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Representation-Case Procedures

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Start Preamble Start Printed Page 74308

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

The National Labor Relations Board (the Board) has decided to issue this final rule for the purpose of carrying out the provisions of the National Labor Relations Act which “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” While retaining the essentials of existing representation case procedures, these amendments remove unnecessary barriers to the fair and expeditious resolution of representation cases. They simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions. Duplicative and unnecessary litigation is eliminated. Unnecessary delay is reduced. Procedures for Board review are simplified. Rules about documents and communications are modernized in light of changing technology. In various ways, these amendments provide targeted solutions to discrete, specifically identified problems to enable the Board to better fulfill its duty to protect employees' rights by fairly, efficiently, and expeditiously resolving questions of representation.

DATES:

This rule will be effective on April 14, 2015.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

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

End Further Info End Preamble Start Supplemental Information

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. As explained in the NPRM, the Supreme Court has repeatedly recognized that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). “The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.” NLRB v. Waterman Steamship Co., 309 U.S. 206, 226 (1940); see also Southern Steamship Co. v. NLRB, 316 U.S. 31, 37 (1942).

Representation case procedures are set forth in the statute, in Board regulations, and in Board caselaw.[1] In addition, the Board's General Counsel has prepared a non-binding Casehandling Manual describing representation case procedures in detail.[2]

The Act itself sets forth only the basic steps for resolving a question of representation.[3] These are as follows. First, a petition is filed by an employee, a labor organization, or an employer. Second, if there is reasonable cause, an appropriate 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. Hearing officers are authorized to conduct pre-election hearings, but may not make recommendations as to the result. Third, if there is a question of representation, an election by secret ballot is conducted in an appropriate unit. Fourth, the results of the election are certified. The statute also permits the Board to delegate its authority to NLRB regional directors. The statute provides that, upon request, the Board may review any action of the regional director; however, such requests do not stay regional proceedings unless specifically ordered by the Board.

Underlying these basic provisions is the essential principle that representation cases should be resolved quickly and fairly. “[T]he Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.” A.J. Tower Co., 329 U.S. at 331. Within the framework of the current rules—as discussed at length in the NPRM—the Board, the General Counsel [4] and the agency's regional directors have sought to achieve efficient, fair, uniform, and timely resolution of representation cases. In part, the final rule codifies best practices developed over the years. This ensures greater uniformity and transparency.

But the Board's experience has also revealed problems—particularly in fully litigated cases—which cannot be solved without changing current practices and rules. For example, pre-election litigation has at times been disordered, hampered by surprise and frivolous disputes, and side-tracked by testimony about matters that need not be decided at that time. Additionally, the process for Board review of regional director actions has resulted in unnecessary delays. Moreover, some rules have become outdated as a result of changes in communications technology and practice. The final rule addresses these and other problems as discussed below.

II. List of Amendments

This list provides a concise statement of the various ways the final rule changes or codifies current practice, and the general reasoning in support. It is not “an elaborate analysis of [the] rules or of the detailed considerations upon which they are based;” rather, it “is designed to enable the public to obtain a general idea of the purpose of, and a statement of the basic justification for, the rules.” [5] As this list shows, the amendments provide targeted solutions to discrete, specifically identified problems.[6] All of these matters are Start Printed Page 74309discussed in greater detail below, along with responses to the comments.

1. Representation petitions may be filed with the Board electronically. The prior rules required hard-copy or facsimile filing, which should not be necessary under contemporary litigation practice and technological advancements.

2. Representation petitions (and related documents) must be served by the petitioner, which will afford the other parties the earliest possible notice of the petition. The Board's prior rules did not require the petitioner to serve a copy of its petition on the other parties.

3. At the same time the petition is filed with the Board, the petitioner must also provide evidence that employees support the petition (the “showing of interest”). Petitioner must also provide the name and contact information of its representative. The prior rules gave the petitioner 48 hours after the petition to file the showing of interest. This delay is unnecessary.

4. When a petition is filed, the employer must post and distribute to employees a Board notice about the petition and the potential for an election to follow. Under prior practice, such notice was voluntary (and less detailed). The employees will benefit from a uniform notice practice, which provides them, equally and at an earlier date, with meaningful information about the petition, the Board's election procedures and their rights, and employers will benefit from more detailed Board guidance about compliance.

5. The pre-election hearing will generally be scheduled to open 8 days from notice of the hearing. This largely codifies best practices in some regions, where hearings were routinely scheduled to open in 7 days to 10 days. However, practice was not uniform among regions, with some scheduling hearings for 10 to 12 days, and actually opening hearings in 13 to 15 days, or even longer. The rule brings all regions in line with best practices.

6. The pre-election hearing will continue from day to day until completed, absent extraordinary circumstances. Prior practice did not address the standard for granting lengthy continuances, and sometimes continuances unnecessarily delayed the hearing.

7. Non-petitioning parties are required to state a position responding to the petition in writing 1 day before the pre-election hearing is set to open. The statement must identify the issues they wish to litigate before the election; litigation inconsistent with the statement will not be permitted. Timely amendments to the statement may be made on a showing of good cause. The employer must also provide a list of the names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, and any other employees that it seeks to add to the unit. The statement must also identify the party's representative for purposes of the proceeding. Prior practice requested parties to state positions and provide a list of employees and job classifications before the hearing, but did not require production of such information prior to the hearing. Prior best practices required parties to take positions on the issues orally at the hearing. But practice was not uniform, and in some cases hearing officers have permitted parties to remain silent on their position or to take shifting positions during the hearing, unnecessarily impeding the litigation. Finally, our experience has demonstrated that clear communication about the specific employees involved generally facilitates election agreements or results in more orderly litigation.

8. At the start of the hearing, the petitioner is required to respond on the record to the issues raised by the other parties in their statements of position. Litigation inconsistent with the response will not be permitted. If there is a dispute between the parties, the hearing officer has discretion to ask each party to describe what evidence it has in support of its position, i.e., make an offer of proof. This codifies current best practices, ensuring greater uniformity and orderly litigation.

9. The purpose of the pre-election hearing, to determine whether there is a “question of representation,” 29 U.S.C. 159, is clearly identified. Prior rules did not expressly state the purpose of the hearing and, as discussed in item ten below, sometimes litigation on collateral issues resulted in substantial waste of resources.

10. Once the issues are presented, the regional director will decide which, if any, voter eligibility questions should be litigated before an election is held. These decisions will be made bearing in mind the purpose of the hearing. Generally, only evidence that is relevant to a question that will be decided may be introduced at the pre-election hearing. Prior rules required, e.g., litigation of any voter eligibility issues that any party wished to litigate, even if the regional director was not going to be deciding that question, and even if the particular voter eligibility question was not necessary to resolving the existence of a question of representation. This practice has resulted in unnecessary litigation. Once it is clear that an issue need not be decided, and will not be decided, no evidence need be introduced on the matter.

11. The hearing will conclude with oral argument, and no written briefing will be permitted unless the regional director grants permission to file such a brief. Prior rules permitted parties to file briefs which were often unnecessary and delayed the regional director's decision in many cases.

12. The regional director must decide the matter, and may not sua sponte transfer it to the Board. The prior transfer procedure was little used, ill advised, and a source of delay; Board decisions are generally improved by obtaining the initial decision of the regional director.

13. Absent waiver, a party may request Board review of action of a regional director delegated under Section 3(b) of the Act. Requests will only be granted for compelling reasons. Requests may be filed any time during the proceeding, or within 14 days after a final disposition of the case by the regional director. The prior rules included a variety of means for asking for Board review, including a “request for review” which only applied to the direction of election; a complex set of interlocking mechanisms for post-election review which varied depending upon the type of procedure chosen by the regional director or the form of election agreement; and a catchall “special permission to appeal.” Review of the direction of the election had to be sought before the election, even though the vote itself might moot the appeal. The final rule improves the process for Board review by giving parties an option to wait and see whether election results will moot a request for review that prior rules required to be filed before the election, and recognizes that Board review is not necessary in most cases. This will best serve Congress's purpose of ensuring that the regional director can promptly resolve disputes unless there is reason to interrupt proceedings in a particular case.

14. A request for review will not operate as a stay unless specifically ordered by the Board. Stays and/or requests for expedited consideration will only be granted when necessary. The prior rules included an automatic stay of the count of ballots (“impounding the ballots”) in any case where a request was either granted or pending before the Board at the time of the election. A stay should not be routine, but should be an extraordinary form of relief.

15. Elections will no longer be automatically stayed in anticipation of requests for review. The prior rules generally required the election which Start Printed Page 74310followed a Decision and Direction of Election to be held between 25 and 30 days after the direction of election. The stated purpose of this requirement was to permit requests for review to be ruled on by the Board in the interim. This delay served little purpose, as few requests were filed, and only a very small fraction of these requests were granted. Even where a request was granted, the 25-30 day waiting period in the prior rules did nothing to prevent unnecessary elections as the vote was generally held as scheduled notwithstanding the grant of the request.

16. The regional director will ordinarily specify in the direction of election the election details, such as the date, time, place, and type of election and the payroll period for eligibility. Parties will take positions on these matters in writing in the statement of position and on the record before the close of the hearing. Under prior practice, election details were typically addressed after the direction of election was issued, which required further consultation about matters that could easily have been resolved earlier.

17. The long-standing instruction from the Casehandling Manual that the regional director will set the election for the earliest date practicable is codified. The statute was designed by Congress to encourage expeditious elections, and the rules require the regional director to schedule the election in a manner consistent with the statute.

18. The regional director will ordinarily transmit the notice of election at the same time as the direction of election. Both may be transmitted electronically. Previously, the notice was transmitted by mail after the direction of election.

19. If the employer customarily communicates with its employees electronically, it must distribute all election notices to employees electronically, in addition to posting paper notices at the workplace. Prior rules required only paper notices. This change recognizes that modern technology has transformed many workplaces into virtual environments where paper notices are less effective.

20. Within 2 business days of the direction of election, employers must electronically transmit to the other parties and the regional director a list of employees with contact information, including more modern forms of contact information such as personal email addresses and phone numbers if the employer has such contact information in its possession. The list should also include shifts, job classifications, and work locations. The list may only be used for certain purposes. Prior caselaw gave employers 7 days to produce a list of names and home addresses and send it to the Board, which then served the list on the parties. In addition to simplifying and expediting service by cutting out the middle man, the amendments update the rules to leverage the ways in which modern technology has transformed communications, recordkeeping and record transmission. For instance, the changes make information that is routinely maintained in electronic form more quickly available to the parties. Recognizing the potential sensitivity of the information, however, the rules also restrict its use in order to guard against potential abuse.

21. 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. Any party seeking to block the election must simultaneously file an offer of proof and promptly make witnesses available. This rule largely codifies what had been best practice while adding an offer-of-proof requirement that will expedite investigation and help weed out meritless or abusive blocking charges.

22. After the election, parties have 7 days to file both objections and offers of proof in support. Objections, but not offers, must be served by the objector on other parties. Prior rules gave 7 days for objections but 14 days for evidence in support of the objections. The change is made because unsupported objections should not be filed, and 7 days is typically adequate for the parties to marshal their evidence.

23. If necessary, a post-election hearing on challenges and/or objections will be scheduled to open 21 days after the tally of ballots or as soon as practicable thereafter. Prior rules set no timeline for opening the hearing, and this rule will give adequate time for the region to weed out unsupported and frivolous objections while making the process more transparent and uniform.

24. In every case, the regional director will be required to issue a final decision. Where applicable, the regional director's decision will be subject to requests for review under the procedure described in item 13 above. The prior rules were unduly complex, and frequently did not involve a final regional director decision. Regional directors can and should issue final decisions because they are delegated authority to do so pursuant to Section 3(b) and the Board's rules, and are in the best position to initially assess the facts. Where necessary, Board decisions on review are improved by first obtaining the final decision of the regional director.

25. Finally, the rule eliminates a number of redundancies and consolidates and reorganizes the regulations so that they may be more easily understood.

III. The Rulemaking Process

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 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, although this practice has occasionally drawn the ire of academic commentators and the courts.[7]

The Board has thus asked for public comments on few proposed rules of any kind. A review of prior Board Start Printed Page 74311rulemaking procedures reveals that, until this proceeding commenced, the Board had not held a public hearing attended by all Board members for at least half a century.[8]

A. Procedural History of This Rule

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. The Board issued press releases about the proposals and placed summaries, answers to frequently asked questions, and other more detailed information on its Web site (www.nlrb.gov). The Board held a public hearing during the comment period, on July 18 and 19, 2011, where the Board members heard commentary and asked questions of the speakers.

On November 30, 2011, the Board members engaged in public deliberations and a vote about whether to draft and issue a final rule, and, on December 22, 2011, a final rule issued. 76 FR 80138. A Federal court later held that the Board had lacked a quorum in issuing the final rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 28-30 (D.D.C. May 14, 2012). However, because the court did not reach the merits, the court also “emphasize[d] that its ruling need not necessarily spell the end of the final rule for all time * * *. [N]othing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”

The Board then issued a proposed rule on February 6, 2014 under the same docket number as the prior NPRM and containing the same proposals. 79 FR 7318 et seq. The Board again issued press releases and placed supporting documents on its Web site. This was “in essence, a reissuance of the proposed rule of June 22, 2011.” Id. The purpose of this NPRM was to give a properly constituted quorum of the Board a “legally appropriate, administratively efficient, and demonstrably fair process for considering all the issues and comments raised in the prior proceeding, while giving an opportunity for any additional commentary.” Id. at 7335.

The Board provided 60 additional days for the submission of any new comments, and 7 days for replies. The Board advised commenters that it was not necessary to “resubmit any comment or repeat any argument that has already been made.” Id. at 7319. During the reply period, on April 10 and 11, 2014, the Board held another public hearing, at which the Board members again heard commentary and asked questions of the speakers.

In sum, the Board has accepted comments on these proposals for a total of 141 days, and held a total of 4 days of oral hearings with live questioning by Board members. Tens of thousands of people have submitted comments on the proposals, and Board members have heard over one thousand transcript pages of oral commentary.

The sole purpose of these procedures was to give the Board the benefit of the views of the public. To be clear, none of this process was required by law: The Board has never engaged in notice and comment rulemaking on representation case procedures, and all of the proposed changes could have been made without notice and comment—in part by adjudication, and in part by simply promulgating a final rule.[9]

Nonetheless, a number of comments have criticized the Board's process, both in 2011 and again in 2014. At bottom, the claim is that the process was inadequate to meaningfully engage with the public, and that the Board already had its mind made up. We disagree.

1. Advanced NPRMs and Consultation Under E.O. 13563

The 2011 comment of the Chamber of Commerce of the United States of America (the Chamber) provides a representative example of criticism of the 2011 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.[10]

These arguments were repeated by the Chamber and a number of other commenters in 2014, most notably the American Hospital Association (AHA II) [11] and their counsel at the public hearing, (Testimony of Curt Kirschner II) who contended that the Board should have issued an Advanced NPRM or consulted with stakeholders before reissuing the NPRM in February 2014.

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 AHA, the Board is not directly subject to Executive Order 13563, nor is its language pertaining to pre-NPRM procedures mandatory in any event.

As explained in both NPRMs, in this instance, the Board concluded that beginning the process of public comment by issuing NPRMs would be the most effective method of proceeding. The Board continues to believe that following the notice-and-comment procedures set forth in the Administrative Procedure Act (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 Start Printed Page 74312the public to comment on those proposals through the same procedures and during the same time periods—was the fairest and soundest method of proceeding.

The contents of the comments themselves have also demonstrated the doubtfulness of 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 at both the public hearings and in the comments—notwithstanding the 3 intervening years for members of the bar to consider and consult on possible improvements—consensus seems unlikely.

Nor would an Advanced NPRM have been an improvement on the present process. Indeed, in this proceeding the Board has already benefited from something similar to the iterative commenting process of an Advanced NPRM. From the 2011 hearing, to the 2011 comment period, to the 2011 reply period, to the 2014 comment period, to the 2014 hearing and reply period, the commenters have had the opportunity to consider and respond to each other's views on many occasions. And, in contrast to the typical Advanced NPRM, the specificity of the proposals in the NPRM encouraged many commenters to focus on important details. With the benefit of this repeated cross analysis and close attention to detail, the Board has modified its proposals in a number of significant respects in this final rule. We see no merit in the speculative retrospective claim that something better might have been achieved by another process.

In sum, the Board's pre-NPRM process was lawful and appropriate.

2. The 2014 NPRM

A variety of inconsistent claims were made by commenters about the significance of the Board's reissuing the NPRM in 2014. Some argued that the Board should have considered the 2011 comments before reissuing the NPRM.[12] By contrast, some said that the Board had considered and implicitly rejected the 2011 comments, and that this rejection required re-submitting the same comments again, or that it suggested that a final rule identical to the NPRM was a fait accompli.[13] Some faulted the Board for not addressing the prior final rule of December of 2011.[14]

These arguments are misplaced, and many are predicated on an unsupportable and mistaken interpretation of the NPRM. In early 2014, the recently appointed and confirmed Board members had a choice to make. Significant public effort had been expended in commenting on a proposed rule that—according to one court—the Board had not yet lawfully acted on. Thus, the questions posed by the NPRM remained unanswered by the Board. As years had passed since the comment period had closed, the new Board members were interested to know whether the public had anything further to say about the proposals.

That is why the Board reissued the NPRM and reopened the comment period. This process allowed the new Board members an opportunity to consider new comments and old comments together in a single proceeding.

This is reasonable. To consider and analyze all the material submitted in the 2011 final rule—without considering whether anyone's views might have changed in the intervening years—and only then issuing a new proposed rule, would have been substantially less efficient. Where possible, it is far better, in the Board's judgment, to respond to the comments once, rather than twice.

The 2014 NPRM reflected absolutely no Board judgment about the 2011 comments. As the Board explained in the NPRM, the purpose was simply to re-raise, not resolve, the questions posed and to allow the Board to make its decisions about the final rule in light of all the comments received.

The AHA claimed that the Board was “hiding the ball from the public regarding its current views of what should be changed, in light of the comments previously received and its analysis of those comments. The implication of the Board's reissuance of the same NPRM is that the public comment process is, from the Board's perspective, largely perfunctory.” AHA II.

This statement misses the point. There was no ball to hide. The Board reissued the NPRM because it wanted to hear yet again from the public before forming its views. This manifests a greater respect for the public comment process. As Member Hirozawa said in responding to this point at the public hearing:

Curt, if it makes you feel any better, we don't know where we're headed, either. There are a lot of difficult decisions that are going to have to be made, a lot of questions where there are significant considerations on both sides, and there will be a lot of discussion among the members during the coming period of time * * *. But in terms of the views of the public, I think that I speak for all five of the members here that we all consider them very important and [an] essential part of this process.

A similar point applies to the Board's consideration of the December 2011 final rule. Of course, the court held that the rule itself is a legal nullity; without the requisite vote (in the court's analysis), the Board never took action. Although the various statements associated with that publication are important, and represent the carefully considered views of three individual Board members (two of whom are no longer on the Board), it would be strange, to say the least, if the Board were somehow bound to consider and respond to this non-action before it could issue a proposed rule. Indeed, although the Board has considered those views in issuing the present final rule, their function here is persuasive, not authoritative.

In sum, the Board's decision to consider the 2011 comments, 2011 hearing testimony, 2011 final rule, and 2012 Board Member statements, together and at the same time as the 2014 comments and 2014 hearing testimony, is not only a reasonable manner of proceeding, but clearly the fairest and most efficient manner of proceeding given the procedural posture of this matter as it stood in early 2014.

3. The Length, Timing, and Location of the Hearings

In 2011, the Board members held a 2-day public hearing in Washington, DC, approximately halfway through the initial comment period, i.e., about 1 month after publication of the NPRM and 1 month before the initial comment period closed. All Board members heard 5-minute statements from speakers representing diverse organizations and groups, and then actively questioned the speakers for an additional period of time. This hearing was not legally required.

Then, in 2014, the Board members held another 2-day public hearing in Washington, DC, in the week after the close of the 2014 initial comment period, i.e., during the reply period.[15] Start Printed Page 74313The Board first solicited requests to speak, and instructed requesters to clearly identify the particular proposed changes and issues they wished to address, and to summarize the statements they wished to make. This process enabled the Board to schedule the speakers addressing similar issues to speak in adjacent time slots. Everyone who requested to speak was given an opportunity to address the Board, and, as time allowed, those who wished to speak about multiple issues were given an opportunity to address the Board more than once.

The AHA compares this proceeding to the hospital unit rulemaking and essentially argues that the Board should have held 14 days of hearings instead of 4. AHA II.

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.[16] This learning process is shown in the changing nature of the hearings used by the Board from the hospital rulemaking, to the 2011 hearing, to the 2014 hearing. At each phase the hearing process became more meaningful and efficient.

This point was recognized by counsel for the AHA itself, who “commend[ed] the Board on this public hearing process,” particularly in comparison to the 2011 hearing, and described the exchange with Board members as “gratifying,” “valuable,” and “productive.” Kirschner II. The Board agrees. The 5 minutes that speakers were given on each issue 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. The Board found that the speakers provided informed, thorough, and thoughtful analysis, and the back-and-forth dialogue with the Board members demonstrated the familiarity of the speakers with the proposals. Again, there was no such dialogue with Board members in the hospital rulemaking hearings—regardless of their length—simply because the Board members did not participate in those hearings.[17]

The Board believes that the hearings exceeded the requirements of the APA and were fair, appropriate, and useful. Holding the hearings in Washington, DC, was appropriate because many of the Board's major stakeholders are either headquartered in Washington or are represented by counsel in the city or who frequently appear in the city.

Both hearings were properly noticed and appropriately timed. The two hearings served two different functions. The first hearing was scheduled half-way through the first comment period. This gave the public time to develop their positions before the hearing, while also allowing the public to get a preview of the arguments at issue, so that written comments could be framed more responsively. The subsequent written comments were more informed, thoughtful, and technically sophisticated as a result, and many commenters in 2011, 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 in 2011.

In 2014, of course, all of the 2011 comments were available for the public to engage, as was the transcript of the 2011 hearing. Thus the second hearing served a different purpose, and was therefore scheduled at a different time. By scheduling the hearing after the close of the comment period, but during the reply period, the Board members were able to engage with the speakers deeply and in detail on the substance of both their 2011 and 2014 comments, while giving time for speakers who wished to supplement or clarify their remarks after the hearing the ability to do so with additional written comments to the record.

In sum, the Board believes that the four days of public hearings, attended by all Board members, was highly valuable, was of an appropriate length, and was held at appropriate times and in appropriate locations.

4. The Length and Timing of the Comment Periods

The Board provided an initial comment period of 60 days beginning June 22, 2011, followed by a reply comment period of 14 days that ended on September 6, 2011. The Board then provided an additional comment period of 60 days beginning February 6, 2014, followed by a reply comment period of 7 days that ended on April 14, 2014.

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).

Yet, in 2011, many commenters criticized the length of the comment period. The Council on Labor Law Equality (COLLE) described the NLRB's comment period as “the bare-minimum 60-day[s],” and SHRM characterized the comment period as “hurried, abridged and clandestine.”

It would be reasonable to expect that these arguments would not be repeated in 2014, considering that the public had a cumulative total of 141 days in which to submit comments. Yet they were from time to time, most notably by the Chamber II, AHA II, and NAM II.[18]

Although the desire for additional time to gather support and develop arguments is understandable, agencies must set some end to the comment Start Printed Page 74314period: “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.

The Montana Chamber of Commerce—though opposing the rule—stated that the NPRM provided “a very reasonable time frame to allow ample comments and statements from all interested parties, whether they are supportive of these sweeping changes or not.” And a supportive comment noted that the Board was providing far more time for comments than required by law. Chairman Tom Harkin of the Senate Committee on Health, Education, Labor and Pensions, Senior Democratic Member George Miller of the House Committee on Education and the Workforce, and Democratic Senators and Members of the House of Representatives (Chairman Harkin, Senior Member Miller and Congressional Democrats) at 5.

The tens of thousands of 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.

5. Post-Rulemaking Procedures and Review

One comment urges the Board to “incorporate[] plans for retrospective review” into the rule pursuant to Executive Orders 13,563 and 13,579. Sofie E. Miller. Executive Order 13,563, however, is directed to executive branch agencies, not independent agencies, which are only encouraged, by Executive Order 13,579, to comply with Executive Order 13,563. Moreover, both of the aforementioned Executive Orders apply only to “significant” regulatory actions, as defined by Section 3(f) of E.O. 12,866. This rulemaking does not fall into any of the definitions of a “significant regulatory action” set forth in Section 3(f). Nevertheless, the Board developed and disseminated a preliminary plan for retrospective review of significant regulations in May 2011 (http://www.whitehouse.gov/​files/​documents/​2011-regulatory-action-plans/​NationalLaborRelationsBoardPreliminaryRegulatoryReformPlan.pdf). In addition, the Board will continue its longstanding practice of incrementally evaluating and improving its processes going forward.

IV. 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 need to amend the regulations generally; (c) the opportunity for free debate under the regulations; and (d) the effects on employee representation and the economy.

A. Board Authority To Promulgate Representation-Case Procedure Rules

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 rules concerning representation case procedures, stating that elections will be held “in accordance with such regulations as may be prescribed by the Board.”

The Board's well-established rulemaking authority is 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.”

