, for example, the Board has held
that it is not objectionable for an employer's highest ranking
officials to proceed systematically through the workplace less than 24
hours before a vote, urging each individual employee at his or her work
station to vote against representation. See Electro-Wire Products, Inc.
242 NLRB 960, 960 (1979); Associated Milk Producers, Inc., 237 NLRB
879, 880 (1978). Modern communications technology available in many
workplaces permits employers to communicate instantly and on an on-
going, even continuous basis with all employees in the voting unit.
See, e.g., Virginia Concrete Corp., 338 NLRB 1182, 1182 (2003)
(employer sent ``Vote No'' message to ``mobile data units'' in
employees' trucks in the final 24 hours before an election).\68\ One
classic empirical study of representation elections found that ``the
employer who uses working time or premises to campaign against the
union and denies those facilities to the union effectively communicates
with a substantially greater proportion of the employees than does the
union.'' Julius G. Getman et al., ``Union Representation Elections: Law
and Reality'' 156 (1976). Because those who attend union meetings tend
to already be union supporters, the employer, which can convene
meetings of all employees on working time, ``has a great advantage in
communicating with the undecided and those not already committed to
it.'' Id. at 156-57.
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\64\ A 1990 study of over 200 representation elections found
that employers conducted mandatory meetings prior to 67 percent of
the elections. John J. Lawler, Unionization and Deunionization:
Strategy, Tactics, and Outcomes 145 (1990). A more recent study
found that in 89 percent of campaigns surveyed, employers required
employees to attend so-called ``captive audience'' meetings during
work time and that the majority of employees attended at least five
such meetings during the course of the campaign. Bronfenbrenner &
Warren, supra at 6.
\65\ The Board found the conduct at issue in these cases
unlawful or objectionable for reasons unrelated to the time or
location of the required meetings. Requiring employees to attend
such campaign meetings outside their normal work hours without full
compensation may constitute objectionable conduct. See Comet
Electric, 314 NLRB 1215, 1216 (1994).
\66\ See, e.g., F.W. Woolworth Co., 251 NLRB 1111, 1113 (1980)
(employer's attempt to further its campaign by conducting a
mandatory meeting and by declaring that no questions would be
answered in the course thereof was not unlawful), enfd. 655 F.2d 151
(8th Cir. 1981), cert. denied 455 U.S. 989 (1982); Litton Systems,
Inc., 173 NLRB 1024, 1030 (1968) (adopting the decision of the
administrative law judge, who concluded: ``An employee has no
statutorily protected right to leave a meeting which the employees
were required by management to attend on company time and property
to listen to management's noncoercive antiunion speech designed to
influence the outcome of a union election.''); S & S Corrugated
Paper Machinery Co., Inc., 89 NLRB 1363, 1364 (1950) (``the `captive
audience' aspect of the Employer's speeches, otherwise protected by
Section 8(c) of the amended Act, cannot form the basis for a finding
that the Employer * * * has interfered with the employees' free
choice of a bargaining representative''); Fontaine Converting Works
Inc., 77 NLRB 1386, 1387 (1948) (employer did not violate the Act by
``compelling its employees to attend and listen to speeches on
company time and property'').
\67\ An exception exists for ``massed assemblies,'' which are
prohibited during the 24 hours before the election under Peerless
Plywood, 107 NLRB 427, 429 (1953).
\68\ As described in the NPRM, the Board's experience suggests
employers are also increasingly using email to send campaign
communications to their employees. 76 FR 36812, 36820 (June 22,
2011).
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In addition to the employer's earlier, more complete knowledge of
voters' identity and whereabouts and ability to convene employees
inside and outside the workplace during work and non-work time to
campaign, the Board's usual practice is to hold the election itself
``somewhere on the employer's premises,'' unless there is ``good
cause'' to do otherwise.\69\ Because employers can ordinarily bar union
representatives from their property,\70\ this practice permits
employers to campaign actively among employees on election day while
barring the union from doing the same. Thus, the employer not only has
greater access to employees throughout the representation process, but
also ordinarily has the ``last word'' on election day. The Board has
recognized that having the ``last, most telling word'' is a significant
advantage in elections. Peerless Plywood, 107 NLRB at 429.
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\69\ See Casehandling Manual Section 11302.2.
\70\ See Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992); NLRB
v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).
---------------------------------------------------------------------------
For these reasons, the Board does not believe that any reduction of
the time between petition and election that results from the final rule
will be unfair to any party or infringe on employee free choice.\71\
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\71\ The bipartisan Commission on the Future of Worker-
Management Relations, U.S., concluded as follows after extensive
study in 1994: ``The Commission believes the NLRB should conduct
representation elections as promptly as administratively feasible. *
* * Each side would continue to have ample time to express its views
if the process were much shorter.'' Dunlop Commission Final Report,
supra at 41.
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f. The Current Median Time of 38 Days
Many comments contend that there is no reason to adopt the proposed
amendments because the current median time period between petition and
election is 38 days. That time period, however, is simply a historical
fact, and does not represent a considered judgment on the optimal
duration of a campaign. It is not the result of a deliberate choice by
Congress or any prior Board.
Moreover, because the 38 days is a median, the actual time from
petition to election varies greatly from one case to another. By
definition, a median of 38 days means that, in half of all cases, the
time between petition and election is longer than 38 days. Most
importantly for present purposes, the median time between petition and
election in cases that proceed to hearing (the only cases directly
affected by the final rule) has varied between 64 and 70 days over the
past five years.
As explained in the NPRM, the current median reflects prior reforms
enacted by Congress and adopted by the Board altering the procedures
for resolving questions of representation. See 76 FR at 36813-14. Each
of those changes had the effect of shortening the time period between
the filing of the petition and the holding of an election. Thus, the
length of the so-called ``critical period'' has never been static, and
prior changes have not proven to be detrimental to employee free
choice.
In other words, the current median period between petition and
election is tied to factors having nothing to do with informing
employees about unionization. To the extent current procedures impair
the Board's ability to expeditiously resolve questions of
representation and are not necessary to the fair and accurate
performance of the Board's statutory duties to determine if a question
of representation exists and, if so, to direct an election in order to
answer the question, the Board has concluded that the procedures should
be amended.
g. Other Issues Affecting the Appropriate Time Period between Petition
and Election
Some comments, including that of Professor Samuel Estreicher,
suggest that the employer needs sufficient time not only to campaign,
but to retain counsel so that the employer understands the legal
constraints on its campaign activity and does not violate the law or
engage in objectionable conduct.\72\ A number of comments specifically
argue that any compression of the time period between the petition and
election will be particularly difficult for small businesses, which do
not have in-house legal departments and may not have ready access to
either in-house or outside labor attorneys or consultants to counsel
them on how to handle the campaign.\73\ Similarly, some comments
suggest that, to the extent the amendments result in a shorter period
of time between the petition and the election, they will increase
objections and unfair labor practice litigation, because employers will
not have an opportunity to train managers on how to avoid objectionable
and unlawful conduct. See Con-way Inc.; Bluegrass Institute; ATA.\74\
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\72\ See also testimony of former Board Member Marshall Babson
(emphasizing that the rules must balance the various competing
interests).
\73\ NRMCA; Indiana Chamber of Commerce; National Automobile
Dealers Association; T&W Block Company; York Society for Human
Resource Management; National Marine Manufacturers Association;
Council of Smaller Enterprises; Bluegrass Institute; Landmark Legal
Foundation; American Trucking Associations; testimony of Steve
Jones; American Fire Sprinkler Association.
\74\ Other comments, however, cite evidence indicating a
positive correlation between the length of a campaign and unfair
labor practice allegations. See SEIU; NELP; Ranking Member George
Miller and Democratic Members of the U.S. House of Representatives
Committee on Education and the Workforce; John Logan, Ph.D., Erin
Johansson, M.P.P., and Ryan Lamare, Ph.D. See also testimony of
Professor Ethan Daniel Kaplan (citing similar results from a study
in Canada).
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The Board believes that most of the rules governing campaign
conduct are matters of common sense that are intuitively understood by
employers and employees--the prohibition of threats and bribes, for
example. Moreover, when the petition is served on the employer by the
regional office, it is accompanied by a Notice to Employees, Form NLRB
666, which sets forth in understandable terms the central rules
governing campaign conduct. In any event, the Board does not believe
that any shortening of the
[[Page 80156]]
time between petition and election that results from the final rule
will impair employers' ability to retain counsel in a timely
manner.\75\ In this regard, Russ Brown, an experienced labor-relations
consultant, testified at the public hearing that his firm routinely
monitors petitions filed in the regional offices and promptly offers
its services to employers named in those petitions. In general, the
well-documented growth of the labor-relations consulting industry
undermines the contention that small businesses are unable to obtain
advice quickly. Comments, such as the one cited above, indicate that it
is a routine practice for labor-relations consultants to monitor
petitions filed with the regional offices, so that the consultants may
then approach the employers to offer their services.\76\
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\75\ Ranking Member Michael B. Enzi of the U.S. Senate Committee
on Health, Education, Labor, and Pensions and Republican Senators
assert that employers will significantly limit their use of legal
counsel during organizing campaigns due to the Department of Labor's
recent NPRM interpreting the advice exemption to the ``persuader''
disclosure requirement under the Labor-Management Reporting and
Disclosure Act. See 76 FR 36178 (proposed June 21, 2011). However,
the DOL's stated goal is publicizing the interactions between
employers and covered entities, not stopping those interactions from
taking place. See id. at 36182, 36190. In any event, the Board views
such concerns as more properly directed to the DOL. The Board also
wishes to make clear that--contrary to COLLE's suggestion--its
actions have been in no way influenced by any actions of the DOL.
\76\ See testimony of Russ Brown of the Labor Relations
Institute (LRI), noting that the Labor Relations Institute's Web
site ``is probably one of the leading sources of keeping up with
just about every scrap of paper you guys push.'' The Web site,
www.lrionline.com, includes a section entitled ``union avoidance''
and advertises online libraries that include a ``daily petition
library'' with ``supplemental petition information available daily''
and an ``organizing library'' tracking ``union organizing
activity.'' See also testimony of Michael D. Pearson, former field
examiner (noting that consultants check the public filings of RC
petitions on a daily basis to solicit business from employers);
testimony of Professor Joseph McCartin (noting that a ``thriving
industry of consultants has emerged'').
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Other comments propose that the Board set a minimum number of days
between the petition and the election. Cook-Illinois Corporation
suggests a minimum of 21 days, subject to expansion or contraction by
agreement of the parties. The Heritage Foundation proposes a minimum of
40 days.\77\ In contrast, Professor Samuel Estreicher stated that he
would not favor specifying a particular time period within which the
election must be held. No such minimum exists in the Act or under the
current rules.
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\77\ CDW draws an analogy to the Older Workers Benefit
Protection Act, 29 U.S.C. 626, which provides 45 days for employees
to sign releases regarding age discrimination claims. CDW argues
that this provision demonstrates the impropriety of forcing
employees to make a decision on representation in less time than the
current 38-day median. The Board does not find it instructive to
compare an individual employee's permanent waiver of rights under a
completely different statutory scheme with the election procedures
at issue here involving groups of employees and, typically, an
active campaign by several parties.
---------------------------------------------------------------------------
For the same reasons that the Board has not set a maximum number of
days between the petition and the election, it has declined to set a
minimum. Congress provided that the Board should conduct ``an
appropriate hearing upon due notice'' and determine if a question of
representation exists prior to directing an election, but did not
otherwise specify when the Board should conduct the election. Under the
amended rules, as under the existing rules, the time it will take for
the Board to perform that statutory function will vary. The Board
believes that its duty is to perform its statutory functions as
promptly as possible consistent with employee free choice. The Board
has amended its rules in order to facilitate that objective, but even
under the amended rules, which leave the ultimate decision about the
setting of the election date within the sound discretion of the
regional director after consultation with the parties, the Board does
not believe it is likely or even feasible that it could perform its
statutory functions in such a short period, and a regional director
would set an election so promptly, that employee free choice would be
undermined. The Board has thus decided to maintain the current practice
of not setting either a maximum or a minimum number of days between
petition and election via its rules.
Citing Member Hayes's dissent from the NPRM, some comments suggest
that the amendments will provide for elections in as little as 10 days
after the filing of the petition.\78\ But neither the proposed
amendments nor the more limited final rule contains any such
requirement and, in practice, the final rule cannot lead to elections
taking place within 10 days of the petition in a contested case.
Moreover, the Board believes it is highly unlikely that, in any
significant number of cases, the required procedural steps will be
taken so quickly that a regional director could even have discretion to
schedule an election close to 10 days after the filing of the
petition.\79\
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\78\ See Chamber; COLLE.
\79\ Even assuming that an election were to occur close to 10
days after the petition, under existing precedent, the union is only
entitled to obtain the Excelsior list 10 days before the election.
See Mod Interiors, 324 NLRB 164, 164 (1997); Casehandling Manual
Section 11302.1. Thus, existing Board precedent contemplates that a
union may only have the ability to contact all eligible voters for
10 days.
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The Board discounts the argument made in some comments that the
proposed rule improperly fails to give the employer sufficient time to
refute unrealistic promises or ``correct any mischaracterizations or
errors'' by union organizers.\80\ For three decades, Board law has been
settled that campaign misstatements--regardless of their timing--are
generally insufficient to interfere with an election, unless they
involve forged documents that render employees unable to evaluate the
statements as propaganda. See Midland National Life Insurance Co., 263
NLRB 127, 132 (1982) (noting that employees are capable of
``recognizing campaign propaganda for what it is and discounting it'').
The Midland rule applies even if the misrepresentation takes place only
a few days before the election. See, e.g., U-Haul Co. of Nevada, Inc.,
341 NLRB 195, 195 (2004) (document circulated by union two days before
election did not amount to objectionable misrepresentation under
Midland).
---------------------------------------------------------------------------
\80\ Vigilant; Indiana Chamber of Commerce; John Deere Water;
PIA; Greater Raleigh Chamber of Commerce; NMMA; Associated Oregon
Industries; NAM; testimony of Michael Prendergast. T&W Block Company
makes a related argument, contending that the failure to allow
sufficient time would destabilize labor relations because employees
would enter bargaining with unrealistic expectations.
---------------------------------------------------------------------------
The Board also rejects the argument of Vigilant that a shorter
period between petition and election will result in a greater number of
mail-ballot elections and an accompanying increase in the potential for
fraud and coercion. Nothing in the proposed or adopted rules alters the
standard for determining when an election should be conducted by mail
ballot. A regional director's determination of whether an election
should be held manually or by mail is not informed by the number of
days between the petition and the election. Rather, it is based on
factors such as the desires of the parties and whether employees are
``scattered'' due to their geographic locations or work hours and
whether there is a strike, lockout, or picketing in progress. See San
Diego Gas & Electric, 325 NLRB 1143, 1145 (1998); Casehandling Manual
Section 11301.2.
Baker & McKenzie contends that, to the extent the amendments will
result in elections being held within 10 to 25 days after the petition,
they are inconsistent with the Board's other notice provisions, which
provide longer periods. For example, Baker & McKenzie notes that a
respondent must post a remedial notice in an unfair labor practice case
for 60 days or longer, and that the Board recently promulgated a
[[Page 80157]]
rule requiring employers to continuously post in the workplace a notice
of employee rights under the Act. The Board does not agree that these
other posting requirements are in any way inconsistent with the final
rule. The notice postings required by the Board serve different
purposes in different contexts--to inform employees of their general
rights or to alleviate the impact of unlawful acts by an employer or
union, rather than to communicate about a specific petition in a
specific unit. Moreover, the time reasonably necessary for employees to
obtain the message from a posted notice, and for that message to
dissipate the effects of unfair labor practices, is different from the
time needed for employees to receive information from employers and
unions actively campaigning for their support. Finally, the existing
notice-posting provision for elections, which is not altered by the
final rule, requires that the notice be posted for only three days
before the election. See NLRB Rules and Regulations Section 103.20(a).
The Board thus rejects the ``one size fits all'' suggestion for time
periods under the Act.
In addition to arguing that the rule fails to give employers
sufficient time to deliver their campaign message, some comments
contend that the rules do not give employees sufficient time to receive
and evaluate that message and, if they so choose, to organize
themselves to oppose union representation.\81\ The comments argue that
the final rule therefore runs afoul of the Act's policies of protecting
employees' right to ``full freedom of association'' and ``encourag[ing]
free debate'' on labor issues. 29 U.S.C. 151; Chamber of Commerce v.
Brown, 554 U.S. at 68. They further argue that the final rule violates
employees' Section 7 right to refrain from union activity, because this
right ``implies an underlying right to receive information opposing
unionization.'' Chamber of Commerce v. Brown, 554 U.S. at 68.
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\81\ See NRTWLDF; Seyfarth Shaw; ALFA; American Council on
Education; CDW; NRMCA; Indiana Chamber of Commerce; Con-way;
Specialty Steel; Americans for Limited Government; International
Foodservice; testimony of Steve Jones; testimony of Charles I.
Cohen; testimony of David Kadela; testimony of Harold Weinrich;
testimony of Brett McMahon.
Some comments include a related argument that employees who are
considered likely to oppose the union, and therefore were not
involved in the pre-petition organizing campaign, may not know about
the organizing drive until the petition is filed. See Seyfarth Shaw;
ALFA.
---------------------------------------------------------------------------
As explained above in the discussion of Section 8(c) and the First
Amendment, Chamber of Commerce v. Brown did not involve the question of
the appropriate time period between a petition and election, nor did
the Court's general observations regarding speech indicate that any
particular period of time is necessary for employees to receive
information about the union. And the procedural rule adopted here does
not police speech or limit employees' freedom of association. It also
will not, as explained above, cause such a significant reduction in the
time employers have to campaign or employees have to process campaign
messages and organize for or against representation as to interfere
with employees' freedom of choice or association.
A number of comments asserted that a lengthy election campaign
tends to disserve the interests of both employees and employers. AFT
cites anecdotal evidence from a lengthy campaign that demoralized
workers and resulted in significant expenditures by the employer.\82\
Several comments also note a correlation between the length of the
campaign and the number of unfair labor practice complaints issued
against the employer.\83\ Another study indicated that protracted
campaigns lead to a more conflict-ridden, adversarial work
environment.\84\ SEIU argues that the contentious pre-election
environment often associated with long campaigns harms the prospects
for future bargaining. NELP argues that low-wage workers stand to make
significant improvements in their working conditions through
unionization, yet these same workers are particularly vulnerable to
retaliation for union activity, rendered more likely by long campaigns,
and are also likely to become discouraged by complex bureaucratic
processes.\85\ The Board did not rely on any such assertions in
proposing the amendments and does not do so in adopting the final rule.
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\82\ See also comment of Professor Paula Voos, contending, based
on her 2010 study, that campaigns longer than 60 days resulted in a
decline in shareholder wealth (as measured by changes in stock
prices plus disbursement of dividends), but campaigns of 60 days or
fewer did not.
\83\ See John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan
Lamare, Ph.D. (summarizing their study, ``New Data: NLRB Process
Fails to Ensure a Fair Vote,'' supra). See also SEIU; NELP; and
Ranking Member George Miller and Democratic Members of the U.S.
House of Representatives Committee on Education and the Workforce
(citing Logan, Johanson, and Lamare study).
\84\ See Dunlop Commission Final Report, supra at 38-41, cited
in comment of SEIU. Another comment contends, but offers no
supporting argument or empirical evidence, that elections on short
notice will foster bad feelings between pro- and anti-union
employees and between the union and management. See Norman Owen.
\85\ See testimony of Professor Paul F. Clark (noting that
employee organizing has become a ``minefield and a marathon'' due to
sophisticated anti-union campaigns and delays).
---------------------------------------------------------------------------
Other comments suggest that the amendments will generate litigation
because, if a party has less time to campaign between the petition and
election, the party will ``assert as many defenses as possible'' or try
to obtain a hearing simply to ``buy * * * more time'' before the
election. AHA. SEIU's reply comment notes that there was no significant
drop in the consent or stipulation rate following former General
Counsel Fred Feinstein's initiative aimed at commencing all pre-
election hearings between 10 and 14 days after the filing of the
petition. Rather than undermining the rationale for the proposals, the
suggestion that parties might use the pre-election hearing to delay the
conduct of an election reinforces the need for the final rule. Both the
ability and incentive for parties to attempt to raise issues and engage
in litigation in order to delay the conduct of an election are reduced
by the final rule.