The Supreme Court unanimously held in American Hospital Association v. NLRB, 499 U.S. 606, 609-10 (1991), that the Act authorizes the Board to adopt both substantive and procedural rules governing representation case proceedings. The Board's rules are entitled to deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984); NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). Representation case procedures are uniquely within the Board's expertise and discretion, and Congress has made clear that the Board's control of those procedures is exclusive and complete. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 290 n.21 (1974); AFL v. NLRB, 308 U.S. 401, 409 (1940). “The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.” NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940); see also Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).

In A.J. Tower, 329 U.S. at 330, the Supreme Court noted that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representative by employees.” The Act 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. Some comments allege that the Board lacks authority to issue these rules.[19] As discussed, the Supreme Court's interpretation of Section 6 clearly forecloses this argument.

The Board also received dueling comments from two different groups of members of Congress on this topic: One group claimed that the changes would “fundamentally alter the balance of employee, employer and union rights that Congress so carefully crafted and that only Congress can change;” the other group claimed that the changes are “commonsense and balanced” and “a positive step toward fixing a broken system” and are consistent with “the NLRB['s] broad authority under the NLRA to promulgate election regulations.” Compare Senator Alexander and Republican Senators; with Chairman Harkin, Senior Member Miller and Congressional Democrats.

The Act delegated to the Board the authority to craft its procedures in a manner that, in the Board's expert judgment, will best serve the purposes of the Act. Various members of Congress Start Printed Page 74315may have divergent views, but Article I of the Constitution prescribes the method that Congress must use to enact its policies, and the Act as written gives the Board broad authority in this area. Here the Board is acting pursuant to its clear regulatory authority to change its own representation case procedures in a manner that will better serve the purposes and text of the Act—a question about which the Board remains the congressionally delegated expert authority.

In sum, the Board clearly has authority to amend its election rules.

B. The Need for the Final Rule

The Board's experience demonstrates that although the fundamentals are sound, many of the technical details of representation case procedures suffer from a variety of deficiencies. Especially as to contested cases, current procedures result in duplicative, unnecessary and costly litigation. Simplifying, streamlining and, in some cases, bolstering these procedures will reduce unnecessary barriers to the fair and expeditious resolution of representation disputes and result in more fair and accurate elections. The rule also codifies best practices to ensure that our procedures are more transparent and uniform across regions. Changes to the representation case procedures are also necessary to update and modernize the Board's processes in order to gain the advantages of and make effective use of new technology, especially affecting communications and document retrieval and transmission. These changes will enhance the ability of the Board to fulfill its statutory mission.

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.[20] Numerous comments contend 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 time frames 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.[21] As one speaker stated “the Board is just looking to solve a problem that doesn't exist” and “the NPRM has failed to identify a single problem to which the proposed solution is responsive.” Testimony of Kara Maciel on behalf of National Grocers Association (NGA) II. See also Testimony of Ross Freidman on behalf of CDW II (“the proposed rules are in large part a solution in search of a problem”).

These arguments appear to rest on a number of mistaken assumptions. (1) The sole purpose of the rule is to have faster representation proceedings; but (2) those proceedings are (generally) fast enough already; and, in any event, (3) the changes do not identify or address the true sources of delay. We will address each of these assumptions in turn.

1. The Amendments Address Efficiency, Fair and Accurate Voting, Transparency, Uniformity, and Adapting to New Technology; Speed Is Not the Sole or Principal Purpose

First, the focus on speed fails to consider all the reasons for which the various amendments are being made. Many of the changes have little to do with the timing of procedures. Indeed, there is no single problem that this rule addresses: Rather, as summarized in the list of changes above, there are a host of discrete problems addressed by a host of discrete amendments. We will amplify the particular rationale for each change in the discussion of specific sections below. However, in light of the common misconception that the rule is focused on speed, we will briefly describe other important principles of sound administration at issue.

Efficiency: The importance of efficiency should be self-evident. If a particular procedure serves no purpose, or is unduly complex or wasteful, that is reason enough to change it, regardless of whether it also causes delay. Thus, for example, rules that permit unnecessary litigation, circuitous service of documents and mandatory interlocutory appeals are plainly inefficient and should be changed.

Fair and Accurate Voting: This rationale gets to the heart of Section 9, and is always under consideration in any revision of representation case procedures. Here, for example, the Board provides employees with notice of the petition for election sooner in the process, and provides more detailed, meaningful notices about the unit at issue, and the voting itself, throughout the process. The notices are also transmitted more effectively. As explained further below, the amendments provide a better process for identifying voters properly subject to challenge, which should reduce the number of ballots improperly commingled with unit ballots by oversight, or improperly challenged out of ignorance. These changes will all provide better guarantees of a fair voting process.

Transparency and Uniformity: Transparency allows the public to understand the process and uniformity allows the parties to form reasonable expectations. These two related principles also ensure that the protection of statutory rights does not vary arbitrarily from case to case or region to region. Again, these basic procedural principles should be beyond cavil. Cf. Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012) (written sentencing guidelines “increase transparency [and] uniformity”). These are adequate reasons to ensure that Board best practices are written into the regulations where appropriate, even if they do not address delay. Thus, for example, describing the best-practices hearing date in the rules will promote uniformity and transparency.

Changed Technology: Society changes rapidly, and new technology can quickly make old rules obsolete. Of particular relevance here, communications technologies developed in the last half-century have changed the way litigation, workplace relationships, and representation campaigns function. As the Supreme Court has stated in another context, “the responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board,” and we would be remiss in leaving unchanged procedures which are predicated on out-of-date facts or assumptions, even where there is no consequent delay. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975). Thus, for example, providing for electronic documents, filing, and transmission as well as updating the forms of employee contact information are important adaptations to changed technological circumstances. In addition, the Board is mindful that changes in technology have also raised concerns about privacy, and the final rule addresses those concerns.

In sum, timeliness is one of many reasons proffered for the amendments; some changes clearly reduce unnecessary delays; for other changes, timeliness is only a collateral benefit and by no means a primary purpose; Start Printed Page 74316and sometimes it plays no role whatsoever. The need for the rule cannot be assessed without grappling with these specific, articulated reasons underlying each of the amendments.

2. The Board Can and Should Address Delays in the Current Rules

The second premise is also flawed: Nothing in the statute, the General Counsel's current time targets, or any other source establishes that current procedures are “fast enough.”

Section 9 is animated by the essential principle that representation cases should be resolved quickly and fairly. “[T]he Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.” NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946). As the Supreme Court noted, discussing Section 9(d), the policy in favor of speedy representation procedures “was reaffirmed in 1947, at the time that the Taft-Hartley amendments were under consideration.” Boire v. Greyhound Corp., 376 U.S. 473, 479 (1964). Senator Taft stated that the Act should not “permit dilatory tactics in representation proceedings.” Id. In discussing the APA, Congress again exempted representation cases because of the “exceptional need for expedition.” [22] Finally, the purpose of Congress in 1959 in permitting delegation of representation case proceedings to regional directors under Section 3(b) was to “ `speed the work of the Board.' ” Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141-142 (quoting legislative history). Congress did not define any “time targets” for elections; indeed, in fashioning the LMRDA, Congress considered and expressly rejected a proposed amendment to the statute which would have imposed a 30-day minimum speed limit on the time from petition to election.[23]

In short, every time Congress has amended laws governing representation cases, it has reaffirmed the importance of speed. This is essential both to the effectuation of Section 7 rights of employees, and to the preservation of labor peace.[24]

The timeliness concerns of Congress in 1935, 1947 and 1959 remain salient today, as the comments show. Unduly lengthy campaigns cause voter participation to drop. Testimony of Glenn Rothner II; Testimony of Gabrielle Semel on behalf of CWA II. “[D]elay can create a sense of futility among workers.” Testimony of Brian Petruska on behalf of Laborer's International Union of North America Mid-Atlantic Regional Organizing Coalition (LIUNA MAROC) II; see also Testimony of Jody Mauller on behalf of the International Brotherhood of Boilermakers (IBB) II. As one employee testified at the hearing, significant delay in the NLRB's process causes employees to think that there is nothing the government can do to protect them. Testimony of Donna Miller II. This is precisely what Congress was worried about: that employees would think the NLRA's procedures were ineffectual and be tempted to take disruptive action instead. Boire, supra. The purpose of the Act is to protect with Federal power the free exercise of Section 7 and Section 9 rights. In one organizer's experience, most workers want elections faster than current procedures permit regardless of where the workers stand on the union. Testimony of Martin Hernandez on behalf of UFCW II.

To be clear, the problems caused by delay have nothing to do with employer speech.[25] As discussed infra, the statute encourages free debate, and neither Congress nor the Board in this rulemaking has cited limiting debate as a reason for speed. It is not the speech, but the delay itself which causes the ills identified by Congress and the Board. Nor is the problem with delay related to unfair labor practices. Though many commenters and academics have argued that lengthy campaigns encourage unfair labor practices,[26] this is not a reason that either Congress or the Board have cited in amending representation procedures in pursuit of timely elections and it does not underlie the final rule.

As shown, delay itself is the problem this rule addresses—not employer speech or unfair labor practices—and eliminating unnecessary delay is therefore unquestionably a valid reason to amend these regulations. In recognition of this fundamental principle, the Board has noted “the Act's policy of expeditiously resolving questions concerning representation.” [27] “In . . . representation proceedings under Section 9,” the Board has observed, “time is of the essence if Board processes are to be effective.” [28] Indeed, the Board's Casehandling Manual stresses that “[t]he expeditious processing of petitions filed pursuant to the Act represents one of the most significant aspects of the Agency's operations.” [29]

Many comments argue that current procedures are fast enough because they meet the Board's time targets. The reliance on current time targets is mistaken. For decades the Board has continually strived to process representation cases more expeditiously, and the targets have accordingly been adjusted downward over time. 79 FR 7319-20.[30] Under the commenters' reasoning, in any given year when the agency was meeting its then-applicable time targets, the agency should have left well enough alone and should not have engaged in any analysis about how the process might be improved. This is clearly wrong. Past improvements do not and should not Start Printed Page 74317preclude the Board's consideration and adoption of further improvements.

The Chamber responds by claiming “[t]he Board cannot set goals regarding acceptable times for elections and then, without justification, disregard those benchmarks. Presumably some rational approach has been taken to develop the benchmarks over the years.” Chamber II.

There is a rational approach: the General Counsel sets benchmarks by trying to figure out what would be possible—in spite of structural delays identified under the rules—if the regions did their very best work. Thus, meeting those benchmarks shows only that the regions are doing the best they can in spite of the rules, not that the rules are incapable of improvement. That the Board seeks to, and does, meet those targets in most instances is irrelevant to whether additional improvements should be made by amending the rules.

In addition to the time targets, some commenters point to a number of other extrinsic facts which they claim are “strong evidence that the present system works fairly for all parties.” Testimony of Arnold Perl on behalf of the Tennessee Chamber of Commerce (TN Chamber) II. For example, they cite the rate of union success in elections as evidence that the current procedures are fair and not in need of revision. Associated General Contractors of America (AGC); Skripko II. From the Board's perspective, this argument is close to tautological. The purpose of the election is to find out what the employees want; if we knew this a priori, the election would be unnecessary. Whether the union win rate is 75% or 25% tells us nothing about whether the elections were fair. Either result might accurately reflect the employees' free choice. The results are therefore unhelpful in determining whether representation case procedures are fulfilling their statutory purpose as fully and efficiently as possible. On that question, we must look to the procedures themselves, and to the policies and purposes of the statute.

Many comments acknowledge that the expeditious resolution of questions of representation is a central purpose of the Act, but argue that the Board did not consider other statutory policies in proposing the amendments.[31] In fact, the Board did do so, both in proposing amendments to its rules in the NPRM and in issuing this final rule. As discussed, the Board considered the statute as a whole, as well as the various policies underlying its enactment and amendment. Specifically, 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. The final rule promotes a more informed electorate by providing an improved process for informing the unit about election procedures, the appropriate unit for bargaining and the voting procedure for individuals who may properly vote subject to challenge. 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 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. Further, the amendments honor free speech rights; they do not in any manner alter existing regulation of parties' campaign conduct or restrict freedom of speech. In this connection, the Board has carefully considered the possibility that the amendments might reduce the time between the filing of the petition and the election so 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.

In sum, the Board is charged by Congress with eliminating unnecessary delays, and nothing about the current process suggests that it is “fast enough” such that no further improvements are justifiable.

3. The Amendments Which Are Intended To Address Delay Will in Fact Do So

Finally, the commenters are also mistaken in claiming that the Board has not identified the subset of cases where unnecessary delay is prevalent, and has not designed rules responsive to the particular delays identified. Again, many of the changes address other purposes, but where delay is at issue, the Board clearly identifies problems, and the amendments supply sensible and reasonable solutions. Most of the changes apply to only a very small subset of Board cases, and those cases are the very ones most likely to suffer inordinate delays.

For example, it is quite clear from the Board's statistics that fully litigated cases—that is, cases in which the parties are unable to stipulate about pre-election issues—generally take almost twice as long to get to an election. The median for all cases is 38 days, whereas the median for this particular subset of cases is closer to 70 in most years. Clearly, these cases suffer a delay in the time it takes to hold elections.

The Board has identified the primary sources of this delay, and the amendments address them. Under current rules a delay of 25 to 30 days is automatically imposed between the direction of election and the election. There can be absolutely no question that eliminating this waiting period addresses a very significant source of delay that is unique to this subset of demonstrably slower cases.

Other changes to pre-election litigation—such as the 8 to 10 day hearing opening, the standard for continuance, the provision of oral argument rather than briefing, the date to provide voter lists, etc.—will also address less substantial sources of delay in this same small subset of cases. And it is important to bear in mind that many of these changes are aimed at other goals, such as efficiency, uniformity, and adapting to modern technology, and that timeliness is often only a collateral benefit.

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.

In a way, this argument accords with the Board's own sense of the final rule: many of the amendments are minor changes to the procedure used in the small subset of litigated cases where the problem of delay is demonstrably more severe. The lack of greater ambitions does not mean that the rule is unjustified; rather it means that the amendments provide targeted solutions to specifically identified problems.

In addition, as discussed below, it must be noted that changes to litigation Start Printed Page 74318procedures can be significant in framing the circumstances for entering stipulations in all cases.[32] Under the former rules, the regional director lacked discretion to limit the presentation of evidence to that relevant to the existence of a question of representation. Thus, the possibility of using unnecessary litigation to gain strategic advantage existed in every case. That specter, sometimes articulated as an express threat according to some comments,[33] had the effect of detrimentally affecting negotiations of pre-election agreements.[34]

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.[35] Other comments point to the Board's blocking charge policy.[36]

The Board is aware that, in too many instances, it has taken too long to decide both representation and unfair labor practice cases. This was a problem in 1959 when Section 3(b) was enacted, and, though the situation is much improved, it remains a problem today. Part of this problem is being addressed by the amendments—namely, by codifying the text of Section 3(b), and by the requirement that regional directors issue a final decision on the hearing officer's post-election recommendations. Giving the Board an authoritative and well-reasoned regional director's decision to consider whenever an appeal is taken will enhance the Board's decision-making on appeals and permit it to deny them where appropriate. To the extent that purely internal Board inefficiencies create additional unnecessary delays, these are not enshrined in the current rules and therefore need not be addressed by rulemaking.

As for the Board's blocking charge policy, the NPRM specifically asked for comments on various proposed revisions. As discussed below, the Board received extensive commentary, particularly in 2014, regarding this matter, and has decided to make changes which will address delay by expediting decision-making on blocking charges.

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, 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.[37]

In short, as to those aspects of the final rule where the Board has based its amendments on limiting delays, it has in fact identified the delay at issue specifically, and has crafted amendments rationally designed to address the delay.

C. The Opportunity for Free Speech and Debate

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. The Board also considered the matter extensively at the public hearing in 2014, asking questions and taking approximately 175 transcript pages of testimony on this specific issue from a wide variety of speakers with different views.

The Board has concluded that the final rule will facilitate employees' free choice of representative while advancing the statutory objective of promptly resolving questions of representation, and will not impinge on anyone's free speech rights or any statutory mandate or policy. The amendments do not establish any rigid timeline for the conduct of the election itself. Indeed, the Board rejects requests that we set minimum or maximum time limits in which all elections must occur.[38] The election date will continue to vary from case to case. In selecting the election date under the rules, the regional director will continue to consider, among other factors,[39] the desires of the parties, which may include their opportunity for meaningful speech about the election.

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 [40] and the First Amendment.[41] But neither the proposed rule nor the final rule imposes any restrictions on the speech of any party.

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 stated 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 Start Printed Page 743191782, 1787 fn. 11 (1962). Because the final rule, which addresses representation case procedures, does not in any way permit the Board to use speech or its dissemination as evidence of an unfair labor practice, the literal language of Section 8(c) is not implicated. Compare Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 956 (D.C. Cir. 2013) (invalidating Board rule that required employers to permanently post a prescribed notice of employee rights “upon pain of being held to have committed an unfair labor practice”), with id. at 959 n.19 (concluding that a Board rule requiring employers to post an election notice immediately before a representation election “does not implicate § 8(c)” because violation of that rule does not carry the prospect of unfair labor practice liability).

Nor does the final rule run afoul of the First Amendment. Aside from the accurate statement that speech about unions is protected by the First Amendment,[42] the comments do not appear to argue (except in the most abbreviated fashion) [43] that the proposed amendments would violate the First Amendment. In any event, neither the proposed nor the final rule restricts speech. 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, both before and after the petition is filed, so long as they refrain from threats, coercion, or objectionable interference.[44] 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. The Board recognizes that “[t]he First Amendment protects the right of every citizen to `reach the minds of willing listeners and to do so there must be opportunity to win their attention.' ” Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (plurality opinion)). But the rule does not violate this constitutional principle because employers will continue to have ample meaningful opportunities to express their views both before and after a petition is filed, as discussed below.[45]

2. The Final Rule Accords With the Statutory Policy in Favor of Free Debate

Although it is clear that the proposed amendments implicate neither the First Amendment nor the literal language of 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 a union.[46] They contend that the consequences of a union vote are long-lasting and could significantly affect employees' livelihoods and careers, and therefore ensuring that employees have sufficient time to hear from all sides is critical to the statutory objective of ensuring employee free choice.[47] 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.

There is a clear statutory policy in favor of free debate and these amendments recognize, and are fully consistent with that policy.

a. Chamber of Commerce v. Brown

The Supreme Court recognized in Chamber of Commerce v. Brown, 554 U.S. 60 (2008), that the enactment of Section 8(c) embodies a general “congressional intent to encourage free debate on issues dividing labor and management.” Id. at 67 (quoting Linn v. Plant Guard Workers, 383 U.S. 53, 62 (1966) (a defamation case)). The Court further recognized that such debate contemplates advocacy by both labor and management, noting that the inclusion in Section 7 of the right to refrain from joining a union “implies an underlying right to receive information opposing unionization.” Id. at 68.[48] The Court relied on these features of the Act to invalidate, on preemption grounds, a California law that prohibited the use of state funds to encourage or discourage employees from seeking union representation. As the Court found, “California's policy judgment that partisan employer speech necessarily `interfere[s] with an employee's choice about whether to join or to be represented by a labor union' ” was in direct conflict with national labor policy as reflected by the foregoing provisions of the Act. Id. at 69.

As recognized by the Court in Brown the Act encourages free debate by employers, labor organizations and employees during representation proceedings. But ultimately, it is up to employees to evaluate the campaign information with which they are presented, as Board precedent recognizes. See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962) (“[T]he employees may select a `good' labor organization, a `bad' labor organization, or no labor organization, it being Start Printed Page 74320presupposed that employees will intelligently exercise their right to select their bargaining representative”); Handy Andy, Inc., 228 NLRB 447, 456 (1977) (declining to withhold certification from unions with records of discriminatory practices); Midland Nat'l Life Ins. Co., 263 NLRB 127, 131-32 (1982) (relaxing the Board's misrepresentation standard on the ground that more reliance on the vigorous campaigning by the parties would reduce dilatory post-election litigation). These decisions confirm that the Act presupposes that all parties to a representation proceeding will have a meaningful opportunity to speak.

But a meaningful opportunity to speak does not mean an unlimited opportunity to speak. As in the First Amendment context, there is no fundamental right for parties to “publicize their views `whenever and however and wherever they please.' ” Wood v. Moss, 134 S. Ct. 2056, 2066 (2014).

The election must be held sometime; therefore, the resource of time to campaign is an inherently limited one.[49] This is particularly significant where, as discussed above, the Act also embodies a very strong countervailing policy in favor of holding elections “efficiently and speedily.” [50] In short, the Board is not required to wait for the parties to exhaust all opportunities for speech before holding an election, so long as the opportunity they have is a meaningful one.

As discussed below, the Board concludes that these amendments will not deprive employers of a meaningful opportunity to participate in election campaigns. Many employers are aware of the campaign before the petition is filed, and begin communicating at that time. Indeed, many employers speak to employees about unions in the absence of any particular campaign, and will have laid the foundation for effective campaign speech well in advance. Finally, and most significantly, even where no pre-petition speech whatsoever takes place, these amendments will not eliminate the opportunity for meaningful speech, which will continue to be ample even after the petition is filed.

b. 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.[51] 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.[52] 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.[53] Indeed, the available evidence suggests the contrary.

The Supreme Court's decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (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 made 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. What was true at the time of Gissel is still true today.

There is substantial evidence on this point in the rulemaking record. See Testimony, Ole Hermanson on behalf of AFT II, Gabrielle Semel on behalf of CWA II, Thomas Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II, Maneesh Sharma on behalf of AFL-CIO II. In some 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.[54] This is the basis for an empirical study conducted by Professors Kate Bronfenbrenner and Dorian Warren (and submitted with their comment).[55] Start Printed Page 74321The 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 2011 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.[56] 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 was presented to the Board.

In addition, the AFL-CIO surveyed 57 union-side labor lawyers, and asked whether “[i]n the organizing drives you have been involved in that resulted in a petition for an election, was the employer aware of the organizing before the petition was filed?” The vast majority—41 attorneys—gave an unqualified “yes” in answer to this question (9 answered “no” and 7 gave some answer other than yes or no).[57] AFL-CIO II. Though this does not show with quantitative precision how often employers know about the campaign, it does cast doubt on the Chambers' unsupported statement that “many if not most” employers are surprised by the petition.

Board precedent is also replete with cases in which there was clear evidence that the employer was aware of the organizing campaign well before the petition was filed. In many cases, unions 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.[58] There are many pragmatic reasons for this common practice, which were explained in some detail by one speaker at the hearing: “[First,] the union, in order to build strength, has to * * * build up the confidence among the employees that they can join together to speak up for themselves. And then, in order to get that message to the larger group of employees, there has to be some committee, some group of people who are willing to go public, have their faces on campaign literature and have their names disclosed as the people who are willing to lead the campaign. Once that happens, the employer knows there is something going on. The second reason for this is quite simply that if you end up in litigation where somebody was discriminated against because of their union activity, you want to be able to show that [the employer knew about their union activity.] If it's been concealed you have a much, much harder time proving that. And then the third reason is because it doesn't work to keep it secret * * *. [W]ord gets to the employer.” Testimony of Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II.

Finally, the evidence on the record on this point is also consistent with the Board's own experience and expertise in processing representation petitions and unfair labor practice cases.

c. General Employer Communications About Unionization

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.[59] 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.[60] 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. For example, Start Printed Page 74322some 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.[61]

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.[62] However, a complete substitute is not necessary in this context; rather, the question is whether the overall speech opportunity in the campaign is meaningful. The opportunity to engage in general speech of this sort is undoubtedly relevant on this question, and must be considered together with the opportunities for later, more specific campaign speech as part of the overall analysis.

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 seek to alter it through collective bargaining. 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.[63]

d. Employers' Post-Petition Opportunities for Speech

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 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.[64]

And so the question is presented whether, as a general matter, the rules will provide a meaningful opportunity to campaign under these circumstances. The argument has been presented that a great deal of time is required, weeks and even months, in order to decide on a message and effectively communicate it. Testimony of Kirsanow on behalf of NAM II; Testimony of Edgardo Villanueva on behalf of EMSI Consulting II. This is not consistent with our experience in overseeing Board elections.

Most elections involve a small number of employees. A quarter of elections are held in units with 10 or fewer employees; half of elections are held in units smaller than 25; and three-quarters of all Board elections have 60 or fewer employees in the unit.[65] Given this small size—much, much smaller than even the smallest political elections—effective communication with all voters can be accomplished in a short period of time. Even in much larger units, employers have a meaningful opportunity for speech.

The employer has opportunities to communicate with employees while they are in the workplace, during the workday. It can compel employees to attend meetings on working time at the employer's convenience.[66] Most employers spend more than 35 hours per week in close, in-person contact with the voters. As pointed out at the Board's public hearings in both 2014 and 2011, employers can use as much of that time as they wish communicating with employees about these matters. Testimony of Hermanson on behalf of AFT II; Testimony of Professor Joseph McCartin on behalf of the Kalmanovitz Initiative for Labor and the Working Poor. Both professional “persuaders” and employer representatives who testified against the rule were in agreement on this point. See, e.g., Testimony of Villanueva on behalf of EMSI Consulting II. Yet, generally, only three or four such meetings were considered necessary to communicate with employees effectively. Id.

Another speaker testified about a recent campaign which aptly illustrates this principle. Testimony of Elizabeth Bunn on behalf of AFL-CIO II. In the Start Printed Page 74323stipulation, the election was set 25 days from the petition; the unit comprised eight employees. The employer held a total of 30 individual, mandatory meetings to communicate with employees about the vote. This demonstrates that, where employers wish to engage in an unusually high amount of communication, they can accomplish that in a short period of time because they control the quantum of work time which is used in conveying their message.