E. Effects on Employee Representation and the Economy
Many comments do not address the substance of the proposed
amendments, but instead speak generally in favor of, or in opposition
to, labor unions and the process of collective bargaining. The Board
observes that, by passing and amending the NLRA, Congress has already
made the policy judgment concerning the value of the collective-
bargaining process; the Board is not free to ignore or revisit that
judgment. Rather, as explained in the NPRM, the amendments are intended
to carry out the Board's statutory mandate to establish fair and
efficient procedures for determining if a question of representation
exists and for conducting secret-ballot elections. Accordingly, the
Board will not engage in an analysis, invited by these comments,
concerning the general utility of labor unions and the collective-
bargaining process.
Other comments assert that the proposed amendments would lead to
increased union representation and question the wisdom of adopting
rules that would have such an effect in the middle of an economic
recession. Again, the Board views these comments as questioning policy
decisions already made by Congress.\86\ Neither the
[[Page 80158]]
proposed amendments nor the final rule reflects a judgment concerning
whether increased employee representation would benefit or harm the
national economy. As explained in the NPRM and above, increasing the
rate of employee representation is not the goal of the Board's proposed
or final rule.
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\86\ To the extent that comments suggest that the Board failed
to consider the proposed rule's potential to increase the costs on
small employers associated with increased unionization as part of
its obligations under the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., those comments are addressed in the Regulatory Flexibility
Act section below.
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IV. Comments on Particular Sections
Part 101, Subpart C--Representation Cases Under Sec. 9(c) of the Act
and Petitions for Clarification of Bargaining Units and for Amendment
of Certifications Under Sec. 9(b) of the Act
In the NPRM, the Board proposed to eliminate redundant sections of
its regulations contained in Subpart C of Part 101 describing
representation case procedures. The relevant sections of Subpart C of
Part 101 currently include an essentially complete restatement of the
representation case procedure established in Subpart C of Part 102. As
the Board noted in the NPRM, ``Describing the same representation
procedures in two separate parts of the regulations may create
confusion.'' 76 FR at 36819.
The final rule eliminates Subpart C of Part 101. A few, non-
redundant portions are moved into Part 102. For example, the
description of the pre-election conference is moved to Sec. 102.69(a).
The Board received no significant comments opposing this proposal.
Comments from a variety of viewpoints supported the Board's effort to
eliminate redundant regulations.
As noted in the NPRM, Sec. 101.1 states that the purpose of Part
101 is to provide the public with a statement of ``the general course
and method by which the Board's functions are channeled and
determined.'' \87\ The purpose of a separate statement of the general
course ``is to assist the public in dealing with administrative
agencies,'' but should not be ``carried to so logical an extreme as to
inconvenience the public.'' \88\ The NPRM stated that codifying this
statement in the Code of Federal Regulations risked confusing the
public. Instead, the Board proposed to publish the statement in the
Federal Register without codification. This accords with general
administrative practice.\89\ The NPRM contained an uncodified statement
of the general course, 76 FR at 36817-18, and proposed that any final
rule that might issue would also include an uncodified statement of the
general course. A Statement of the General Course of Proceedings Under
Section 9(c) of the Act is provided below.\90\
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\87\ See 5 U.S.C. 552(a)(1)(B). The original language of this
provision stated that the section would ``amplify and supplement
the[] rules of procedure.'' 12 FR 5651 (August 22, 1947).
\88\ Tom C. Clark, Attorney General's Manual on the
Administrative Procedure Act, 17, 19 (August 27, 1947).
\89\ See, e.g., 26 CFR 601.702(a)(1)(ii) (``[T]he Commissioner
publishes in the Federal Register from time to time a statement,
which is not codified in this chapter, on the organization and
functions of the IRS.'').
\90\ The Board will also continue to publish, update, and make
available on its Web site the detailed statement of representation
case procedures set forth in its Casehandling Manual.
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Prior Sec. 101.18 provided, ``The evidence of representation
submitted by the petitioning labor organization or by 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.'' ALFA submits that revised Sec. 102.61 should explicitly
state that a proper showing of interest must include authorization
cards or signatures from 30 percent of the employees in an appropriate
unit. The final rule, however, does not revise Sec. 102.61 as proposed
or in any respect. To the extent that ALFA would still have the Board
amend Sec. 102.61 to specify the 30 percent figure, the Board declines
to adopt this proposal. The Board's current rules and regulations set
forth in Part 102 do not specify a precise threshold for the
administratively required showing of interest. As explained in former
Sec. 101.18, the purpose of the showing of interest on the part of
labor organizations and individual petitioners that initiate or seek to
participate in a representation case is merely to determine whether
there is sufficient employee interest in selecting, changing or
decertifying a representative to warrant the expenditure of the
agency's time, effort, and resources in conducting an election. See
also Casehandling Manual Section 11020. As such, the purpose of the
showing of interest is purely an administrative one; the size of the
showing of interest in support of certification and decertification
petitions that the Board currently requires is not compelled by the
Act. As an administrative matter it is not litigable. The Borden Co.,
101 NLRB 203, 203 n.3 (1952); Casehandling Manual Section 11028.3.
However, at this time, the Board has no intention of changing the size
of the required showing of interest and the uncodified statement of the
general course that follows states that the required showing remains 30
percent.\91\
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\91\ The Board's form petition, Form NLRB 502 also states, and
will continue to state, that the required showing of interest is 30
percent (see Form section 6(b)).
In response to comments that erroneously suggest that 30 percent
is the threshold for resolving a question of representation, the
Board reiterates here that if a question of representation exists,
it is resolved by a majority of valid votes cast in an election.
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Part 101, Subparts D and E--Unfair Labor Practice and Representation
Cases Under Secs. 8(b)(7) and 9(c) of the Act and Referendum Cases
Under Sec. 9(e)(1) and (2) of the Act
In the NPRM, the Board also proposed to eliminate its statement of
procedures contained in Subparts D and E of Part 101 regarding unfair
labor practice and representation cases arising under Sections 8(b)(7)
and 9(c) of the Act and referendum cases arising under Section 9(e)(1)
and (2) of the Act. The Board has decided to deliberate further
regarding its proposal to eliminate these subparts that describe
procedures for two specialized types of representation cases. Instead
of eliminating these two subparts entirely, the final rule conforms the
procedures described therein to the amendments set forth below.
Part 102, Subpart C--Procedure Under Sec. 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 Sec. 9(b) of the Act
Sec. 102.62 Election Agreements
In the NPRM, the Board proposed a number of amendments to Sec.
102.62. The amendments were intended to clarify the terms used to
describe the three types of pre-election agreements, to eliminate
mandatory Board resolution of post-election disputes under a stipulated
election agreement, to codify the requirement of the Excelsior list and
to alter the content and timing of its provision to the petitioner,\92\
and to alter the means of transmittal of the final notice of election.
The Board has decided at this time to adopt only the proposed
amendments to Sec. 102.62 clarifying the terms used to describe pre-
election agreements and eliminating mandatory Board resolution of post-
[[Page 80159]]
election disputes under a stipulated election agreement.
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\92\ See Excelsior Underwear, Inc., 156 NLRB 1236 (1966)
(establishing requirement that employers must file a list of the
names and addresses of all eligible voters with the regional
director within seven days after a Board election has been agreed to
or directed; the regional director then makes the information
available to all parties in the case).
---------------------------------------------------------------------------
The final rule's amendments to Sec. 102.62(b) revise the contents
of the stipulated election agreement. The revision eliminates parties'
ability to agree to have post-election disputes resolved by the Board.
The amendments provide instead that, if the parties enter into what is
commonly referred to as a ``stipulated election agreement,'' \93\ the
regional director will resolve any post-election disputes subject to
discretionary Board review. This procedure is consistent with the
changes to Sec. 102.69 described below making all Board review of
regional directors' dispositions of post-election disputes
discretionary in cases where parties have not addressed the matter in a
pre-election agreement.\94\
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\93\ Casehandling Manual Section 11084.
\94\ The current rules governing Board review of regional
directors' dispositions of post-election disputes appear on their
face to provide for both mandatory and discretionary review
depending on how the regional office processes the case. See 29 CFR
102.69(c)(3) and (4).
---------------------------------------------------------------------------
As explained in the NPRM, the amendment makes the process for
obtaining Board review of regional directors' dispositions of post-
election disputes fully parallel to that for obtaining Board review of
regional directors' dispositions of pre-election disputes. The Board
perceived no reason why pre- and post-election dispositions should be
treated differently in this regard, and the comments on this proposal
offered no convincing reason.
The Board affirms the vast majority of post-election decisions made
at the regional level, and many present no issue meriting full
consideration by the Board. In some cases, for example, parties seek
review of post-election decisions based on mere formulaic assertions of
error below and without pointing to any facts or law in dispute.\95\
Review as of right should not be granted in those situations. Others
cases present only circumscribed, purely factual issues concerning
which the Board is in no better position to reach a correct finding
than the hearing officer (who heard the evidence) or the regional
director.\96\ Given the highly deferential standard that the Board
employs in reviewing a hearing officer's post-election factual
findings,\97\ it is reasonable for the Board to require the party
seeking review of such a finding to justify that review by showing that
the standard for obtaining discretionary review is satisfied. There are
other cases in which the regional director assumes the facts asserted
by the objecting party but finds that no objectionable conduct
occurred,\98\ or where there is no dispute about the facts at all.\99\
A discretionary system of review will provide parties with a full
opportunity to contest those determinations. Another group of cases
represent parties' efforts to seek reconsideration, extension, or novel
application of existing Board law,\100\ and there is equally no reason
why a discretionary system of review will not fully provide that
opportunity. Still other cases simply involve the application of well-
settled law to very specific facts.\101\ In short, for a variety of
reasons, a substantial percentage of Board decisions in post-election
proceedings are unlikely to be of precedential value because no
significant question of policy is at issue. The final rule requires the
party seeking review to identify a significant, prejudicial error by
the regional director or some other compelling reason for Board review,
just as the current rules require a party to do when seeking Board
review of a regional director's pre-election decision.\102\ The final
rule will enable the Board to separate the wheat from the chaff, and to
devote its limited time to cases of particular importance. Based on
those considerations, the Board concludes that making review of
regional directors' post-election decisions available on a
discretionary basis, as is currently the case with pre-election review
and some post-election review, will assist the Board in fulfilling its
statutory mandate to promptly resolve questions concerning
representation.
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\95\ See, e.g., C&G Heating, 356 NLRB No. 133, slip op. at 1
(2011).
\96\ See, e.g., Ruan Transport Corp., 13-RC-21909 (Nov. 30,
2010) (resolving intent of voter who marked an X in two boxes on
ballot but ``nearly obliterated'' one of them with pen markings in
lieu of erasure); Multiband, Inc., 2011 WL 5101459, slip op. at n.2
(Oct. 26, 2011) (credibility).
\97\ See Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
\98\ See, e.g., Care Enterprises, 306 NLRB 491 n.2 (1992).
\99\ See, e.g., CEVA Logistics U.S., Inc., 357 NLRB No. 60
(2011) (consequences of regional delay in forwarding Excelsior
list).
\100\ See, e.g., 1621 Route 22 West Operating Co., LLC d/b/a
Somerset Valley Rehabilitation & Nursing Ctr., 357 NLRB No. 71
(2011); Ace Car & Limousine Service, Inc., 357 NLRB No. 43 (2011).
\101\ Mental Health Ass'n, Inc., 356 NLRB No. 151 (2011)
(whether employer's particular statements about bonuses constituted
objectionable promise of benefit); G&K Services, Inc., 357 NLRB No.
109 (2011) (whether employer's letter about health coverage
constituted objectionable promise of benefit).
\102\ See Sec. 102.67(c), providing:
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.
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Several comments argue that if the Board were to adopt these
amendments, it would be abdicating its statutory responsibility and
function.\103\ For example, SHRM argues that only Board Members,
because they are appointed by the President and confirmed by the
Senate, can make final decisions about these matters and that the
regional directors, who are career civil servants, lack comparable
authority and political legitimacy. Others state that denying aggrieved
parties the right to appeal adverse determinations to the Board
undermines due process protections. NAM contends that the Board is
required to review conduct affecting election outcomes in order to
safeguard employees' Section 7 rights. Similarly, other comments argue
that conduct that could be the basis for setting aside an election goes
to the essence of employee free choice and deserves de novo Board
review.\104\ Still other comments contend that, although Section 3(b)
of the Act permits Board delegation to the regional directors of
decisions pertaining to representation issues, those decisions must be
reviewed by the Board upon request.
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\103\ See Chamber; SHRM; CDW; COLLE; NACCO Materials Handling
Group; Dassault Falcon Jet; Bluegrass Institute; John Deere Water.
\104\ See, e.g., Dassault Falcon Jet.
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The Board is not persuaded by these comments. The arguments they
advance apply equally to pre-election disputes, and yet the Board has
since 1961 afforded only discretionary review of regional directors'
dispositions of pre-election disputes even though a failure to request
review pre-election or a denial of review precludes a party from
raising the matter with the Board post-election. 29 CFR 102.67(f).
Moreover, even under the current rules, specifically Sec.
102.69(c)(4), if the regional director issues a decision concerning
challenges or objections instead of a report in cases involving
directed elections, an aggrieved party's only recourse is a request for
review. Thus, the comments' objections apply to the current regulations
as well as to the final rule.
Moreover, Section 3(b) of the NLRA does not support the conclusion
expressed in those comments. Section 3(b) provides in part:
[[Page 80160]]
The Board is * * * authorized to delegate to its regional
directors its powers * * * to determine [issues arising in
representation proceedings], except that upon the filing of a
request therefore with the Board by any interested person, the Board
may review any action of a regional director delegated to him * * *,
but such review shall not, unless specifically ordered by the Board,
operate as a stay of any action taken by the regional director.
29 U.S.C. 153(b).
Since Congress adopted this provision in 1959 and the Board
exercised its authority to delegate these functions to its regional
directors in 1961, the Board's rules have provided that regional
directors' dispositions of pre-election disputes are subject only to
discretionary Board review. None of the comments suggest that the
current rule as to pre-election disputes violates Section 3(b) or is
otherwise improper.
In fact, the Supreme Court has upheld the Board's decision not to
provide parties with a right to Board review of regional director's
pre-election determinations, in a holding that clearly permits the
Board to adopt the final rule's amendments concerning post-election
review. In Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971), the
employer filed a request for review of the regional director's decision
and direction of election holding that certain individuals were
properly included in the unit. The Board denied the petition on the
ground that it did not raise substantial issues. In the subsequent
``technical 8(a)(5)'' unfair labor practice proceeding, the employer
asserted that ``plenary review by the Board of the regional director's
unit determination is necessary at some point,'' i.e., before the Board
finds that the employer committed an unfair labor practice based on the
employer's refusal to bargain with the union certified as the
employees' representative in the representation proceeding. 401 U.S. at
140-41. However, the Court rejected the contention that Section 3(b)
requires the Board to review regional directors' determinations before
they become final and binding. Citing Congress's authorization of the
Board to delegate decision-making in this area to its regional
directors and the use of the clearly permissive word ``may'' in the
clause describing the possibility of Board review, the Court held,
``Congress has made a clear choice; and the fact that the Board has
only discretionary review of the determination of the regional director
creates no possible infirmity within the range of our imagination.''
Id. at 142. Consistent with the purpose of the final rule here, the
Supreme Court quoted Senator Goldwater, a Conference Committee member,
explaining that Section 3(b)'s authorization of the Board's delegation
of its decision-making authority to the regional directors was to
``expedite final disposition of cases by the Board, by turning over
part of its caseload to its regional directors for final
determination.'' Id. at 141 (citing 105 Cong. Rec. 19770). And
undermining the comments' suggestion that regional directors lack
authority, status, or expertise to render final decisions in this area,
the Court further explained that the enactment of section 3(b)
``reflect[s] the considered judgment of Congress that the regional
directors have an expertise concerning unit determinations.'' Id. \105\
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\105\ See also St. Margaret Memorial Hosp. v. NLRB, 991 F.2d
1146, 1154 (3d Cir. 1993); Beth Israel Hosp. and Geriatric Ctr. v.
NLRB, 688 F.2d 697, 700-01 (10th Cir. 1982) (en banc);
Transportation Enterprises, Inc. v. NLRB, 630 F.2d 421, 426 (5th
Cir. 1980) (finding that ``decisions rendered by the regional
offices of the NLRB which are not reviewed by the Board, for
whatever reasons, are entitled to the same weight and deference as
Board decisions, and will be given such unless and until the Board
acts in a dispositive manner.'').
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The Board concludes that the language of Section 3(b), its
legislative history, and the Supreme Court's decision in Magnesium
Casting are dispositive of the statutory objections to the proposed
amendment.
Some comments suggest that providing only discretionary review of
regional directors' decisions will undermine the uniformity of election
jurisprudence, with different regional directors issuing divergent
opinions in similar cases and under similar circumstances. The comments
contend that if those decisions are not reviewed by the Board as a
matter of right, there is a risk that the regional office in which the
employer's operations reside, rather than the merits of the parties'
positions, will govern how the dispute is resolved. For example,
Bluegrass Institute contends that discretionary Board review will
result in less uniformity, the denial of due process, and diminished
legitimacy in election processes. The Board disagrees.
Constitutional due process requires only one fair hearing and does
not require an opportunity to appeal. The Supreme Court has so held
even with respect to criminal cases. See Evitts v. Lucey, 469 U.S. 387,
393 (1985) (``Almost a century ago, the Court held that the
Constitution does not require States to grant appeals as of right to
criminal defendants seeking to review alleged trial court errors.
McKane v. Durston, 153 U.S. 684 * * * (1894).'').
Since 1961, regional directors have made pre-election
determinations, and their decisions have been subject to only
discretionary review through the request for review procedure. The same
has been true of post-election determinations processed under Sec.
102.69(c)(3)(ii). There is no indication that the quality of decision-
making has been compromised by this procedure or that regional
directors have reached inconsistent conclusions. Under the final rule,
the same review process will apply to all cases involving post-election
objections and challenges except where they are consolidated with
unfair labor practice allegations before an administrative law judge.
As it has done for over 50 years in respect to pre-election disputes,
the Board will scrutinize regional directors' post-election decisions
where proper requests for review are filed. One purpose of that review
will be to determine if there is an ``absence of'' or ``a departure
from, officially reported Board precedent,'' i.e., to ensure uniformity
via adherence to Board precedent. See 29 CFR 102.67(c)(1). Thus, the
discretionary review provided for in the final rule parallels that used
by the Supreme Court to ensure uniformity among the circuit courts of
appeals. See Supreme Court Rule 10. For these reasons, the Board does
not believe that the final rule will lead to a lack of uniformity.
A few comments question the competence of regional personnel. For
example, COLLE argues that ``Regional Directors can be dictatorial and
imprudent to the rights of private parties in disputes before them''
and ``can exhibit irrational and unfair behavior and deprive parties of
their rights to go to hearing and litigate legitimate issues under the
Act.'' GM Life suggests that regional directors are unfamiliar with the
legal process and will not follow proper procedures. Other comments
contend that because hearing officers report directly to regional
directors, appeal to the regional directors does not constitute
meaningful review.
The Board's experience in reviewing the work of and supervising its
regional directors gives no credence to these comments. Moreover,
Congress expressed confidence in the regional directors' abilities when
it enacted Section 3(b). As one comment in favor of the rule (Professor
Joel Cutcher-Gershenfeld) noted, empowering regional directors to make
final post-election rulings, as they now do in respect to pre-election
matters, locates decisions with the individuals who have the greatest
knowledge about and experience with representation case
[[Page 80161]]
procedures.\106\ Similarly, the Chamber, although it generally opposes
the proposals, notes the ``professionalism, experience and integrity''
of the regional directors and their staffs. Rather than detracting from
their authority and legitimacy, the Board concludes that the regional
directors' career status guarantees their neutrality and, in almost all
cases, their extended service at the Board and thus extensive
experience with and knowledge about representation case procedures and
rules.
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\106\ The Board also notes that regional directors make
decisions concerning whether to prosecute charges of unfair labor
practices under the Act, and those prosecutorial decisions often
involve questions of employee status and questions of whether
certain conduct is unlawful, both of which often parallel questions
that arise in post-election representation proceedings. The courts
have recognized that regional directors have expertise in
determining what constitutes objectionable conduct. See, e.g., NLRB
v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991), cert.
denied, 504 U.S. 955 (1992).
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ALFA argues specifically that regional directors tend to uphold
election results, and therefore a right to Board review should be
retained if the Board wishes to discourage litigation via refusals to
bargain. As noted above, the Board rejects the suggestions that
regional directors are systematically biased in this or any other way,
and repeats that it will scrutinize regional decisions' decisions when
proper requests for review are filed.