Under current law, employers can compel attendance at meetings at which employees are often expressly urged to vote against representation.[67] There is no limit on either the frequency or duration of such mandatory meetings and the rule imposes none. Employees may be relieved of regular duties and, instead, be required to attend such meetings.

These are examples of how employer speech can be expeditiously accomplished. The rule does not limit any communication methods available to employers. Indeed, that is precisely the point of this discussion: That employers have meaningful opportunities to speak with employees both under the old rules and the new.[68]

The Board considered such factors in its Excelsior rule, which requires that the names and addresses of voters be provided to the petitioning union prior to the election. Excelsior Underwear, Inc., 156 NLRB 1236, 1240-41 (1966). The rule was designed, in part, to ensure fairness by maximizing the likelihood that all voters would be exposed to the nonemployer party arguments concerning representation. The rule requires that the petitioner have the opportunity to make use of a list of names and addresses of voters for a minimum of 10 days before the election, effectively allowing the petitioner a minimum of 10 days for such speech. See Mod Interiors, 324 NLRB 164, 164 (1997); Casehandling Manual Section 11302.1. “The Excelsior rule is not intended to test employer good faith or `level the playing field' between petitioners and employers, but to achieve important statutory goals by ensuring that all employees are fully informed about the arguments concerning representation and can freely and fully exercise their Section 7 rights.” Mod Interiors, Inc., 324 NLRB 164 (1997). We think a similar analysis is relevant to employers' meaningful opportunity to speak here.

Finally, 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); Testimony of Bunn & Sharma on behalf of AFL-CIO II (less time is needed to communicate in the era of communications technology, from text messaging to video presentations on flash drives).[69] Access to information about particular unions, such as news reports, regulatory disclosures, or judicial opinions are readily available on the Internet, both for employees to peruse and for employers who desire to use such information as part of their messaging. See, e.g., Office of Labor-Management Standards (OLMS), http://www.dol.gov/​olms/​regs/​compliance/​rrlo/​lmrda.htm. More general information praising or decrying the effects of union representation is also plentiful. Indeed, now more than ever, parties who wish to immediately participate in an election campaign have the tools to do so at their disposal.

e. No Regulatory Minimum or Maximum Time Should Be Set

Many comments propose that the Board set specific standards for the number of days between the petition and the election. In general, however, none of these proposals agree as to what the standards should be.

Some have contended that the minimum should be 0 days. Testimony of Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II. Or the minimum could be 10 days, paralleling the Union's time with the list of voter contact information, also discussed above. Cook-Illinois Corporation suggests a minimum of 21 days, subject to expansion or contraction by agreement of the parties. The dissent suggests a minimum of 30-35 days and a maximum of 60 days. National Right to Work Legal Defense Foundation (NRTWLDF) II proposes a minimum of 35 days. The Heritage Foundation proposes a minimum of 40 days. Others suggest times longer still.[70] On the other hand, others have suggested imposing a different kind of regulatory maximum on the election date, i.e., that the election should be held within 15 days of the final voter list unless the parties agree to a later date. Testimony of Hernandez on behalf of UFCW II.

As both supporters and opponents of the rule have noted, however, every case will be different, and it would disserve the purposes of the Act to create a procrustean timeline for election speech. Testimony of Professor Samuel Estreicher; Testimony of Petruska on behalf of LIUNA MAROC II; Testimony of Ronald Meisburg on behalf of the Chamber II; cf. Testimony of Kirsanow on behalf of NAM II (there is no “irreducible point” where “logistical First Amendment violation” takes place). The election will “vary in size, geography and complexity in just about every way imaginable,” and various unique situations will present themselves in particular workplaces. Testimony of Petruska on behalf of LIUNA MAROC II.[71] Bearing in mind Start Printed Page 74324the general principles articulated above, the regional director will retain a measure of discretion to consider these matters along with other relevant factors in selecting an election date.

As an alternative, some have discussed reserving “expedited” procedures for cases where the employer has received advanced notice of the campaign from the union. U.S. Poultry II; Testimony of Perl on behalf of the TN Chamber II. This suggestion would at least partially account for case-by-case variation in employer knowledge of the campaign. However, it would account for none of the other ways that campaigns vary, and would continue to apply inappropriate standards to cases that do not justify them. More fundamentally, as discussed, the petition itself is adequate notice because the procedures under the new rules still provide a meaningful opportunity to campaign.

As another alternative, some have argued that the Board should publish, together with the final rule, revised “time targets” for representation case procedures. CDW; Testimony of Joseph Torres on behalf of Winston & Strawn II; Testimony of Ross Friedman on behalf of CDW II. The existing time targets set expectations that facilitate the negotiation of stipulations because “there is discretion to negotiate an election date anytime within” the time target. CDW. Time targets have never been published by the Board; rather, the extant time targets were published by the General Counsel, and represent his experience administratively overseeing the regions. The Board declines to publish any such time targets at present, and will continue to leave the matter within General Counsel discretion. We note that experience with the rules will continue to provide the frame of reference for the General Counsel's time targets, and that some time may be necessary before sufficient experience is available to intelligently revise the current targets; however, we think it reasonable to anticipate that time targets will ultimately be revised and published, and that timely completion of this process will serve the Board's objective of encouraging election agreements as parties adjust to the new rule. Any short term difficulties in reaching election agreements, should dissipate quickly, as they have in the past when prior time targets have been adjusted.

The Board believes that its duty is to perform its statutory functions as promptly as practicable consistent with the policies of the Act. 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.

f. Timing Under the Rules in Practice

Finally, it must be noted that many of the concerns expressed about the time from petition to election are predicated on erroneous speculation. Citing Member Hayes's dissent from the NPRM, some comments suggest that the amendments will provide for elections in as few as 10 days after the filing of the petition.[72] The practicalities of a regional director's conducting a directed election suggest otherwise. First, it takes at least 8 days to begin the hearing. At least 1 day is required for the hearing and then a decision and direction of election must be drafted and issued; thereafter, the voter list must be produced and the Notice of Election posted for 3 days—all before an election is conducted.

We are also not persuaded by the complaint that the amendments will work a deprivation of employer speech rights in cases where the employer feels pressured to enter an agreement regarding the election date that provides for a very fast election. Testimony of Elizabeth Milito on behalf of National Federation of Independent Business (NFIB) II. If the employer does not want a particular election date, it is free to not sign, state its position in its statement of position, and the regional director can fix the date of the election in the direction of election. If the employer does sign, there cannot have been a deprivation of rights absent evidence of actual duress.

In addition to arguing that the rule fails to give employers sufficient time to deliver their campaign message, some comments contend that the new 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.[73] This argument is pressed with particular force in cases where the employer has exercised its statutory right to decline to express any opposition to the union. As a related matter, it is argued that an employer's choice to enter into an election agreement will deny employees an adequate opportunity for free debate among themselves.

This final rule does not change anything about an employer's ability to remain silent and agree to an election on a particular date. The very same scenario occurs under current rules. If the situation were ever such as to truly work a deprivation of employee rights, the Board would of course remain free to address it. But to date no such case has arisen. Indeed, an important change in this final rule—to require an initial notice upon filing of the petition—is likely to obviate any such risk. A representative of NRTWLDF acknowledged as much at the public Start Printed Page 74325hearing in 2014. Testimony of Messenger on behalf of NRTWLDF II.

g. Miscellaneous Matters Relating to the Opportunity To Campaign

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.[74] For 3 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 make 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).

The Board 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 previously promulgated a rule requiring employers to continuously post in the workplace a notice of employee rights under the Act.[75] The Board does not agree that its other posting requirements are or were in any way inconsistent with the final rule, because each serves different purposes in different contexts than the notice rules issued today. First, remedial notices alleviate the impact of unlawful acts by an employer or union, rather than communicate about a specific petition in a specific unit. Thus, the time reasonably necessary for employees to obtain the message from a posted remedial notice, and for that message to dissipate the effects of unfair labor practices, is longer than that necessary for employees to receive information from employers and unions actively campaigning for their support. Second, the Board explained why it required continuous posting of the NLRA rights notice, as opposed to its remedial and election notices, “[I]t is reasonable to expect that even though some employees may not see the notices immediately, more and more will see them and learn about their NLRA rights as time goes by.” 76 FR 54005, 54030 (Aug. 30, 2011). Thus, the Board recognized the goal of “reach[ing] new employees” (id.) could be met by requiring the rights notice to be readily available to employees whenever they chose to examine it. In contrast, employee turnover is unlikely to be of concern during the time between a direction of election and the election itself. Finally, the Board's existing notice-posting provision for elections, unaltered by the final rule, requires that the notice be posted for only 3 working days before the election. Compare 29 CFR 103.20 (2010) [76] with amended 102.67(k). The Board thus rejects the “one size fits all” suggestion for maximum and/or minimum time periods for conducting elections under the Act.

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.

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.[77] 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.[78] 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 Start Printed Page 74326conduct. See Con-way Inc.; Bluegrass Institute; ATA.[79]

However, under the final rule, when the petition is served on the employer by the regional office, it will be accompanied by the Notice of Petition for Election, (a revised version of Form NLRB 5492), which will continue to set forth in understandable terms the central rules governing campaign conduct. This provides an immediate explanation of rights and obligations, while an employer who wishes to locate counsel may do so. In any event, the Board does not believe that any shortening of the time between petition and election that results from the final rule will impair employers' ability to retain counsel in a timely manner.[80] 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.[81]

3. 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 (ACC Reply). 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). At one point Senator Kennedy suggested that this 30-day period would provide a “safeguard against rushing employees into an election where they are unfamiliar with the issues.” 105 Cong. Rec. 5984 (April 15, 1959) (statement of Sen. Kennedy). The House bill, however, never contained a parallel provision, and it was not enacted into law.

Nevertheless, ACC (Reply) 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.[82] 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.

D. 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. In response, the Board continues to observe 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. 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, for conducting secret-ballot elections, and for certifying the results of 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.[83]

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 on a fragile economy. Again, the Board views these comments as questioning policy decisions already made by Congress.[84] The amendments do not reflect a judgment concerning whether increased employee representation would benefit or harm the national economy.

Start Printed Page 74327

V. Comments on Particular Sections

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. 102.60 Petitions

The final rule adopts the Board's proposals to permit parties to file petitions electronically and to require that the petitioner serve a copy of the petition on all other interested parties. The final rule also clarifies that parties filing petitions electronically need not also file an original for the Agency's records. The final rule further adopts the Board's proposal to require service of two additional agency documents that will be available to petitioners in the regional offices and on the Board's public Web site. The first document, which will substitute for and be an expanded version of the Board's Form 4812, will describe the Board's representation case procedures. The second document the petitioner will serve along with the petition will be a Statement of Position form, which will include a request for commerce information (such as that solicited by current NLRB Form 5081, the Questionnaire on Commerce Information).[85]

The Board received generally positive comments regarding its proposal to allow parties to file petitions electronically.[86] For instance, the AFL-CIO II noted that the electronic filing of petitions is consistent with general Federal, state and local government practices and is part of the Board's `gradual and entirely sensible transition' to electronic filing, service and storage of documents. The Center on National Labor Policy (CNLP) commends the proposal as “excellent”, but apparently misunderstands the proposal as establishing mandatory electronic filing, when it does not. The Board's view, echoed by several comments, is that allowing—but not requiring—the electronic filing of petitions is part of its nearly decade-long effort to adapt its procedures to modern methods of communication.[87] This rule recognizes the widely accepted use of email for legal and official communications and more closely aligns Board service procedures with those of the Federal courts.

The final rule's requirement that the petitioner serve a copy of the petition on all other interested parties when it files its petition with the Board further conforms to ordinary judicial and administrative practice. For example, a labor organization filing a petition seeking to become the representative of a unit of employees is required to also serve the petition on the employer of the employees. This will ensure that the earliest possible notice of the pendency of a petition is given to all parties. The few comments to focus on this proposal either affirmatively support it as an improvement over current procedures or find it unobjectionable.[88]

Likewise, the Board received no significant negative comments concerning its proposal to require service of the Statement of Position form and an expanded version of the Board's Form 4812 to inform interested parties about the Board's representation case procedures. The Board agrees with GAM that requiring service of this latter document will aid employers' understanding of representation case procedures and render Board procedures more transparent.

A few comments state that parties may not receive petitions or other relevant documents due to the use of electronic filing. For example, AGC (AGC II) argues that parties' use of spam filters and other computer data protection tools could prevent the delivery of electronically-filed petitions and thereby lead to increased litigation due to their non-receipt of petitions or related documents. And the Cook-Illinois Corporation (Cook-Illinois) contends that the recipient of an emailed petition might unwittingly delete the email as spam. The Board responds that it already permits parties to electronically file most documents in unfair labor practice and representation proceedings and has yet to experience any increase in litigation resulting from the use of such software. Moreover, it is also possible for representation petitions sent via United States mail or facsimile to be misdelivered or to be incorrectly identified by the recipient as junk mail. Also, it is the practice of the regional offices to have a Board agent contact parties as soon as possible after the filing of a petition in order to facilitate regional decision making regarding the petition. See Casehandling Manual Section 11010. In addition, pursuant to § 102.63(a), the regional offices will re-serve a copy of the petition after the petition is docketed, making it even less likely a party will remain ignorant of an electronically-filed petition for any significant period of time. Therefore, the Board does not anticipate that the electronic filing of petitions will lead to litigation due to delivery failure and lack of notice of service.

A number of comments suggest the final rule should provide guidance with respect to what constitutes proper service by identifying the title of the individual who should be electronically served with the petition because this arguably triggers significant deadlines and obligations.[89] The Board's current rules and regulations do not provide guidance with respect to the proper agent for service of a petition (or an unfair labor practice charge). Any issue raised with respect to whether the petition was properly served will continue to be handled consistent with the Board's existing practices in this area. Moreover, the petitioner's simultaneous service of the petition is simply intended to provide all interested parties with the earliest possible notice of the filing of the petition, and does not, by itself, establish any deadlines or obligations related to the processing of the case for the party being served with the petition. The actual date of the hearing and other requirements are set by the regional director (after the filing of the petition) when the director issues the notice of hearing.

Several comments express concern that the electronic filing of petitions could increase opportunities for fraud. For example, NADA and the Chamber argue that the regulations should require a party electronically filing a petition to Start Printed Page 74328mail the original documents to the Board at a later date.[90] CNLP comments that the Board should establish e-security practices that protect the identity of a party filing a petition and mitigate the possibility that fraudulent documents will be filed. CNLP also suggests that the Board should substantially adopt Federal Rule of Civil Procedure 11(b) and require a party filing a petition to certify that the document is supported by facts and law.

The Board believes that the final rule and current electronic filing procedures adequately address these concerns. As an initial matter, § 102.60 of the final rule continues the Board's practice of requiring that petitions “shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalty of perjury, that its contents are true and correct.” The Board already allows parties to maintain password-protected profiles and to redact or protect their sensitive personally identifiable information. To date, there has been no significant interference with election processes resulting from fraudulent petitions. The Board does not expect any change resulting from its decision to permit electronic filing of such petitions. Nonetheless, as mentioned above, a Board agent will contact parties after the filing of a petition and will be able to determine if there has been a fraudulent filing. Further, § 102.177(d) of the existing regulations already allows the Board to sanction an attorney or party representative for misconduct such as the filing of a document that is unsupported by facts and law. See, e.g., In re David M. Kelsey, 349 NLRB 327 (2007).

The National Right to Work Legal Defense Foundation (NRTWLDF) proposes that the Board further amend its existing procedures to prevent petitioners from withdrawing otherwise valid petitions before an election occurs. It asserts that allowing such withdrawal unfairly allows petitioners to manipulate the scheduling of elections. The Board declines to adopt this proposal. Continuing to permit the withdrawal of petitions serves the efficiency goals of these amendments by avoiding unnecessary case-processing efforts. Moreover, the Board's existing procedures adequately prevent such manipulation. The regional director or the Board will continue to have discretion to accept or reject a petitioner's request for withdrawal of the petition if the request would run counter to the purposes of the Act. See Casehandling Manual Section 11110.

One commenter noted that the proposal to allow the electronic filing of petitions may have merit, but that the Board should seek further comment and input from stakeholders before implementing this change. Leading Age II. However, the comment did not provide an explanation as to why the periods established to allow comments to the Board's NPRMs in 2011 and 2014 were not sufficient to effectively obtain input from stakeholders on this issue. The Board believes that stakeholders have had an ample opportunity to comment on this proposal and has carefully considered the input offered on this issue in deciding to implement this proposal.

Sec. 102.61 Contents of Petition for Certification; Contents of Petition for Decertification; Contents of Petition for Clarification of Bargaining Unit; Contents of Petition for Amendment of Certification; Use of Electronic Signatures To Support a Showing of Interest

Section 102.61 of the final rule continues to describe the contents of the various forms of petitions that may be filed to initiate a representation proceeding under Section 9 of the Act.[91] The Board will continue to make the petition form available at the Board's regional offices and on its Web site. As proposed in the NPRM, the final rule adds to the contents of the petitions in a few respects. First, the revised petition contains the allegation required in Section 9. In the case of a petition seeking representation, for example, the petition contains a statement that “a substantial number of employees wish to be represented for collective bargaining . . . .” 29 U.S.C. 159(c)(1)(a)(i). Second, the petitioner is now required to designate, in the revised petition, the individual who will serve as the petitioner's representative in the proceeding, including for purposes of service of papers. GAM acknowledges that this is a practical requirement that may allow parties to quickly resolve election issues while helping to conserve agency resources. Third, the petitioner is now required to state the type, date(s), time(s) and location(s) of election it seeks.[92] This information will facilitate entry into election agreements by providing the nonpetitioning parties with the earliest possible notice of the petitioner's position on these important matters.

The final rule also requires that the petitioner file with the petition whatever form of evidence is an administrative predicate of the Board's processing of the petition rather than permitting an additional 48 hours after filing to supply the evidence. When filing a petition seeking certification as the representative of a unit of employees, for example, petitioners must simultaneously file the showing of interest supporting the petition. As explained in the NPRM, the Board believes that parties should not file petitions without whatever form of evidence is ordinarily necessary for the Board to process the petition. However, the final rule is not intended to prevent a petitioner from supplementing its showing of interest, consistent with existing practice, so long as the supplemental filing is timely. Also consistent with existing practice, the final rule does not require that the showing of interest be served on other parties.

The Board rejects the Chamber's request that the regional director refrain from serving notice of the filing of a petition on other parties until the region receives the original signatures establishing the showing of interest. Such a requirement would not serve the Board's purpose of encouraging the expeditious resolution of questions concerning representation. The final Start Printed Page 74329rule does not change the Board's longstanding policy of not permitting the adequacy of the showing of interest to be litigated. See, e.g., Plains Cooperative Oil Mill, 123 NLRB 1709, 1711 (1959) (“[T]he Board has long held that the sufficiency of a petitioner's showing of interest is an administrative matter not subject to litigation.”); O.D. Jennings & Co., 68 NLRB 516, 517-18 (1946). Nor does the final rule alter the Board's current internal standards for determining what constitutes an adequate showing of interest.

The Board further disagrees with the Chamber's II assertion that § 102.61(f)'s mandate that when showings of interest are filed electronically or by facsimile, the original authorization cards with handwritten signatures must be delivered to the regional director within 2 days, conflicts with the proposed language in § 102.60(a), which explained that the failure to follow an electronic or facsimile-filing of the petition with an original paper copy “shall not affect the validity of the filing by facsimile or electronically, if otherwise proper.” First, as discussed in connection with § 102.60 above, the Board has decided not to require an extra paper copy of the petition when it is filed electronically, and as explained in the footnote below, the language in § 102.61 likewise does not require paper copies of electronically-signed cards (if accepting electronic signatures is deemed practicable by the General Counsel). So there is no potential inconsistency in the final rule as to electronically-filed petitions and electronically-signed authorization cards. There is also no inconsistency in the final rule even when focusing solely on facsimile-filed petitions or electronically-filed petitions that do not include electronically-filed authorization cards. Thus, the Board intentionally distinguishes the handwritten signatures that form the showing of interest supporting the petition as items that must be transmitted to the Board in their original form in order for the filing to be proper. In other words, while a regional director will not dismiss a petition filed by facsimile simply because the petitioner failed to follow its facsimile filing by supplying the original paper copy to the regional office, a regional director will dismiss a petition if the facsimile-filed or electronically-filed showing of interest is not followed by original documents containing handwritten signatures within 2 days.[93] The Board therefore declines the Chamber's suggestion to strike or alter the language in § 102.60(a) to conform to the language in § 102.61(f).

GAM argues that requiring petitioners to file a supporting showing of interest simultaneously with the petition will lead to confusion and delays and create an unnecessary burden that may discourage the filing of petitions. GAM maintains that under existing rules, a petitioner could file a petition and then receive useful guidance from the regional office about how to file its showing of interest, thereby suggesting that a petitioner will no longer have the option of seeking such assistance under the amended rules. GAM alleges that the Board's motivation in adopting the amendment is a self-interested desire to improve its case-processing statistics, not to facilitate the holding of elections. The Board believes that parties should not file petitions without whatever form of evidence is ordinarily necessary for the Board to process the petition. If parties are confused about what evidence is necessary to file in support of a petition—or if they are confused about any other aspect of the representation case process—they may continue to contact regional offices for guidance both before and after the filing of a petition, and the continued useful guidance flowing from such contact should mitigate any potential for discouragement felt by individuals who are contemplating filing an election petition. Further, the amendment does not establish inflexible time deadlines for when a petition must be filed.

The Board received a number of comments in response to the question of whether the proposed regulations should expressly permit or proscribe the use of electronic signatures to support a showing of interest under § 102.61(a)(7) and (c)(8) as well as under § 102.84. Based on these comments, we believe that the Board's regulations as currently written are sufficiently broad to permit the use of electronic signatures in this context.[94] We also note that evaluating the showing of interest is an administrative matter within the discretion of the agency. For the reasons discussed below, we find, that the Board should, when practicable, accept electronic signatures to support a showing of interest, and therefore direct the General Counsel to undertake an analysis of whether there exists a practicable way for the Board to accept electronic signatures to support a showing of interest while adequately safeguarding the important public interests involved.

Several comments address the legal and procedural aspects of this potential amendment. Joseph Torres argues that neither the Government Paperwork Elimination Act (GPEA), 44 U.S.C. 3504, nor the Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. 7001 et seq., both of which were cited in the Notice of Proposed Rulemaking, supports changing Board practice. Testimony of Joseph Torres on behalf of Winston & Strawn II. He argues that electronic signatures accepted under either of those acts are distinguishable from the electronic signatures that would be accepted to support a showing of interest. Regarding GPEA, he observes that there are safeguards attendant to submitting information to the government that are not available to the private gathering of electronic signatures. And he observes that E-SIGN allows private parties to litigate the validity of electronic signatures, whereas they cannot under the Board's current procedures. The Chamber (Chamber II) argues that the Board has yet to provide sufficient details about its potential use of electronic signatures and that an advanced notice of proposed rulemaking should therefore precede any action in this area. PIA and AHA II, among others, maintain that the Board has yet to provide any justification for this rule change.

The SEIU II, AFL-CIO II, and Alvin Velazquez (testifying on behalf of SEIU II) argue that GPEA and/or E-SIGN require the Board to accept electronic signatures. Even setting this requirement aside, SEIU observes that the Board's acceptance of electronic signatures would be beneficial and reflect modern changes in technology and methods of communication. SEIU (SEIU II) and the AFL-CIO, among others, also argue that the Board does not have to use the notice-and-comment rulemaking process to accept electronic Start Printed Page 74330signatures on showings of interest. For instance, SEIU contends, among other things, that such an amendment would relate to Board practice and procedure and therefore not require public comment. See 5 U.S.C. 553(b)(3)(A) (excepting “interpretative rules, general statements of policy, or rules of agency organization, [and] procedure, or practice” from notice-and-comment rulemaking). SEIU and AFL-CIO observe that the Board's Rules and Regulations currently do not limit the form that the showing of interest can take. Further numerous comments, as summarized below, clearly articulate many of the potential benefits of accepting electronic signatures. Velazquez II, for instance, observes that electronic signatures, which typically require an employee also to fill-out an electronic form, are better indicators of an employee's interest in joining a union than paper authorization cards, due to the increased effort required to input additional verification information.

We believe that GPEA and E-SIGN embody a strong policy preference on the part of Congress for the use and acceptance of electronic signatures, when practicable, as a means, along with handwritten signatures, to support a showing of interest. GPEA directs the Office of Management and Budget (OMB) to ensure that “Executive agencies provide—(1) for the option of the electronic maintenance, submission, or disclosure of information, when practicable as a substitute for paper, and (2) for the use and acceptance of electronic signatures, when practicable.” GPEA additionally stipulates that “Electronic records submitted or maintained in accordance with procedures developed under this title, or electronic signatures or other forms of electronic authentication used in accordance with such procedures, shall not be denied legal effect, validity, or enforceability because such records are in electronic form.” In its guidance on the implementation of GPEA, the OMB observes, “a decision to reject the option of electronic filing or record keeping should demonstrate, in the context of the particular application and upon considering relative costs, risks, and benefits given the level of sensitivity of the process, that there is no reasonably cost-effective combination of technologies and management controls that can be used to operate the transaction and sufficiently minimize the risk of significant harm.” OMB, Procedure and Guidance; Implementation of the Government Paperwork Elimination Act, 65 FR 25508, 25512 (2000) (OMB Guidance). We feel that the policy underlying this admonition applies equally to the use and acceptance of electronic signatures. Likewise, E-SIGN mandates that, “with respect to any transaction in or affecting interstate commerce or foreign commerce—(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.” We believe that both of these statutes clearly evidence Congress's intent that Federal agencies, including the Board, accept and use electronic forms and signatures, when practicable—i.e., when there is a cost-effective way of ensuring the authenticity of the electronic form and electronic signature given the sensitivity of the activity at issue, here the showing of interest.

That Congress should adopt this policy preference is not surprising. After all, the benefits of e-government are widely known. Among other things, electronic forms can “greatly improve efficiency and speed of government services.” S. Rep. No. 105-335 (1998). Electronic forms reduce the “costs associated with such things as copying, mailing, filing and storing forms.” Id.; see also OMB Guidance, 65 FR at 25515-16. These reductions in transaction costs also benefit the Board's transaction partner. OMB Guidance, 65 FR at 25516-17.

Many comments also address the ability to authenticate the electronic signature. Several of these comments argue that the Board should not allow the use of electronic signatures because they are more difficult to authenticate than handwritten signatures.[95] The Bluegrass Institute argues that, while the Board could allow employees to authenticate their electronic signatures with sensitive personal information such as social security numbers, this apparent solution would create a potential threat of identity theft. Given this problem with authentication, CDW suggests that electronic signatures would effectively nullify the showing of interest requirement. And SHRM accordingly urges the Board to follow the National Mediation Board in refusing to allow electronic signatures to support a showing of interest. In opposition to these comments, the AFL-CIO (AFL-CIO II), SEIU II, and Velazquez II counter that electronic signatures are easily verifiable and commonly used in governmental and commercial dealings. In fact, more tools are available to confirm the authenticity of electronic signatures than are available to confirm physical signatures.

At this point, the weight of evidence appears to agree with the AFL-CIO, SEIU, and Velazquez. “State governments, industry, and private citizens have already embraced the electronic medium to conduct public and private business.” S. Rep. No. 105-335. And since the adoption of GPEA and E-SIGN, Federal agencies, including the Board, have also accepted electronic signatures and electronic forms.[96] Electronic signatures can “offer greater assurances that documents are authentic and unaltered. They minimize the chances of forgeries or people claiming to have had their signatures forged.” S. Rep. No. 105-335; see also OMB Guidance, 65 FR at 25516. There are numerous forms that electronic signatures can take, each providing additional methods to ensure the authenticity of the signature. See, e.g., S. Rep. No. 105-335; OMB Guidance, 65 FR at 25518-25520. And the technology that makes electronic signatures possible continues to evolve and become ever-more sophisticated, providing even more safeguards.

Some comments claim that the use of electronic signatures to support a showing of interest could encourage petitioner misconduct. Seyfarth Shaw contends that electronic signatures present a greater risk of fraud than handwritten signatures because they do not create any physical evidence of signing. Several comments allege that the use of electronic signatures could lead to deceptive practices by petitioners, such as hiding authorization agreements within seemingly innocuous Web site content.[97] PIA likewise argues that employees might have to rely on the petitioner to instruct them in the use of electronic signatures, creating the possibility of undue influence and coercion. But other comments counter that electronic signatures would actually reduce incidents of intimidation due to lack of personal solicitation.[98]

As stated above, we believe that cost-effective methods may exist to ensure that electronic signatures are authentic, Start Printed Page 74331and electronic signature technology may provide more methods to authenticate and ensure the validity of the signature as compared to handwritten signatures. Further, the Board already has internal administrative processes to deal with allegations of fraud and misrepresentation regarding manually signed authorization cards and petitions. See Casehandling Manual Sections 11028-11029. We expect that the General Counsel will evaluate whether the Board could employ these or similar processes in connection with electronic signatures.

A few comments argue that the lack of reliability of electronic signatures and the accompanying prospect of petitioner misconduct will lead to more pre-election challenges to the validity of petitions, creating a greater burden on agency resources, and running counter to the goal of eliminating delay.[99] Constangy, Brooks & Smith, LLP (Constangy) contends that the use of electronic signatures would no longer allow the Board to verify authorizations by simply comparing employee signatures to those on handwritten cards. Rather, Constangy argues that the Board would have to allow parties to present testimony to challenge or support contested signatures. Torres argues that, if the Board starts to look underneath the process of obtaining electronic signatures, employers should also be able to examine and, if necessary, challenge the showing of interest. Testimony of Torres on behalf of Winston & Strawn II. UFCW (UFCW II) disagrees, proposing that the Board could verify the authenticity of a showing of interest merely by checking a random sample of individual signatures, as is a current practice. As noted, the Board already has processes in place for resolving allegations of fraud or misrepresentation in connection with showing of interest evidence which the rule does not change and which might be effectively utilized to verify electronic signatures.

For the reasons discussed above, we are not persuaded that the Board's current or similar administrative procedures would necessarily be inadequate to the task of ensuring that there is a sufficient showing of interest to warrant conducting an election. The General Counsel should consider the matter and determine whether electronic signatures can practicably be accepted without such a fundamental change to the Board's procedures as those suggested in the comments.

A few comments address the practical problems with permitting electronically signed authorization cards. Some of these comments are concerned that a petitioner could gather electronic signatures through the employer's own computer system, thereby disrupting work and opening the employer to allegations of unlawful surveillance.[100] Some of these comments further maintain that the use of handwritten authorization cards already leads to confusion among employees, and that allowing electronic signatures would exacerbate these problems.[101] One comment observes that it would be difficult for the Board to impose a unified system of gathering electronic signatures, and thereby ensure the reliability of those signatures, given the number and diversity of petitioning parties. Testimony of Torres on behalf of Winston & Strawn II.

We are doubtful that the use of electronic signatures will present the practical problems raised in these comments. We see no reason why electronic authorization cards would create a greater disruption to an employer's operations or subject an employer to charges of surveillance to a greater extent than would the transmission of other information relating to union or protected concerted activity. Regarding Torres's argument that electronic signatures would be impracticable to administer, we ask the General Counsel to examine the issue and, if administration is practicable, issue guidance.

Based on our review of our current Rules and Regulations, Congressional policy, and the comments, we conclude, as a matter of policy, that the Board should, when practicable, accept electronic signatures to support a showing of interest. Our current rules do not prohibit the acceptance of electronic signatures, and so no change in our rules is necessary to effectuate this policy conclusion. The General Counsel shall promptly determine whether, when, and how electronic signatures can practicably be accepted and shall issue guidance on the matter. In making these decisions, we encourage the General Counsel to follow the framework outlined in the OMB Guidance.

Sec. 102.62 Election Agreements; Voter List; Notice of Election

A. Election Agreements and Board Resolution of Post-Election Disputes

In the NPRM, the Board proposed a number of amendments to § 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 nonemployer parties to the case,[102] and to alter the means of transmittal of the notice of election. The Board has decided at this time to adopt the proposed amendments to § 102.62 clarifying the terms used to describe pre-election agreements and eliminating mandatory Board resolution of post-election disputes under a stipulated election agreement. The Board has also decided to adopt the proposed amendments concerning the Excelsior list and the notice of election [103] with the modifications described in the discussion of the voter list below.

The final rule's amendments to § 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,” [104] the regional director will resolve any post-election disputes subject to discretionary Board review. This procedure is consistent with the changes to § 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.[105]

As explained in the NPRM, the amendment makes the process for obtaining Board review of regional Start Printed Page 74332directors' dispositions of post-election disputes 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.[106] 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.[107] Review as of right should not be granted in those situations. Others cases present only circumscribed, purely factual issues.[108] Given the highly deferential standard that the Board employs in reviewing a hearing officer's post-election credibility findings,[109] 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,[110] or where there is no dispute about the facts at all.[111] 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,[112] 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.[113] 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.[114]

In addition, the final rule will enable the Board to devote its limited time to cases of particular significance. This should constitute a significant time savings considering the inefficiency involved in having the multi-member Board engage in a de novo review of the entire record before disposing of a post-election case on exceptions from a hearing officer's report. Indeed, when post-election cases have come before the Board over the past 3 years, the median time for the Board to resolve them has ranged from 94.5 days to 127 days. In comparison, the median time it has taken regional directors to issue pre-election decisions has been 20 days, and the median time for the Board's action to grant or deny review regarding these decisions under the same request for review standard maintained in the final rule has been only 12 to 14 days over the same 3-year period. Under the new rules, it will be possible to have similar efficiency in regional and Board processing of post-election decisions. This will save time and resources, both public and private, and bring finality to representation proceedings in a more timely manner.

Based on all of the considerations listed above, 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.

Several comments argue that if the Board were to adopt these amendments, it would be abdicating its statutory responsibility and function.[115] For example, SHRM and NAM argue 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. The Chamber II also argues that this proposal will make it possible for elections to be conducted without Board review of any regional action or decision, contrary to Section 3(b) of the Act. Others state that denying aggrieved parties the right to appeal adverse determinations to the Board undermines due process protections.[116] 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.[117] 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.[118]

Section 3(b) of the NLRA does not support the conclusion expressed in those comments. Section 3(b) provides in part:

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 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(b) and (f). Start Printed Page 74333Notably, none of the comments suggests that the current rules as to pre-election disputes violate Section 3(b) or are otherwise improper.[119]

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.[120]

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. Other comments argue that discretionary post election review will result in unchecked regional errors [121] and slow the development of binding and authoritative precedent.[122] The Board disagrees.

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 § 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). Accordingly, the final rule provides parties with an opportunity to appeal regional decisions that are inconsistent with precedent or which contain facts that are clearly erroneous and prejudicial under a discretionary standard. The parties may also utilize this discretionary review process if there are substantial questions of law or policy or compelling reasons for reconsidering a Board rule or policy.

For these reasons, the Board does not believe that the final rule will lead to lack of uniformity or quality in decisions or adversely affect the development of the law. In fact, the discretionary standard enables the Board to better focus its resources and attention on those cases that are legally or factually significant and have greater impact on parties and/or the development of law and policy. And, since most of the Board's post election decisions under the existing standard of mandatory review are not published and have no precedential value,[123] this proposed change is not likely to have a significant adverse impact on the precedential value of post election decisions.[124]

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.” Other comments contend that because hearing officers report directly to regional directors, appeal to the regional directors does not constitute meaningful review.Start Printed Page 74334

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 procedures.[125] Similarly, the Chamber (Chamber II), 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 ensures 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.

ALFA argues 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 directors' 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.[126] 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 litigation 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 Pepsi Cola Bottling Company, 9-RC-110313 (Sept. 18, 2013); King Soopers, 27-RC-104452 (Sept. 13, 2013); Geralex Inc., 13-RC-106888 (Sept. 12, 2013).

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 (AHA II), 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.[127]

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 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 that it does at present: the likelihood of success, the importance of the issue, and the cost of litigation. In addition to avoiding the time, expense and risk 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 II, express confusion about the rule and the request-for-review procedure. The grounds for granting a request for review under § 102.69(c)(2) (referencing § 102.67(d)) of the final rule are nearly identical to the grounds set forth in § 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. 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.Start Printed Page 74335

In sum, the amendments to § 102.62(b) conform the review provisions of the stipulated election agreement to the amended review provisions for directed elections. Parties should not be entitled to greater post-election Board review simply by virtue of the fact that there are no pre-election 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.

B. Voter List

In Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), the Board established the requirement that, 7 days after approval of an election agreement or issuance of a decision and direction of election, the employer must file an election eligibility list—containing the names and home addresses of all eligible voters—with the regional director, who in turn makes the list available to all parties. Failure to comply with the requirement constitutes grounds for setting aside the election whenever proper objections are filed. Id. at 1240.

Numerous comments address the Board's multi-part proposal in the NPRM (in § 102.62 as well as in § 102.67(l)) to codify and revise the Excelsior requirement, which was approved by the Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).[128] The proposed revisions to the Excelsior requirement were intended to better advance the two objectives articulated by the Board in Excelsior: (1) Ensuring the fair and free choice of bargaining representatives by maximizing the likelihood that all the voters will be exposed to the nonemployer party arguments concerning representation; and (2) facilitating the public interest in the expeditious resolution of questions of representation by enabling the parties on the ballot to avoid having to challenge voters based solely on lack of knowledge as to the voter's identity. Excelsior, 156 NLRB at 1240-41, 1242-43, 1246.[129]

Specifically, the Board proposed that the employer be required to furnish to the other parties and the regional director not just the eligible voters' names and home addresses, but also their available email addresses and telephone numbers as well as their work locations, shifts, and job classifications. In addition, the Board proposed to shorten the time for production of the voter list from the current 7 days to 2 work days, absent agreement of the parties to the contrary or extraordinary circumstances specified in the direction of election. The Board also proposed that the voter list be provided in an electronic format generally approved by the Board's Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form, and that the employer serve the voter list on the other parties electronically at the same time the employer files the list with the regional director. In order to be timely filed, the list would have to be received by the other parties and the regional director within 2 work days after approval of the election agreement or issuance of the direction of election. The NPRM also proposed that failure to file or serve the list and related information within the specified time and in the proper format would be grounds for setting aside the election whenever proper objections are filed. Finally, the Board proposed a restriction on the use of the voter list, barring parties from using it for any purposes other than the representation proceeding and related proceedings, and sought comments regarding what, if any, the appropriate remedy should be for a party's noncompliance with the restriction.

Comments attacking the proposal criticize the information required to be disclosed, the format of the information to be disclosed, the time period for its production, and the proposed restriction language. Comments praising the proposal claim the proposal would better serve the twin purposes of the original Excelsior list requirement and help the Board to expeditiously resolve questions of representation. Positive comments further claim that the proposal would merely update the old disclosure requirement to reflect present day realities regarding how people and institutions communicate with one another and exchange information. Other comments suggest that the Board should require the employer to furnish a broader array of contact information than proposed in the NPRM, and that the contact information should be provided earlier in the process—before the parties enter into an election agreement (or the regional director directs an election).

After careful consideration of the comments, the Board has decided to largely adopt the proposals with certain changes, as outlined below:

(1) The final rule clarifies that in the event that the parties agree that individuals in certain classifications or other groupings should be permitted to vote subject to challenge, or the regional director directs that individuals in certain classifications or other groupings be permitted to vote subject to challenge, the employer shall provide the information about such individuals in a separate section of the voter list.

(2) The final rule does not require employers to furnish the other parties or the regional director with the work email addresses and work phone numbers of the eligible voters and the work email addresses and work phone numbers of those individuals whom the parties have agreed may vote subject to challenge (or whom the regional director has directed be permitted to vote subject to challenge). However, the final rule clarifies that the Board retains discretion to require through future adjudication or rulemaking that additional forms of contact information be included on the list.

(3) The final rule clarifies that the Board's General Counsel, rather than the Board's Executive Secretary, will be the official with whom the authority will reside to specify the acceptable electronic format of the voter list.

(4) The final rule clarifies that the employer has 2 business days, rather than 2 calendar days, after the regional director approves the parties' election agreement or issues a direction of election to furnish the list to the nonemployer parties to the case and the regional director. Although the NPRM had proposed that the regional director would make the voter list available to the nonemployer parties upon request, that language has not been incorporated into the final rule due to the Board's judgment that it is unnecessary since the rule requires direct service of the voter list from the employer to the nonemployer parties.[130]

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(5) The final rule modifies the restriction language to prohibit nonemployer parties from using the voter list information for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.[131]

1. Contact and Job Information

a. Work Email Addresses/Work Phone Numbers

A large number of employer comments oppose the voter list proposals, particularly to the extent that they could be construed as requiring the employer to furnish the other parties with the work email addresses and work phone numbers of its employees.[132] For example, CDW suggests that the Board's proposal is vague and does not clarify whether the rules require production of employees' work phone numbers and email addresses for use by the nonemployer parties. If the rules would so require, then CDW argues that they “would be irreconcilable with longstanding Board case law” on solicitation, distribution, and lawful access restrictions,[133] in addition to prompting a huge number of surveillance complaints stemming from employers' routine monitoring of internal phone and email systems. The SEIU disagrees, claiming in reply that under the Board's proposal, employers would still be able to maintain non-discriminatory, restrictive email policies, but that given most employers' permissive attitudes toward employees' use of email, it would be highly unlikely that many such rules would prevent election-related uses of employees' work email by the nonemployer parties. Meanwhile, the AFL-CIO (AFL-CIO II) contends that the Board should address issues surrounding work email through the adjudicatory process, and the Chamber II in reply—while generally opposed to requiring any phone and email information on the voter list—agrees that it would be more appropriate to disclose employees' personal email and phone information than their work email and phone information.

Other comments emphasize the threat of harm to employer email and phone systems and associated productivity concerns that would allegedly flow from the disclosure of employees' work contact information to the nonemployer parties.[134] For example, the Employment and Labor Law Committee of the Association of Corporate Council (ACC), cites the Sixth Circuit's decision in Pulte Homes v. Laborer's Int'l Union, 648 F.3d 295 (6th Cir. 2011) [135] as evidence of union propensity to misuse this information in order to inflict economic damage on an employer. However, the American Health Care Association and the National Center for Assisting Living II (AHCA)—which also cites Pulte—admits that “a petitioning union might be expected to be more solicitous of employees whose votes it was seeking in an NLRB election.” CDW also mentions the threat of malicious software and viruses being introduced to employer computer systems, but SEIU (reply) answers that such threats are far-fetched considering that “riddling an employee's computer [albeit one owned by the employer] with a virus is not likely . . . to encourage her to support the union.” Furthermore, comments point out that email providers, such as Google and Microsoft, are vigilant about identifying malicious attachments, and that many employer email systems are protected by commercially available software, thus minimizing any potential risks to employer email systems.[136]

Still other comments argue that because the concerns associated with inclusion of work email and work phone numbers on the voter list are so significant, the Board would be breaching its obligation of neutrality in the election process if it were to order the employer to disclose them to a petitioning union.[137]

After careful consideration of all the comments concerning the voter list proposals as they relate to work email addresses and work phone numbers, the Board believes that the issues raised require further study, and so the final rule does not require the employer to furnish the other parties (such as the union in an initial organizing context) with either the work email addresses or work phone numbers of eligible voters. If, in the future, the Board decides through adjudication or rule-making that the inclusion of additional contact information on the voter list is warranted, then it will be incumbent on the Board to address concerns appropriately raised at that time. However, at this time, we express no opinion as to the merits of the various concerns raised that are specific to including work email addresses or work phone numbers on the voter list.

b. Personal Email Addresses/Personal Phone Numbers

Although the final rule does not require the employer to furnish the other parties or the regional director with the work email addresses and work phone numbers of the eligible voters, the final rule does require the employer to furnish the other parties and the regional director with the available personal email addresses and available home and personal cellular (“cell”) telephone numbers of the eligible voters to help advance the principal objectives behind the original Excelsior requirement. As set forth in the NPRM, in elections conducted under Section 9 of the Act, there is no list of employees or potentially eligible voters generally available to interested parties other than the employer and, typically, an incumbent representative. 79 FR 7322. The Board addressed this issue in Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), where it held:

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

Although several Justices of the Supreme Court expressed the view that the requirement to produce what has become known as an “Excelsior list” should have been imposed through rulemaking rather than adjudication, the Court upheld the substantive requirement in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767-68 (1969).Start Printed Page 74337

In Excelsior, the Board explained the primary rationale for requiring production of an eligibility list:

[W]e regard it as the Board's function to conduct elections in which employees have the opportunity to cast their ballots for or against representation under circumstances that are free not only from interference, restraint, or coercion violative of the Act, but also free from other elements that prevent or impede a free and reasoned choice. Among the factors that undoubtedly tend to impede such a choice is a lack of information with respect to one of the choices available. In other words, an employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice . . ..

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

156 NLRB at 1240-41 (footnotes omitted). The Supreme Court endorsed this rationale in Wyman-Gordon, 394 U.S. at 767, stating that:

The disclosure requirement furthers this objective [to ensure the fair and free choice of bargaining representatives] by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.

Since Excelsior was decided almost 50 years ago, the Board has not significantly altered its requirements despite transformative changes in communications technology, including that used in representation election campaigns. Fifty years ago, email did not exist; and communication by United States mail was the norm. For example, the union in Excelsior requested a list of names and home addresses to answer campaign propaganda that the employer had mailed to its employees. See Excelsior, 156 NLRB at 1246-47. Indeed, if a union wanted to reach employees with its arguments in favor of representation, it frequently resorted to the United States mail or visited employees at their homes because, as the Board recognized in Excelsior, the union, unlike the employer, “normally ha[s] no right of access to plant premises” to communicate with the employees. Id. at 1240. However, as SEIU points out, in 2010, nearly all working adults used email, and indeed, 39.6 billion emails were being sent every day—more than 80 times the number of letters being sent through the U.S. Postal Service.[138] The AFL-CIO II cites to a study released during the 2014 comment period suggesting that up to 87% of U.S. adults have an email address and use the internet.[139] Other comments likewise assert that the voter list requirements should be updated to include email addresses in recognition of how individuals, employees, employers, and institutions now communicate with one another.[140]

The Board believes that the provision of only a physical home address no longer serves the primary purpose of the Excelsior list. Communications technology and campaign communications have evolved far beyond the face-to-face conversation on the doorstep imagined by the Board in Excelsior. As Justice Kennedy observed in Denver Area Educational Telecommunications Consortium, Inc. v. FTC, 518 U.S. 727, 802-803 (1996) (Kennedy, J., dissenting) (internal citation omitted):

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

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

While * * * traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members. Electronic communications are now the norm in many workplaces, and it is reasonable to expect that the number of employers communicating with their employees through electronic methods will continue to increase. Indeed, the Board and most other government agencies routinely and sometimes exclusively rely on electronic posting or email to communicate information to their employees. In short, “[t]oday's workplace is becoming increasingly electronic.” [141]

Moreover, our experience with campaigns preceding elections conducted under Section 9 of the Act indicates that employers are, with increasing frequency, using email to communicate with employees about the vote. See, e.g., Arkema, Inc., 357 NLRB No. 103, slip op. at 14 (2011) (employer sent an email to employees broadly prohibiting “harassment” with respect to the upcoming election), enf. denied 710 F.3d 308 (5th Cir. 2013); Humane Society for Seattle, 356 NLRB No. 13, slip op. at 3 (2010) (“On September 27, the Employer's CEO, Brenda Barnette, sent an email to employees asking that they consider whether ACOG was the way to make changes at SHS. On September 29, HR Director Leader emailed employees a link to a third-party article regarding ‘KCACC Guild's’ petition and reasons the Guild would be bad for SHS.”); Research Foundation of the State University of New York at Buffalo, 355 NLRB 950, 958 (2010) (“On January 12, Scuto sent the first in a series of email's [sic] to all Employer postdoctoral associates concerning the Petitioner's efforts to form a Union at the Employer[,]. . . . explaining the Employer's position on unionization . . . .”); Black Entertainment Television, 2009 WL 1574462, at *1 (NLRB Div. of Judges June 5, 2009) (employer notified several employees by email to attend a meeting in which senior vice-president spoke one-on-one with the employees regarding the election scheduled for the following day).[142]

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Disclosure of the employees' personal email addresses, like the disclosure of personal phone numbers discussed below, will allow the nonemployer parties (including unions and decertification petitioners) to promptly convey their information concerning the question of representation to all the eligible voters. Disclosure of this contact information also makes it more likely that nonemployer parties can respond to employee questions, both individually and collectively, including questions that employees have, but may be uncomfortable raising on their own.[143] It also permits the nonemployer parties to engage with employees on campaign issues in a timely manner and specifically, prior to the election, as well as share those responses with other employees, thus making it more likely that employees can make an informed choice in the election. After all, it obviously takes less time for an employee to receive the nonemployer party's campaign communication when that message is sent via email than when it is sent via United States mail.[144] Nurse Brenda Crawford explained the difficulty in organizing off-campus informational meetings when her colleagues work 12-hour shifts and have outside family responsibilities. In her view, modern communication tools, including email, would enhance the ability to provide information in a manner that is convenient to workers and their families. Testimony of Crawford II. The Board agrees, and has concluded that the required disclosure of available personal email addresses of eligible voters will permit the timely give-and-take of campaign information that will increase the likelihood that employees will be placed “in a better position to make a fully informed and reasonable choice.” Excelsior, 156 NLRB at 1240.[145] And of course, the Board included employees' home and personal cell telephone numbers in the voter list proposals because the use of telephones to convey information orally and via texting is an integral part of the communications evolution that has taken place in our country since Excelsior was decided.[146]

However, some comments question the inclusion of phone numbers in the final rule, implying that because the Board chose not to mandate disclosure of phone numbers in 1966, at a time when at least basic telephone technology existed, then it should not do so today.[147] CDW attempts to lend force to this argument by asserting that in the late 1960s “the United States led the world in telephone usage . . . and . . . the average person had 701 telephone conversations”, while simultaneously arguing that the home addresses disclosed under the current Excelsior policy continue to be the “most reliable and near universal points of contact” for employees.

The Board believes that comments such as CDW's do not adequately appreciate the way phone communication has changed in the last 45 years. While it may be true that when the Board issued its Excelsior decision, many households had at least one telephone, the telephone was not nearly as ubiquitous as it is presently, and those that existed bore little resemblance to the technology we have become accustomed to today. In particular, voicemail service had yet to be invented, and no commercially viable home answering machine had yet entered the marketplace. See “The History of . . . Answering Machines,” http://transition.fcc.gov/​cgb/​kidszone/​history_​ans_​machine.html (last updated June 4, 2004). Because answering machine and voicemail technology was uncommon or nonexistent in 1966, a nonemployer party could not leave a message if the employee with whom it intended to speak about the upcoming election was not at home when the union called. By contrast, the employee would receive the nonemployer party's letter even if the employee was not at home when the post office delivered it. Today, however, even if the employee is not home when the call is placed, the caller is virtually always able to leave a voice message—to say nothing of the ability to send written messages via phone texting technology. And, of course, if an employee has a cell phone, the caller can reach the employee even if the employee is not at home when the call is received.