Some comments contend that, if the proposals are adopted, employers
will increasingly refuse to bargain with newly certified
representatives in order to obtain judicial review of regional
directors' determinations.\107\ This argument is, at best, highly
speculative. There is no evidence that this happened after the Board
delegated adjudication of pre-election disputes to its regional
directors in 1961 subject to only discretionary review by the Board,
and the Board can see no reason why an increase in refusals to bargain
would be more likely if Board review of post-election decisions is
similarly made discretionary. The Board does not believe that judicial
review through technical refusal to bargain will be more frequent when
the Board denies review of a regional director's post-election decision
than it is when the Board summarily affirms the same regional decision,
as it often does now. See, e.g., The Geist Co., 8-RC-17056 (Dec. 1,
2011); The Memorial Hospital of Salem County, 4-RC-21697 (Aug. 3,
2011); Ashland Nursing & Rehabilitation Center, 5-RC-16580 (May 31,
2011); Banner Services Corp., 13-RC-21983 (May 25, 2011).
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\107\ See Chamber; AHA; CDW; Baker & McKenzie.
---------------------------------------------------------------------------
Several comments argue that the rule is contrary to the preferences
of both employers and unions, as shown by the high rate of stipulated
election agreements--providing for adjudication of post-election
disputes by the Board--and the comparative rarity of consent election
agreements--providing for a final decision by the regional director.
AHA, SHRM, and ACE contend that parties prefer this form of pre-
election agreement because it provides for Board disposition of post-
election issues. As a corollary to this argument, some comments argue
that eliminating automatic Board review will result in fewer pre-
election agreements and thus more litigation.\108\
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\108\ See, e.g., ALFA; SHRM. Constangy, Brooks & Smith
(Constangy) contends that an employer entering into a stipulation
will lose any rights to appeal pre-election unit issues and that
this will have a negative effect on the Board's stipulation rate.
The Board notes, however, that under current procedures, parties who
enter into stipulated election agreements, by definition, agree
about pre-election issues, and therefore waive any right to bring
pre-election issues to the Board. Thus, the final rule does not
change that aspect of stipulated election agreements.
---------------------------------------------------------------------------
The Board believes for several reasons that the final rule will not
create a disincentive for parties to enter into consent or stipulated
election agreements. The final rule makes post-election Board review
discretionary whether the parties enter into a stipulated election
agreement or proceed to a hearing resulting in a decision and direction
of election. Thus, parties who prefer Board review of post-election
disputes will have no incentive to litigate concerning pre-election
issues in order to gain such review. The Board believes that if parties
genuinely prefer agreements that permit Board review, they will
continue to enter into stipulated rather than consent election
agreements in order to preserve their right to seek such review.
Whether parties enter into any pre-election agreement or litigate
disputes at a pre-election hearing under the final rule will depend on
the same calculus of the likelihood of success, the importance of the
issue, and the cost of litigation, that it does at present. In addition
to avoiding the time and expense associated with a pre-election
hearing, parties also gain certainty with respect to the unit
description and the election date by entering into a stipulated
election agreement. In short, parties will continue to have ample
reason to enter into stipulated election agreements under the final
rule, even though the final rule makes Board review of regional
directors' dispositions of post-election disputes discretionary.
Some comments, such as that of Sheppard Mullin, express confusion
about the rule and the request-for-review procedure. The grounds for
granting a request for review under Sec. 102.69(d)(3) of the final
rule are identical to the grounds set forth in Sec. 102.67(c) of the
existing rules. The Board will continue to review cases involving
issues of ``first impression'' or where there is ``conflicting or
unsettled'' law in the same manner that it currently does under the
pre-election request-for-review procedure. The Board is not aware of
any concerns about the way it has evaluated requests for review in
representation proceedings, and does not anticipate any in the future.
One comment questions whether ``the denial of review'' is subject
to appeal to the federal courts. The Board's denial of review of a
post-election request for review will be the final order in a
representation proceeding under the final rule, as it is currently.
However, orders in representation cases are not final orders for
purposes of judicial review. Rather, an employer must refuse to bargain
and commit a ``technical 8(a)(5)'' violation to secure court review of
the Board's representation decisions. See 29 U.S.C. 159(d); Boire v.
Greyhound Corp., 376 U.S. 473, 476-79 (1964). Under the current rules,
if an employer refuses to bargain, it may obtain review of a regional
director's pre-election rulings even if the Board denied review
thereof, and the same will be true of post-election rulings under the
final rule. Thus, there are no open questions about the Board's
discretionary review process that will undermine confidence in its
decisional processes.
Similarly, comments misinterpret the rule with respect to how
regional decisions will be reviewed and how that review will affect the
law. The final rule simply makes post-election dispositions reviewable
under a discretionary standard, rather than as of right. The Board's
rulings on post-election requests for review will be public and will be
published on the Board's Web site, as will the underlying regional
directors' decisions, just as rulings on pre-election requests for
review are now. Thus, the public and labor law community will have full
access to the Board's rulings.
In sum, the amendments to Sec. 102.62(b) conform the review
provisions of the stipulated election agreement to the amended review
provisions for directed elections. Parties should not be able to get
greater post-election Board review simply by virtue of the fact that
there are no pre-election
[[Page 80162]]
disputes. Under the final rule, all Board review of regional directors'
dispositions of challenges and objections will be discretionary under
the existing request-for-review procedure.
Sec. 102.63 Investigation of Petition by Regional Director; Notice of
Hearing; Service of Notice; Withdrawal of Notice
In the NPRM, the Board proposed a number of amendments to Sec.
102.63. The Board proposed that absent special circumstances, the
regional director would set the pre-election hearing to begin seven
days after service of the notice of hearing. The Board also proposed to
require the employer to post an initial election notice to employees.
The Board further proposed to require non-petitioning parties to
complete Statements of Position. The Board has decided to take no
action at this time on those proposals in order to permit more time for
deliberation.
The amendments to Sec. 102.63 conform this section to the
remainder of the amendments.
Sec. 102.64 Conduct of Hearing
As explained in the NPRM, the proposed amendments to Sec. 102.64
were intended to ensure that the pre-election hearing is conducted
efficiently and is no longer than necessary to serve the statutory
purpose of determining if there is a question of representation. The
final rule largely embodies the proposed amendment to Sec. 102.64(a).
In amended Sec. 102.64(a), the Board expressly construes Section
9(c) of the Act, which specifies the purpose of the pre-election
hearing. The statutory purpose of the pre-election hearing is to
determine if there is a question of representation. A question of
representation exists if a petition has been filed, as described in
Section 9(c)(1) of the Act and Sec. 102.60 of the Board's rules,
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.\109\ If the regional director concludes,
based on the record created at the hearing, that such a question of
representation exists, the regional director should direct an election
in order to resolve the question. If any party contends that an
election is barred, under the terms of the Act or Board precedent, and
that contention is contested, the regional director must also rule on
the existence of such a bar prior to directing an election. \110\
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\109\ A proper petition cannot be filed under Section 9(c)(1)
and a question of representation cannot arise under the Act unless
the employees in the unit are employed by an employer covered by the
Act. Thus, if any party contests the Board's statutory jurisdiction
or contends that the Board has declined to exercise its full,
statutory jurisdiction over the employer, the regional director must
resolve the resulting dispute based on the record of the pre-
election hearing. Similarly, a proper petition under Section
9(c)(1)(A) can be filed by ``an employee or group of employees or
any individual or labor organization.'' Thus, if a petition is filed
by an entity and any party contends that the entity is not a labor
organization, the regional director must resolve the resulting
dispute based on the record of the pre-election hearing.
\110\ The hearing officer will retain authority to develop the
record relevant to any such contention using the ordinary procedures
already in use, which are designed to avoid burdening the record
with unnecessary evidence. For example, current rules give the
hearing officer discretion to require a party to make an offer of
proof before admitting evidence.
---------------------------------------------------------------------------
Amended Sec. 102.64(a) makes clear that disputes concerning
individual employees' eligibility to vote and inclusion in the unit
ordinarily need not be litigated or resolved before an election is
conducted. Such disputes can be raised through challenges interposed
during the election, if the disputed individuals attempt to cast a
ballot, and both litigated and resolved, if necessary, post-election.
The proposed rule provided:
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.
The final rule provides:
Disputes concerning individuals' eligibility to vote or
inclusion in an appropriate unit ordinarily need not be litigated or
resolved before an election is conducted. If, upon the record of the
hearing, the regional director finds that a question of
representation exists and there is no bar to an election, he shall
direct an election to resolve the question.
The change in language is due to the final rule not adopting the
``20-percent rule'' as discussed below in relation to Sec. 102.66. For
that reason, the language, ``unless specifically provided otherwise in
these rules,'' has been removed. As more fully explained in relation to
Sec. 102.66 below, the amendment expressly preserves the regional
director's discretion to resolve or not to resolve disputes concerning
individuals' eligibility to vote or inclusion in the unit until after
the election. It also grants the hearing officer authority to exclude
evidence concerning such disputes on the grounds that such evidence is
not relevant to the existence of a question of representation.
The final rule defers, in order to permit further deliberation, a
final decision concerning the proposed amendments to subsections (b)
and (c) of Sec. 102.64. Therefore, amended Sec. 102.64(b) will
provide, as is now provided in Sec. 102.64(a), ``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.'' However, amended Sec. 102.64(a) more clearly specifies the
Board's or regional director's ``duties under Section 9(c) of the Act''
and thus gives clear guidance to hearing officers concerning what
evidence is and is not necessary to develop a ``full and complete
record'' upon which the Board or regional director can discharge those
duties.
Few comments address the proposed amendment of Sec. 102.64(a).
Those that do question the construction of Section 9(c) of the Act on
the grounds that litigation of disputes concerning individual
employees' eligibility to vote and inclusion in the unit should be
permitted pre-election. These comments are addressed below in relation
to Sec. 102.66.
Sec. 102.65 Motions; Interventions
The final rule adopts the proposed amendments of Sec. 102.65(c)
specifying the grounds for a request for special permission to appeal a
ruling of the hearing officer or regional director to the Board.
However, the final rule does not apply the new, narrower standard to
requests for special permission to appeal a ruling of the hearing
officer to the regional director.
The existing rules set forth no standard for the grant of a request
for special permission to appeal. Consistent with the effort to avoid
piecemeal appeal to the Board, as discussed above in relation to Sec.
102.62 and below in relation to Sec. 102.67, the amendments to Sec.
102.65(c) specify narrow circumstances under which a request for
special permission to appeal to the Board will be granted. The final
rule specifies that special permission to appeal will be granted only
under ``extraordinary circumstances where it appears that the issue
will otherwise evade review.'' To further discourage piecemeal appeal,
the final rule makes clear that a party need not seek special
permission to appeal in order to preserve an issue for review post-
election.
Consistent with Congress's intent as evidenced in Section 3(b) as
well as
[[Page 80163]]
ordinary practice in the courts and before administrative agencies, the
final rule further specifies that neither the filing of a request for
nor the grant of special permission to appeal will automatically stay
proceedings or require the impounding of ballots unless specifically
ordered by the regional director or the Board.
Few comments were submitted on this proposal. The American Health
Care Association and the National Center for Assisted Living (jointly,
AHCA) contend that the Board provides no examples of issues that would
meet the standard for ``otherwise evades review.'' Constangy argues
that limiting appeals to extraordinary circumstances, combined with
preventing regional directors from staying proceedings to consider
motions for reconsideration, will effectively result in the total
preclusion of review of pre-election rulings, preventing appeal of
legitimate disputes.
The Board disagrees with these concerns. ``Extraordinary
circumstances'' is not the same as ``no circumstances.'' Cf. Sec.
103.30(b) (``Where extraordinary circumstances exist, the Board shall
determine appropriate units by adjudication.''). The general rule in
adjudication before both courts and agencies is that interlocutory
appeals are not favored, and should be permitted only when the issues
raised would evade review if not resolved before review of a final
judgment. See 28 U.S.C. 1291, 1292(b) (2006); Mohawk Industries, Inc.
v. Carpenter, 130 S. Ct. 599, 604-605 (2009); Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468-469 (1978).
As discussed above, Section 3(b) of the Act authorizes the Board to
delegate to its regional directors power to resolve issues arising in
representation proceedings, and the final rule is intended to further
that delegation while maintaining appropriate procedures for those
unusual cases that require interlocutory intervention.
AHCA and ALFA argue that special permission to appeal serves little
purpose because it will not stay proceedings. But the final rule does
not preclude a stay. Rather, it merely provides that neither the filing
nor grant of a request for special permission to appeal shall result in
an automatic stay. The regional director and Board remain free to grant
a stay, either on their own or on request, under appropriate
circumstances.
After deliberation, the Board has decided not to approve the
application of this new, narrow standard for special permission to
appeal to requests to appeal rulings of a hearing officer to the
regional director. In the pre-election hearing, the hearing officer is
developing a record upon which the regional director can make a
decision. Moreover, the relation between hearing officers and regional
director is, in practice, more informal than that between a trial and
appellate court or between a regional director and the Board, with
hearing officers not infrequently seeking advice from the regional
director during a hearing. For these reasons, the final rule does not
apply the new, narrow standard to requests for special permission to
appeal rulings of hearing officers to the regional director.
The final rule also adopts the proposed amendment to Sec.
102.65(e)(3). The Casehandling Manual provides in Section 11338.7 that
a Board agent should exercise discretion in deciding whether to allow a
vote under challenge when a party claims that changed circumstances
justify a challenge to voters specifically excluded, or included, by
the decision and direction of election. Accordingly, the final rule
adopts the proposal in the NPRM 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.
Sec. 102.66 Introduction of Evidence: Rights of Parties at Hearing;
Subpoenas
In the NPRM, the Board proposed a number of amendments to Sec.
102.66. The proposed amendments were designed to ensure that issues in
dispute would be more promptly and clearly identified and that hearing
officers could limit the evidence offered at the pre-election hearing
to that which is necessary for the regional director to determine
whether a question of representation exists. The NPRM proposed that
hearing officers would follow a specified process to identify relevant
issues in dispute. Thus, the NPRM provided that the hearing officer
would open the hearing by reviewing, or assisting non-petitioning
parties to complete, statements of position, and then would require the
petitioner to respond to any issues raised in the statements of
positions, thereby joining the issues. The NPRM further proposed that
after the issues were joined, the hearing officer would require the
parties to make offers of proof concerning any relevant issues in
dispute, and would not proceed to take evidence unless the parties'
offers created a genuine dispute concerning a material fact.
The Board also proposed that a party would be precluded from
raising any issue that it failed to raise in its timely statement of
position or to place in dispute in response to another party's
statement, subject to specified exceptions.
The proposed amendments further provided that if, at any time
during the hearing, the hearing officer determined that the only
genuine issue remaining in dispute concerned 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
would close the hearing, and the director would permit those
individuals to vote subject to challenge.
The Board also proposed in the NPRM that parties be permitted to
file post-hearing briefs only with the permission of the hearing
officer.
Finally, the NPRM proposed, consistent with existing practice, 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.
The Board received a great number of comments about the proposed
amendments to Sec. 102.66, particularly with respect to the statement
of position form and the consequences of failing to complete it, the
joinder and offer-of-proof procedure, and the so-called ``20-percent
rule.'' The Board has decided to take no action at this time on those
proposals or the proposal regarding subpoenas in order to permit more
time for deliberation. The final rule adopts the proposals to amend
Sec. 102.66(a) and (d) to ensure that hearing officers presiding over
pre-election hearings have authority to limit the presentation of
evidence to that which is relevant to the existence of a question of
representation and to give the hearing officer discretion in regard to
the filing of post-hearing briefs.
Subsec. 102.66(a)
The proposed rule provided:
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
[[Page 80164]]
evidence relevant to any genuine dispute as to a material fact. The
hearing officer shall identify such disputes as follows: * * *
The final rule provides:
Rights of parties at hearing. Any party shall have the right to
appear at any hearing in person, by counsel, or by other
representative, to call, examine, and cross-examine witnesses and to
introduce into the record documentary and other evidence so long as
such examination, cross-examination, and other evidence supports its
contentions and is relevant to the existence of a question of
representation or a bar to an election. The hearing officer shall
also have power to call, examine, and cross-examine witnesses and to
introduce into the record documentary and other evidence. Witnesses
shall be examined orally under oath. The rules of evidence
prevailing in courts of law or equity shall not be controlling.
Stipulations of fact may be introduced in evidence with respect to
any issue.\111\
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\111\ In the proposed rule, the last two sentences were in a
separate subsection (e).
The Board removed the language drawn from Federal Rule of Civil
Procedure 56 in order to avoid the confusion evident in some comments
concerning the role of the hearing officer. The substitute language
makes clear that the hearing officer's role is the traditional one of
admitting only evidence relevant to the matter at issue. The last
sentence as well as the subsections of proposed Sec. 102.66(a) and
subsections (b), (c), and (d) are deleted because the final rule does
not adopt the offer-of-proof, joinder, statement of position, or 20
percent rule provisions.
As explained in the NPRM, the final rule's amendment of Sec.
102.66(a) together with the elimination of Sec. 101.20(c) removes the
basis of the Board's holding in Barre National, Inc., 316 NLRB 877
(1995), that a hearing officer must permit full litigation of all
eligibility issues in dispute prior to a direction of an election, even
though the regional director and the Board need not resolve the issues
prior to the election. Together with the amendment of Sec. 102.64(a),
the amendment of Sec. 102.66(a) makes clear that, while the regional
director must determine that a proper petition has been filed in an
appropriate unit in order to find that a question of representation
exists, the regional director need not decide all individual
eligibility and inclusion questions (so long as they do not affect the
type of election that must be conducted) and the hearing officer need
not permit introduction of evidence relevant only to disputes
concerning the eligibility and inclusion of individuals.
In its comment, Baker & McKenzie questioned how a hearing officer
would determine whether proffered evidence was relevant to voter
eligibility or voter inclusion as opposed to unit appropriateness. The
same question arises under current procedures when both the regional
director and the Board defer ruling on eligibility or inclusion
questions until after the election. Thus, existing case law in which
both regional directors and the Board have deferred deciding individual
eligibility and inclusion questions until after an election will
provide considerable guidance to hearing officers. Generally,
individual eligibility and inclusion issues concern: (1) Whether
individuals or groups of individuals, otherwise falling within the
terms used to describe an appropriate unit, are nevertheless ineligible
because they are excluded from the Act's definition of employee and (2)
whether individuals or groups of individuals fall within the terms used
to describe the unit. For example, if the petition calls for a unit
including ``production employees'' and excluding the typical
``professional employees, guards and supervisors as defined in the
Act,'' then the following would all be eligibility or inclusion
questions: (1) Whether production foremen are supervisors, see, e.g.,
United States Gypsum Co., 111 NLRB 551, 552 (1955); (2) whether
production employee Jane Doe is a supervisor, see, e.g., PECO Energy
Co.,322 NLRB 1074, 1083 (1997); (3) whether workers who perform quality
control functions are production employees, see, e.g., Lundy Packing
Co., 314 NLRB 1042 (1994); and (4) whether Joe Smith is a production
employee, see, e.g., Allegany Aggregates, Inc., 327 NLRB 658 (1999).
For different reasons, the hearing officer must take evidence and
the regional director must determine, prior to the election, whether
any employees in an otherwise appropriate unit containing
nonprofessionals are professionals. Under Section 9(b)(1) of the Act,
any professionals in a unit containing both professional and
nonprofessional employees must be given the choice of whether they wish
to be represented in such a mixed unit. Because this requires special
balloting procedures, see Sonotone Corp., 90 NLRB 1236 (1950), the
question of whether any employees included in the otherwise appropriate
unit are professionals must be answered prior to the election.\112\
Similarly, if a party contends that, under Board precedent, an
eligibility standard different than the Board's ordinary standard
should be used, the hearing officer may take such evidence as may be
necessary to resolve that question since its resolution is a
prerequisite to the conduct of the election.
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\112\ Although some comments argue the same would be true of the
question of whether any employees in a unit containing non-guards
are guards, the Board disagrees. The Act does not require any
special election procedures for guards equivalent to what Section
9(b)(1) requires for professionals. While Section 9(b)(3) precludes
the Board from finding that a ``mixed unit,'' i.e., one containing
both guards and nonguards, is appropriate, if any party contends
that an individual in an otherwise appropriate unit of nonguards is
a guard, the regional director can find the unit excluding guards
appropriate and, if the individual attempts to cast a ballot, he or
she can be permitted to vote subject to challenge and the question
can be resolved after the election.
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Some comments on the proposed amendments argue that limiting
evidence to that which is relevant to whether a question of
representation exists is inconsistent with the statute's requirement
that, absent an election agreement, the Board must hold an
``appropriate hearing'' prior to conducting an election.\113\ The Board
disagrees. Section 9(c)(1) of the Act provides in pertinent part:
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\113\ See Americans for Limited Government; Constangy. Other
comments argue generally that Section 9(c) requires the Board to
conduct a pre-election hearing on issues concerning eligibility and
inclusion. See GAM; AHA; ALFA; COLLE; CDW; NMA.
Whenever a petition shall have been filed, * * * the Board shall
investigate such petition and if it has reasonable cause to believe
that a question of representation affecting commerce exists shall
provide for an appropriate hearing upon due notice. Such hearing may
be conducted by an officer or employee of the regional office, who
shall not make any recommendations with respect thereto. 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.
Thus, as explained above in relation to Sec. 102.64, the statutory
purpose of the pre-election hearing is to determine whether a question
of representation exists. The amendments to Sec. Sec. 102.64(a) and
102.66(a) are entirely consistent with Section 9(c)'s requirement that
``an appropriate hearing'' be held before the election is conducted.
The two amendments are consistent with Section 9(c) because both permit
parties to introduce all evidence at the pre-election hearing that is
relevant to whether a question of representation exists. Indeed, the
amendment to Sec. 102.66(a) expressly vests parties with a right to
present evidence ``so long as such examination, cross-examination, and
other evidence supports its contentions and is relevant to the
existence of a question of representation or a bar to an election.''
Nothing in Section 9(c) or any other section of the Act requires the
Board to permit parties
[[Page 80165]]
to introduce evidence at a pre-election hearing that is not relevant to
whether a question of representation exists.
The final rule's amendment of Sec. Sec. 102.64(a) and 102.66(a) is
also consistent with the final sentence of current Sec. 102.64(a),
which the final rule does not amend, though the sentence will now
appear in Sec. 102.64(b). That sentence provides that the hearing
officer's duty is ``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.'' (Emphasis added.) A hearing officer ensures ``a full and
complete record upon which the Board or the regional director may
discharge their duties under Section 9(c) of the Act'' when he or she
permits parties to present evidence which is relevant to the existence
of a question of representation. The Board's duty under Section 9(c) is
to conduct a hearing to determine if a question of representation
exists and, if such a question exists, to direct an election to answer
the question and to certify the results. The final rule expressly
allows the hearing officer to create a record permitting the regional
director to do precisely that.
In short, the effect of the amendments is simply to permit the
hearing officer to prevent the introduction of evidence that is not
needed in order to determine if a question of representation exists. By
definition, if the hearing officer excludes evidence that is not
relevant to whether a question of representation exists, the hearing
officer is not impeding the ability of the regional director or the
Board to discharge their respective duties under Section 9(c) of the
Act.
SHRM argues that ``[u]nder current NLRB procedural rules, a party
is guaranteed the right to submit evidence in support of its position
at the hearing.'' The Board acknowledges that the current language in
Sec. Sec. 102.66(a) and 101.20(c), when read in isolation, could have
been construed to mean that parties have a right to present evidence
regarding issues that do not relate to whether a question of
representation exists. But that is why the Board is amending Sec.
102.66(a) and eliminating Sec. 101.20(c). Put simply, it is
administratively irrational to require the hearing officer at a pre-
election hearing to permit parties to present evidence that relates to
matters that need not be addressed in order for the hearing to fulfill
its statutory function of creating a record upon which the regional
director can determine if a question of representation exists. In other
words, it is administratively irrational to require the hearing officer
to permit the introduction of irrelevant evidence.
SHRM cites Barre-National, Inc., 316 NLRB 877 (1995), in which the
Board relied on Sec. Sec. 102.66(a) and 101.20(c) in holding that the
hearing officer erred by preventing an employer from presenting
evidence at a pre-election hearing regarding the eligibility of 24 line
and group leaders to vote in an election directed in a unit of
production, maintenance, and warehouse employees.\114\ The employer
sought to present evidence that the line and group leaders were
supervisors. In support of its conclusions that the hearing officer
erred by excluding the evidence and the regional director erred by
permitting the disputed employees to vote subject to challenge, the
Board quoted the portion of Sec. 102.66(a), which then read:
---------------------------------------------------------------------------
\114\ The 24 disputed individuals would have constituted 8-9
percent of the unit if included. 316 NLRB at 878.
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.
The Board also quoted the portion of Sec. 101.20(c), which then read:
The parties are afforded full opportunity to present their
respective positions and to produce the significant facts in support
of their contentions.
Based on its reading of these two provisions, the Board concluded,
``Section 102.66(a) of the Board's Rules and Section 101.20(c) of the
Board's Statements of Procedure entitle parties at such hearings to
present witnesses and documentary evidence in support of their
positions.'' 316 NLRB at 878.\115\ The Board held in Barre-National,
``Under all the circumstances, the pre-election hearing held in this
case did not meet the requirements of the Act and the Board's rules and
Statements of Procedures.'' Id. Because of the use of the conjunctive
``and'' rather than the disjunctive ``or'' and the fact that nothing in
Section 9(c) of the Act can possibly be understood to give parties a
right to litigate questions of individual eligibility or inclusion
prior to an election,\116\ Barre-National cannot be read to rest on a
construction of the Act, but only on the Board's reading of Sec. Sec.
102.66(a) and 101.20(c). The final rule's amendment of Sec. 102.66(a)
and elimination of Sec. 101.20(c) make clear that parties are entitled
to present evidence in support of their contentions only if the
evidence is relevant to the existence of a question of representation,
which it was not in Barre-National. The Board will no longer follow
Barre-National under the amended rules.
---------------------------------------------------------------------------
\115\ The Board also cited the second sentence of Sec.
102.64(a), but, as explained above, that sentence provides no
support for the holding in Barre-National.
\116\ After the vote on the Taft-Hartley amendments in 1947,
Senator Taft placed in the record a ``Supplementary Analysis of the
Labor Bill as Passed.'' 93 Cong. Rec. 7000 (June, 12, 1947). In that
analysis, Senator Taft explained that the Conference Committee had
revised the amendments of Section 9(c)(4) of the Act to eliminate a
provision permitting ``pre-hearing elections.'' Id. at 7002. The
Supplementary Analysis then stated, ``That omission has brought
forth the charge that we have thereby greatly impeded the Board in
its disposition of representation matters. We have not changed the
words of existing law providing a hearing in every case unless
waived by stipulation of the parties. It is the function of hearings
in representation cases to determine whether an election may
properly be held at the time, and if so, to decide questions of unit
and eligibility to vote.'' Id. The Board does not believe that
Senator Taft's vague reference to ``eligibility to vote'' was
intended to encompass the types of questions concerning individual
eligibility or inclusion discussed above as opposed, for example, to
the general eligibility formula to be used in an election. See,
e.g., Alaska Salmon Industry, 61 NLRB 1508, 1511-12 (1945) (changing
eligibility formula for seasonal industries). In any event, the
statement of a single legislator, even the Act's principal sponsor,
made after the dispositive vote, cannot alter the plain meaning of
the language in Section 9(c)(1), particularly in light of the
Board's longstanding construction of the Act not to require that it
``decide'' such individual eligibility questions prior to an
election. See Barre-National, 316 NLRB at 878 n. 9.
Moreover, as explained in the NPRM, the result in Barre-National is
even less administratively rational given the Board's acknowledgement
in that case that an entitlement to litigate issues at the pre-election
hearing is distinct from any claim of entitlement to a decision on all
issues litigated at the hearing, and that ``reviewing courts have held
that there is no general requirement that the Board decide all voter
eligibility issues prior to an election.'' Id. at 879 n.9. The United
States Court of Appeals for the Second Circuit similarly held that
``the determination of a unit's composition need not be made before the
election.'' Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir.
1992). As stated in the NPRM, the Board has consistently sustained
regional directors' decisions to defer resolution of individual
employees' eligibility to vote until after an election (in which the
disputed employees may cast challenged ballots). See, e.g., Sears,
Roebuck, 957 F.2d at 54-55. The Second Circuit has explained that the
regional director has ``the prerogative of withholding a determination
of the unit placement of [a classification] of employees until after
the election.'' Id. at 56. In Northeast Iowa Telephone Co., 341 NLRB
670, 671
[[Page 80166]]
(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), enforced, 108 F.3d 467 (2d Cir.
1997). 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., Silver Cross Hospital, 350 NLRB 114, 116 n.10
(2007); Medlar Elec., Inc., 337 NLRB 796, 796 (2002); Interstate
Warehousing of Ohio, LLC, 333 NLRB 682, 682-83 (2001); Orson E. Coe
Pontiac-GMC Truck, Inc., 328 NLRB 688, 688 n.1 (1999); American
Standard, Inc., 237 NLRB 45, 45 (1978). In short, the Board has
concluded that it serves no statutory or administrative purpose to
require the hearing officer to permit pre-election litigation of issues
that both the regional director and the Board are entitled to, and
often do, defer deciding until after the election and that are often
rendered moot by the election results. The final rule thus eliminates
wholly unnecessary litigation that serves as a barrier to the
expeditious resolution of questions of representation.
Some comments argue that permitting the hearing officer to exclude
evidence related to individual eligibility and inclusion issues will
deprive the decision-makers of an adequate record.\117\ The Board does
not believe that the final rule will deprive the regional director, the
Board, or the courts of appeals of an adequate record to review. It is
true that the record will not include evidence that the hearing officer
found was not relevant, but that is the case now and is the case with
respect to any hearing or trial court record developed in front of an
officer or judge who applies ordinary rules of relevance. The final
rule does not amend Section 102.68 of the Board's Rules and
regulations, which provides that:
---------------------------------------------------------------------------
\117\ See, e.g., AHA.
The record in a proceeding conducted pursuant to the foregoing
section shall consist of: the petition, notice of hearing with
affidavit of service thereof, 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.
Moreover, if the regional director finds that the record is not
sufficient to determine whether a question of representation exists or
any other matter that must be addressed prior to directing an election,
the regional director can reopen the record and remand the proceeding
to the hearing officer.
Some comments make a more specific point concerning the need for an
adequate record upon which the regional director can determine whether
the petitioned-for unit is an appropriate unit as required by the
Act.\118\ These comments suggest that if an employer declines to take a
position on the appropriateness of the petitioned-for unit and the
hearing officer exercises the authority to limit the employer's
examination, cross-examination, and introduction of evidence to that
which ``supports its contentions'' under Sec. 102.66(a), the regional
director and Board may be deprived of an adequate record upon which to
fulfill their statutory duty to determine if the proposed unit is
appropriate. The Board believes that these comments misunderstand the
effect of the amendment. First, as explained in the NPRM, hearing
officers have this same authority to limit parties' participation in
the hearing under the current rules. See 76 FR 36823; Bennett
Industries Inc., 313 NLRB 1363 (1994); Allen Health Care Services, 332
NLRB 1308 (2000); Casehandling Manual Section 11217. Second, even if
the hearing officer exercises the authority to limit an employer's
presentation of evidence under these circumstances, both the petitioner
and the hearing officer will retain the right to introduce the evidence
needed to make the required determination concerning the unit. That
evidence may include testimony adduced from the employer's owners,
managers, or supervisors as witnesses, called under subpoena or
otherwise, and documents obtained from the employer. Third, the final
rule, like the current rules, merely vests the hearing officer with
discretion to limit a party's participation in the hearing as it
relates to issues concerning which the party has not taken a position.
The hearing officer remains free to permit such participation if the
officer concludes it is necessary to develop a complete record. The
Board has concluded that employers who are unable or unwilling to take
a position concerning the appropriateness of a proposed unit of their
own employees are unlikely to provide assistance to the hearing officer
in the development of an adequate record upon which to address that
question. The Board has further concluded that not vesting hearing
officers with clear authority to limit such employers' participation in
the hearing under those circumstances threatens the hearing officer's
ability to control the proceedings and avoid burdening the record.
---------------------------------------------------------------------------
\118\ AHA argues that it would be unfair to preclude employers
from introducing evidence given that some evidence must be accepted
concerning this issue.
---------------------------------------------------------------------------
Some comments criticize the Board's statement of position, joinder,
offer-of-proof, preclusion, and 20-percent proposals on the ground that
assigning the hearing officer to manage the revised process would be
inconsistent with the limits on the role of the hearing officer
contained in Section 9(c)(1) of the Act or beyond the capacity of the
Board's current hearing officers.\119\ The Board does not respond to
these comments at length because the Board is taking no action on those
proposals at this time.
---------------------------------------------------------------------------
\119\ ALFA; SHRM; Bluegrass Institute; NMA; ACE; AHCA; NAM;
Center on National Labor Policy (CNLP).
---------------------------------------------------------------------------
To the extent the authors of the comments would criticize the final
rule on the same grounds, the Board would find them to be unpersuasive.
The hearing officer's role under the amendments is limited to the
traditional one of controlling the hearing and preventing the record
from being burdened by irrelevant evidence. See Mariah, Inc., 322 NLRB
586, 586 n.1 (1996) (hearing officer acted consistent with his role of
ensuring that the record is both complete and concise in refusing to
permit the introduction of irrelevant evidence at the pre-election
hearing). The hearing officer may limit the presentation of evidence
based on relevance but cannot render a decision or make any form of
recommendation. Thus, the final rule is fully consistent with Section
9(c)(1). Moreover, if upon transmission of the record to the regional
director, the director believes the record is insufficient to render a
decision on a particular issue relevant to determining whether a
question of representation exists or in any other respect, the director
may reopen the record for presentation of additional evidence before
the hearing officer relevant to that issue.\120\
---------------------------------------------------------------------------
\120\ The Board also notes in this regard that, as explained in
relation to Sec. 102.65(c), the final rule does not adopt the
narrowed standard for special permission to appeal rulings of the
hearing officer to the regional director.
---------------------------------------------------------------------------
The Board is also confident that its hearing officers can fully and
competently perform their role under the final rule. Currently, the
regional
[[Page 80167]]
directors assign either field attorneys or field examiners as hearing
officers. Field attorneys must possess a J.D. degree and be an active
member of a bar. Field examiners must possess a B.A. degree. The Board
has traditionally provided written guidance to hearing officers as well
as periodic training. Hearing officers also participate in a video
training program that covers the subject of conducting a hearing as
well as relevant professional development programs. There is also an
almost 500-page publication entitled Guide for Hearing Officers in NLRB
Representation and Section 10(K) Proceedings,\121\ which is
periodically updated and made available to hearing officers (and the
public on the Board's Web site). Hearing officers are also routinely
given feedback on their conduct of hearings by the staff members
assigned to assist the regional director in drafting the resulting
decision as well as by the regional director. The Board intends to
continue to provide these types of assistance, feedback, and training.
Finally, the qualifications of hearings officers are not set by statute
or regulation. To the extent the regional directors or the Board find
that the existing hearing officers cannot competently perform the role
assigned them under the final rule, the Board will provide necessary
training or alter the qualifications for service as a hearing officer.
---------------------------------------------------------------------------
\121\ Office of the General Counsel, National Labor Relations
Board, Guide for Hearing Officers in NLRB Representation and Section
10(K) Proceedings (Sept. 2003).
---------------------------------------------------------------------------
Some comments criticize the Board's statement of position, joinder,
offer-of-proof, preclusion, and 20-percent proposals on the ground that
the proposals would violate the parties' rights to due process of law
by limiting the evidence they could introduce at the pre-election
hearing.\122\ The Board does not respond to these comments at length
because the Board is taking no action on those proposals at this time.
---------------------------------------------------------------------------
\122\ Constangy; SHRM; Sheppard Mullins; NRF; Kuryakyn Holding
LLC (Kuryakyn); NMMA; CNLP.
---------------------------------------------------------------------------
To the extent the authors of the comments would criticize the final
rule on the same grounds, the Board would find them to be unpersuasive.
Most importantly, the final rule does not limit any party's right to
present evidence, but merely gives the hearing officer and regional
director discretion to defer introduction of such evidence until after
the election. Moreover, a party has no right to present irrelevant
evidence under the Act, the APA, or the Constitution. See Mariah, Inc.,
322 NLRB at 586 n.1 (hearing officer acted consistent with his role in
ensuring that the record is both complete and concise in refusing to
permit the introduction of irrelevant evidence at the pre-election
hearing); National Mining Ass'n v. DOL, 292 F.3d 849, 873-74 (DC Cir.
2002) (the APA ``empowers agencies to `exclu[de] * * * irrelevant,
immaterial, or unduly repetitive evidence' as `a matter of policy' '')
(citation omitted); U.S. v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001)
(although a criminal defendant ``has a wide-ranging right to present a
defense, * * * this does not give him a right to present irrelevant
evidence''); U.S. v. Vazquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008)
(same). Accordingly, parties have no right to present irrelevant
evidence at a pre-election hearing, which is not governed by the APA's
formal adjudication provisions. See 5 U.S.C. 554 (a)(6); In re Bel Air
Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir. 1979)
(representation case proceedings exempt from APA formal adjudication
requirements); NLRB v. Champa Linen Service Co., 437 F.2d 1259, 1262
(10th Cir. 1971) (same). The Board believes that the final rule merely
codifies evidentiary limits that trial court judges routinely apply and
thus is fully consistent with the requirement of an ``appropriate
hearing,'' the APA, and the due process clause.
A number of comments suggest that Section 9(c) requires a hearing
regardless of whether material facts are in dispute.\123\ But, as under
the current rules, the final rule provides for a pre-election hearing
in all cases where the parties have not entered into an election
agreement resolving all possible pre-election disputes. Section 9(c)
does not require an evidentiary hearing in every case. Rather, it
requires ``an appropriate hearing.'' If the parties come to the hearing
and the hearing officer determines that there are no disputes that must
be resolved prior to the election (because, for example, all parties
agree on the record that the Board has jurisdiction and that the only
dispute concerns the supervisory status of one individual in a unit
that all parties agree on the record is appropriate), an appropriate
hearing does not require introduction of further evidence. See United
States v. Storer Broadcasting, 351 U.S. 192, 205 (1956); accord
American Airlines, Inc. v. Civil Aeronautics Board, 359 F.2d 624, 628
(en banc), cert. denied, 385 U.S. 843 (1966). In fact, the Board
concludes that a hearing where irrelevant evidence is introduced is an
inappropriate hearing.
---------------------------------------------------------------------------
\123\ See SHRM; CNLP.
---------------------------------------------------------------------------
Several comments criticize the proposed 20-percent rule on policy
grounds. For example, some comments argue that it is unfair to defer
resolution of supervisory status questions, because employers need to
know who their supervisors are so they know who they can require to
campaign against employee representation.\124\ Similarly, comments
argue that employers need to know which employees are eligible to vote
so they know whom to address concerning the question of
representation.\125\ Numerous comments additionally express the
position that deferral of eligibility questions under the 20-percent
rule would impair employee rights. More specifically, many comments
assert that deferral would deprive employees of knowledge about the
precise parameters of the bargaining unit, thereby depriving them of
the right to cast an informed ballot,\126\ or impeding their ability to
determine whether they share a community of interest with the other
voters.\127\ Similarly, a number of comments express the view that
deferral of eligibility issues would engender confusion among the
voting employees.\128\ Other comments generally suggest that the
deferral of eligibility issues would increase the likelihood that
disputed individuals would refrain from voting in an election. For
example, a number of comments express the position that employees,
faced with the prospect of having their votes challenged, might simply
refrain from voting,\129\ some as a result of a concern that--
particularly in smaller units--they could be easily identified as the
individuals whose votes determined the outcome of the
[[Page 80168]]
election.\130\ Finally, with respect specifically to the deferral of
supervisory status questions, several comments generally express
concern that employees with disputed supervisory status would not know
whether they could appropriately speak in favor of or against union
representation, attend union meetings, or sign authorization
cards,\131\ and SHRM asserts that employees would be chilled in the
exercise of their Section 7 and First Amendment rights.
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\124\ Seyfarth Shaw; Council of Smaller Enterprises (COSE);
Constangy; Indiana Chamber of Commerce; COLLE; RILA. SHRM also
suggests that deferring resolution of supervisory status questions
might somehow threaten attorney-client communications if counsel
communicates with an individual the employer believes is a
supervisor who is later held not to be a supervisor. This same
concern exists under the current procedures as explained above.
Moreover, the test the Board uses to determine who is a supervisor
under the Act is not and need not be the same as the various tests
used to determine if attorney communications to an individual
employed by the attorney's client are privileged.
\125\ See, e.g., PIA.
\126\ See, e.g., Testimony of Eric Schweitzer; Testimony of
David Burton; GAM; Constangy; ACC; Anchor Planning Group; Kruchko &
Fries; NRF; Baker & McKenzie; COLLE; Indiana Chamber of Commerce.