Contrary to CDW, the Board believes that the changes in phone ownership and use make personal phones a universal point of contact today in a way that was unimaginable in 1966. The share of U.S. households possessing a telephone has steadily increased since the 1960s, from 78% in 1960 to 95% in 1990. See Bureau of the Census, Census Questionnaire Content, 1990 CQC-26, “We asked . . . You told us: Telephone and Vehicle Availability” 1 (Jan. 1994), http://www.census.gov/​prod/​cen1990/​Start Printed Page 74339cqc/​cqc26.pdf. The Census Bureau reports that the numbers of households with no available phone had shrunk to only 2.4% by 2000. See U.S. Census Bureau, 2000 Census of Population and Housing, Summary Social, Economic, and Housing Characteristics, PHC-2-1, United States Summary 10 (2003) (Table 10), http://www.census.gov/​prod/​cen2000/​phc-2-1-pt1.pdf. And that tiny percentage of households with no phone service appears to have remained nearly unchanged through 2013. See Stephen J. Blumberg and Julian V. Luke, “Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, January-June 2013,” National Center for Health Statistics 2 (December 2013), http://www.cdc.gov/​nchs/​data/​nhis/​earlyrelease/​wireless201312.pdf (reporting only 2.3% of U.S. households lacking phone service).

In addition, as of January 2014, 90% of American adults had a handheld mobile phone or a cell phone—a non-existent technology at the time of Excelsior—and 29% of cell phone owners described their cell phone as “something they can't imagine living without.” Pew Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/​fact-sheets/​mobile-technology-fact-sheet/​. In fact, the use of cell phones has increased to the point that it is overtaking the use of landline phones. For example, SEIU's comment cites a 2007 study finding that 85% of adults own cell phones, while only 71% of adults own home phones. And the Bureau of Labor Statistics identifies 2007 as the first year in which spending on cellular phone services exceeded spending on residential phone services. See “Consumer Expenditure Survey: Spending on Cell Phone Services Has Exceeded Spending on Residential Phone Services,” http://www.bls.gov/​cex/​cellphones2007.htm (last modified Jan. 14, 2009). In 2010, more than a quarter of adults lived in households with only wireless telephone service, up from less than 5% a mere 7 years earlier. See Stephen J. Blumberg and Julian V. Luke, “Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December 2010,” National Center for Health Statistics 1 (June 2011), http://www.cdc.gov/​nchs/​data/​nhis/​earlyrelease/​wireless201106.pdf. By 2013, 38% of all adults lived in households with only wireless service, and more than half of adults younger than 35, as well as adults living in poverty, had only wireless phone service in their households. See Blumberg and Luke, “Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, January-June 2013,” National Center for Health Statistics 2-3 (December 2013), http://www.cdc.gov/​nchs/​data/​nhis/​earlyrelease/​wireless201312.pdf. These statistics validate the hearing comments of Ronald Mikell, speaking on behalf of the Federal Contract Guards of America, that many of his members possess only cell phones, and that Mikell's cell phone was his primary point of contact for both business and personal matters.

The advent of cell phones has expanded communications not only by phone but by other electronic media. Some 55% of cell phone owners use their phones to go online— to browse the internet, exchange emails, or download apps. Pew Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/​fact-sheets/​mobile-technology-fact-sheet/​. In addition, the prevalence of cell phones, which are typically carried with adults on their person whether at home, at work or around town, now allows callers' messages to reliably reach their recipients with speeds that would have been shocking in 1966. This speed and reliability has been enhanced through text messaging, which has seen a dramatic rise in usage in only the past few years, becoming the preferred mode of communication for many young people. In marked contrast to CDW's citation of an average person's 701 annual phone conversations in 1968, more recent statistics show young adults sending an average of 1,630 texts per month. See “U.S. Teen Mobile Report Calling Yesterday, Texting Today, Using Apps Tomorrow” (October 14, 2010), http://www.nielsen.com/​us/​en/​insights/​news/​2010/​u-s-teen-mobile-report-calling-yesterday-texting-today-using-apps-tomorrow.html.

Additionally, there is a separate rationale for requiring mobile and home phone numbers in addition to email addresses, namely, to reach persons who rely on phone calls and not emails. According to the Pew Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/​fact-sheets/​mobile-technology-fact-sheet/​, over forty percent of phone users do not possess smartphones and therefore would not receive last minute emails responding to campaign issues. Disclosure of personal phone numbers is thus a practical necessity if this significant portion of eligible voters is going to have access to late breaking developments.

In addition to the increased use of personal telephones, text messaging, and email, smartphones have recently emerged as single devices capable of managing all three modes of communication. Even as of 2011, more than two-thirds of Americans 34 years old or younger, and 48% of individuals 15 years old and above, had a smartphone. U.S. Census Bureau, Computer and Internet Use in the U.S. (May 2013). As of January 2014, 58% of American adults had a smartphone. Pew Research Internet Project, Mobile Technology Fact Sheet (Jan. 2014), http://www.pewinternet.org/​fact-sheets/​mobile-technology-fact-sheet/​. A smartphone's ability to combine telephone, text message, and email access in one hand-held, portable device is perhaps the most tangible example of how the evolution of communications since 1966 has made the personal phone a universal point of contact and, as indicated above, smartphone users comprise more than half of cell phone owners.[148]

In the face of this revolution in communications technology, it is not surprising that, as SEIU notes, door to door solicitation is nearly extinct, and first class mail is at its lowest volume in 25 years with further profound declines predicted over the next decade. In the experience of union attorney Thomas Meiklejohn, some employers may no longer keep updated home address information on their employees because they do not regularly communicate with them via mail, in contrast to employee telephone lists, which are updated of necessity.[149] Indeed, many comments support adding phone numbers to the voter list disclosures, as a “common sense” change, precisely because the disclosures of only home addresses may Start Printed Page 74340be ineffective in allowing a petitioner's message to reach eligible voters.[150] Union attorney Caren Sencer testified that in her experience with seasonal workers covered by the NLRA, employers use cell phones to communicate with their employees and have only a P.O. Box for a physical address—which would be of limited utility to a petitioning union. Similarly, NELP stresses that the expanded voter list disclosures are “especially crucial to low-wage workers, who may not remain at one address for long or may not even have a fixed home.” The Board shares this perspective, and for that reason believes that the addition of phone numbers is necessary to ensure that messages concerning representation are able to reach the lowest paid sectors of our national workforce.[151]

Like the disclosure of email addresses, disclosure of the employees' home and personal cell phone numbers will allow the nonemployer parties to promptly convey their information concerning the question of representation to the eligible voters. Disclosure of this contact information also makes it more likely that the nonemployer parties can both respond to employee questions prior to the election and share those responses with other employees, thus making it more likely that employees can make an informed choice in the election. After all, it obviously takes less time for an employee to receive the nonemployer party's campaign communication when that message is sent via a telephone call or a text or voice mail message than when it is sent via United States mail. In sum, the Board has also concluded that requiring the employer to furnish the other parties with the available home and personal cell phone numbers of eligible voters will facilitate an informed electorate, thus serving the first purpose of the Excelsior rule.

The Board has further concluded that requiring the employer to furnish the available personal email addresses and home and personal cell phone numbers of the eligible voters will also better advance the second rationale articulated by the Board in Excelsior: Facilitating the expeditious resolution of questions of representation. As the Board explained in Excelsior, in many cases at least some of the names on the employer's list of eligible voters are unknown to the other parties. The parties may not know where the listed individuals work or what they do. Thus, for example, the union may be unable “to satisfy itself as to the eligibility of the `unknowns',” forcing it “either to challenge all those who appear at the polls whom it does not know or risk having ineligible employees vote.” Excelsior, 156 NLRB at 1243. As the Board further explained, “The effect of putting the union to this choice . . . is to increase the number of challenges, as well as the likelihood that the challenges will be determinative of the election, thus requiring investigation and resolution by the Regional Director or the Board.” Id. at 1243. Only through further factual investigation—for example, consulting other employees who may work with the listed, unknown employees or contacting the unknown employees themselves—can the union potentially discover the facts needed to assess eligibility and avoid the need for election-day challenges based solely on ignorance. And to avoid unnecessary delay, the union must receive the recipient's response in time to be able to determine whether the employer correctly included those names on the list of eligible voters or whether it should challenge those individuals if they come to vote.

The provision of the additional contact information will help the union (or decertification petitioner) investigate the identity of any unknown employees on the employer's voter list in a more timely manner, thereby helping to decrease the chances that the union (or decertification petitioner) will have to challenge voters based solely on ignorance of their identities.[152] Accordingly, the Board concludes that the provision of the additional contact information will advance the second rationale of Excelsior as well as the first rationale, and the final rule requires the employer to disclose this additional contact information in amended §§ 102.62(d) and 102.67(l). The Board also reiterates that both rationales will be advanced by permitting nonemployer parties to more promptly and effectively contact employees in relation to post-election objections and other proceedings, such as unfair labor practice charges, that may arise from the representation proceedings. For example, as discussed below in connection with § 102.69, in order to help the Board to more expeditiously resolve election objections and thereby help the Board to more expeditiously resolve questions concerning representation, the Board has decided to require parties filing election objections to simultaneously file with their objections a written offer of proof supporting those objections, unless parties can show good cause to file their offers of proof at a later date. The Board has thereby eliminated the default extra 7-day period parties had to file evidence in support of their objections under the Board's prior rules.[153] Because the voter list amendments require the employer to include the available home and personal cell phone numbers along with the available personal email addresses of the unit employees on the voter list that it provides to the nonemployer parties before the election, the Board believes that unions, as well as employers, ordinarily will have sufficient time to contact potential witnesses and prepare their offers within the allotted time.[154]

Nevertheless, the Board is mindful of comments predicting that communications technology is changing so rapidly that even the proposed expansion of the voter list to include personal email addresses and personal Start Printed Page 74341phone numbers may be insufficient to advance Excelsior's interest in the near future. For example, Joseph Torres predicted that email—both work and personal—is headed toward obsolescence and that young people are already turning to social media platforms such as Tumblr, Instagram, and Facebook to communicate electronically. Testimony of Joseph Torres on behalf of Winston & Strawn II. In this vein, SEIU II suggests that the Board rules should require employers to provide to petitioners “all other contact information, such as social media identifiers, used by the employer to communicate with employees[.]” The Board, however, shares the Chamber's skepticism (Chamber II Reply) that few, if any, employers maintain social media contact information about their employees, and declines to explicitly include it as part of the voter list at this time.[155]

Should the Board's experience administering the expanded voter list requirements suggest that additional forms of contact information should be included in future voter lists, then the Board is open to revisiting its conclusion concerning the contours of the list. For that reason, the Board is adopting a modified version of the language suggested by the AFL-CIO II to phrase the required contents of the voter list as a minimum, to allow for future Boards to require more or different forms of contact information in a particular case (should the peculiar circumstances so warrant), or in all future cases. Thus, the new regulatory language will read, in pertinent part, “ * * * a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular (“cell”) telephone numbers) of all eligible voters.” Thus, the Board retains discretion to require through adjudication or rulemaking that the list include additional contact information.

c. Work Location, Shift, and Job Classification Information

The final rule also adopts the proposal that the employer furnish the work locations, shifts, and job classifications of all eligible voters in amended §§ 102.62(d), (providing for the final voter list in election agreement cases), and 102.67(l) (providing for the same list in directed election cases). Provision of the information will assist the nonemployer parties in investigating whether the unknown employees on the employer's list are in fact eligible. The Board agrees with the comments advocating that provision of this information will reduce the need for challenges based solely on ignorance of the identity of voters, and thereby help the Board expeditiously resolve questions of representation.[156] In addition, the Board is sympathetic to the view that in some cases, providing employee scheduling and shift information to a petitioning union would allow for more targeted communications either in person or by phone that would be less disruptive to the employee and his or her family. See Testimony of Caren Sencer on behalf of Weinberg, Roger & Rosenfeld II.

d. Employee Privacy Concerns

Many comments argue, however, that the Board should refrain from requiring that the employer furnish the other parties with the employees' personal email addresses, home and personal cell phone numbers, work locations, shifts and job classifications, because, among other things, disclosure of such information could cause harm to the employees, invade their privacy, or conflict with precedent or other laws. Other comments appear to attack even the nearly 50-year old Supreme Court-sanctioned requirement that the employer disclose the home addresses of eligible voters.

Without minimizing the legitimacy of the concerns underlying these comments, we conclude for the reasons that follow that the public interests in the fair and free choice of bargaining representatives and in the expeditious resolution of questions of representation outweigh the interests employees and employers have in keeping the information private. As the Supreme Court has long recognized, it is quintessentially the Board's function to balance the competing interests of employees, employers, and labor organizations in effectuating the policies of the Act. See, e.g., NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957); NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967); NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975). Indeed, in upholding the Board's Excelsior rule the Supreme Court noted: “It is for the Board and not for this Court to weigh against this interest [in the fair and free choice of bargaining representatives] the asserted interest of employees in avoiding the problems that union solicitation may present.” NLRB v. Wyman-Gordon Co., 394 U.S. at 767.[157]

As explained above, the Board has concluded that access to employees' more modern contact information, including available, personal email addresses, and home and personal cell phone numbers is as fundamental to a fair and free election and the expeditious resolution of questions concerning representation in 2014, as was access to employee names and home addresses in 1966 when that requirement was created in Excelsior, 156 NLRB at 1243, 1246, and later approved by the Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S. at 768. As further noted above, 50 years ago answering machines, voicemail, email, cell phones, texting, and smart phones did not exist or were not widespread. In this day and age, providing such tools of communication to the nonemployer parties once a regional director has directed an election or all parties have agreed to an election will significantly advance the objectives of the original Excelsior policy: Ensuring the fair and free choice of bargaining representatives by maximizing the likelihood that all the voters will be exposed to the nonemployer party arguments concerning representation, and helping to expedite resolution of questions of representation by preventing challenges based solely on ignorance of the identities of the voters.

The objections that disclosure of the additional information could lead to harassment and coercion of Start Printed Page 74342employees [158] are similar to arguments presented to the Excelsior Board. Commenters have failed to persuade us that the Board's response then is any less valid today:

[W]e reject the argument that to provide the union with employee names and addresses subjects employees to the dangers of harassment and coercion in their homes. We cannot assume that a union, seeking to obtain employees' votes in a secret ballot election, will engage in conduct of this nature; if it does, we shall provide an appropriate remedy. We do not, in any event, regard the mere possibility that a union will abuse the opportunity to communicate with employees in their homes as sufficient basis for denying this opportunity altogether.

156 NLRB at 1244 (footnote omitted). With the benefit of almost fifty years of post-Excelsior experience, it is clear that the harm to employees forecast by the decision's opponents did not come to pass. The Board will not make policy based on mere speculation of misconduct and abuse, particularly where, as a matter of the Board's decades of experience, such abuse is unlikely.[159]

Nevertheless, the Board is cognizant that advances in technology since Excelsior have created a heightened risk of unauthorized dissemination of personal information, and comments have stressed the public's increased concern with privacy issues due to incidents of identity theft, government surveillance and hacking of retailers' electronic databases.[160] However, here, as in Excelsior, and other areas of the law, the risk of harm must be balanced against other legitimate considerations that also warrant protection. Cf. Canadian American Oil Co. v. NLRB, 82 F.3d 469, 473-75 (D.C. Cir. 1996) (confidentiality interest of employees claiming union threats yielded to union's interest to confront the evidence offered in support of the objection at the hearing); NLRB v. Herbert Halperin Distributing Corp., 826 F.2d 287, 293 (4th Cir. 1987) (confidentiality interest of employees claiming union threats did not justify objecting party's transmitting the employees' affidavits to the Board without also serving them on the union); Seth Thomas Div., 262 NLRB 715, 715 n.2 (1982) (same).

Therefore, even assuming that the privacy, identity theft, and other risks may be greater than the Board has estimated—and, in particular, that adding personal email addresses and home and personal cell phone numbers to home addresses may, in combination, result in increased risks, especially as technology changes—nevertheless the Board's conclusion remains the same. These risks are worth taking and as a practical matter, must be taken, if communication about organizational issues is going to take place using tools of communication that are prevalent today. Email and cell phones are ever increasing the modes by which people communicate; this continuing expansion in the use of new electronic media demonstrates that the risks associated with these speedy and convenient tools are part of our daily life.

The Board therefore disagrees with the assertion of Constangy, that the mere potential for misuse of the voter list information outweighs any benefit gained by the disclosures. Nonetheless, we emphasize that if the disclosure of the additional contact information does subject employees to harm, the Board “shall provide an appropriate remedy” Excelsior, 156 NLRB at 1244, as discussed further below.

Likewise, the Board is not persuaded that SHRM's raw citation of unfair labor practice charges alleging union coercion evidences a problem with communication resulting from current Excelsior disclosures. The charges cited are not linked to misuse of Excelsior list information but, rather, include the entire range of coercive union conduct, including when that union is already acting as an employees' bargaining representative. The Board is skeptical that a union seeking to persuade employees to select it as a bargaining representative would tend to act coercively toward those employees, and the statistics cited by SHRM—which do not purport to focus on whether the charges were filed in a representational context or had any relationship to the Excelsior list information, much less whether they had merit [161] —do not undermine the Board's view on the issue.

Moreover, the dearth of specific and documented incidents of alleged misuse of employee contact information cited in the comments lends additional support to our conclusion that such misuse has not been a significant problem in the past, and is unlikely to be a problem in the future. Thus, in the two rounds of critical commentary on the voter list proposals, several years apart, the Board was presented with no documentation demonstrating misuse of contact information provided in voter lists by petitioning unions during the nearly 50 years in which the Board's Excelsior policy has been in place.[162] However, despite the absence of any examples of that kind of abuse, the Board recognizes that the potential for such abuse exists. For example, RILA II mentioned—without citation—one case in which a decertification petitioner allegedly received pornography mailed to his home. Yet, even in that case, Doreen Davis (testifying on behalf of RILA) reported that the NLRB appropriately set aside the subsequent election and ordered it to be rerun.[163] See RILA II. And when William Messenger (testifying on behalf of NRTWLDF) discussed another incident where union members allegedly harassed a dissident coworker by mailing magazine subscriptions to the coworker's home address, he admitted that the employee contact information at issue was not made available pursuant to the Board's Excelsior policy. In sum, the Board agrees with comments by the AFL-CIO II,[164] Melinda Hensel Start Printed Page 74343(Testimony on behalf of the International Union of Operating Engineers (IUOE), Local 150 II) and Thomas Meiklejohn (Testimony on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II) who noted the lack of evidence demonstrating voter list misuse.

In a similar vein, the Board, contrary to Con-way's comment, does not believe that disclosure of employee phone numbers will jeopardize truck drivers' safety by potentially interrupting their mandated work breaks. The final rule does not require the employer to disclose the employees' work phone numbers to the nonemployer parties. Nothing in the final rule requires individuals to keep the their home or personal cell phone ringers on “loud,” let alone requires them to take calls. Moreover, cell phones are especially effective in showing the identity of the caller, or at least whether the caller is known or unknown, so that the recipient may exercise an informed choice in answering or not. The Board trusts that after the final rule becomes effective, truckers will be able to exercise discretion in fielding incoming union calls during their breaks should any occur, just as they exercise discretion in fielding other kinds of calls now.[165]

The Board acknowledges, however, the concern raised by many comments that the disclosure of the additional contact information could harm employees by impinging on their privacy.[166] To one way of thinking, such privacy concerns should be more pronounced surrounding an employee's home address—long disclosable under Excelsior—than for the additional contact information (phone numbers and email addresses) disclosable by virtue of the voter list amendments. After all, disclosure of home addresses may lead to face-to-face contact between union and employee organizers and an employee at the employee's home, whereas disclosure of employee phone numbers or email addresses may simply lead to phone calls or email messages, which are more easily ignored.[167] Indeed, to the extent that disclosure of employee email and phone contact information lessens the likelihood that union organizers will seek to engage them in face-to-face dialogues concerning representation,[168] then those disclosures would arguably mitigate the most serious incursions on employee privacy.

On the other hand, the Board recognizes that some labor organizations may elect to contact employees via telephone and email in addition to, rather than instead of, contacting them at home. Further, the Board acknowledges that some employees will consider disclosure of the additional contact information—particularly email addresses and cell phone numbers which may not be readily accessible through public directories—to invade their privacy, even if they are never contacted.[169] Moreover, at least two commenters make the counterintuitive claim that including personal email addresses and phone numbers on voter lists constitutes a bigger invasion of privacy than including home addresses because employees have less control over unwanted email and phone calls than they do over unwanted visitors at their front door.[170] Although the courts “have differed in their characterization of the magnitude of the interest[s] implicated,” U.S. Dept. of Defense v. FLRA (“DOD v. FLRA”), 510 U.S. 487, 501 n.8 (1994), the Supreme Court has held, for example, “that [employees] have [a] nontrivial privacy interest in nondisclosure” of home address information. Id. at 501.[171]

In our view, however, many features of the voter list amendments help to minimize any invasion of employee privacy caused by disclosure of the information. The disclosure of information is limited in a number of key respects. The information itself is limited in scope. It is available only to a limited group of recipients, to use for limited purposes. These limitations persuade us that the substantial public interests—in fair and free elections and in the speedy resolution of questions of representation—served by the voter list amendments outweigh the employees' acknowledged privacy interest in the information that will be disclosed.

First, the information is limited in scope. Plainly, not every piece of personally identifiable information is equally sensitive or entitled to the same weight when balanced against the interests served by disclosure.[172] We do not equate disclosure of employee email addresses and phone numbers, for example, with disclosure of employee medical records. Indeed, in Detroit Edison Co. v. NLRB, 440 U.S. 301, 318-19 & n.15 (1979), the Supreme Court explicitly noted that the “interests at stake” in Wyman-Gordon— where the Court upheld the Board's Excelsior requirement that an employer disclose the names and addresses of employees to a union in the process of an organizing campaign—were “far different” from those at stake when for purposes of arbitrating a grievance an incumbent union seeks highly sensitive information going to an employee's basic competence such as aptitude test scores linked to named employees. While email addresses, phone numbers, work locations, shifts, and job classifications constitute additional pieces of information, they are not fundamentally different in kind from Start Printed Page 74344the disclosures discussed in Wyman-Gordon, and standing alone, may reasonably be viewed as less private.[173]

Furthermore, disclosure of the employees' email addresses, phone numbers, work locations, shifts, and job classifications reveals nothing about the employees' politics, their religion, their associations, or even their position regarding the labor organization in question.[174] Employees will not have their contact information disclosed because they engaged in any particular expressive activity. Rather, their information will be disclosed solely by virtue of their being employed in a unit in which a question of representation has arisen that will be resolved by a secret ballot election conducted by the Board. The voter list disclosures will not reveal employees' personal beliefs that they might prefer to keep to themselves. Instead, the amendments merely require disclosure of information which will enable the nonemployer parties to contact the employees outside of the workplace to provide information about the voting issues, determine whether the employer properly included such employees on the voter list, and investigate post-election objections and prepare for Board proceedings arising out of the election and related matters.

Second, the voter list information will be provided to a limited set of recipients. It will not be made available to the public at large. Nor will it even be made available to the nonemployer parties in every representation case. Thus, the Board has not, does not, and will not allow “indiscriminate” disclosure of employee information to petitioning unions, as charged by NRF. The Board's showing of interest requirement specifically safeguards against such “indiscriminate” disclosures. See Local 3, IBEW v. NLRB, 845 F.2d 1177, 1181 (2d Cir. 1988) (noting that showing of interest requirement was part of Excelsior's balancing of public and private interests); see also Big Y Foods, Inc., 238 NLRB 855, 855 n.4 (1978) (showing of interest requirement safeguards against the indiscriminate institution of representation proceedings). Moreover, the employer is not required to furnish the list to a petitioning union or a decertification petitioner until after the employer admits that a question of representation exists by entering into an election agreement or the regional director finds that a question of representation exists after a pre-election hearing. Indeed, as discussed below in connection with § 102.63, the Board has rejected SEIU's suggestion that employee contact information be provided to the nonemployer parties before an election is directed, as part of the employer's pre-hearing statement of position. In addition, the Agency will continue its current practice of determining voter lists to be categorically exempt from disclosure to non-party FOIA requesters. See Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991).[175]

Third, even when the voter list information is disclosed to the nonemployer parties in a particular case, such parties will not be able to use it for whatever purpose they desire. Rather, they will only be allowed to use employee contact information for limited purposes. As discussed below, the final rule provides that “parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.” Thus, employees need not fear that their contact information, once disclosed, will be shared with or sold to entities having nothing to do with the representation proceeding. And should such misuse of the list occur, the Board will provide an appropriate remedy, as discussed further below.