IBEW, in contrast, states that, in its experience, employee voters
are motivated primarily by whether they desire representation and
not by precisely which employees will be in the unit.
\127\ See, e.g., Associated Oregon Industries; COSE; Seyfarth
Shaw; Kuryakyn; NMMA; John Deere Water; NACCO Materials Handling
Group; Graphtec America; Baker & McKenzie.
\128\ See, e.g., SHRM; Seyfarth Shaw; ACE; AHA; ALFA; Spartan
Motors.
\129\ See, e.g., Pinnacle Health Systems; PIA; Arizona Hospital
and Healthcare Association.
\130\ See, e.g., LRI; Anchor Planning Group; Bluegrass
Institute.
\131\ See, e.g., Seyfarth Shaw; ACE; Sheppard Mullin.
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However, in this final rule the Board has determined not to adopt
the 20-percent rule at this time, or make any change to the status quo
concerning the regional director's or Board's discretion to defer
deciding or the parties' right to agree to defer litigation concerning
such questions until after the election. Prior to the amendments,
regional directors were free to decide individual eligibility questions
if they wished to do so or to defer such decisions until after the
election and direct that disputed individuals vote subject to
challenge. The same is true under the final rule. Although the
amendments permit the hearing officer to exclude evidence that is not
relevant to determining whether a question of representation exists-and
thereby permit the hearing officer to exclude evidence regarding
individual eligibility questions-the hearing officer is free to permit
the introduction of such evidence and the regional director is free to
direct that such evidence be admitted if he or she resolves to decide
the individual eligibility questions at issue.
In any event, the Board is not persuaded by the policy argument
that it should permit litigation of all individual supervisory status
questions--even though such questions are ordinarily irrelevant to the
statutory purpose of the hearing--on the grounds that resolution of
such questions is necessary for an employer effectively to campaign
against union representation. Most fundamentally, while the question of
whether particular individuals are supervisors as defined in the Act
has generated considerable litigation, the question exists only at the
margin. In the Board's experience, in virtually every case, even where
there is uncertainty concerning the supervisory status of individual
employees, the employer nevertheless has in its employ managers and
supervisors whose status is not disputed and is undisputable.\132\
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\132\ See, e.g., McAlester General Hospital, 233 NLRB 589, 589-
90 (1977) (noting that even without considering employees whose
supervisory status was in dispute, employer employed one supervisor
for every eight unit employees and, if the employer filled open
supervisory positions, it would employ one supervisor for every
three unit employees).
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The policy argument contained in these comments is also based on a
set of faulty premises. First, as explained above and in the NPRM,
employers have no right to a pre-election decision concerning
individual eligibility under the current rules. Second, even under the
current rules, a regional director cannot issue a decision on any
eligibility question until well after the filing of the petition
because a hearing must be noticed (no sooner than five business days
after the notice), the hearing must be completed, and the regional
director must issue a decision. Thus, for a substantial part of any
campaign, including a substantial part of the ``critical period''
between the filing of the petition and the election, employers will not
yet have a regional director's decision even in those cases where one
issues pre-election. Third, again under the current rules, even if the
regional director makes a decision concerning an individual eligibility
question, it is subject to a request for review by the Board. The Board
rarely rules on such requests until shortly before the election and,
sometimes, not until after the election. See, e.g., Mercedes-Benz of
Anaheim, Case 21-RC-21275 (May 18, 2011) (day before the election);
Caritas Carney Hospital, Case 1-RC-22525 (May 18, 2011) (after the
election); Columbus Symphony Orchestra, Inc., 350 NLRB 523, 523 n.1
(2007) (same); Harbor City Volunteer Ambulance Squad, Inc., 318 NLRB
764, 764 (1995) (same); Heatcraft, Div. of Lennox Indus., Inc., 250
NLRB 58, 58 n.1 (1980) (same). Fourth, the problem identified by the
employer comments is even more acute for unions, which must obtain a
showing of interest prior to filing a petition. If the union asks
employees to help gather a showing of interest and the employees are
later determined to be supervisors, the Board may hold the showing of
interest to be tainted and overturn election results favoring union
representation on that ground. See Harborside Healthcare Inc., 343 NLRB
906 (2004). That problem cannot possibly be solved through any form of
post-petition, pre-election hearing. Fifth, under the Act itself, even
if a regional director's decision and final Board decision are rendered
prior to an election, the Board decision is potentially subject to
review in the courts of appeals and the court of appeals' decision
cannot be rendered pre-election. See 29 U.S.C. 159(d) and 160(e); Boire
v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).\133\ Thus, the
uncertainty with which the comments are concerned exists under the
current rules and cannot be fully eliminated.
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\133\ ALFA expressed concern that if an alleged supervisor is
permitted to vote subject to challenge, the results of the election
might be set aside pursuant to an objection citing the presence of a
supervisor in the polling area if the individual is found to be a
supervisor after a post-election hearing. As explained above, this
scenario can arise under the current procedures. See, e.g., Sorenson
Lighted Controls, 286 NLRB 969, 989 (1987). The Board is not aware
of any case holding such conduct per se objectionable under these
circumstances and the existence of the new rules would be a factor
the Board would consider if such an objection arises in the future.
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Nor does the Board agree that the proposed amendments improperly
deprive employees of the ability to make an informed choice in the
election. As explained above, under the amendments, as under the
current rules, the regional director must determine the unit's scope
and appropriateness prior to the direction of the election.
Accordingly, at the time they cast their ballots, the voting employees
will be fully informed as to the scope of the unit, and will be able to
fully assess the extent to which their interests may align with, or
diverge from, other unit employees. Although the employees may not know
whether particular individuals ultimately will be deemed eligible or
included and therefore a part of the bargaining unit, that is also the
case under the Board's current rules, as explained above, and when the
parties agree to permit disputed employees to vote subject to
challenge. In addition, as pointed out by SEIU in its comments, a
similar choice has confronted voters in mixed professional/non-
professional units since 1947, when Congress amended the Act to provide
that a majority of the professional employees must vote separately to
be part of such a mixed unit and the results of that separate vote,
which takes place simultaneously with the vote in the entire unit, are
not known when employees cast their ballots. See Section 9(b)(1);
Sonotone Corp., 90 NLRB at 1241-42. In that context, the Board has
held, ``Such a procedure * * * presents the employees with an informed
choice.'' Pratt & Whitney, 327 NLRB 1213, 1218 (1999).
Many comments cite the courts of appeals' decisions in NLRB v.
Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir.
1997) (unpublished per curiam opinion), and NLRB v. Parsons School of
Design, 793 F.2d 503 (2d Cir. 1986). As explained in the NPRM, those
two decisions represent the minority view in the courts. The
[[Page 80169]]
majority of the courts of appeals have upheld the Board's vote-and-
impound procedures and upheld election results even when the
eligibility or inclusion of certain employees was not resolved until
after the election.\134\ Moreover, under the final rule, the hearing
officer and regional director have discretion to permit litigation and
to resolve eligibility and inclusion questions that might significantly
change the size or character of the unit, thus addressing the courts'
concerns in both Beverly and Parsons. In addition, as explained in the
NPRM, the courts' concern in both of those cases was that voters were
somehow misled when the regional director defined the unit in one way
prior to the election and the Board revised the definition after the
election. The final rule would actually prevent exactly that form of
change in unit definition from occurring, by deferring both a regional
director's decision, in most instances, and a Board decision until
after the election and permitting disputed employees to vote subject to
challenge. Thus, employees will not in any manner be misled about the
unit. Rather, they will cast their ballots understanding that the
eligibility or inclusion of a small number of individuals in the unit
has not yet been determined. Finally, as proposed in the NPRM, the
Board could, even prior to or without adopting the relevant proposed
rule, revise its final notice of election to inform employees that
specified employees are voting subject to challenge, what that means,
and how their status will be resolved. See Sears, Roebuck, 957 F.2d at
55 (regional director permitted employees in one classification to vote
subject to challenge and included section in notice which ``detailed
the special voting posture of the automotive floor sales employees and
the circumstances for including their votes'').
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\134\ See, e.g., Sears, Roebuck & Co. v. NLRB, 957 F.2d 52 (2d
Cir. 1992); Nightingale Oil Co. v. NLRB, 905 F.2d 528, 533-34 (1st
Cir. 1990); NLRB v. Clark Distributing, 917 F.2d 24 (6th Cir. 1990)
(unpublished); Prudential Ins. Co. of America v. NLRB, 832 F.2d 857,
861 (4th Cir. 1987).
---------------------------------------------------------------------------
PIA and Bluegrass Institute suggest that deferring resolution of
individual eligibility questions until after the election threatens the
secrecy of the ballot and that employees who are permitted to vote
subject to challenge are less likely to vote because they fear that the
parties will learn how they voted. However, even if the amendments to
Sec. Sec. 102.64(a) and 102.66(a) and the elimination of Sec.
101.20(c) lead to more disputes concerning individual eligibility being
deferred until after the election, the Board is not persuaded that the
final rule threatens the secrecy of the ballot or voter turnout. The
courts have upheld the Board's current practice of deferring individual
eligibility questions under most circumstances. Moreover, the ballots
cast by the employees directed to vote subject to challenge are not
counted if they are not determinative. Accordingly, ballot secrecy is
preserved in those cases. Even if challenged ballots are determinative,
the ballots are not counted if the employees who cast them are
ultimately found to be ineligible after the post-election hearing. And,
even if the ballots cast by such individuals are determinative and a
post-election hearing results in the individuals who cast them being
found eligible, the ballots are not opened and counted one by one, but
rather the ballots of all individuals found to be eligible are
``thoroughly mixed'' before being opened and counted. See Casehandling
Manual Section 11378. Accordingly, the Board believes that it is only
in cases where there is just one determinative challenge or where all
of the potentially determinative challenged ballots are marked in the
same way that the parties will learn how the employees voted. However,
that is both rare and inherent in any system that permits challenges,
including the current system. Thus, even if regional directors were
prohibited from deferring individual eligibility issues, which is not
the case currently, parties would still have a right to challenge
voters for good cause at the polls and the commenters' concern would
remain.\135\
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\135\ The Board also notes that to the extent the amendments do
result in more individuals casting challenged ballots than under the
current rules, the amendments may well have the effect of making it
less likely that parties will be able to discover how particular
individuals voted.
---------------------------------------------------------------------------
Finally, the Board is unaware of any significant differences
between the turnout of employees whose eligibility to vote has not been
disputed or has been resolved prior to the election and employees
permitted to vote subject to challenge. The case law demonstrates that
even in cases where only a single individual is permitted to vote
subject to challenge, the individual is not necessarily deterred from
voting. See, e.g., NLRB v. Cal-Western Transport, 870 F.2d 1481, 1483,
1486 (9th Cir. 1989) (regional director permitted single employee to
vote subject to challenge and he did so); NLRB v. Staiman Brothers, 466
F.2d 564, 565 (3d Cir. 1972) (deciding vote cast by single employee
permitted to vote subject to challenge by agreement of the parties).
Finally, balanced against any asserted employer or employee
interests in pre-election litigation of individual eligibility or
inclusion questions is the statutory interest in prompt resolution of
questions of representation. As explained above and in the NPRM,
permitting the litigation of such matters imposes serious costs, and no
comments on the NPRM convinced the Board otherwise. It plainly
frustrates the statutory goal of expeditiously resolving questions of
representation, and it frequently imposes unnecessary costs on the
parties and the government. As explained in the NPRM, it often results
in unnecessary litigation and a waste of administrative resources as
the eligibility of potential voters is litigated (and in some cases
decided), even when their votes end up not affecting the outcome of the
election. If a majority of employees votes 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 chooses to be represented, even assuming all
the disputed votes were cast against representation, the Board's
experience suggests that the parties are often able to resolve the
resulting unit placement questions in the course of bargaining once
they are free of the tactical considerations that exist pre-election
and, if they cannot do so, either party may file a unit clarification
petition to bring the issue back before the Board. See New York Law
Publishing Co., 336 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.''). 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).
NRTWLDF argues that application of the 20-percent rule at the
hearing might cast into question the regional office's earlier,
administrative determination that the petition was accompanied by an
adequate showing of interest. Whether or not that is the case, the
final rule does not adopt the 20-percent rule. Moreover, the concern
expressed in the comment
[[Page 80170]]
could equally be expressed about the current procedures under which
regional directors and the Board routinely defer ruling on eligibility
questions without revisiting the adequacy of the showing of interest.
In addition, the final rule leaves the hearing officer and regional
director with discretion, respectively, to permit introduction of
evidence and to rule pre-election if the eligibility questions involve
a large percentage of the unit. When the deferred questions concern
only a small percentage of the unit, the concern expressed by NRTWLDF
is unlikely to arise. Furthermore, the required showing of interest is
purely an internal administrative matter, as explained in current Sec.
102.18(a): ``it being the Board's 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.'' The adequacy of the showing is non-
litigable. The Borden Co., 101 NLRB 203, 203 n. 3 (1952) (``the
question of the sufficiency of the showing of interest * * * [is a
matter] for administrative determination and not subject to litigation
by the parties); Casehandling Manual Section 11028.3. Finally, given
that the only consequence of the possible scenario envisioned by
NRTWLDF is, in rare cases, the conduct of an election which would not
otherwise have been conducted, the Board does not believe that that
possibility weighs heavily against the efficiencies gained by affording
the hearing officer discretion not to take evidence concerning
individual eligibility and inclusion questions.
Some comments criticize the 20-percent rule on the grounds that it
will lead to more post-election litigation and result in more
overturned elections as a result of post-election rulings concerning
the eligibility of employees.\136\ Similarly, two comments raise the
concern that because the bargaining obligation attaches at the time of
the tally, employers will be required to invest time and money in
bargaining with a union that has questionable representative
status.\137\ These comments misunderstand the proposals. As under the
current rules, if decisions concerning individuals' eligibility or
inclusion are deferred until after the election, the individuals will
vote subject to challenge. If their votes are not potentially outcome
determinative, the matter will not be litigated, thus decreasing the
total amount of litigation. If their votes are potentially outcome
determinative, the matter will be litigated and the resolution may
affect the results of the election, but it will not lead to the results
of the election being overturned. As under the current procedures,
post-election proceedings concerning challenged ballots will proceed
and conclude promptly at the regional level. As explained above and
below in relation to Sec. Sec. 102.62(b) and 102.69, any Board review
of the disposition will be expedited by the final rule.
---------------------------------------------------------------------------
\136\ See Associated Oregon Industries; Kuryakyn; Bluegrass
Institute; NMMA.
\137\ See COSE; Constangy.
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Finally, a few comments argue that deferral of voter eligibility
questions will create more issues for the parties to address during
first contract negotiations. As explained above, this already happens
under the current rules, when the regional director or the Board defers
decision on the questions and does not decide them post-election
because the votes of the disputed individuals were not potentially
outcome determinative. The Board does not believe addressing such
questions will complicate bargaining, particularly when the parties can
file a timely unit clarification petition if they are unwilling or
unable to resolve the matter.
Subsection 102.66(d)
The NPRM proposed amending Sec. Sec. 102.67 and 102.66(d) to vest
the hearing officer with discretion to control the filing, subjects,
and timing of any post-hearing briefs. The final rule adopts this
proposal.
The NPRM explained that, given the often recurring and
uncomplicated legal and factual issues arising in pre-election
hearings, briefs are not necessary in every case to permit the parties
to fully and fairly present their positions or to facilitate prompt and
accurate decisions. Yet under existing Sec. Sec. 102.67(a) and
101.21(b), in nearly all cases parties are afforded a right to file
briefs at any time up to seven days after the close of the
hearing.\138\ By exercising that right or even by simply declining to
expressly waive that right until after the running of the seven-day
period, parties can potentially delay the issuance of a decision and
direction of election and the conduct of an election for purely
tactical reasons.
---------------------------------------------------------------------------
\138\ Despite the current regulations, the Board has denied
review of a direction of election when one argument made by the
party requesting review was that the hearing officer had refused to
permit post-hearing briefs. Unifirst Corp., Case 5-RC-15052 (Aug.
16, 2000). The Board reasoned that the party had showed no prejudice
and was able to fully present its substantive argument in the
request for review. Id. at n.1.
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Various comments, including those of SHRM, AHA, AHCA and ALFA,
oppose the proposed amendment on the ground that briefs are needed to
sum up the evidence presented at the pre-election hearing. SHRM and ACE
point out that this cannot be done as effectively in oral argument at
the close of the hearing because the full transcript is ordinarily not
yet available. Bruce E. Buchanan argued that briefs serve to narrow the
issues in dispute and identify relevant case law. The AFL-CIO points
out that the current Casehandling Manual recognizes that briefs are not
necessary or even of assistance in every case. Section 11242 provides,
``Before the close of the hearing, the hearing officer should encourage
the parties to argue orally on the record rather than to file briefs.''
\139\
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\139\ The AFL-CIO also points out that a preference for oral
argument in lieu of briefing was among the ``best practices''
identified by the Board's General Counsel in a 1997 report. See G.C.
Memo. 98-1, ``Report of Best Practices Committee--Representation
Cases December 1997,'' at 10, 28 (``It is considered a best practice
that the hearing officer should solicit oral argument in lieu of
briefs in appropriate cases since in some cases briefs are little,
if any, assistance to the Regions and may delay issuance of the
decision.'').
---------------------------------------------------------------------------
Having considered these comments, the Board has concluded that
post-hearing briefing is not required or even helpful in every case. In
this regard, it is important to note that amended Sec. 102.66(d) does
not prevent parties from filing post-hearing briefs. Rather, it simply
vests the hearing officer with discretion to permit or not permit such
filings and to otherwise control the content and timing of any post-
hearing briefs. Moreover, in every case, parties aggrieved by a
decision of the regional director will have a right to file a brief in
support of their request for review. Thus, in every representation case
that proceeds to a pre-election hearing, a party aggrieved by a ruling
of a hearing officer or decision of the regional director will have had
the opportunity to file at least one and sometimes two briefs before
the close of the case. Finally, in relation to the need for a
transcript before parties can adequately sum up the evidence, the Board
notes that the average pre-election hearing lasts for less than one
day.
It also bears mentioning that, even under the current rules,
parties do not enjoy a right to file post-hearing briefs in certain
kinds of representation cases. For example, the Board's current rules
do not permit the filing of briefs absent ``special permission'' after
a pre-election hearing conducted under Sections 8(b)(7) and 9 of the
Act. See 29 CFR 101.23(c). Similarly, there is no right to file post-
hearing briefs after a hearing on challenges or objections. See
Casehandling Manual Section 11430;
[[Page 80171]]
Guide for Hearing Officers in NLRB Representation and Section 10(K)
Proceedings at 167 (``In a hearing on objections/challenges, the
parties do not have a right to file briefs. To the extent that briefs
are not necessary and would interfere with the prompt issuance of a
decision, they should not be permitted.'').
GAM argues that the proposal denies due process. In response, the
Board points out that the final rule does not deny any party's right to
file at least one post-hearing brief with the Board before the close of
the representation proceeding. Moreover, the rule permits the filing of
a post-hearing brief with the regional director with leave of the
hearing officer. Combined with the right to file a pre-hearing brief or
to file a hearing brief before the close of the hearing and to present
closing, oral argument in every case, the opportunities for the filing
of post-hearing briefs provided in the final rule do not deprive any
party of due process nor are they inconsistent with the statutory
requirement of an ``appropriate hearing.'' In Morgan v. United States,
298 U.S. 468 (1936), the Supreme Court considered the essential element
of the ``full hearing'' required by the Packers and Stockyards Act, 7
U.S.C. 310. The Court held that the requirement of a full hearing was
not met if the decision-maker was an individual ``who has not
considered evidence or argument.'' Id. at 481. However, the Court also
made clear that the ``requirements are not technical,'' that
``[e]vidence may be taken by an examiner,'' and that [a]rgument may be
oral or written.'' Id. See also Abbott Laboratories v. NLRB, 540 F.2d
662, 665 n.1 (4th Cir. 1976) (``With respect to proceedings before the
hearing officer, the Board ruled that its hearing officer was not
required, either by statute or the due process clause, to accept
posthearing briefs since the parties had the opportunity to express
their views in writing both before and after the case was referred to
the hearing officer * * * We see no error of fact or law in these
rulings.''); Lim v. District of Columbia Taxicab Commission, 564 A.2d
720, 726 (DC App. 1989) (``there exists no due process right * * * to
file a brief'').