Finally, any infringement into employees' personal sphere enabled by the disclosure requirement in the final rule will likely be of relatively limited duration. As discussed below in connection with § 102.67, the final rule also eliminates the mandatory 25-day waiting period between issuance of a decision and direction of election and the holding of the election. Accordingly, the time period between the employer's production of the voter list and the election may be shorter than that which existed prior to the amendments in at least some directed election cases. And parties are likely to agree to a shorter time period between the employer's production of the voter list and the election in at least some stipulated election cases, because bargaining about election details in the election agreement context is influenced by the parties' estimation of how soon the regional director could conduct an election if the parties were to go to a hearing. Thus, while some employees may certainly prefer not to receive calls or emails from the nonemployer parties, we note that such communications may not continue beyond the period of the representation proceeding at issue and Board proceedings arising from that election and related matters.[176]

Accordingly, as previously discussed, just as the Board's longstanding Excelsior rule reflects a reasonable balance of the conflicting legitimate interests in the context of that era, so the Board's update of its policies similarly reflects a reasonable balance of risk and benefit that is well adapted to contemporary modes of communication. Moreover, the rule reasonably advances the public interest in the timely resolution of questions of representation by enabling the parties on the ballot to avoid having to challenge voters at the polls based solely on lack of knowledge as to the voter's identity. These important interests are sufficient to counterbalance the interests of those who would prefer to be left entirely alone and not be exposed to the issues raised by an organizing campaign.

Some comments, such as those filed by SHRM, ACE and the NRF, argue that FOIA case law demonstrates that employees have such a substantial privacy interest in their home addresses and email addresses that the Board should abandon the voter list proposals. For example, NRF argues that the Supreme Court recognized in DOD v. FLRA, 510 U.S. at 501, that “even though the disclosure of personal email addresses may facilitate union communications, employees nevertheless enjoy a right not to be bothered in their personal environment with work-related matters.”

After careful consideration of the comments, we conclude that DOD v. FLRA does not undermine the Board's position that it is appropriate to require employers to furnish the voter list information directly to the nonemployer parties. Put simply, the propriety of the Start Printed Page 74345Board's requiring employers under its jurisdiction to disclose employee contact information directly to a union after an election has been agreed to or directed under the NLRA—in order to advance the public interests in free and fair elections and the expeditious resolution of questions of representation—was not before the Court in that case. Rather, the issue before the Court there was whether Federal agency employers subject to the Federal Service Labor-Management Relations Statute could lawfully refuse to furnish the home addresses of their employees to the unions which already represented them, because the Privacy Act would otherwise bar the employers, as governmental entities, from disclosing their employees' home addresses. See id. at 490-94.

DOD v. FLRA involved a “convoluted path of statutory cross-references.” Id. at 495. As the Court noted, the Privacy Act provides that “No agency shall disclose any record which is contained in a system of records * * * to any person * * * unless disclosure of the record would be * * * required under section 552 of [FOIA].” Id. at 493-94. The employee addresses that the incumbent unions sought the Federal agencies to disclose were “records” covered by the Privacy Act, and therefore the agencies were forbidden from disclosing them by the Privacy Act unless FOIA required release of the addresses. Id.

As the Court observed, “while `disclosure [of government documents], not secrecy, is the dominant objective of [FOIA],' there are a number of exemptions from the statute's broad reach.” Id. at 494 (citation omitted). The Court then considered Exemption 6, which provides that FOIA's disclosure requirements do not apply to personnel files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Id. at 494-95 (citing 5 U.S.C. 552(b)(6)).

In determining whether disclosure of the home addresses to the incumbent unions would constitute a clearly unwarranted invasion of the personal privacy of the unit employees within the meaning of FOIA, the Court explained that a court must balance the public interest in disclosure against the interest Congress intended the exemption to protect. Id. at 495. However, as the Court explained, there is only one “relevant `public interest in disclosure' to be weighed in this balance”: Namely whether the information to be disclosed would contribute significantly to letting the public know what the government is up to. Id. at 495, 497 (citation omitted). By definition, that purpose is not served by disclosure of information about private citizens that is in governmental files but that reveals little or nothing about an agency's own conduct. Id. at 496-97.

The Court found that disclosure of employee home addresses “would reveal little or nothing about the employing agencies or their activities,” even though it would be useful for the union to have the information for bargaining purposes. Id. at 497. In short, because disclosure of the employees' home addresses would not serve “the only relevant [FOIA-related] public interest in disclosure” in that case, the “nontrivial” privacy interest employees have in their home addresses sufficed to outweigh the “negligible FOIA-related public interest in disclosure.” Id. at 495, 501-02. Accordingly, the Court concluded FOIA did not require the agencies to divulge the addresses, and the Privacy Act therefore prohibited their release to the unions. Id. at 502.

However, the final rule's requirement that a private sector employer disclose voter list information directly to the nonemployer parties to a representation case does not run afoul of the Privacy Act, and the relevant public interests favoring disclosure of the voter list information are entirely different from the only “relevant” public interest favoring disclosure in DOD v. FLRA. As the Court explicitly recognized in DOD v. FLRA, “unlike private sector employees, Federal employees enjoy the protection of the Privacy Act” with respect to their employer's disclosure of information about them.[177] Id. at 503. Put simply, private sector employers' disclosure of the voter list information to the nonemployer parties does not implicate the Privacy Act because the Privacy Act does not apply to such employers. See also DOJ Overview of the Privacy Act of 1974 at 5 (2012) (DOJ Overview), http://www.justice.gov/​sites/​default/​files/​opcl/​docs/​1974privacyact-2012.pdf (“The Privacy Act * * * applies only to a Federal `agency'.”) Accordingly, unlike in DOD v. FLRA, the Privacy Act would not otherwise bar private sector employers from disclosing the voter list information to the nonemployer parties to representation cases unless disclosure were required by FOIA.

As also shown, the voter list amendments are designed to advance the public interests in free and fair elections as well as the prompt resolution of questions of representation—interests entirely different from the single relevant public interest FOIA is designed to advance. And the public interests in free and fair elections and in the prompt resolution of questions of representation are indeed advanced by requiring employers to disclose the voter list information to the nonemployer parties to representation cases once elections have been agreed to or have been directed. Thus, the public interests in favor of disclosure of the voter list information are not “negligible, at best” as was the case in DOD v. FLRA, 510 U.S. at 497.

In short, we conclude that nothing in DOD v. FLRA calls into question the propriety of the voter list amendments requiring employers to furnish information about its employees to the nonemployer parties after an election has been agreed to by the parties or directed by the regional director. To the contrary, the Court recognized there that private sector unions covered by the NLRA occupy a different position from their Federal sector counterparts. Id at 503. See also id. at 506 (Ginsburg J. concurring) (noting that private sector unions covered by the NLRA “routinely receive” employees' home addresses and citing NLRB v. Wyman-Gordon for the proposition that the Board may require an employer “to disclose [employees'] names and addresses before election[s].”)

Similarly, Electronic Frontier Foundation v. Office of the Director of National Intelligence, 639 F.3d 876 (9th Cir. 2010), cited by SHRM among others, is, in relevant part, simply a routine FOIA Exemption 6 case, in which disclosure is not required if the information sought does not advance FOIA's interest in government transparency—the sole interest relevant to the court's analysis. That case involved FOIA requests for information relating to governmental discussions with telecommunication carriers about proposals to immunize the carriers for their role in government surveillance activities. Id. at 880-81, 885-89. To be sure, the court held that the email addresses of the carriers' lobbyists were exempt from disclosure under Exemption 6, but this was because disclosure of the lobbyists' email addresses—as opposed to the lobbyists' names—would reveal little or nothing about the government's conduct. Id. at Start Printed Page 74346888-89. As the court explained, disclosure of the email addresses—as opposed to the names—would not shed light on who the government was meeting with in deciding whether to immunize telecommunication carriers for their role in the government surveillance activities. Id. at 888. Accordingly, it was only because the sole relevant public interest in favor of disclosure under FOIA would not be advanced by disclosure that the lobbyists' privacy interest in their email addresses prevailed. Id. at 888-89.[178] As noted above, the balancing of privacy and public interests in this context is quite different from that under FOIA.

Nonetheless, given the comments claiming that the Board's proposals violate the Privacy Act,[179] the Board has carefully considered whether and how the Privacy Act could be implicated by the voter list amendments. The Board notes that the voter list amendments require the employer to furnish a copy of the voter list to the regional director. See amended §§ 102.62(d) and 102.67(l). But, as discussed in connection with § 102.67 below, the final rule does not anticipate—contrary to the original NPRM proposal—that the regional director will attempt to serve employees directly with the notice of election. Thus, the agency's use of the list will simply be the traditional one of allowing the Board agent conducting the election to verify individuals' identification as they arrive to vote at the polls. Morever, if the list is retrieved electronically, it will be by the employer's name or case number, and not individual voters' names.

The Privacy Act generally only applies to “records” that are maintained by an agency within a “system of records.” See, e.g., Baker v. Dep't of Navy, 814 F.2d 1381, 1383 (9th Cir. 1987). A piece of information is only a “record” if it contains information about an individual. And it is generally only considered to be maintained in a “system of records” if two conditions are met: (1) the record is maintained in a format that makes it possible for agency employees to locate it by searching according to a name or other personal identifier, and (2) agency employees actually do retrieve records in this manner. DOJ Overview of the Privacy Act of 1974 at 28 (2012) (DOJ Overview), http://www.justice.gov/​sites/​default/​files/​opcl/​docs/​1974privacyact-2012.pdf. “The highly technical `system of records' definition is perhaps the single most important Privacy Act concept, because * * * it makes coverage under the [Privacy] Act dependent upon the method of retrieval of a record rather than its substantive content.” DOJ Overview at 30. The OMB has provided the following illustration of this concept:

For example, an agency record-keeping system on firms it regulates may contain “records” (i.e., personal information) about officers of the firm incident to evaluating the firm's performance. Even though these are clearly “records” [“]under the control of” an agency, they would not be considered part of a system as defined by the Act unless the agency accessed them by reference to a personal identifier (name, etc.). That is, if these hypothetical “records” are never retrieved except by reference to company identifier or some other nonpersonal indexing scheme (e.g., type of firm) they are not a part of a system of records.

OMB Privacy Act Guidelines, 40 FR 28948, 28952 (July 9, 1975).[180]

In short, records are only within a Privacy Act “system of records” if “an agency has an actual practice of retrieving information by an individual's name” or other personal identifier. Henke v. Dep't of Commerce, 83 F.3d 1453, 1459 (D.C. Cir. 1996). “[R]etrieval capability is not sufficient to create a system of records.” Id. at 1460. And a “practice of retrieval by name or other personal identifier must be an agency practice to create a system of records and not a practice by those outside the agency,” McCready v. Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006) (internal quotation marks omitted), such as the nonemployer parties to an election.

Applying these principles to the voter list amendments, the Board concludes that it will not retrieve information from voter lists by use of individuals' names or other personal identifiers (rather, it will only be retrieved electronically via the name of the employer or case number), and therefore, although the voter lists will generally be produced in an electronic format that will theoretically be searchable by employees' names, the voters lists are not part of a “system of records” within the meaning of the Privacy Act. Accordingly, nothing about the voter list amendments can reasonably be viewed as violating the Privacy Act.

Multiple comments urge a variety of means by which the Board should protect employees' privacy interests: (1) Require that employees must affirmatively indicate that they are willing to have their personal contact information shared with the parties on the ballot before it requires the employer to disclose that information; [181] (2) allow employees the opportunity to opt out of such disclosures; [182] (3) mandate that contact information be obtained directly from employees themselves instead of from the employer; [183] or (4) require that the Board host opportunities for electronic contact between petitioners and employees through some type of protected communications portal.[184] We have consistently rejected similar proposals in the past. In Excelsior, the Board was not swayed by the “argu[ment] that if employees wished an organizing union to have their names and addresses they would present the union with that information.” 156 NLRB at 1244. And in British Auto Parts, Inc., we rejected an employer's attempt to comply with Excelsior by informing its employees that the Board had requested their names and addresses and providing them with “an envelope addressed to the Regional Director for * * * employee[s'] use in submitting the information should [they] desire to do so.” 160 NLRB 239, 239 (1966). The Board has recognized that even unsolicited contact by the union remains an important part of the basic Section 9 process. See Excelsior, 156 NLRB at 1244. Indeed, a wide open debate cannot take place unless employees are able to hear all parties' views concerning an organizing campaign—even views to which they may not be predisposed at the campaign's inception. And as explained above, we have concluded that Start Printed Page 74347disclosure of available personal email addresses and telephone numbers is just as critical to the holding of fair and free elections and to the expeditious resolution of questions of representation in 2014 as was disclosure of home addresses in the 1960s. Thus, it would hardly be consistent with the policy underlying Excelsior—ensuring that employees receive sufficient information from the nonemployer party to make an educated decision—to begin allowing employees to opt in or opt out of such disclosures.

Nevertheless, the Board is mindful that the disclosures in the final rule go further than those at issue in the original Excelsior decision, and so we have considered whether a different balance should be struck. After thoroughly considering the issue, however, we have concluded that notwithstanding the additional information to be disclosed under the amendments, the public interests in fair and free elections and in the prompt resolution of questions of representation outweigh employee privacy interests and that creation of an opt-in or opt-out procedure, or an agency-hosted protected communications portal, would harm those public interests and, in some cases, impose significant administrative burdens on the government and the parties.

Just as was the case under the prior rules, the voter list information is not due until soon after the parties have entered into an election agreement in a unit appropriate for collective bargaining, or the regional director has directed that an election be held in an appropriate unit. In either event, congressional policy is clear that representation elections should be conducted with the utmost expedition.[185] Yet, typical opt-in or opt-out requirements would further delay the election's conduct. Such delay would arise, for example, if extra time were allotted between an election's direction and its conduct for communication with the subject employees concerning their ability to opt in or out of disclosing their email addresses or phone numbers because until the parties agree to any election, or the director directs an election, the unit in which the election is to be conducted is not known. Accordingly, not every relevant employee could be contacted regarding opting in or out until after the election agreement was reached or the director directed an election. Employees would then need some additional reasonable period of time to make their choices.[186] Still more time would be required for compiling those preferences and producing a voter list (which respects those preferences) for use by the nonemployer parties to the case. And of course, the nonemployer parties would have to be afforded time to make use of the information with respect to the employees who have opted in. Such a system could well prove to be administratively difficult,[187] and even if operating smoothly could delay the election by many days or weeks.

Moreover, if the regional director were assigned the responsibility to contact the employees to ascertain whether they wished their contact information to be shared with the union, the regional director could not do so unless and until the employer revealed the employees' contact information to the regional director. Yet, presumably at least some of the employees who object to having their contact information disclosed to the nonemployer parties to the case would similarly object to having their contact information disclosed to the government. And requiring the regional director to contact each and every unit employee to ascertain his or her position regarding disclosure of the voter list information would place a significant administrative burden on the government.

We are also concerned that any opt-in or opt-out process would invite new areas of litigation resulting in additional costs to the parties and the Board. Considering that neither the region, nor the petitioner would be in a position to administer the opt-in or opt-out process until after the employer had disclosed employee contact information, it could be argued that it would be more efficient for the employer to administer the opt-in or opt-out process. It would be curious indeed for the Board to create a process which obligated employers to ask their employees—including those employees who have deliberately chosen to keep their pro or anti-union sentiments private—whether they wish to share their contact information with the union, given that employers could be found to have committed unfair labor practices by interrogating such employees about their union sentiments or contacts with the union.[188]

In the likely circumstance in which nonemployer parties, when receiving a voter list indicating that substantial numbers of employees had chosen not to have their email addresses or phone numbers disclosed, raise accusations of improper employer coercion of their employees regarding their choice, investigations would be triggered. Such proceedings would impose costs on the parties and the government, and could cause significant delay in conducting the election. Even in a process in which the employee choices were shielded from employer knowledge,[189] however, we would still foresee frequent accusations of and opportunities for subtle employer pressure to keep contact information from the petitioning Start Printed Page 74348union as a fertile area for representation case disputes, requiring the expenditure of additional regional resources to investigate and for the parties to litigate, all with the result of pushing resolution of representation cases further and further into the future.[190]

Moreover, even if employees were questioned whether they wished to share their contact information with the petitioning union in a noncoercive manner and even if such an opt-in or opt-out procedure did not result in additional litigation, we believe that one could conclude that such a process would require the invasion of employee privacy in the name of protecting employee privacy. Thus, the opt-in or opt-out procedure could not be administered in a blind fashion like a secret ballot election in which no one is forced to vote. Rather, each employee would have to be asked whether he or she wished to share his or her contact information with the nonemployer parties, and the questioning would necessarily result in a list indicating which employees had authorized their additional contact information to be shared with the nonemployer parties. In our view, at least some employees would believe that their answering the question would reveal their sentiments about whether they wished to be represented for purposes of collective bargaining by the union. Accordingly, employees could conclude that the process would expose their private beliefs to both the party asking the question and to the nonemployer parties who ultimately receive the voter list.[191]

The Board has also considered whether the rules might mandate that unions provide an opt-out feature, such as an “unsubscribe” option in bulk emails. But this union-administered approach would do nothing to allay privacy concerns having to do with the disclosure of contact information in the first place. It would also be of limited utility, given the short period during which contacts are most likely to occur and given that it would be necessary to allow a certain amount of time for the nonemployer party to update its records. Furthermore, as discussed below, if they are applicable, the CAN-SPAM Act and Do-Not-Call Rule may already impose similar requirements in any event. Indeed, some union comments stressed that it was already their organizers' practice to cease contacting employees when so requested,[192] and that unsubscribe features are included in bulk email messages and texts as a matter of course.[193] For all these reasons, the Board's attempting to craft a universally applicable opt-out requirement unique to Board elections would have highly uncertain benefits at a cost of generating new election disputes and possible conflicts with other Federal regulation of the same subject matter. On balance, the existing self help remedy available to anyone who objects to unwanted communications—ignoring calls or letters and deleting emails—seems for the time being to be a more cost-effective option. Of course, should unwanted contacts rise to the level of harassment or coercion, the Board has the remedial authority to craft appropriate remedies, as discussed below in connection with the proposed restriction on use of the voter list.

Agency-hosted communications portals—raised in the NPRM (see 79 FR 7328)—were endorsed by a few comments as an alternative that could possibly avoid some of the problems inherent in the opt-in or opt-out processes discussed above.[194] Yet, we harbor serious doubts about whether such a portal would be feasible for the agency to construct or administer, and the comments did nothing to ease our concerns. To the contrary, the comments analyzing the concept in more depth raised several issues that lead us to believe that the concept is seriously flawed. For example, comments observed that communication between a petitioner and employees becomes less likely, the more steps (or “clicks” in internet parlance) that an individual must take to enable the communication.[195] The Board found the testimony of Jess Kutch particularly persuasive on this point, especially as she explained how the potential problems associated with individuals needing to take multiple steps to access or log-in to the agency portal would be exacerbated if those individuals—as can reasonably be expected—would be attempting to access the portal through the comparatively small screens on their cell phones. See Testimony of Jess Kutch on behalf of Coworker.org II. Moreover, Ms. Kutch (relying on her background in online organizing and bulk email delivery) persuaded the Board that designing a system whose success depended on the agency's navigation of spam filters to ensure high rates of email deliverability to the individuals at issue would likely be beyond the agency's technological capacity (or our forseeable budgetary restrictions). Id. In addition, the Board finds troubling the suggestions that an agency-sponsored communications portal could destroy legal privileges that might otherwise attach to communications between union attorneys and organizing employees (AFL-CIO II), and that the alternative of providing petitioners with masked emails to use in communicating directly with employees could have the unintended consequence of preventing unions from allowing employees to unsubscribe from bulk messages (SEIU II). In sum, we doubt that we have the resources to effectively implement a protected communications portal, and even if we did, the potential for unintended consequences associated Start Printed Page 74349with that proposal counsel against its pursuit.

Perhaps the most fundamental flaws with the agency-sponsored communications portal, however, are ones that are shared by any paradigm in which the agency would allow employees to opt-in, opt-out, or to pick one mode of communication to be utilized by employees with a nonemployer party. Namely, each of these options would carry the potential to leave nonemployer parties in a worse position to effectively communicate with employees than they are under the current Excelsior regime. Instituting an opt-in, opt-out, or a portal system that would apply only to communications between employees and nonemployer parties, would deny employees information from the nonemployer party, a problem the Excelsior doctrine seeks to mitigate. Moreover, we are concerned that agency communication with employees concerning each of these alternatives carries an inappropriate implication that those employees have something to fear from nonemployer parties possessing their contact information—contact information that is, at least in some instances, already in the possession of their employers or an incumbent union representative.[196] Each of these alternatives also inappropriately implies that the nonemployer party's message is not important—i.e. that paying attention to it is optional to becoming fully informed about the election. This would amount to the Board putting a virtual thumb on the scales in influencing employees' exercise of their rights to decide for themselves whether to seek (or maintain) union representation, and would run directly counter to a core animating purpose of the Excelsior doctrine. The Board notes that some comments take the opposite view: that by sponsoring avenues of communication between employees and a petitioning union—via protected portals or opt-out processes—the Board would improperly suggest that it was not neutral, but pro-unionization. This possible interpretation is yet another reason not to pursue these alternative proposals.[197]

In sum, even if we were to judge that a fair election required only that employees be given the option of enabling or disabling email or phone communication channels with the nonemployer parties, we are skeptical that such a system could be put in place without significant negative ramifications for the representation case process. In a rulemaking designed to eliminate unnecessary barriers to the fair and expeditious resolution of questions concerning representation, we are loath to create new barriers in place of the old.[198] Instead, we have concluded that employees' legitimate interest in the confidentiality of their personal email addresses and phone numbers is outweighed by the substantial public interest in disclosure where, as here, disclosure is a key factor in insuring a fair and free election and an expeditious resolution of the question of representation.

In reaching this conclusion, we wish to emphasize that we are mindful of the privacy interests employees have in the information in question. But we reiterate that the Board must balance that privacy interest against the interests served by disclosure. As explained above, the comments do not persuade us that the balance struck in Excelsior and approved by the Supreme Court in Wyman-Gordon should be struck differently because of the additional information to be disclosed under the voter list amendments.

AHA II, ACE and others complain that the rule may conflict with employer confidentiality policies and that the Board should therefore reject the voter list proposals. But the potential for such conflicts already exists under the current Excelsior requirement, and the comments do not cite a single case in which an employer's confidentiality policy has been permitted to stand in the way of Excelsior disclosures. Indeed, one of the courts called on to review the original Excelsior requirement flatly rejected an employer's claim that it did not have to make the disclosures because it had promised its employees that any contact information would be kept confidential. See NLRB v. British Auto Parts, Inc., 266 F. Supp. 368, 373-74 (C.D. Cal. 1967), aff'd, 405 F.2d 1182 (9th Cir. 1967). In a similar context, where employers have refused to disclose requested information to an incumbent collective-bargaining representative, the Board and the courts have repeatedly held that simply invoking a confidentiality policy will not allow an employer to avoid disclosure.[199]

We recognize that some employers strive to preserve the confidentiality of private employee information.[200] But we also note that pledges of confidentiality may provide for exceptions such as when, as here, disclosure would be legally required. See, e.g., Howard University, 290 NLRB 1006, 1007 (1988). Employers will be able to point to the Board's published rules should such disclosure be questioned by an employee. Ultimately, we conclude that the substantial public interests in fair and free elections and in the expeditious resolution of questions of representation outweigh whatever legitimate interest an employer may have in keeping confidential his employees' personal email addresses, home and personal cell phone numbers, work locations, shifts and job classifications. See Excelsior, 156 NLRB at 1243 (similarly concluding that an employer's interest in keeping Start Printed Page 74350employees' names and addresses confidential was outweighed by the public interest in disclosure).

Some comments attacking the proposals also indicate persistent privacy concerns about the original Excelsior policy. For example, GAM asserts that employers already experience significantly distressed employees because their home addresses are currently being disclosed to petitioners without their consent under Excelsior. Although some comments predict that disclosure of phone numbers and email addresses will exacerbate this perceived problem,[201] as noted above, the Board takes the opposite view. Indeed, the Board agrees with the views expressed in many comments that contact via phone and email is less invasive than face to face visits with employees at their homes. The Board anticipates that unions, as predicted by Melinda Hensel,[202] in an effort to conserve finite organizing resources, will in some cases make use of phone and email contact information in lieu of visiting employees at home.[203] It follows that to the extent that invasion of privacy concerns persist about the original Excelsior policy of home address disclosure, those concerns could be ameliorated by the final rule's provision for the disclosure of personal email addresses and home and personal cell phone numbers.

To the extent that comments focus on the annoyance of unwanted calls or emails,[204] the Board sympathizes with employees who simply wish to reduce the volume of such communications they receive. Even so, however, the Board is not persuaded that the potential for such irritations—which may be dealt with by simply refusing the call, hanging up, scrolling over, or hitting the delete key—should trump the public interest in the fair and free choice of bargaining representatives and in the expeditious resolution of questions of representation. Indeed, the Board agrees with the Fourth Circuit's statement regarding the original Excelsior requirement, that “the mere possibility that employees will be inconvenienced by telephone calls or visits to their homes is far outweighed by the public interest in an informed electorate.” NLRB v. J. P. Stevens & Co., 409 F.2d at 1209 (emphasis added). We believe that the advent of caller identification services on many home phones and virtually all cell phones will allow employees to avoid unwanted calls with relative ease, and the typical display of an email's sender and subject should similarly allow employees to disregard organizing messages should they so choose. As explained by Jess Kutch at the Board's April 11, 2014, public hearing, the policies and professional interests of mass emailers utilized by most organizing unions will ensure that employees have an option to unsubscribe from most mass campaign email lists should they so choose, and employees will also enjoy the option of blocking emails from individual senders with whom they no longer desire to communicate. See Testimony of Kutch II. Moreover, we note that as AFL-CIO Organizing Director Elizabeth Bunn explained in her public hearing testimony, organizing unions typically “find that workers actually prefer to talk to union supporters and their union representatives off work because it's in an environment where the fear at least is taken out of the communication. So we've not experienced that anger and irateness that was discussed yesterday [by employer representatives].” In short, the Board does not view the potential for annoyance as a sufficient counterweight against an informed electorate and the expeditious resolution of questions of representation to justify keeping the voter list information disclosures as minimal and outdated as they are today.