The APA and its legislative history contain evidence of Congress's
intent not to require that the Board permit post-hearing briefing after
every pre-election hearing. Enacted in 1946, Section 8 of the APA, 5
U.S.C. 557(c), provides that in formal agency adjudication:
Before a recommended, initial, or tentative decision, or a
decision on agency review of the decision of subordinate employees,
the parties are entitled to a reasonable opportunity to submit for
the consideration of the employees participating in the decisions--
(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recommended decisions of
subordinate employees or to tentative agency decisions; and
(3) supporting reasons for the exceptions or proposed findings
or conclusions.
But Section 5(6) of the APA, 5 U.S.C. 554(a)(6), specifically exempts
from the category of formal adjudication those cases involving ``the
certification of worker representatives.'' The courts have held that
this exemption applies to both pre- and post-election hearings. See In
re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir.
1979); NLRB v. Champa Linen Service Co., 437 F.2d 1259, 1262 (10th Cir.
1971). The Senate Committee Report explained that the exemption was
inserted into the APA because the Board's ``determinations rest so
largely upon an election or the availability of an election.'' S. Rep.
No. 752, 79th Cong., 1st Sess. 16 (1945). The committee also pointed to
``the simplicity of the issues, the great number of cases, and the
exceptional need for expedition.'' Senate Committee on the Judiciary
Comparative Print on Revision of S. 7, 79th Cong., 1st Sess. 7 (1945).
While Section 9 of the NLRA was amended in 1947 to adopt the
current version of Section 9(c), the APA was not amended and continues
to exempt representation cases from its formal adjudication
requirements. In fact, between 1964 and 1966, Congress considered
removing all the exceptions contained in Section 5 from the APA, but
decided not to do so. In 1965, the Board's Solicitor wrote to the
Chairman of the Senate Subcommittee on Administrative Practice and
Procedure objecting strenuously to removal of the exemption for
representation cases. The Solicitor specifically objected that
``election case handling would be newly freighted and greatly retarded
by * * * [s]ubmission to the hearing officer of proposed findings of
fact and conclusions of law.'' Administrative Procedure Act: Hearings
on S. 1663 Before the Subcomm. on Admin. Practice and Procedure of the
Comm. on the Judiciary, 88th Cong., 2d Sess. 532 (1964) (letter
submitted by William Feldesman, NLRB Solicitor, May 11, 1965). The
Solicitor concluded, ``After Congress has done so much to help speed
the processing of election cases to avoid the dangers of delay, this
would hardly be the time to inaugurate procedural changes which serve
dilatory ends and have the potential to cause that bottleneck the Board
has for years been attempting to prevent.'' Id. at 534. In 1966, the
Senate Committee on the Judiciary reported out a bill containing a
provision, not ultimately enacted, that would have removed all the
exemptions. But the Committee Report carefully explained, ``It should
be noted, however, that nonadversary investigative proceedings which
Congress may have specified must be conducted with a hearing, are not
to be construed as coming within the provisions of section 5(a) because
of the deletion of the exemptions. An example of such a proceeding
would be certification of employee representatives proceedings
conducted by the National Labor Relations Board.'' S. Rep. No. 1234, 89
Cong., 2d Sess. 12-13 (1966).
SEIU suggests amending the proposed rule to require that any
briefing be completed within 14 days of the close of the hearing. The
Board has considered this suggestion and decided that the hearing
officer who has heard the evidence introduced at the hearing and
considered the parties' request to file a post-hearing brief is in the
best position to determine if briefing should be permitted, what
subjects any briefing should address, and when briefs should be filed.
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; Transfer of Case to the Board; Board
Action
In the NPRM, the Board proposed a number of amendments to Sec.
102.67. The Board proposed that the regional director defer deciding
eligibility questions involving less than 20 percent of the unit and
instead permit the disputed individuals to vote subject to challenge.
The Board also proposed to give the regional director discretion to
issue a direction of election with findings and a statement of reasons
to follow no later than the tally of the ballots. The Board further
proposed to make changes with respect to the Excelsior list and the
final notice of the election, and to eliminate the regional director's
authority to transfer a case to the Board for decision at any time. The
Board has decided to take no action at this time on those proposals in
order to permit more time for deliberation.
In the NPRM, the Board also proposed amendments to the current pre-
election request-for-review procedure and the accompanying 25-day
waiting period. Under the current rules, the parties are required to
request Board review within 14 days of a regional director's decision
[[Page 80172]]
and direction of election or be deemed to have waived any arguments
that were or could have been made concerning rulings at the pre-
election hearing or the decision and direction of election. Sec.
102.67(f); see, e.g., A.S. Horner, Inc., 246 NLRB 393, 394-95 (1979).
In addition, the regional director generally schedules the election no
sooner than 25 days after the direction of election so that the Board
has an opportunity to rule on any request for review that may be filed.
Sec. 101.21(d). But a request does not automatically stay the
election, which proceeds as scheduled in almost all cases. If the Board
has not yet ruled on the request at the time of the election, as is not
infrequently the case, the election is held and the ballots impounded
until the Board can rule. Even if the Board grants the request, the
Board almost never stays the election and the same vote-and-impound
procedure is used.
The Board proposed to eliminate the pre-election request-for-review
procedure in the NPRM and instead permit parties to file any such
request after the election, when it could be consolidated with any
request for review of the director's disposition of post-election
disputes arising out of challenges or objections. In the NPRM, the
Board explained that the amendment would eliminate unnecessary
litigation because many issues raised through pre-election requests for
review are either rendered moot by the election results or are resolved
by agreement of the parties post-election. In addition, the Board
explained, permitting parties to consolidate, in a single filing,
requests that the Board review pre- and post-election rulings will
result in efficiencies for the parties and the Board.
The Board also proposed eliminating the 25-day waiting period
because, even under the current rules, it serves little purpose in
light of the vote-and-impound procedure, and its stated purpose is
eliminated by the elimination of the pre-election request for review.
The final rule adopts both these proposals.
The final rule's elimination of the pre-election request for review
and consolidation of all Board review (except via a request for special
permission to appeal) post-election conforms Board procedures with the
ordinary rules in both federal and state courts. As the Supreme Court
has explained, consolidating appellate review in a single proceeding
subsequent to a final order avoids unnecessary litigation and expense.
``Trial court errors become moot if the aggrieved party nonetheless
obtains a final judgment in his favor, and appellate courts need not
waste time familiarizing themselves anew with a case each time a
partial appeal is taken.'' Mitchell v. Forsyth, 472 U.S. 511, 544
(1985). In contrast, the Court explained in a later decision, ``An
interlocutory appeal * * * risks additional, and unnecessary, appellate
court work either when it presents appellate courts with less developed
records or when it brings them appeals that, had the trial simply
proceeded, would have turned out to be unnecessary.'' Johnson v. Jones,
515 U.S. 304, 309 (1995). Countless court of appeals decisions contain
the same reasoning for limiting interlocutory appeal. See, e.g.,
Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir. 1996) (``[P]iecemeal
litigation * * * risks the creation of unnecessary appellate work by
presenting issues for review which could have been avoided entirely if
trial had proceeded.'').
Relatively few comments took issue with the proposed elimination of
the pre-election request for review, as noted by SEIU in its reply
comment. Those that did--for example, SHRM, AHA, and ACE--generally
commented that in cases where review would otherwise have been granted,
the proposed rule would result in elections being run unnecessarily,
causing both the Board and the parties to incur unnecessary expense.
The comments pose the example of a regional director failing to find a
bar to the conduct of an election, and thereby erroneously directing an
election. But this example aptly illustrates the flaw in the argument.
Even under the current rules, if a regional director finds no contract
bar and directs an election, and a party files a request for review
that the Board grants, the election will typically be held and the
ballots impounded prior to Board resolution of the issue. See, e.g.,
VFL Technology Corp., 329 NLRB 458, 458 (1999); Western Pipeline, Inc.,
328 NLRB 925, 925 n.1 (1999). Thus, the same expenses may be
unnecessarily incurred under current procedures. See, e.g., Mercy
General Health Partners Amicare Homecare, 331 NLRB 783, 785-86 (2000)
(Board directed that impounded ballots not be counted and that second
election be held after ruling on pre-election request for review post-
election). Moreover, given the small number of requests for review
filed each year, and the extraordinarily small percentage of regional
directors' decisions that are ultimately reversed,\140\ the number of
cases of the type described in these comments is likely to be
insignificant. Finally, under the final rule a party may file a request
for special permission to appeal and request a stay under appropriate
circumstances.
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\140\ From 2004 to 2009, review was granted pursuant to less
than 12 percent of requests, and less than 5 percent of regional
directors' decisions were reversed.
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Some comments argue that deferring review of issues that were
previously raised in a pre-election request for review until after the
election will result in the Board addressing more issues subsequent to
the opening of the ballots.\141\ However, this is no different from
current practice when the regional director and the Board rule on
challenged ballots or objections. Moreover, it is a necessary correlate
of waiting to see if the dispute is rendered moot by the election
results. Thus, it is parallel to the situation in appellate courts that
consider evidentiary and other interlocutory rulings only as part of an
appeal from a final order, i.e., knowing how the case was decided.
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\141\ See, e.g., PIA; COLLE; ACE.
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Some comments contend that the proposed rule will not expedite
commencement of bargaining but will simply shift review until after the
election.\142\ The Board disagrees. In the Board's experience, many
pre-election disputes are either rendered moot by the election results
or can be resolved by the parties after the election and without
litigation once the strategic considerations related to the impending
election are removed from consideration. Accordingly, the Board
believes that the current system is inefficient and imposes unnecessary
costs on the parties and the government by requiring parties to
litigate, and the Board to rule on, issues that are frequently rendered
moot by the election results. In sum, the Board believes that the final
rule will not simply shift litigation from before elections to after,
but rather will significantly reduce the total amount of litigation.
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\142\ See, e.g., Testimony of Michael Prendergast; AHA; Seyfarth
Shaw.
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AHA comments that the Board's own failings in timely processing
requests is not a basis for eliminating the right of parties to review.
But the final rule does not eliminate any party's right to request
review. The rule simply eliminates the obligation to request review
pre-election in order to preserve an issue, and permits any issue that
would previously have been raised pre-election to be raised through a
single, more efficient, post-election request for review.
[[Page 80173]]
Moreover, if a party believes that pre-election review is essential to
preserve an issue for review, it can file a request for special
permission to appeal. Finally, the Board is entitled to and must
consider its own adjudicative and administrative capacities and past
performance in evaluating its procedural rules. The elimination of pre-
election request for review will, as explained above, reduce the number
of disputes reaching the Board. The Board will, therefore, be able to
dispose of those disputes that do reach it more promptly.
Others suggest that limiting pre-election review will mean that the
parties will be unsure who is a supervisor during the pre-election
campaign.\143\ This objection is addressed at length above in relation
to Sec. 102.66. But the current pre-election review procedures do not
entitle the parties to a final Board determination on such matters
prior to the election and rarely result in such a determination. Even
in the very rare cases where the Board both grants review and rules on
the merits prior to the election, as explained above, the ruling
typically is issued only days before the election, i.e., well into the
critical period between petition and election, and thus does not serve
the purpose the comments suggest will be thwarted if the pre-election
request for review is eliminated.
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\143\ See, e.g., Testimony of Harold Weinrich.
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Very few comments specifically object to the elimination of the 25-
day waiting period. Indeed, there is near consensus that this period
serves little purpose.\144\ In support of the proposed rule, several
comments observe that parties typically do not use the waiting period
to request review and that a single post-election review process
eliminates use of the Board's processes to achieve tactical
delays.\145\
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\144\ See Testimony of Professor Samuel Estreicher; SEIU reply.
\145\ See Professor Joel Cutcher-Gershenfeld; Ranking Member
George Miller and Democratic Members of the U.S. House of
Representatives Committee on Education and Workforce; IBEW; Thomas
Meiklejohn.
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Some comments, such as the hearing testimony of Jay P. Krupin,
maintain that the 25-day period serves an important purpose because the
``rules of the game'' are not set until the decision and direction of
election, so the parties are not sure which voters they need to
persuade or which employees can speak on behalf of the employer until
the decision issues. However, the stated purpose of the 25-day period
is not to give parties an opportunity to campaign. Section 101.21(d)
states only that the 25-day waiting period is ``to permit the Board to
rule on any request for review which may be filed.'' Moreover, the
concern raised in this comment is addressed at length above in Sec.
102.66. Finally, the regional director retains discretion to consider
any significant changes in the scope of the unit that result from the
decision and direction of election in setting the election date.
A few comments observe that the waiting period serves a purpose in
the small minority of cases where the Board finds that a request for
review has merit. These comments suggest that a waiting period would be
appropriate where a pre-election request for review is actually filed.
AHCA and ALFA suggest an alternative to the proposed rule, whereby the
Board would ask parties whether they intend to file a request for
review. If they answer affirmatively, then and only then would the
regional director wait at least 25 days to hold the election. If
adopted, however, that proposal would give parties the ability to delay
elections for tactical purposes. Moreover, in many cases, the delay
would still be wholly unnecessary when the issue raised in the pre-
election request for review is rendered moot by the election results.
Finally, even where a request for review is granted and eventually
found to have merit, there is little reason that the request should be
filed pre-election or that the election should be delayed so that the
Board can consider it, because the election almost always proceeds
using the vote-and-impound procedures before the Board's decision on
the merits issues.
Some comments argue that the elimination of the 25-day waiting
period, combined with other proposed amendments, interferes with
employers' right to free speech under Section 8(c) of the Act and the
First Amendment and undermines the free discussion of the question of
representation essential to employee free choice. As explained above,
these objections have little continuing relevance now that the Board
has determined to deliberate further about several of the other
proposed amendments. To the extent the objections still have force,
they are addressed at length above in Section III, D.
Sec. 102.69 Election Procedure; Tally of Ballots; Objections;
Certification by the Regional Director; 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 Decisions in Stipulated or
Directed Elections
In the NPRM, the Board proposed to amend Sec. 102.69 to (1)
require that a party filing objections simultaneously file a
description of the evidence supporting its objections, (2) require that
the regional director set any hearing on determinative challenged
ballots or objections to begin 14 days after the tally or as soon
thereafter as practicable, (3) codify the regional director's
discretion to dispose of both determinative challenges and objections
through an investigation without a hearing when they raise no
substantial and material factual issues, (4) establish a uniform
procedure when a hearing is conducted, and (5) make Board review of
regional directors' post-election dispositions discretionary. The final
rule adopts proposals (3), (4), and (5).
The final rule codifies existing practice permitting the regional
director to investigate determinative challenges and objections by
examining evidence offered in support thereof to determine if a hearing
is warranted.\146\ The final rule also creates a uniform procedure in
those cases in which there are potentially outcome-determinative
challenges or objections which the regional director determines raise
substantial and material factual issues that require a hearing.
Adopting the procedure currently contained in Sec. 102.69(d) and (e),
the final rule provides 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 and
the regional director will dispose of the exceptions. If no exceptions
are filed to such report, the
[[Page 80174]]
regional director decides the matter upon the expiration of the period
for filing such exceptions. Consistent with the changes described above
in relation to Sec. 102.62(b), the final rule makes Board review of
regional directors' resolutions of post-election disputes discretionary
in cases involving directed elections as well as those involving
stipulated elections, unless challenges and objections are consolidated
with unfair labor practice charges for hearing before an administrative
law judge.\147\ The Board anticipates that this change will 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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\146\ At least one comment argues that the amendments improperly
permit regional directors to administratively dismiss objections
without a hearing, thereby denying parties the right to a hearing
and the ability to create a record for subsequent review. However,
regional directors may administratively dismiss objections and
challenges without a hearing under the current rules where they do
not raise substantial and material issues that would warrant setting
aside the election. 29 CFR 102.69(d). This well-settled practice
avoids wasteful litigation, is no different from a trial court
granting a motion to dismiss, and has been approved by the courts of
appeals. See NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.
1967); NLRB v. Air Control Products of St. Petersburg, Inc., 335
F.2d 245, 249 (5th Cir. 1964); Puerto Rico Aqueduct & Sewer Auth. v.
EPA, 35 F. 3d 600, 605-06 (1st Cir. 1994) (``To force an agency
fully to adjudicate a dispute that is patently frivolous, or that
can be resolved in only one way, or that can have no bearing on the
disposition of the case, would be mindless * * *.''); Fenn C. Horton
III, The Requirements of Due Process in the Resolution of Objections
to NLRB Representation Elections, 10 J. Corp. L. 493, 495-509
(1985). The amendments specify in Sec. 102.69(e) what constitutes
the record in such no-hearing cases, just as they specify what
constitutes the record in cases that proceed to a hearing.
\147\ The final rule clarifies that when objections and
challenges have been consolidated with an unfair labor practice
proceeding for purposes of hearing and the election was conducted
pursuant to a stipulated election agreement or a direction of
election, (1) any request for review of the regional director's
decision and direction of election is due within 14 days after
issuance of the administrative law judge's decision; and (2) 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. The final rule also clarifies
that if the election was conducted pursuant to a consent or full
consent agreement, and the objections and challenges have been
consolidated with an unfair labor practice proceeding for purposes
of hearing, the administrative law judge shall, after issuing his
decision, sever the representation case and transfer it to the
regional director for further processing, as is done currently.
The final rule uses the single term, ``decision,'' to describe
the regional director's disposition of challenges and/or objections
in place of the two terms, ``report'' and ``decision,'' used in the
current rules.
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Finally, the amendments clarify in Sec. 102.69(e)(1)(ii) that in a
proceeding conducted pursuant to Sec. 102.69 in which no hearing is
held, the record will include any decision and direction of election
and the record previously made as defined in Sec. 102.68. As discussed
above, pursuant to the amendments to Sec. 102.69, parties may file
requests for review of the regional director's decision and direction
of election after the election, but the timing depends on whether there
are also objections and challenges. In a case involving objections or
determinative challenges, the request for review is due 14 days after
the regional director issues his decision resolving them. Section
102.69(g)(1)(i) currently provides that in cases where a hearing is
held on objections and challenges, the record includes the record
previously made as defined in Sec. 102.68. Absent objections and
challenges, the amendments provide that the request for review of the
decision and direction of election is due 14 days after the tally of
ballots is prepared. Because there may be no post-election hearing,
either because there were no objections or determinative challenges or
because the director disposed of them without a hearing, the amendments
clarify in Sec. 102.69(e)(1)(ii) that if a party files a request for
review of the decision and direction of election but no post-election
hearing on objections and challenges is held, the record will similarly
include the decision and direction of election and the record made at
the pre-election hearing as defined in Sec. 102.68.
Some comments question whether the Board will resolve
nondeterminative challenges post-election. The final rule maintains the
status quo in this regard: the Board will not address nondeterminative
challenge ballots at a post-election hearing, though parties may bring
the matter to the Board by filing a timely unit clarification petition
if they are unable to resolve the resulting question of whether
particular employees are in the bargaining unit (``unit placement''
questions) by agreement. See, e.g., Orson E. Coe Pontiac-GMC Truck,
Inc., 328 NLRB 688, 688 n.1 (1999):
Under standard Board practice, when a classification of
employees votes under challenge and their challenged ballots would
not be determinative of the election results, the ensuing
certification contains a footnote to the effect that they are
neither included nor excluded. Casehandling Manual section 11474.
Even though there was no occasion to resolve the issue in a ballot
challenge hearing, the issue need not stay unresolved. If the
parties do not subsequently agree on whether to add the car prep/
finisher technician to the unit, the matter can be resolved in a
timely invoked unit clarification proceeding. See Kirkhill Rubber
Co., 306 NLRB 559 (1992); NLRB v. Dickerson-Chapman, Inc., 964 F.2d
493, 496-497, 500 fn. 7 (5th Cir. 1992).
AHA argues that permitting parties to resolve such issues in
bargaining is ``disrespectful'' of employee Section 7 rights because it
makes eligibility a ``bargaining chip.'' Yet, as many of the comments
in support of the amendments indicate, parties currently engage in
precisely such bargaining regarding the inclusion or exclusion of
particular individuals and classifications before the election, when
they negotiate an election agreement defining the appropriate unit, and
after the election, when they often resolve both determinative and
nondeterminative challenges by agreement.\148\ In relation to AHA's
concern that deferring such matters to bargaining runs counter to the
goal of promoting labor peace, the Board believes that labor peace is
more likely to be promoted if parties are permitted to voluntarily
resolve their differences, particularly when the parties remain free to
bring a timely unit clarification petition before the Board if they do
not reach agreement.
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\148\ Even after certification, the scope of the bargaining unit
remains a permissible subject of bargaining. See The Idaho Statesman
v. NLRB, 836 F.2d 1396, 1405 (D.C. Cir. 1988).
---------------------------------------------------------------------------
Many comments criticize the proposal to make Board review of
regional directors' post-election determinations discretionary in cases
involving directed elections. These comments are fully addressed above
in relation to Sec. 102.62.