Additionally, as SEIU (reply) points out, labor law already tolerates encroachment on an employee's time during representation campaigns as employers face no legal impediment to using contact information in their possession (which is to be disclosed on the voter list). Employers may place calls and text messages to the employees' home and personal cell phones and send email messages to their employees' personal email addresses. In short, whether or not employees' phone numbers and email addresses are disclosed to petitioners, there is no guarantee that employees will not receive campaign-related messages on their personal phones and personal email accounts, because their employer may have this information and use it to send campaign information.

Implicitly, however, privacy claims in the comments assume that employees should be able to prevent campaign messages from reaching their personal email and phone. If this perspective were accepted in toto, it would suggest that the Board should also be restricting employer use of personal contact information, in addition to excluding it from the voter list given to nonemployers. Yet, we are not persuaded that the current rulemaking should be used to restrict such currently-lawful campaign speech by employers under the cause of employee privacy.[205] In this regard, the Board also rejects the suggestion by the Chamber II that home visits should be either eliminated or restricted to one visit. As discussed above, no patterns of abuse have emerged since Excelsior to support such a restriction on nonemployers' ability to use home visits to communicate about representation issues if they so choose. Moreover, employees can reject attempts at home visits by, for example, not answering the door, closing the door, asking visitors to leave, and through enforcement of state and local trespass laws.

The Board also disagrees with the view expressed by Pinnacle Health System of Harrisburg, Pennsylvania (Pinnacle) that the voter list disclosures are “particularly problematic considering that the list may contain the information of individuals who are managers and supervisors and whose status will not be determined until after the election by way of post-election challenge.” [206] As more thoroughly explained in connection with § 102.66 below, this alleged problem existed prior to the NPRM. Thus, prior to the NPRM, supervisory and managerial status determinations could be deferred until after the election. In those cases, regional directors instructed employers to include the disputed individuals on the Excelsior list with the understanding that they would vote subject to challenge. And, in any event, the Board does not presume that an alleged supervisor's or manager's contact information being inadvertently Start Printed Page 74351disclosed will lead to any greater dangers than the disclosure of contact information for other coworkers.

The Board also does not share the fears expressed by some commenters that disclosure of cell phone numbers will lead employees to suffer significant unwelcome costs from phone calls and texts that exceed their data plans.[207] As an initial matter, the Board does not believe that a union is likely to act counter to its own organizing self-interests by placing so many calls or sending so many texts as to financially harm those potential voters who lack unlimited calling and text plans. Given that their use will be restricted to the representation proceeding at issue, Board proceedings arising from it, and related matters, the risk that unions' receipt of cell phone numbers will cause financial harm to employees is further lessened. In addition, the Federal Communications Commission has addressed the cell phone “bill shock” issue alluded to by CDW, and in 2011 touted its far-reaching agreement with the wireless industry to address the problem. See “CTIA, Consumers Union and the FCC to Announce New Industry Guidelines” (Oct. 17, 2011), http://www.fcc.gov/​events/​ctia-consumers-union-and-fcc-announce-new-industry-guidelines. By 2013, the FCC announced that approximately 97 percent of wireless customers across the nation were protected from bill shock as participating U.S. wireless companies met a deadline to provide free, automatic alerts to customers who approach or exceed their wireless plan limits. See “FCC Marks Milestone in Effort to Eliminate `Bill Shock'.” (April 18, 2013), http://www.fcc.gov/​tools/​headlines-archive/​2013. The Board trusts that any lingering bill shock concerns—relevant to a great percentage of Americans beyond those who may participate in an NLRB election—will continue to be addressed by the FCC, and need not cause the Board to abandon disclosure of cell phone numbers. Of course, should bill shock nonetheless prove to be a serious problem in the representation case context, the Board has clear authority to create appropriate remedies through adjudication.

e. Purported Conflict With Precedent and Other Laws

The National Ready Mix Concrete Association (NRMCA) and others assert that disclosure of personal email would be inconsistent with the Board's stated concerns about email in Trustees of Columbia University, 350 NLRB 574, 576 (2007).[208] We disagree. The Board in that case posed a number of questions “regarding the potential ramifications * * * of requiring employers to furnish * * * employees' workplace email addresses.” Id. at 576 (emphasis added). We noted, for instance, that union mailings to work email addresses could impose costs on employers and raise unlawful surveillance concerns. Id. As explained above, however, the final rule does not require the employer to disclose the work email addresses to the nonemployer parties, and therefore it is unnecessary for us to answer questions concerning work email in this rule. And, as we expressed in the NPRM, the Board's limited holding in Trustees of Columbia University was only that, “given the Employer's undisputed compliance with its Excelsior obligations as they stood as of the date of the Union's request, we are unwilling, on the facts of this case, to characterize that compliance as objectionable conduct.” Id. In short, we see nothing in that case that precludes us from requiring the provision of personal email addresses as part of the voter list, to the extent that an employer keeps records of employees' personal email addresses.

Several comments also raise the specter of conflicts with circuit court precedent and state privacy law if the Board were to require disclosure of employee contact information. The Board is not persuaded by these comments. Regarding circuit court precedent, ACE for example cites JHP & Associates, LLC v. NLRB, 360 F.3d 904, 911-912 (8th Cir. 2004), and NRMCA II cites Chicago Tribune Co. v. NLRB, 79 F.3d 604, 608 (7th Cir. 1996) as possibly at odds with the rule. But those cases are inapposite. The courts found that harassment was a concern in each of those cases because the respective unions sought the home addresses of the individuals hired to replace the employees who had struck in support of the very union seeking the information. See JHP& Associates, 360 F.3d at 908, 911-12, and Chicago Tribune, 79 F.3d at 606-08.[209] The disclosures mandated by the final rule therefore do not implicate the concerns articulated by the circuit courts in these cases.[210]

Regarding state privacy law, NRMCA for example, cites a case discussing the New Jersey state constitution while Sheppard Mullin II points to several cases explaining the California state constitution. The case NRMCA cites, however, is concerned with privacy expectations under the unreasonable search and seizure provision of the New Jersey state constitution, State v. Reid, 945 A.2d 26, 31-32 (N.J. 2008), an entirely different privacy interest than any implicated by the final rule. Similarly, the cases involving the California constitution are not in obvious conflict with the final rule, as they involve different types of disclosures and acknowledge that the right to privacy in personal information under the California constitution is not absolute.[211] Indeed, a prior Board, with judicial approval, rejected as “frivolous” an employer's contention that it would violate an employee's California constitutional right to privacy by furnishing an employee's address to a labor organization which represents the employee. See A-Plus Roofing, Inc., 295 NLRB 967, 974 (1989), enf'd. mem., 39 F.3d 1410 (9th Cir. July 12, 1990). Moreover, Sheppard Mullin fails to cite the most recent and on point case of County of Los Angeles v. Los Angeles County Employee Relations Start Printed Page 74352Commission, in which the California Supreme Court clarified that an incumbent public sector union's significant interest in communicating with non-members outweighed employees' privacy interests in their home contact information under California's state constitution. 56 Cal.4th 905, 911-12 (2013). More generally, the Board observes that state privacy and confidentiality laws may have exceptions allowing for disclosures where authorized by statute or regulation, in which case there would be no conflict between such laws and the voter list disclosures.[212] See, e.g., Valley Programs, Inc., 300 NLRB 423, 423 fn. 2 (1990); Kaleida Health, Inc., 356 NLRB No. 171, slip op. at 6-7 (2011). Finally, to the extent that the disclosures conflict with any state privacy laws, the state laws may be preempted. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); Mann Theatres Corp. of California, 234 NLRB 842, 842-843 (1978) (noting, in context of employer refusal to provide union with employee wage information, that if state public policy in fact required nondisclosure of employee wage information, it would be preempted under Garmon).

Some comments also claim that the Controlling The Assault of Non-Solicited Pornography and Marketing Act of 2003 (“the CAN-SPAM Act”) evidences a Federal privacy concern regarding email addresses and that the Board's voter list proposals run afoul of that Federal statute.[213] Among other things, the CAN-SPAM Act makes it unlawful for any person to transmit a commercial electronic mail message that “contains, or is accompanied by, header information that is materially false or materially misleading” (15 U.S.C. 7704(a)(1)) and for a person to transmit a commercial electronic mail message that does not contain an opt-out procedure. 15 U.S.C. 7704(a)(3)(A).[214] The statute further provides that if a recipient requests that the sender not send it any more commercial electronic mail messages, then it is unlawful for the sender to send it another commercial electronic mail message more than 10 business days after receipt of such a request. 15 U.S.C. 7704(a)(4)(A)(i). Con-way, Inc. argues that email messages transmitted by a union would be subject to, and potentially in violation of, the CAN-SPAM Act because the “primary purpose” of union messages would be “the commercial advertisement or promotion of a commercial product or service.” 15 U.S.C. 7702(2)(A). Katy Dunn (Testimony on behalf of SEIU II) disputes that unions are bound by the commercial provisions in CAN-SPAM but nevertheless explains, along with SEIU II, that many unions voluntarily comply.

We need not offer an opinion as to whether the CAN-SPAM Act would apply to a nonemployer party's use of email to investigate voter eligibility issues or to solicit a vote in an upcoming Board election. Simply put, if the CAN-SPAM Act does apply to a nonemployer party's use of email in an organizing campaign, nonemployer parties will have to conform their conduct to the statutory requirements, such as providing header information that is neither “materially false [n]or materially misleading,” providing opt out procedures, and honoring opt out requests no more than 10 days after the request is made.

Similarly, PCA and others argue that because union solicitations are subject to the Federal Trade Commission's Do-Not-Call Rule, 16 CFR part 310, a union could not contact individual employees by phone before those employees authorized the union to do so.[215] The regulations were adopted pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108. (See 16 CFR 310.1) in which Congress charged the FTC with prescribing rules prohibiting deceptive and other abusive telemarketing acts or practices. 15 U.S.C. 6102. It further charged the FTC with including in its rules requirements that telemarketers not undertake a pattern of unsolicited telephone calls which a reasonable consumer would consider coercive or abusive of such consumer's privacy and restrictions on the hours when unsolicited telephone calls can be made to consumers. 15 U.S.C. 6102(a)(3)(A), (B).

Again, however, we decline to address the extent to which the FTC's Do-Not-Call regulations may or may not cover nonemployer party solicitations or use of the phones to investigate eligibility issues. Even if these regulations are applicable, the result will be that a nonemployer party will be obligated to comply with Do-Not-Call as it might relate to potential members of the petitioned-for (or existing) bargaining unit. Thus, for example, a nonemployer party would have to refrain from making calls outside certain hours, and making calls to a person when the person previously has stated that he or she does not wish to receive a call from the party or when the person's telephone number is on the do-not-call registry.

In sum, in response to all the comments challenging the propriety of the proposals relating to the disclosure of eligible voters' contact information, the Board emphasizes that nonemployer parties will not have free rein to utilize email addresses and phone numbers in a manner that violates other Federal laws that are found to cover such nonemployer party conduct. Rather, to the extent that any such laws are found applicable to the nonemployer parties' use of the contact information, those parties would be required to conform their conduct to the governing legal standards.[216] In much the same way, a nonemployer party to a representation case who receives home addresses under current Excelsior requirements is not excused from complying with other applicable laws, such as trespass.[217]

Start Printed Page 74353

2. Timing

In the NPRM, the Board proposed to shorten the time for production of the voter list from the current 7 calendar days to 2 work days, absent agreement of the parties and the regional director to the contrary in the election agreement, or extraordinary circumstances specified in the direction of election.[218] Many comments argue that the 2-day time period following a regional director's direction of election, or approval of an election agreement, is too brief for an employer to produce the voter list, particularly if the Board requires the additional information—the personal email addresses, home and personal cell phone numbers, work locations, shifts, and job classifications of the eligible voters—to be disclosed on the list.[219]

However, the Board concludes that advances in recordkeeping and retrieval technology as well as advances in record transmission technology in the years since Excelsior was decided warrant reducing the time period for production, filing, and service of the list from 7 calendar days to 2 business days.[220] Shortening the time period from 7 calendar days to 2 business days will help the Board to expeditiously resolve questions of representation, because the election—which is designed to answer the question—cannot be held until the voter list is provided. In many cases the list will be produced electronically from information that is stored electronically and then will be served electronically in an instant—a far cry from workplace realities when the Board first established a 7-day time frame for producing the list, when employers maintained their employees' records in paper form, and virtually no employer had access to personal computers, spreadsheets or email. Indeed, the AFL-CIO points out that even in 1966, under the 7 calendar day requirement, many employers were actually producing the list in only 2 work days. The AFL-CIO's comment posits that of the original 7 days, 2 days were lost to the weekend and 3 more days were dedicated to service of the list by regular mail because there was no existing option for priority, express or overnight mail, let alone for instantaneous electronic service via email. The Board views it as significant that while the Chamber specifically replies to the AFL-CIO's Excelsior analysis, it does so only to contend that many employers did, and do, work on the list over the weekend. The Chamber's reply does not dispute that even under the technological constraints of the 1960s, employers could and did produce voter lists, at least for deposit into the mails, in 4 calendar days or fewer. Thus, the advent of electronic filing and service via email alone warrants a substantial reduction in the time provided, and in the Board's view, technological advances fully justify the move to 2 business days for production of the final voter list.

Indeed, even some of the comments opposed to the new time frame tacitly admit that, while challenging, it is nonetheless possible. For example, the Indiana Chamber of Commerce (Indiana Chamber) concedes that “It is not that the manual collection of this information itself would take extreme amounts of time, but it becomes a hardship when imposed concurrently with all of the other, new obligations under the compressed schedule.” Similarly, the Bluegrass Institute does not argue that employers cannot compile the list under the new time frame, but contends that “the cumulative effect” of the new obligations “on small businesses could very well be devastating.” [221] Yet, the hearing testimony of retired field examiner Michael Pearson implicitly contradicts such concerns by recalling approximately one dozen cases in which employers were able to file Excelsior lists on the same day as they signed election agreements—thus demonstrating an ability to simultaneously prepare an Excelsior list while resolving all of the issues to be potentially covered in a pre-election hearing. Indeed, as more fully discussed below in reference to § 102.63, the Board does not agree that the obligations imposed on employers in connection with the Statement of Position form vary dramatically from what a reasonably prudent employer would have done in any event to adequately prepare for a pre-election hearing under the prior rules. Likewise, the 8-day time frame for the hearing's opening, which may be extended for up to 2 business days upon request of a party showing special circumstances and even longer upon a showing of extraordinary circumstances, is in line with the best practices of some regions under the prior rules, and in any event, does not differ dramatically from the overall 10-day median for scheduling pre-election hearings, and the 13-day median for opening pre-election hearings under the prior rules.[222]

Additional factors likewise persuade us that the 2-business day time frame is appropriate for production, filing, and service of the list. First, in many cases the employer will have provided a preliminary list of employees in the proposed or alternative units as part of its Statement of Position before the clock ever begins running on the new 2-day deadline for production of the voter list. As discussed below in connection with § 102.63, that initial list will be due no sooner than 7 days after service of the notice of hearing, and so the employer will have the same amount of time to produce the preliminary list as it had under Excelsior. Accordingly, to produce the voter list required by § 102.62 (or § 102.67 in directed election cases), the employer need not start from scratch, but need only update that initial list of employee names, work locations, shifts, and job classifications, by adding employees' contact information and making any necessary alterations to reflect employee turnover or changes to the unit.[223] Second, the description of Start Printed Page 74354representation case procedures which is served with the petition will explicitly advise employers of the voter list requirement—just as the opening letter does currently—so that employers concerned about their ability to produce the list can begin working immediately; before an election agreement is approved or an election is directed and thus before the clock begins running on the 2-business day time period.[224] Third, in the Board's experience, the units for which lists must be produced are typically small— with half of all units containing 28 or fewer employees over the past decade—meaning that even for those small employers which lack computerized records of any kind, assembling the information should not be a particularly time-consuming task, contrary to the comments that suggest otherwise.[225] Finally, the final rule will enable parties to enter into agreements providing more time for employers to produce the list subject to the director's approval, and the final rule will further enable the regional director to direct a due date for the voter list beyond two days in extraordinary circumstances.[226] In sum, the Board is not persuaded that the bulk of employers will be unduly burdened by the final rule's voter list time frames.[227]

Many comments suggest categorical exemptions for various industries. For example, AGC argues that the Board should exempt construction industry employers from the requirement that they produce the voter list 2-days after a direction of election or approval of an election agreement. According to AGC, construction industry employers, who may handle personnel matters on a decentralized basis at the individual jobsite level, cannot timely produce the list, because 2 days is simply not enough time to review 2 years' worth of payroll records as required by the Daniel/Steiny construction industry eligibility formula.[228]

The Board does not agree that the Daniel/Steiny formula warrants carving out a categorical exemption for construction industry employers in every case. In the first place, construction industry employers will not be required to review 2-years' worth of payroll records to produce the list in all cases. In some cases, the parties may stipulate that formula not be used. See Steiny, 308 NLRB 1323, 1328 n.16 (1992); Signet Testing Laboratories, Inc., 330 NLRB 1, 1 (1999). Moreover, as AGC acknowledges elsewhere in its comment, some petitions filed in construction industry cases involve situations where the petitioned-for units are already covered by 8(f) collective-bargaining agreements. Such 8(f) collective-bargaining agreements frequently require the signatory employer to make fringe benefit contributions to benefit funds on behalf of the unit employees and to file reports of its employees' hours with those benefit trust funds. Accordingly, at least in those cases, the employer may have ready access to the information necessary to produce lists complying with the formula. In addition, not every construction industry employer will have intermittently employed large numbers of employees over a two-year period. Those employers who have employed stable workforces will not face the same burden. And while employers may maintain records on different jobsites due to the decentralized hiring claimed by AGC II and other construction industry commenters, we anticipate that they will be able to transmit the records to a central location via modern technology or verbally report the information contained in the records.[229]

The Board also finds it highly significant that, as AGC acknowledges, under the Board's current rules, construction industry employers, whether decentralized or not and whether large or small, already only have 7 days to produce the Excelsior list. The Board believes that the same changes that justify the reduction in time to produce the final list in cases outside the construction industry, likewise justify reducing the time in cases involving the construction industry. Thus, given the advances in record-keeping/retrieval technology and in the technology for transmitting documents that have taken place since Daniel was decided in 1961 and since Excelsior issued in 1966, the Board simply does not believe that as a rule it is “impossible” for construction industry employers to comply with the requirement, as suggested by NFIB.

As noted above, employers generally will have more than a week to prepare the voter list, assuming they begin work when they receive the petition and are explicitly advised of the voter list requirement in the description of representation case procedures served with the petition. And, employers will have still more time in those cases where weighty issues are litigated at the pre-election hearing that require resolution by the regional director, because they can continue preparing the list after the hearing closes while they await the decision by the regional director. Finally, it bears repeating that under the final rule, the regional director has discretion to grant an employer more time to produce the list, upon a showing of extraordinary circumstance which may be met by an employer's particularized demonstration that it is unable to produce the list within the required time limit due to specifically articulated Start Printed Page 74355obstacles to its identification of its own employees.

A number of other comments claim that the 2-day requirement is particularly burdensome for other types of employers either because of the nature of their operation, the types of employees they employ, or the size of their workforces. However, these comments fail to offer any persuasive explanations for why their particular circumstances make compliance with the 2-business day deadline unworkable.

For example, the National Mining Association argues it will be difficult for employers in the mining industry to comply with the time frame for producing the final list because they operate on a 24-hour basis. But the fact that shifts of miners rotate through a mine on a 24-hour basis does not render the employer unable to furnish a list in 2 business days. Similarly, ACE argues that colleges and universities will be particularly burdened because they are decentralized, may include multi-site units, and may have difficulty identifying adjunct faculty or graduate students that a petitioner seeks to organize. The mere fact that an employer is decentralized, or that a party may propose a multi-site unit, does not demonstrate that complying with the new rule is unduly burdensome for colleges and universities. Moreover, as noted above, ACE's concerns about graduate student organization are at best premature. [230] And although ACE contends that gathering detailed information on adjunct faculty would be difficult under the new time frames, it does not deny that gathering such information is feasible under the Board's current requirements and offers no explanation for why the new time frames would prove “nearly impossible” to comply with.

Con-way argues that the 2-day period is unworkable in those cases where an employer uses employees provided by a temporary agency, because the employer will be dependent on the temporary agency to supply it with the information. However, it is by no means clear that “temporary employees” provided by a third party will as a matter of course even be included in a bargaining unit. See Oakwood Care Center, 343 NLRB 659 (2004) (employees of staffing agency may not be included in a unit of another employer's employees unless both employers consent).[231] If the temporary employees are not included in the unit, then the fact that an employer uses employees provided by a temporary agency plainly provides no reason to depart from the timeframes in the rule, for the temporary employees will not need to be included on the list. When a third party's employees are included in the unit, the unit may be a multiemployer bargaining unit or the third party may be found to be a joint employer, and the entities may be jointly charged with filing the list or lists. See, for example, K-Mart, A Div. of S.S. Kresge Co., 159 NLRB 256, 262 n.10 (1966). Accordingly, the Board does not believe this circumstance warrants a blanket exemption.[232]

As for employers with large workforces,[233] the fact that a petitioned-for unit is large does not, in and of itself, make compliance with the rule burdensome for the employer.[234] Significantly, the Board's current rules do not grant employers employing large units more time to produce the Excelsior list than employers employing small units. The same advances in technology that reduce the time it takes to transmit the lists from days to seconds apply no less to large employers than to small employers.[235] The same holds true with respect to advances in record keeping technology. Indeed, the comments filed by, and on behalf of, small employers suggest or imply that large employers are more likely than small employers to possess the technology to produce the lists quickly.[236] To the extent that the compilation process takes longer in a larger petitioned-for unit, large employers are more likely to have dedicated human resources professionals on the payroll who can more easily devote the longer period of time to completing the task within the amended time frame.[237] Moreover, large employers, like small employers, can begin preparing the list before the director directs an election. Finally, the Board notes that § 102.67(l) permits a regional director in his direction of election to grant more time to produce the final list in extraordinary circumstances, and employers are free to describe those circumstances to the hearing officer before the close of the hearing when they set forth their positions regarding the election details.

Spartan Motors, Inc. complains that the rule requires employers to produce the information on the voter list within 2 days of receiving a petition. Spartan Motors is mistaken. Thus, an employer need only produce the voter list 2 business days after the director approves an election agreement or directs an election. An employer cannot be compelled to enter into an election agreement 2 days after the petition is filed—or ever. And an election cannot be directed until after a hearing closes, which, of course, will be more than 2 (business) days after the filing of the petition. Indeed, absent agreement otherwise, the hearing will open no sooner than 8 days after service of the notice under the amendments.

Several other comments attack the time frame for producing the voter list on the grounds that it will result in more inaccurate lists and thus more post-election litigation.[238] As already discussed, the Board does not view a 2-business day deadline for production of the list in the modern era as a particularly greater burden than was production of the list in 7 calendar days during the 1960s. Accordingly, the Board is unconvinced that the lists produced under the final rule will tend to be any less accurate than lists produced under Excelsior' s original formulation.[239] And given the expanded Start Printed Page 74356ability of petitioners to contact voters by phone and email with the new voter lists, the Board rejects the related comments predicting that list inaccuracies will result in petitioners having less access to voters under the final rule than under the current Excelsior rules.[240]

3. Format and Service of List

In the NPRM, the Board proposed that the voter list be provided in an electronic format generally approved by the Board's Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form, and that the employer serve the voter list on the other parties electronically at the same time it is filed electronically with the regional office. The Board received multiple comments supporting the electronic format and service proposals.[241] These proposals are included in the final rule with the slight modification that the General Counsel is substituted for the Board's Executive Secretary.[242] See amended §§ 102.62(d), 102.67(l).

The Board has concluded that requiring production of the list in electronic form (unless the employer certifies that it does not have the capacity to produce the list in the required form) would further both purposes of the Excelsior requirement. The Board has further concluded that requiring the employer to electronically serve the voter list directly on the other parties at the same time the employer electronically files the list with the regional office will likewise further both purposes of the Excelsior requirement and eliminate an administrative burden. As set forth in the NPRM, the Board's Excelsior rule requires only that the employer file the list with the regional director. 156 NLRB at 1239. Excelsior further provides that the regional director in turn shall make the list available to all parties. Id. at 1240. This two-step process thus requires the regional office to forward to the other parties the list filed in the regional office by the employer. This two-step process has also caused delay in receipt of the list and unnecessary litigation when the regional office, for a variety of reasons, has not promptly made the list available to all parties. See, e.g., Ridgewood Country Club, 357 NLRB No. 181 (2012); Special Citizens Futures Unlimited, 331 NLRB 160, 160-62 (2000); Alcohol & Drug Dependency Services, 326 NLRB 519, 520 (1998); Red Carpet Bldg. Maintenance Corp., 263 NLRB 1285, 1286 (1982); Sprayking, Inc., 226 NLRB 1044, 1044 (1976). Moreover, some comments also complained about their experiences with delay when employers file the list with the regional office after business hours on a Friday, and the regional office subsequently does not forward the list to the petitioner until the following Monday.[243] The final rule eliminates this unnecessary administrative burden—as well as potential source of delay and resulting litigation—by providing for direct service of the list by the employer on all other parties. See amended §§ 102.62(d), 102.67(l).