Bluegrass Institute suggests, however, that the 20-percent rule
renders discretionary Board review of the regional directors' post-
election determinations inappropriate. It argues that the Board's
current rules guarantee parties Board review of eligibility questions
deferred in the pre-election decision, and therefore the provision
making Board review of the director's post-election determinations
discretionary constitutes a material change. The Board disagrees. Under
the final rule, if eligibility disputes are deferred using the vote-
and-challenge procedures, the hearing officer's recommendations on
determinative challenges will in all cases be subject to exceptions to
the director, and a party may thereafter file a request for review with
the Board. This parallels how such matters are handled under the
current rules when a hearing officer's recommendations go to the
director. Thus, Section 11366.2 of the Board's Casehandling Manual
provides with respect to challenges to voters in the context of a
directed election, ``If the Regional Director directs that the hearing
officer's recommendations be made to the Regional Director, then
exceptions to the hearing officer's report will be filed with him/her *
* *. The Regional Director must thereafter rule in a supplemental
decision upon the hearing officer's report and such exceptions as may
be filed. The Regional Director's supplemental decision is subject to a
request for review to the Board.'' \149\ Moreover, under the current
rules, if a regional director resolves eligibility questions on the
merits in his or her decision and direction of election, the parties
are able to challenge the decision only by filing a request for review
with the Board. The comment does not explain why a party should have a
greater right to Board review if the regional director decides
[[Page 80175]]
eligibility questions after the election than if the regional director
decides them prior to the election, and the final rule corrects this
anomaly.
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\149\ It is only when regional directors direct that hearing
officer reports go to the Board that parties currently have the
right to Board review. See Casehandling Manual Section 11366.2.
---------------------------------------------------------------------------
Citing Member Hayes' dissent to the NPRM, PIA and others argue that
the deferral of litigation from the pre-election phase to the post-
election phase is likely to lengthen the period between the election
and final certification, which will lengthen the period during which
the employer is uncertain whether it can unilaterally change its
employees' working conditions. See Mike O'Connor Chevrolet, 209 NLRB
701, 703 (1974). As shown, however, the Board believes that the final
rule will not simply shift litigation from before the election to after
the election. Rather, the Board believes that the amendments will
significantly reduce the total amount of litigation, because the
current rules require parties to litigate issues that are often
rendered moot by the election results. Moreover, the Board anticipates
that permitting it to deny review of regional directors' resolution of
post-election disputes, i.e., when a party's request raises no
compelling grounds for granting such review, will eliminate the most
significant source of administrative delay in the finality of election
results. The Board anticipates that the final rule will thus reduce the
period of time between the tally of votes and certification of the
results and thus the period during which employers are uncertain about
their duty to bargain.
Subparts D and E, Sec. Sec. 102.73 Through 102.88, Procedures for
Unfair Labor Practice and Representation Cases Under Sec. 8(b)(7) and
9(c) of the Act and Procedures for Referendum Under Sec. 9(e) of the
Act
The amendments in these two subparts merely conform their
provisions to the amendments in Subpart C described above.
V. Comments on Other Statutory Requirements
A. The 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 and final regulatory flexibility analysis and to develop
alternatives, wherever possible, when the regulations will have a
significant impact on a substantial number of small entities. The
purpose 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, 67 FR 53461 (``Proper
Consideration of Small Entities in Agency Rulemaking''). An agency is
not required to prepare an initial regulatory flexibility analysis or a
final regulatory flexibility analysis for a proposed rule if the agency
head certifies that the rule will not have a significant economic
impact on a substantial number of small entities. 5 U.S.C. 605(b).\150\
To so certify, the agency must publish the certification in the Federal
Register and include ``a statement providing the factual basis for such
certification.'' Id. Based on the factual statement and analysis below,
the Board concludes that the final rule will not have a significant
economic impact on a substantial number of small entities. Accordingly,
the Board's 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.
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\150\ The RFA requires analysis of a final agency rule only
where notice and comment rulemaking was required. 5 U.S.C. 604(a).
As explained above, the final rule is a procedural rule for which
notice and comment rulemaking was not required under the APA, 5
U.S.C. 553(b)(3)(A). Therefore, no analysis under the RFA need be
performed. Nevertheless, the Board chose to undertake the threshold
analysis contemplated by Section 605 of the RFA.
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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. The agency is in the best position to
gauge the small entity impacts of its regulation.'' SBA Office of
Advocacy, ``A Guide for Government Agencies: How to Comply with the
Regulatory Flexibility Act'' at 17 (available at http://www.sba.gov/sites/default/files/rfaguide.pdf) (``SBA Guide'').
The Board determined that the proposed rule would not have an
impact on a substantial number of small entities within the meaning of
5 U.S.C. 605(b). 76 FR 36833-34. The same is true for the final rule.
According to the United States Census Bureau, there were approximately
6 million businesses in the United States with employees in 2007. Of
those, the Small Business Administration's Office of Advocacy estimates
that all but some 18,300 were small businesses with fewer than 500
employees.\151\ Nearly all of those 5,981,700 small employers are
subject to the Board's jurisdiction.\152\ However, the Board concludes
that the final rule will not have an impact on the vast majority of the
small employers because only entities that are actually parties to
representation proceedings under the NLRA are subject to the rule.
Fewer than 4,000 representation proceedings were initiated during each
of the past five years, and the Board has conducted fewer than 2,500
elections during each of those years.\153\ Thus, between 2006 and 2010,
the final rule would have applied to fewer than 4,000 small entities
per year.\154\ The Board believes that this pattern will continue into
the foreseeable future. The final rule is thus likely to have an impact
on fewer than 4,000 small entities per year, which is less than one-
tenth of one percent of the small employers in the country.\155\
Moreover, the affected entities are not concentrated in one or a few
sectors, but are distributed among every sector and industry subject to
the Board's jurisdiction.\156\ Because one-tenth of one
[[Page 80176]]
percent of small entities is not a substantial number of small
entities, the Board concludes that the final rule will not impact a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act.
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\151\ U.S. Small Business Administration, FAQs, http://web.sba.gov/faqs (select ``Advocacy Small Business Statistics and
Research'') (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).
\152\ 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 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); NLRB, An Outline of Law and Procedure in Representation
Cases, http://www.nlrb.gov/sites/default/files/documents/44/rc_outline_2008_full.pdf.
\153\ See NLRB Graphs & Data, Petitions and Elections, http://www.nlrb.gov/graphs-data (including charts documenting that the
total number of election petitions filed between the years of 2006
and 2010 is 3359, 3064, 3170, 2725, and 2977 and the total number of
elections is 2159, 1913, 1938, 1621, and 1817).
\154\ Although the number of petitions has fluctuated over the
last 10 years, rising to as many as 5,347 in 2002, even that number
constitutes only a very small percentage of the total number of
small entities, and so would also fail to reach the significant
number threshold in the statute. See id.
\155\ CNLP comments that the Board failed to properly define
small entities. It argues that the median size of petitioned-for
units is 23-26 employees, and therefore half of the Board's
elections involve employers with 25 or fewer employees. But a unit
does not necessarily and does not typically include all the
employees of the employer. Moreover, CNLP misunderstands the proper
inquiry for certification under the RFA. The question is whether the
rule has a significant impact on a substantial number of small
entities, not whether most of the entities so affected (no matter
how few in number) are small entities. Finally, the Board has used
an extremely inclusive definition of small entity, including all
employers not excluded by the Small Business Administration's
definition.
\156\ Following the recommendation of the SBA Office of
Advocacy, the Board identified the total number of affected
employers within each industry using the NAICS categories. In no
category did the percentage of affected employers rise above half of
one percent. In the largest category, utilities, only 0.28 percent
of all employers were parties to a representation proceeding. See
Seventy Fourth Annual Report of the NLRB, https://www.nlrb.gov/sites/default/files/documents/119/nlrb2009.pdf (NLRB data); U.S.
Census Bureau, North American Industry Classification System. http://censtats.census.gov/cbpnaic/cbpnaic.shtml (select ``United
States'' in the first drop down box for national data).
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In response to the Board's proposed rule, some of the comments
argue that the rule would affect many more than the approximately 4,000
small entities estimated by the Board. The comments argue that the rule
imposes burdens on all employers, because each must, for example, read
and understand the rules, train human resources and management staff
concerning the rules, educate their employees about the rules, and find
or hire labor counsel to provide advice concerning the rules. Comments
of this type were submitted by the Chamber, NAM, and NRF, among others.
NAM also opined that the rule will lead to increased numbers of
election petitions, and NRF posited that the rule would change
employers' typical reactive approach to election petitions to proactive
employee education about unionization.
The Board disagrees with these comments. First, the comments are
based primarily on elements of the proposed rule not adopted in the
final rule. Thus, the final rule does not impose any reporting or
recordkeeping requirements on employers. Second, the RFA does not
require an agency to consider these types of speculative and wholly
discretionary employer expenditures. Rather, the RFA requires an agency
to consider the direct burden that compliance with a new regulation
will likely impose on small entities. See Mid-Tex Elec. Co-op v. FERC,
773 F.2d 327, 342 (D.C. Cir. 1985) (``[I]t is clear that Congress
envisioned that the relevant `economic impact' as the impact of
compliance with the proposed rule on regulated small entities'');
accord White Eagle Co-op. Ass'n v. Conner, 553 F.3d 467, 478 (7th Cir.
2009); Colorado State Banking Bd. v. Resolution Trust Corp., 926 F.2d
931, 948 (10th Cir. 1991). This construction of the RFA is supported by
Section 603 of the RFA, which lists the items to be included in an
initial regulatory flexibility analysis (if one is required). Section
603 states that such an analysis ``shall describe the impact of the
proposed rule on small entities.'' 5 U.S.C. 603(a). And Section 603(b)
describes the ``impact'' by stating that ``[e]ach initial regulatory
flexibility analysis * * * shall contain * * * a description of the
projected reporting, recordkeeping and other compliance requirements of
the proposed rule, including an estimate of the classes of small
entities which will be subject to the requirement and the type of
professional skills necessary for preparation of the report or
record[.]'' 5 U.S.C. 603(b)(4) (emphasis added). Section 604 further
corroborates the Board's conclusion, as it contains an identical list
of requirements for a final regulatory analysis (if one is required). 5
U.S.C. 604(a)(4). Guidance from the Small Business Administration also
supports this construction of the RFA because it cites only direct,
compliance-based costs as examples of financial burdens that agencies
must consider:
(a) Capital costs for equipment needed to meet the regulatory
requirements; (b) costs of modifying existing processes and
procedures to comply with the proposed rule; (c) lost sales and
profits resulting from the proposed rule; (d) changes in market
competition as a result of the proposed rule and its impact on small
entities or specific submarkets of small entities; (e) extra costs
associated with the payment of taxes or fees associated with the
proposed rule; and (f) hiring employees dedicated to compliance with
regulatory requirements.
SBA Guide at 34.
Thus, nothing in the RFA, its prior construction, or SBA guidance
suggests that the Board must consider the speculative and wholly
discretionary expenditures that an employer which is not party to a
representation proceeding may choose to incur. Instead, the ``impact''
analysis required under the RFA must consider only direct compliance
costs. The final rule imposes no such costs on small entities not party
to a representation proceeding. There will be no ``reporting,
recordkeeping and other compliance requirements'' for these small
entities. See 5 U.S.C. 603(b)(4) & 604(a)(4). And the final rule
imposes on them no mandatory capital costs, mandatory costs of
modifying existing processes, no costs of lost sales or profits, and no
costs of changed market competition. SBA Guide at 34. For small
entities not party to representation proceedings, there are no costs
associated with taxes or fees and no costs for additional employees
dedicated to compliance, as no compliance requirements exist. Id.
Finally, there is no reason why a small entity not party to a
representation proceeding would hire or otherwise retain employees
dedicated to compliance with the final rule any more than it would have
done so under the prior rules. Of course, employers may train their
managerial and supervisory staff and educate their employees as they
wish, but compliance with the final rule does not require such
action.\157\ For all of these reasons, the Board reaffirms its
certification on the grounds that the final rule will not have an
impact on a substantial number of small entities.
---------------------------------------------------------------------------
\157\ The Chamber states that it does ``not know how many
employers would undertake such [education] efforts.'' Other similar
comments also lack factual support, including NRF's assertion that
this rule will require employers to preemptively educate their
employees. Similarly, the suggestion of COLLE, that the Board must
prove that employers will not engage in additional training in
response to the final rule, is misguided, because any such activity
would be undertaken voluntarily and is not required by the final
rule.
---------------------------------------------------------------------------
Moreover, even if the Board assumed that the final rule would have
an impact on a substantial number of small entities, the final rule
will not have a significant economic impact within the meaning of 5
U.S.C. 605(b). 76 FR 36833-34.
In the NPRM, the Board explained, ``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.'' 76 FR
36833. The final rule adopts none of the proposed amendments that could
have resulted in small cost increases for parties to representation
proceedings. Therefore, as shown below, each of the amendments adopted
in the final rule will either reduce the cost of being a party to a
representation proceeding or have no economic impact on such parties.
First, the final rule amends Sec. 102.64 in order to expressly
construe Section 9(c) of the NLRA and state that the statutory purpose
of a pre-election hearing is to determine if a question of
representation exists. That amendment has no economic impact except in
relation to the amendment of Sec. 102.66(a), infra.
Second, the final rule amends Sec. 102.66(a) and eliminates Sec.
101.20(c) (along with all of Part 101, Subpart C) in order to ensure
that hearing officers presiding over pre-election hearings have the
authority to limit the presentation of evidence to that supporting a
party's contentions and relevant to the existence of a question
[[Page 80177]]
concerning representation. These amendments will lower the cost of
participating in representation proceedings by reducing litigation at
the pre-election hearing. While some disputes that would have been
litigated at the pre-election hearing will still be litigated at the
post-election hearing, many will be rendered moot by the results of the
election or resolved by the parties once they are free of the tactical
consideration of the impending election.
Third, the final rule amends Sec. 102.66(d) to afford hearing
officers presiding over pre-election hearings discretion over the
filing of post-hearing briefs, including over the subjects addressed
and the time for filing. Presenting oral argument in lieu of a post-
hearing brief will reduce the cost of participating in representation
proceedings.
Fourth, the final rule amends Sec. Sec. 102.67 and 102.69 to
eliminate the requirement that parties' file a pre-election request for
review of a regional director's decision and direction of election in
order to preserve issues for review, and defer all requests for Board
review until after the election, when any such request can be
consolidated with a request for review of any post-election rulings.
Because many issues concerning which parties would previously have
filed a pre-election request for review are rendered moot by the
election results and because, even when they are not, filing a single
consolidated request for review when a party wishes to seek review
concerning both pre- and post-election rulings results in efficiencies,
eliminating the pre-election request for review will reduce the cost of
participating in representation proceedings.
Fifth, the final rule eliminates the regulatory direction in Sec.
101.21(d) (again, along with all of Part 101, Subpart C) that the
regional director should ordinarily not schedule an election sooner
than 25 days after the decision and direction of election in order to
give the Board an opportunity to rule on a pre-election request for
review. This will have no direct impact on the cost of participating in
representation proceedings.
Sixth, the final rule amends Sec. 102.65 to make explicit and to
narrow the circumstances under which a request for special permission
to appeal to the Board will be granted. For the same reasons explained
above in relation to eliminating the pre-election request for review,
limiting this form of interlocutory appeal will reduce the cost of
participating in representation proceedings.
Seventh, the final rule amends Sec. Sec. 102.62(b) and 102.69 to
create a uniform procedure for resolving potentially outcome-
determinative challenges and election objections in stipulated and
directed election cases and to provide that Board review of regional
directors' resolution of such disputes is discretionary. This will have
no direct impact on the cost of participating in representation
proceedings.
Eighth, the final rule eliminates redundant part 101, subpart C of
its regulations. This will have no direct impact on the cost of
participating in representation proceedings.
The remainder of the final rule's amendments conform other sections
of the Board's Rules and Regulations to the eight amendments described
above. This will have no direct impact on the cost of participating in
representation proceedings.
The Chamber asserts that the Board failed to calculate the costs of
compliance with the proposed rule with sufficient particularity. The
Chamber's comment focuses on the costs of the proposed notice posting,
completion of the statement-of-position form, and the shortening of
certain deadlines within the representation case process. It suggests
that these costs would constitute a significant economic impact. The
comment does not include numerical estimates of such costs, and, in any
event, the final rule largely does not adopt the proposals pointed to
in the Chamber's comment. Moreover, under the RFA Section 607, ``an
agency may provide * * * more general descriptive statements if
quantification is not practicable or reliable.'' \158\ Administrative
guidance explains that, ``[s]uch a standard is not required for section
605 certifications, but some agencies use section 607 as a model for
preparing certifications.'' \159\ Because quantification was not
practical or reliable in relation to most of the proposed amendments,
the Board followed Sec. 607 and provided a general descriptive
statement in the NPRM and has done the same here.
---------------------------------------------------------------------------
\158\ 5 U.S.C. 607; see also Alenco Communications, Inc. v. FCC,
201 F.3d 608, 625 (5th Cir. 2000).
\159\ SBA Guide, supra, at 10 n. 34.
---------------------------------------------------------------------------
For the two separate reasons explained above, the Board concludes
the final rule will not have a significant economic impact on a
substantial number of small entities.
B. Paperwork Reduction Act
In the NPRM, the Board explained that the ``proposed amendments
would not impose any information collection requirements'' and,
accordingly, the proposed amendments ``are not subject to the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq.'' No substantive comments
were received relevant to the Board's analysis of its obligations under
the PRA.
The final rule does not adopt any of the proposed amendments
regarding the contents of petitions, notice postings, the statement of
position, or employee or eligibility lists, and so there are no longer
any even arguable information collection requirements in the final
rule. The Board therefore concludes that the final rule is not subject
to the PRA.
C. Congressional Review Act
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act). This rule will not result in an annual
effect on the economy of $100 million or more, a major increase in
costs or prices, or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets. The Board has, in any event, determined
that the effective date of the rule will be 120 days after the rule is
published in the Federal Register.
VI. Statement of the General Course of Proceedings Under Section 9(c)
of the Act
A. Representation Case Petitions
Petitions may be filed in representation cases for many different
reasons. For example, a union may file a petition for certification
because it seeks to become the collective-bargaining representative of
an employer's employees. An employer may file a petition to determine
the majority status of the union demanding recognition as the
representative of the employer's employees. If there is already a
certified or currently recognized representative, an employee may file
a decertification petition to oust the incumbent representative. Or, a
party may file a petition for clarification of the bargaining unit or
for amendment to reflect changed circumstances, such as changes in the
incumbent representative's name or affiliation.
Petition forms are available on the Board's Web site and in the
Board's regional offices. The petition must be in writing and signed,
and must either be notarized or contain a declaration by the person
signing it, under the penalties of the Criminal Code, that its contents
are
[[Page 80178]]
true and correct to the best of his or her knowledge and belief. The
petition is filed with the regional director for the regional office in
which the proposed or actual bargaining unit exists. Petition forms
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 that claim
to represent the employees. A petitioner seeking certification as the
collective-bargaining representative or seeking to decertify an
incumbent representative 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 employee interest in an election. 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 a 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.
The petitioner may file the petition by fax, by mail, or in person
at one of the NLRB's regional offices.
B. Pre-Hearing Withdrawals and Dismissals; Notice of Hearing
Upon receipt of the petition in the Regional Office, it is docketed
and assigned to a Board agent to investigate (1) whether the employer's
operations affect commerce within the meaning of the Act, (2) the
existence of a bona fide question concerning representation in a unit
of employees appropriate for the purposes of collective bargaining
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 or an employee seeking
decertification of an incumbent representative, there is sufficient
evidence of employee interest in an election. The evidence of interest
submitted by the petitioning labor organization or by the person
seeking decertification is ordinarily checked to determine the number
or proportion of employees who have demonstrated interest, 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 demonstrated interest among 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 Board
agent attempts to ascertain from all interested parties whether 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.
The petitioner may request to withdraw its petition if the
investigation discloses, for example, that the petitioner lacks an
adequate showing of interest. The regional director may request that
the petitioner withdraw the petition if further processing at that time
is inappropriate because, for example, a written contract covering the
petitioned-for unit is currently in effect. If, despite the regional
director's recommendations, the petitioner refuses to withdraw the
petition, the regional director may dismiss it. The petitioner may
within 14 days request review of the regional director's dismissal by
filing such request with the Board in Washington, DC; if it accepts
review, the Board may sustain the dismissal, stating the grounds of its
affirmance, or may direct the regional director to take further action.
If, however, the regional director determines that the petition and
supporting documentation establish reasonable cause to believe that a
question of representation affecting commerce exists and that the
policies of the Act will be effectuated, then the regional director
issues a notice of a pre-election hearing at a time and place fixed
therein to the parties named in the petition. Along with the notice of
hearing, the regional director serves a copy of the petition 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. Voluntary Election Agreements
Elections can occur either by agreement of the parties or by
direction of the regional director or the Board. In many cases, the
parties, with Board agent assistance, are able to reach agreement
regarding the election details, thereby eliminating the need for the
regional director or the Board to issue a formal decision and direction
of election. By entering into an election agreement, the parties may,
depending upon when the agreement is reached, avoid the time and
expense of participating in a hearing.
The Board has devised and makes available to the parties three
types of informal voluntary procedures through which representation
issues can be resolved without recourse to formal procedures. Forms for
use in these informal procedures are available in the regional offices.
One type of informal procedure is the consent election agreement with
final regional determination of post-election disputes. Here, the
parties agree with respect to the appropriate unit, the payroll period
to be used in determining which employees in the appropriate unit shall
be eligible to vote in the election, and the type, place, date, and
hours of balloting. The consent election is conducted under the
direction and supervision of the regional director. This form of
agreement provides that the rulings of the regional director on all
questions relating to the election, such as the validity of challenges
and objections, are final and binding. The regional director issues to
the parties a certification of the results of the election, including a
certification of representative where appropriate, with the same force
and effect as if issued by the Board.
A second type of informal procedure is commonly referred to as the
stipulated election agreement with discretionary Board review. Like the
consent agreement above, the parties agree on the unit, payroll period
to be used in determining voter eligibility, and election details, but
provide that they may request Board review of the regional director's
resolution of post-election disputes. The stipulated election is
conducted under the direction and supervision of the regional director.
The third type of informal procedure is referred to as the full
consent-election agreement with final regional director determination
of pre- and post-election disputes. Here, the parties agree that all
pre-election and post-election disputes will be resolved with finality
by the regional director. For example, the parties agree that if they
are unable to informally resolve disputes arising with respect to the
appropriate unit or other election details, those issues will be
presented to, and decided with finality by, the regional director after
a hearing. Upon the close of the hearing, the entire
[[Page 80179]]
record in the case is forwarded to the regional director. After review
of the record, 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. Similarly, all matters arising after the election,
including determinative challenged ballots and objections to the
conduct of the election, are decided with finality by the regional
director. 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.
D. Formal hearing
If the parties have not entered into a voluntary election
agreement, a hearing must be held to determine if a question of
representation affecting commerce exists before a regional director or
the Board may direct an election to resolve that question. 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.
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 employee. The
hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the hearing officer is
to ensure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of whether a question of
representation exists. A question of representation exists if a
petition as described in Section 9(c) of the Act has been filed
concerning a unit appropriate for the purposes 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. Disputes concerning individuals' eligibility
to vote or inclusion in an appropriate unit ordinarily need not be
litigated or resolved before an election is conducted. Each party is
afforded full opportunity to present its respective positions and to
prove the significant facts supporting its positions, so long as the
evidence a party seeks to introduce supports its contentions and is
relevant to the existence of a question of representation or a bar to
an election. In most cases a substantial number of the relevant facts
are undisputed and stipulated.
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 is waived by
further participation in the hearing. A party need not seek special
permission to appeal a hearing officer's ruling to preserve an issue
for review after the election. The filing of a request for special
permission to appeal does not stay an election and does not result in
impounding of ballots unless specifically ordered by the Board.
At the close of the hearing, parties are permitted to make oral
arguments on the record. Parties are permitted to file post-hearing
briefs only with special permission of the hearing officer. The hearing
officer specifies the time for filing such briefs, and may limit the
subjects to be addressed in post-hearing briefs. If the regional
director transfers the case to the Board for decision, parties may file
post-hearing briefs with the permission of the Board.
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.
E. Regional Director Pre-Election Determinations; Requests for Review
After the pre-election hearing closes, the regional director may
proceed to review the record of the hearing and any post-hearing briefs
to determine whether a question of representation affecting commerce
exists concerning a unit appropriate for the purposes of collective
bargaining or, in the decertification context, concerning a unit with
an incumbent representative. The regional director may decide either to
direct an election, dismiss the petition, or reopen the hearing. Or, in
cases involving novel or complex issues, the regional director may
transfer the case to the Board for decision. In that event, the record
is forwarded to the Board, and if the Board directs an election, the
election is held under the supervision of the regional director in the
same manner as if the regional director had directed the election.
If the regional director directs an election, a party may request
review of the direction after the election in the manner described
below. If the regional director dismisses a petition, a party may file
a request for review with the Board within 14 days after service of the
decision dismissing the petition in the manner specified in the Board's
Rules and Regulations. Any party may file with the Board a statement in
opposition to a request for review, within the time periods and in
manner specified in the Board's Rules and Regulations. The Board will
grant a request for review only where there are compelling reasons to
do so. The parties may, at any time, waive their right to request
review. Failure to request review precludes such parties from
relitigating, in any subsequent related unfair labor practice
proceeding, any issue that was, or could have been, raised in the
representation proceeding. Denial of a request for review constitutes
an affirmance of the regional director's action, which also precludes
relitigating any such issues in any subsequent related unfair labor
practice proceeding.
F. Election Procedure; Challenges and Election Objections; Requests for
Review of Directions of Elections; Requests for Review of Regional
Director Dispositions of Challenges and Objections
1. Election Procedure; Challenges; and Objections
Unless otherwise directed by the Board, all elections are conducted
under the supervision of the regional director in whose region the
proceeding is pending. All elections shall be by secret ballot. The
regional director determines the details incident to the conduct of the
election. A Board agent usually arranges a pre-election conference at
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 is publicized by the posting of official
notices in the employer's facility 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 the date of the election, location of polls, time
of voting, and eligibility rules. When an 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, and the ballots are marked in the secrecy of a voting booth.
The
[[Page 80180]]
parties' authorized observers and Board agents may challenge, for good
cause, the eligibility of any person to participate in the election. If
such a person is permitted to vote, his or her ballot is segregated,
and, if the challenge is not resolved before the tally, impounded.
Board agents, in the presence and with the assistance of the parties'
authorized representatives, count and tabulate the ballots promptly
after the closing of the polls. Elections are decided by a majority of
the valid votes cast. Voter challenges may be resolved by agreement
before the tally. A complete tally of the ballots is made available to
the parties upon the conclusion of the count. If the number of
unresolved challenged ballots is insufficient to affect the results of
an election in which an individual or labor organization is certified,
the unit placement of any such individuals may be resolved by the
parties in the course of collective bargaining or may be determined by
the Board if a timely unit clarification petition is filed.
Within seven days after the tally of ballots has been prepared, a
party may file objections to the conduct of the election or to conduct
affecting the results of the election. Parties have an additional seven
days to file their evidence in support of objections. A party must
timely file objections and the supporting evidence even if there are
determinative challenges.
2. Requests for Review of Decisions and Directions of Elections
If the election has been conducted pursuant to a regional
director's decision and direction of election, any party may file a
request for review of that decision with the Board in the manner
specified in the Board's Rules and Regulations. In the absence of
election objections or potentially determinative challenges, the
request for review of the decision and direction of election must 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 must be filed within 14 days after
the regional director's decision on challenged ballots and/or
objections, and may be combined with a request for review of that
decision as described below, unless the hearing on objections and
determinative challenges has been consolidated with an unfair labor
practice proceeding before an administrative law judge. In such cases,
the request for review of the decision and direction of election must
be filed within 14 days after issuance of the administrative law
judge's decision. Any party may file with the Board a statement in
opposition to the request for review within the time periods and in the
manner specified in the Board's Rules and Regulations. The Board will
grant a request for review only where there are compelling reasons to
do so. 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. A party may, at any time, waive its right to request review.
Failure to request review precludes such a party from relitigating, in
any subsequent related unfair labor practice proceeding, any issue
which was, or could have been, raised in the representation proceeding.
Denial of a request for review constitutes an affirmance of the
regional director's action, which also precludes relitigating any such
issues in any subsequent related unfair labor practice proceeding.
3. Certification in Absence of Objections, Determinative Challenges and
Requests for Review
If no timely objections are filed, if the challenged ballots are
insufficient in number to affect the results of the election, if no
runoff election is to be held, and if no request for review of any
decision and direction of election is filed, the regional director
issues 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 is
closed.
4. Disposition of Objections and Determinative Challenges
The initial procedures for handling objections to the conduct of
the election or to conduct affecting the results of the election, as
well as determinative challenges, are the same regardless of whether
the election was directed by a regional director or held pursuant to
the parties' agreement. The regional director has discretion to conduct
an investigation or set the matters for a hearing without an
investigation.
If timely objections are filed and the regional director determines
that the party's supporting evidence would not constitute grounds for
overturning the election if introduced at a hearing, and the regional
director determines that any determinative challenges do not raise
substantial and material factual issues, the regional director issues a
decision disposing of the objections and challenges and a certification
of the results of the election, including certification of
representative where appropriate.
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 party's supporting evidence 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 and raise substantial and material factual issues, the
regional director issues a notice of hearing before a hearing officer,
unless the regional director consolidates the hearing concerning
objections and determinative challenges with an unfair labor practice
proceeding before an administrative law judge.
If the regional director issues a notice of hearing before a
hearing officer, the hearing officer issues a report resolving
questions of credibility and containing findings of fact and
recommendations as to the disposition of the issues following the
hearing. Within 14 days after issuance of the hearing officer's report,
any party may file exceptions to it with the regional director. A party
opposing the exceptions may file an answering brief within the time
periods and in the manner specified in the Board's Rules and
Regulations.
The regional director then decides the matter and issues a
certification of the results of the election, including certification
of representatives where appropriate. The parties' appeal rights with
respect to the regional director's decision on challenged ballots or
objections depend upon whether the parties agreed to waive any appeal
prior to the election. If the election has been held pursuant to a
stipulated election agreement or a direction of election, a party may,
within 14 days from the date of issuance of the regional director's
decision, file with the Board a request for review of such decision,
which may be combined with a request for review of the regional
director's decision to direct the election. Any party may file with the
Board a statement in opposition to the request for review. The
procedures for filing such requests for review and any statements in
opposition thereto are contained in the Board's Rules and Regulations.
If no request for review is filed, the decision is final and has 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
precludes such parties from relitigating, in any subsequent related
unfair labor practice proceeding, any issue that was, or could have
been, raised in the representation proceeding. Denial of a request for
review constitutes an affirmance of the regional director's action that
also precludes relitigating any such issues in any subsequent related
unfair labor practice proceeding.
[[Page 80181]]
In cases where the election was conducted pursuant to either of the
two types of consent election agreements, the regional director's
decision regarding the election objections and determinative challenges
is final, and includes a certification of the results of the election,
including certification of representative where appropriate.
If the regional director consolidates the hearing concerning
objections and determinative challenges with an unfair labor practice
proceeding before an administrative law judge and the election was
conducted pursuant to one of the two types of consent agreements, the
administrative law judge, upon issuing his decision, severs the
representation case and transfers it to the regional director for
further processing. If, however, the regional director consolidates the
hearing concerning objections and determinative challenges with an
unfair labor practice proceeding before an administrative law judge and
the election was conducted pursuant to a stipulated election agreement
or a decision and direction of election, the provisions of Sec. 102.46
of the Board's Rules and Regulations govern with respect to the filing
of exceptions or an answering brief to the exceptions to the
administrative law judge's decision.
G. Runoff Elections
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.
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).
Subpart C-- [Removed and Reserved]
0
2. Remove and reserve subpart C, consisting of Sec. Sec. 101.17
through 101.21.
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) 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:
---------------------------------------------------------------------------
\1\ The manner of filing of such petition and the contents
thereof are the same as described in 29 CFR 102.60 and 102.61 and
the statement of the general course of proceedings under Section
9(c) of the Act published in the Federal Register, 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.
---------------------------------------------------------------------------
(1) The employer's operations affect commerce within the meaning of
the Act;
(2) Picketing of the employer is being conducted for an object
proscribed by section 8(b)(7) of the Act;
(3) Subparagraph (C) of that section of the Act is applicable to
the picketing; and
(4) The petition has been filed within a reasonable period of time
not to exceed 30 days from the commencement of the picketing. 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, after the election, file a
request for review of a regional director's decision to direct the
election within the time periods specified and as described in 29 CFR
102.69. 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 29 CFR102.69.
(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 29 CFR 102.64, 102.65, 102.66,
102.67, 102.68, and 102.69, and the statement of the general course.
(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 29 CFR 102.62(a) and the statement of the
general course.
(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 29 CFR Part 102 and the statement of the general course.
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, absent withdrawal of the petition, dismisses it,
stating the grounds therefor. 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 29 CFR Part 102 and the statement of the general course.
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,
[[Page 80182]]
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 with final
regional director determinations of post-election disputes, stipulated
election agreement with discretionary Board review, and full consent-
election agreement with final regional director determinations of pre-
and post-election disputes. 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 with final regional director determinations of post-election
disputes, a stipulated election agreement with discretionary Board
review, and a full consent-election agreement with final regional
director determinations of pre- and post-election disputes are the same
as those described in subpart C of 29 CFR part 102 and the statement of
the general course 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 is described in subpart C of 29 CFR Part 102 and the
statement of the general course 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
29 CFR Part 102 and the statement of the general course 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 that
are relevant to the issue of whether the Board should conduct an
election to determine whether the employees in a bargaining unit
covered by an agreement between their employer and a labor organization
made pursuant to section 8(a)(3) of the Act, desire that such authority
be rescinded. 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. Post-hearing briefs are filed only upon
special permission of the hearing officer and within the time and
addressing the subjects permitted by the hearing officer. If the case
is transferred to the Board after the close of the hearing, 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 any post-
hearing brief previously filed with 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 described in 29 CFR 102.69 and the
statement of the general course.
(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 is 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: Secs. 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 sec. 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 sec. 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
0
9. Revise Sec. 102.62 to read as follows:
Sec. 102.62 Election agreements.
(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
[[Page 80183]]
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 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
10. 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), 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. 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),
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 102.69 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.
0
11. 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 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. Disputes concerning
individuals' eligibility to vote or inclusion in an appropriate unit
ordinarily need not be litigated or resolved before an election is
conducted. If, upon the record of the hearing, the regional director
finds that a question of representation exists and there is no bar to
an election, he shall direct an election to resolve the question.
(b) Hearings shall be conducted by a hearing officer and shall be
open to the public unless otherwise ordered by the hearing officer. At
any time, a hearing officer may be substituted for the hearing officer
previously presiding. It shall be the duty of the hearing officer to
inquire fully into all matters and issues necessary to obtain a full
and complete record upon which the Board or the regional director may
discharge their duties under section 9(c) of the Act.
(c) The hearing officer may, in his discretion, continue the
hearing from
[[Page 80184]]
day to day, or adjourn it to a later date or to a different place, by
announcement thereof at the hearing or by other appropriate notice.
0
12. 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. 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). 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. Sec. 102.67 (b), (c), (d), and 102.69 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 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 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. The
Board will not 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 or require the impounding of
ballots.
(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.
(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
[[Page 80185]]
direction of election in any election conducted while such motion is
pending. A motion for reconsideration, for rehearing, or to reopen the
record need not be filed to exhaust administrative remedies.
0
13. 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, to call, examine, and cross-examine witnesses, and to
introduce into the record documentary and other evidence so long as
such examination, cross-examination, and other evidence supports its
contentions and is relevant to the existence of a question of
representation or a bar to an election. The hearing officer shall also
have power to call, examine, and cross-examine witnesses and to
introduce into the record documentary and other evidence. Witnesses
shall be examined orally under oath. The rules of evidence prevailing
in courts of law or equity shall not be controlling. Stipulations of
fact may be introduced in evidence with respect to any issue.
(b) 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.
(c) 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, 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. 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) 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. Post-hearing briefs shall be filed only upon special
permission of the hearing officer and within the time and addressing
the subjects permitted by the hearing officer. 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.
(e) Hearing officer analysis. 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. Witness fees and mileage shall be paid by the
party at whose instance the witness appears.
0
14. 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; transfer of case to the
Board; Board action.
(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.
(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. 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 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
[[Page 80186]]
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 (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) 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) Transfer. 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) Briefs. 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.
(j) Board action. 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) Format of request. All documents filed with the Board under
the provisions of this section shall be filed in eight copies, double
spaced, on 81/2- 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) 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.
0
15. Revise Sec. 102.69 to read as follows:
Sec. 102.69 Election procedure; tally of ballots; objections;
certification by the regional director; 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 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 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) 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 pursuant
to
[[Page 80187]]
Sec. 102.114(f). 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) 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
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. Provided, however, That if the
hearing on objections and determinative challenges has been
consolidated with an unfair labor practice proceeding before an
administrative law judge, the request for review of the decision and
direction of election shall be filed within 14 days after issuance of
the administrative law judge's decision. The procedures for such
request for review shall be the same as set forth in Sec. 102.67(c)
through (g), and (k), 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) Decisions without a hearing. If timely objections are
filed to the conduct of an election or to conduct affecting the results
of the election, and the regional director determines that the party's
supporting evidence would not constitute grounds for overturning the
election if introduced at a hearing, and the regional director
determines that any determinative challenges do not raise substantial
and material factual issues, the regional director shall issue a
decision disposing of objections and determinative challenges, and a
certification of the results of the election, including certification
of representative where appropriate.
(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 party's
supporting evidence 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 and raise substantial and
material factual issues, the regional director shall prepare and caused
to be served on the parties a notice of hearing at a place and time
fixed therein: 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. In any proceeding wherein the election has
been held pursuant to Sec. 102.62(a) or (c) and the representation
case has been consolidated with an unfair labor practice proceeding for
purposes of hearing, the administrative law judge shall, after issuing
his decision, sever the representation case and transfer it to the
regional director for further processing.
(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 other parties and a statement
of service filed with the regional director. The regional director
shall thereupon decide the matter upon the record or make other
disposition of the case. If no exceptions are filed to such report, the
regional director, upon the expiration of the period for filing such
exceptions, may decide the matter forthwith upon the record or may make
other disposition of the case.
(2) Regional director decisions in consent or full consent
elections. If the election has been held pursuant to Sec. 102.62(a) or
(c), the 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 decisions in
stipulated or directed elections. If the election has been held
pursuant to Sec. Sec. 102.62(b) or 102.67, the decision of the
regional director shall include a certification of the results of the
election, including certification of representative where appropriate.
Within 14 days from the date of issuance of the regional director's
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
decision which may be combined with a request for review of the
regional director's decision to direct an election as provided in
Sec. Sec. 102.67(b) and 102.69(b). The procedures for post-election
requests for review shall be the same as set forth in Sec. 102.67(c)
through (g), and (k), insofar as applicable. If no request for review
is filed, the 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.
[[Page 80188]]
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 and the election was conducted pursuant to Sec.
102.62(b) or Sec. 102.67, the provisions of Sec. 102.46 shall govern
with respect to the filing of exceptions or an answering brief to the
exceptions to the administrative law judge's decision.
(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, any briefs or other legal
memoranda submitted by the parties, any report on such objections and/
or on challenged ballots, exceptions, the decision of the regional
director, any requests for review, and the record previously made as
defined in Sec. 102.68. Materials other than those set out above shall
not be a part of the record.
(ii) Record in case with no hearing. In a proceeding pursuant to
this section in which no hearing is held, the record shall consist of
the objections to the conduct of the election or to conduct affecting
the results of the election, any decision on objections or on
challenged ballots and any request for review of such a decision, any
documentary evidence, excluding statements of witnesses, relied upon by
the regional director in his decision, any briefs or other legal
memoranda submitted by the parties, any other motions, rulings or
orders of the regional director, as well as any decision and direction
of election 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, except as provided in paragraph (e)(3) of this section.
(2) Immediately upon issuance 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 (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
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
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 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.
(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.
Subpart D--Procedure for Unfair Labor Practice and Representation
Cases Under Sections 8(b)(7) and 9(c) of the Act
0
16. 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, 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, including transfer of the case to
the Board, shall be governed insofar as applicable by Sec. Sec. 102.63
through 102.69 inclusive.
Subpart E--Procedure for Referendum Under Section 9(e) of the Act
0
17. 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
[[Page 80189]]
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.
0
18. 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 through 102.69
inclusive.
Signed in Washington, DC on December 16, 2011.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2011-32642 Filed 12-21-11; 8:45 am]
BILLING CODE 7545-01-P