Spartan Motors complains that small employers might not maintain their data in electronic form, and therefore they will be burdened by having to produce it in electronic form. The rule, however, exempts employers from having to produce the list in the required electronic format if the employer certifies that it does not have the capacity to produce the list in the required form. Baker & McKenzie questions what evidence an employer must provide to show its inability to produce an electronic list and what criteria the Board will apply in evaluating whether it is feasible for an employer to file and serve the list electronically. The Board does not expect this to be a major topic of litigation, and for that reason, the final rule provides for an employer to certify to the regional director its inability to produce the list in the required form, instead of making a special request that it be allowed to produce an alternative form of the list. The Board trusts that the good faith of employers combined with the reasonableness of the format approved by the General Counsel, will lead to the smooth application of this process.

SEIU II suggests that the Board should require employers to provide their lists in a searchable format to ease the burden on petitioning unions in manipulating the list, and NUHW makes the related suggestion that the Board should require employers to provide the list in the same format to all parties—noting the alleged injustice suffered when NUHW received a voter list in a less useful format than that provided to the Board and to a rival incumbent union. The Chamber II specifically replies to SEIU's suggestion by asserting that providing the list in a searchable format may not be feasible for all employers and so the Board should continue to allow flexibility in the format of the voter list. We think that each of these concerns has merit. Thus, the Board agrees that it would be optimal for parties to provide lists in searchable formats, but acknowledges that may be beyond the technical expertise of certain employers. The Board expects that the General Counsel will establish guidelines that require voter lists in searchable formats where feasible to address the concerns expressed by SEIU and to maintain the necessary flexibility as advocated by the Chamber. The Board further expects that the General Counsel's guidance will require, at minimum, that the voter list be provided in the same format to all parties—including the situation where there are rival incumbent and petitioning unions.

Some comments, including those of SIGMA, suggest that it may take some effort to compile an electronic list using information from multiple databases.[244] SIGMA's point is well taken. The Board does not wish to burden employers with the need to merge electronic files that may be kept in distinct forms or potentially on distinct computer programs. Therefore, it will be presumptively appropriate under the final rule to produce multiple lists when the data are kept in separate files, so long as all of the lists link the information to the same employees using the same names, in the same order and are provided within the allotted time.[245] For example, if an employer keeps information about its employees' work locations, shifts, job classifications, phone numbers and email addresses in a different database Start Printed Page 74357from the database containing its employees' home addresses, then the employer can produce an alphabetized list of employees and their home addresses and a second alphabetized list of employees and their work locations, shifts, job classifications, phone numbers and email addresses so long as both lists are provided within the allotted time.

The Washington Farm Bureau requests that employers be allowed to choose whether to submit the information in electronic or hardcopy form. The Board thinks that the two purposes of Excelsior are better served by requiring the electronic form, rather than leaving the choice of format to an employer's discretion, provided of course that the employer has the capacity to produce the list in the required electronic form.

The Board also rejects the Chamber's II prediction that electronic service of the list will “invite abuse of the system and unauthorized use of the information contained” on the list.[246] As discussed above, we see no reason for assuming that “a union, seeking to obtain employees' votes in a secret ballot election, will engage” in abusive behavior. Excelsior, 156 NLRB at 1244. Although the Board recognizes that whenever information is conveyed in an electronic format, there is a heightened risk of inadvertent dissemination or unauthorized access by third parties, in today's modern workplaces, however, it is simple enough to turn any paper document into an email attachment. So, the Board fails to see how any dangers of misuse—real or imagined—will be avoided simply by requiring parties to continue to use slower and more expensive forms of communication when filing the list with the regional director and transmitting it to the petitioner.

The Board likewise rejects Vigilant's suggestion that, rather than have the employer serve the list on the other parties, the Board serve the list on the parties after the employer has filed the list with the Board. Vigilant asserts that such an intermediate step would allow for correction of errors or omissions, but as discussed above, such an intermediate step is currently in place and has caused avoidable delay, administrative burden, and unnecessary litigation. Moreover, the Board is not persuaded that employers generally need the Board's help to “proof” the lists they produce from their own records or that the Board could provide meaningful assistance in this regard as it is not the employer of the employees at issue.

The Board also disagrees with INDA II's reasoning for maintaining the current two-step procedure. INDA, and others, alleges that it is appropriate to keep the burden of serving the voter list on petitioners with the regional staff, whose profession is administering the Act, and that more errors and litigation are likely to ensue by shifting the burden to employers, many of whom will have had no prior experience with the Board's representation case processes. While the Board certainly credits the statement that many employers are not repeat players in representation case proceedings and thus may be initially unfamiliar with the requirements, the final rule takes steps to remedy any ignorance on the part of employers by sending out a detailed explanation of those procedures as part of the first official communication that an employer will receive from one of the agency's regional offices. That explanation will cover the employer's eventual responsibility to serve a voter list on the nonemployer parties to the case (using the contact information listed on the face of the petition or provided in a Statement of Position or at the hearing) at the same time the employer files the list with the regional office. Furthermore, the Board believes that employers will typically have a wealth of experience sending important documents to entities outside of their organization, and should not be particularly challenged by emailing the voter list to the nonemployer parties' email addresses at the same time they email the list to the regional offices. Indeed, this task could be completed by transcribing the email address for the nonemployer party onto the recipient line of the same email bound for the regional office.[247]

At least one comment (Sheppard Mullin II) raises the concern that rule language stating that an employer's failure to file a timely list in a proper format “shall be grounds for setting aside the election whenever proper objections are filed” signals an inappropriate departure from prior Board law governing whether an employer has sufficiently complied with its Excelsior obligations. To the contrary, while the final rule changes an employer's obligations concerning the content, timing, and format of the voter list, the Board does not hereby overrule extant law interpreting whether an employer's efforts at compliance fall sufficiently short to justify setting aside an election's result. The quoted language above is taken directly from the original Excelsior decision itself, 156 NLRB at 1240, and has not impeded the Board from adding fact-specific glosses to whether the requirement was sufficiently met. See, e.g., North Macon Health Care Facility, 315 NLRB 359 (1994).[248]

Other comments suggest additional alterations to the voter list rules to protect employers who accidentally produce inaccurate lists. For example, ACE submits that the Board should automatically excuse inaccurate lists in large units when petitioners are unable to show an employer's intent to manipulate the process. The Board declines to adopt these suggestions. As discussed above, the Board continues to agree with existing precedent on Excelsior compliance, and does not intend to limit the discretion of future Boards to apply adjudicative glosses to the rule based upon a variety of fact patterns yet to arise.[249]

Holland & Knight questions if it will be objectionable for an employer to omit from the voter list the contact and other information of employees whose eligibility is disputed. As discussed more fully below in connection with § 102.67, the answer is “yes.” Prior to the NPRM, parties could agree that Start Printed Page 74358certain classifications or employees be permitted to vote subject to challenge just as a regional director could direct that certain classifications or employees be permitted to vote subject to challenge. See, e.g., Casehandling Manual Sections 11084.3 and 11338.2(b). In such cases, the employer was advised to provide the names and home addresses for such individuals on the Excelsior list. Similarly, the final rule requires the employer to provide the information for such individuals on the voter list. However, as discussed more fully below in connection with § 102.67, in order to ensure that the Board agent and the parties' observers will properly process employees who were directed to vote subject to challenge (or were permitted to vote subject to challenge by agreement of the parties), the final rule requires the employer to provide the names and related information about such employees in a separate section of the list.

4. Restriction and Remedies for Misuse of the Voter List

In the NPRM, the Board proposed a restriction on the use of the voter list—barring parties from using it for any purposes other than the representation proceeding and related proceedings—and sought comments regarding what, if any, the appropriate remedy should be for a party's noncompliance with the restriction.[250]

Many comments address the proposed restriction and potential consequences of noncompliance. At the outset, labor organizations' comments point out that Excelsior did not contain any express restriction language and generally agree that the lack of historical evidence of Excelsior list abuses undercuts the need for any restriction.[251] In contrast, other comments envision, as discussed above, a wide variety of potential misuses should the Board implement its voter list proposal.[252]

Other concerns are shared by both labor organizations and employer associations. For example, some comments, such as those from the Chamber and SEIU, focus on the lack of clarity as to what activity would be encompassed by the restriction (i.e., what activity falls outside of “using the list”), while others, such as PCA's and UFCW's, assert that the Board could not effectively police any restriction it imposed, or that any remedy would be de minimis with regard to the damage done (CNLP; NRTW). The National Education Association Staff Organization concludes that the restriction and remedy proposals would simply create more litigation concerning matters which the Board, in contrast to law enforcement and the civil courts, is ill-equipped to handle. Additionally, other comments complain that the proposed restriction is unclear as to what counts as “the representation proceeding and related proceedings.” [253] In this regard, the Indiana Chamber worries that this phrase is overbroad, whereas by contrast, SEIU expresses concern that it will prove too narrow and restrictive of lawful union activity.

Nevertheless, many employer associations' comments propose a range of remedies including: Setting aside elections, temporary bans on organizing, letters of apology, monetary penalties, referral to law enforcement where criminal conduct has occurred, and pursuing injunctive relief against the restriction's violators.[254] Meanwhile, labor organizations' comments stress that any sufficiently weighty remedy threatens to unfairly penalize employees for the misdeeds of labor organizations [255] and question whether the Board has “appropriate remedial authority to address such circumstances.” [256] In further contrast, the Chamber suggests that remedies should be “no fault” (applying to any misuse of the list, regardless of the petitioner's intent), while the UFCW urges that the Board limit any remedy to “clearly defined circumstances involving willful and egregious noncompliance with the rule.”

After careful consideration of the comments, the Board has slightly modified the proposed restriction language. The final rule shall read in relevant part: “The parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.” See amended §§ 102.62(d), 102.67(l). This change sufficiently clarifies the circumstances under which unions may use the list, balancing both privacy concerns and the interests, noted above, in the fair and free choice of bargaining representatives and the expeditious resolution of questions concerning representation.

The restriction language will plainly allow the nonemployer parties to use the contact information to provide employees with information regarding the election and to investigate eligibility issues. Parties can also use the information on the list for such purposes as investigating challenges and objections and preparing for any post-election hearings on determinative challenges and/or objections. Parties may likewise use the information on the list in connection with unit clarification proceedings to decide the status of individuals whose status was not determined by the regional director or the Board or who voted subject to challenge in an election but whose ballots were not determinative. See Casehandling Manual Section 11490.1. Parties may also use the information on the list to investigate, and prepare for hearings regarding, unfair labor practice charges concerning the employer's employees that are filed before or after the election takes place. And, just as is the case currently, if post-election objections are filed, a union (or decertification petitioner) could continue to use the list to maintain their support and to campaign for votes in connection with any rerun election that is held. In each of these examples, the nonemployer parties would be using the list for purposes of the representation proceeding, Board proceedings arising from it, and related matters. At the same time, the Board believes it goes without saying that nonemployer parties would run afoul of the restriction if, for example, they sold the list to telemarketers, gave it to a political campaign or used the list to harass, coerce, or rob employees.[257]

Start Printed Page 74359

While the Board thinks it is self-evident that misuse of the voter list that adversely affects unit employees should result in some remedy, the Board has concluded that it would not be appropriate at this time to specify a remedy, or set of remedies, that would be applicable in all situations. The Board notes in this regard that while the Excelsior Board stated that it would “provide an appropriate remedy” if a union used the list to harass or coerce employees (Excelsior, 156 NLRB at 1244), the Excelsior Board did not specify the remedies it would provide. Like the Excelsior Board, we will leave the question of remedies to case-by-case adjudication.

For example, the Board rejects the notion advanced in some comments [258] that misuse of the voter list should always warrant setting aside the results of an election won by the party misusing the list. As noted below in connection with §§ 102.64 and 102.66, the purpose of the election is to answer the question of representation. For example, the purpose of an election in an initial organizing case is to determine whether employees in an appropriate unit wish to be represented for the purposes of collective bargaining by the petitioner. There is a strong presumption that ballots cast in a secret ballot election reflect the true desires of the participating employees. Accordingly, the burden is on the objecting party to demonstrate that the election results “did not accurately reflect the unimpeded choice of the employees.” Daylight Grocery Co., Inc. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982). A party seeking to overturn the outcome of an election based on another party's conduct has the burden of showing not only that the conduct complained of occurred, but also that it “interfered with the employees' exercise of free choice to such an extent that it materially affected the [results of the] election.” C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir. 1988). Accord Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 827 (D.C. Cir. 1970). The Board has indeed set aside elections when union coercion resulted in objections to an election that were sustained.

But not every misuse of the list can be said to have interfered with employee free choice in the election, let alone be said to have materially affected the results of the election. For example, if a union misuses the list after the election, by, for example selling the list to telemarketers, the misuse could not possibly have affected employee free choice in the election because the misconduct occurred after the election. Even if the union were to sell the list before the election, it could not be said to have impeded employee free choice if no employee knew about it. Setting aside the results of the election in such circumstances would interfere with employee free choice and would be contrary to the Act's policy in favor of industrial stability. Accordingly, while the Board certainly does not wish to convey that a party's misuse of the voter list could never warrant setting aside an election, the Board does not feel that it is appropriate to adopt a rule that would set aside election results in every case where the union chosen by employees misused the list in some way. At the same time, the fact that misuse of the list could not warrant setting aside the results of an election does not mean that the misuse should not be remedied in a manner appropriate to the circumstances.

Similarly, the Board concludes that it would not be appropriate to adopt a per se rule that would bar a labor organization from engaging in future organizational drives whenever (and however) the labor organization misused the list, for such a remedy would interfere with the right of employees to petition for a specific labor organization to represent them.[259] The Board also declines to adopt a rule that would require the General Counsel to seek injunctive relief in Federal district court whenever a party misuses the list. Injunctive relief is not the norm in our system, and while the Board does not wish to rule out seeking injunctive relief in an appropriate case, it does not believe that seeking such relief as a matter of course would necessarily be appropriate.[260]

AGC suggests that misuse of the voter list should be deemed a violation of Section 8(a)(1) or 8(b)(1). The Board rejects this suggestion at this time for reasons similar to those that led us to reject the suggestion that any misuse should warrant setting aside the election results. There may be situations in which the Board finds that a party has misused the voter list in violation of Section 8(a)(1) or 8(b)(a). Even if no such violation is found, the misuse may constitute objectionable conduct, which could trigger a new election. The Board believes that case-by-case adjudication is the appropriate way to consider circumstances in which a remedial order is appropriate so that it can tailor its order to the specific misuse and ensure that the remedy it imposes is effective. As with all of the foregoing proposals, the point is that in determining the appropriate remedy for a proven misuse, the Board believes that it is appropriate to consider all the circumstances and provide a remedy, where appropriate, which is tailored to the misconduct found to have been committed.

MEMA II argues that any restriction must be accompanied by requiring advanced security protocols to be implemented by petitioning unions, and cites as models the regulatory regimes developed under the Gramm-Leach-Start Printed Page 74360Bliley Act (“GLBA”), 15 U.S.C. 6801, the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. 1320d, and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 1681a. We disagree. The personal information at issue in those statutes is far more sensitive than what will be disclosed as part of the voter list amendments we announce today. We do not believe that we can rationally equate the financial and health-related information regulated by those statutes with employee contact information, and identification of their work location, shift, and job classification.[261] In addition, MEMA's comment loses sight of the fact that the nonemployer party who receives the list in a given case may not be a large sophisticated institution like an international union, but might be an unsophisticated individual who files a decertification petition. Thus, in addition to the information's relative lack of sensitivity, the Board believes that it would be unrealistic to think that it could require individual employees or small labor organizations to—as advocated by MEMA—designate a security officer or develop a written security program.

Finally, regarding a petitioner's retention of the information after a representation campaign ends, the Board observes that petitioners are currently entitled to retain the list indefinitely under Excelsior, and, as shown, there are certainly legitimate reasons why petitioners might use the list after the election. Moreover, the Board does not believe that a petitioner's retention of the information on the list would implicate any privacy concerns beyond those implicated by the initial disclosure under Excelsior. The Board therefore declines the suggestion that petitioners be required to destroy voter list information after a set period of time or upon an individual employee's request.[262] We reiterate, however, that the Board will provide an appropriate remedy under the Act if misconduct is proven and it is within the Board's statutory power to do so. In addition, individuals may have recourse in other judicial fora.[263]

5. Waiver

Although the proposed regulatory language did not explicitly so state, the preamble section to the NPRM indicated that consistent with existing practice, reflected in Mod Interiors, Inc., 324 NLRB 164 (1997), and Casehandling Manual Section 11302.1, and as recently noted by the Board in The Ridgewood Country Club, 357 NLRB No. 181, n.8 (2012), an election shall not be scheduled for a date earlier than 10 days after the date by which the voter list must be filed and served, unless this requirement is waived by the parties entitled to the list.

SEIU urges that instead of requiring the employer to provide the voter list to the union within 2 days after the direction of election with the ensuing 10-day pre-election period, the Board should require the employer to provide a “preliminary” list of employees (including contact information) to the union within 2 days after it receives the union's election petition, and to update this list as necessary at the pre-election hearing. SEIU points out that if this alternative requirement were imposed, the 10-day practice would be largely unnecessary since the union would have obtained the voter list at an earlier point in the process. SEIU also requests that a post-direction period of up to 10 days be available for the union to contact any employees who were added to the list at the pre-election hearing. However, the Excelsior Board justified the required disclosure in part because the interest in the fair and free choice of a bargaining representative must be deemed substantial when the regional director has found that a question of representation exists or the employer admits that such a question exists by entering into an election agreement. See Excelsior, 156 NLRB at 1245. Absent an election agreement, however, the director cannot find that a question of representation exists and direct an election until the hearing closes. Under the final rule, the hearing ordinarily will open 8 days after service of the notice. Accordingly, the Board rejects SEIU's request that the employer be required to furnish the other parties with the employee contact information 2 days after the filing of the petition—i.e., before either the director has found that a question of representation exists or the employer has admitted such a question of representation exists.

ALFA and SHRM assert that the waiver of the 10-day period should not be permitted on the grounds that the 10-day period is provided for the benefit of employees rather than unions, and that the 10-day period is always necessary to permit employees to receive information from their employers. In this respect, these comments assert that a waiver of the 10-day period contributes to the overall shortening of the period between the filing of a petition and the election effected by the rule amendments, which they oppose. SHRM, quoting Excelsior, emphasizes the priority of avoiding “a lack of information with respect to one of the [ballot] choices available.”

However, the comments take the quoted language out of context: The Board imposed the requirement on the employer to disclose the list of employee names and addresses in order to maximize the likelihood that the voters will be exposed to the nonemployer parties' arguments. Thus, as shown, the Excelsior Board observed (156 NLRB at 1240) that in contrast to the union, “[a]s a practical matter, an employer, through his possession of employee names and home addresses as well as his ability to communicate with employees on plant premises, is assured of the continuing opportunity to inform the entire electorate of his views with respect to union representation.” The Board went on to note that “by providing all parties with employees' names and addresses, we maximize the likelihood that all of the voters will be exposed to the arguments for, as well as against, union representation.” Id. at 1241. Similarly, in upholding the requirement, the Supreme Court reasoned that the disclosure requirement allows “unions the right of access to employees that management already possesses.” NLRB v. Wyman-Gordon Co., 394 U.S. at 767. The Excelsior rule was accordingly found Start Printed Page 74361necessary to provide the nonemployer parties with an opportunity to communicate its message at least to the extent of having access to employees' names and home addresses. Neither the employer's nor the employees' interest is compromised by the union's exercise of the waiver of the 10-day period, since that results in a reduction only of the union's opportunity to further communicate with employees; and the union can be expected to exercise the waiver only when it is confident that employees have heard its message. The objection that a waiver of the 10-day period shortens the opportunity for employers to communicate with employees is therefore relevant not to the union's use of the Excelsior list, but rather to the other rule amendments at issue here. That objection is addressed in connection with The Opportunity for Free Speech and Debate above.

SHRM also contends that if the waiver is retained, the waiving party should be treated as also waiving the right to file election objections based on the voter list, any failure of the employer to properly post election notices, “and any other potential procedural objection.” We are not persuaded by the suggestion that nonemployer parties should not be permitted to waive all or part of the 10-day period to use the list unless they also agree to waive objections to an employer's failure to fulfill its obligations under the Board representation case rules. For example, the fact that a union believes that it needs only 5 days to communicate with the electorate if the employer furnishes it with an accurate list of the eligible voters' contact information certainly does not mean that the union has agreed that it only needs 5 days to communicate if the employer furnishes it with an inaccurate list of the eligible voters' contact information. Accordingly, a union should not be deemed to have waived its right to object to an employer's failure to provide an accurate voter list merely because it waived its right to use the list for the full 10-day period. Similarly, that a union agrees to waive part of the time for using the voter list certainly does not mean that a union should be held to have forfeited its right to object if the employer alters, or fails to post, the Board's election notice and thereby misleads, or fails to inform, employees as to the election details. In sum, although the final rule does not so state, we reiterate that consistent with current practice, an election shall not be scheduled for a date earlier than 10 days after the date by which the voter list must be filed and served, unless this requirement is waived by the parties entitled to the list.

Sec. 102.63 Investigation of Petition by Regional Director; Notice of Hearing; Service of Notice; Notice of Petition for Election; Statement of Position; Withdrawal of Notice of Hearing

A. Introduction and Overview of Changes From NPRM

The Board proposed in the NPRM that, absent special circumstances, the regional director would set the hearing to begin 7 days after service of the notice of hearing. The Board further proposed that, with the notice of hearing, the regional director would serve the petition, the “Initial Notice to Employees of Election,” the description of procedures in representation cases, and the Statement of Position form on the parties. The NPRM also proposed that the regional director specify in the notice of hearing the due date for Statements of Position, which would be due no later than the date of the hearing. The Board specifically sought comments on the feasibility and fairness of these time periods and the wording and scope of the exceptions thereto. 79 FR 7328.

The Board received a great number of comments about these matters. Comments criticizing the Statement of Position form attacked the scope of the information solicited by the form [264] and the due date for its completion,[265] as well as its binding nature and the consequences of failing to complete it.[266] Comments also criticized the proposed time frame for the pre-election hearing [267] and the wording and scope of the exceptions thereto.[268] Comments praising the proposals argued that the Statement of Position form and proposed time frames largely mirror best existing casehandling practices.[269] However, some of these comments suggested that the Board require completion of the Statement of Position form even earlier.[270]

The Board has carefully considered the comments and, as explained more fully below, has decided to adopt the proposals with certain significant changes:

(1) Except in cases presenting unusually complex issues, the regional director will set the hearing to open 8 days—rather than 7 days—from service of the notice of hearing excluding intervening Federal holidays. However, the regional director may postpone the opening of the hearing up to 2 business days upon request of a party showing special circumstances, and for more than 2 business days upon request of a party showing extraordinary circumstances. Accordingly, parties will have at least 8 days notice of the hearing.

(2) The Statement of Position will be due at noon on the business day before the opening of the hearing if the hearing is set to open 8 days from service of the notice of hearing. Although the regional director may set the due date for the position statement earlier than at noon on the business day before the hearing in the event the hearing is set to open more than 8 days from the service of the notice, parties will have 7 days notice of the due date for completion of the Statement of Position form in all cases. The Statement of Position form will be due no later than at noon on the business day before the hearing so that it may serve its intended purposes of facilitating entry into election agreements and narrowing the scope of any hearing that must be held, thereby enabling the Board to expeditiously resolve questions concerning representation.[271]

(3) In the event the employer contends as part of its Statement of Position that the proposed unit is not appropriate, the employer will not be required to identify the most similar unit that it concedes is appropriate or provide information about the employees in such a unit. However, the employer will be required to state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit, and the employer will be required to disclose information about the individuals in the classifications, locations, or other employee groupings that the employer contends must be added to the proposed unit to make it an appropriate unit, so that the petitioner will be able to evaluate the employer's position and decide whether to amend its petition to conform to the unit proposed by the employer.Start Printed Page 74362

(4) The final rule will not require the employer to disclose as part of its Statement of Position any contact information for employees in the proposed unit or for employees in any alternative unit proposed by the Employer.

(5) The final rule clarifies the required Statements of Positions in RM and RD cases to make them parallel to the required Statement of Positions in RC cases, which will facilitate entry into election agreements and narrow the scope of pre-election hearings in those cases.

(6) The final rule states explicitly that the regional director may permit parties to amend their Statements of Position in a timely manner for good cause.

(7) The final rule also retitles the proposed “Initial Notice to Employees of Election” as the “Notice of Petition for Election,” and clarifies that within 2 business days after service of the notice of hearing, the employer shall post the Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically, and that failure to do so may be grounds for setting aside the election.

B. Statement of Position Form

The Board proposed in the NPRM that the Statement of Position form would solicit the parties' positions on the Board's jurisdiction to process the petition; the appropriateness of the petitioned-for unit; any proposed exclusions from the petitioned-for unit; the existence of any bar to the election; the type, dates, times, and location of the election; and any other issues that a party intends to raise at hearing. In those cases in which a party takes the position that the proposed unit is not an appropriate unit, the party would also be required to state the basis of the contention and identify the most similar unit it concedes is appropriate. In those cases in which a party intends to contest at the pre-election hearing the eligibility of individuals occupying classifications in the proposed unit, the party would be required to both identify the individuals (by name and classification) and state the basis of the proposed exclusion, for example, because the identified individuals are supervisors. Finally, parallel to the proposed amendment to the contents of petitions described in relation to § 102.61 above, the non-petitioning parties would be required to designate, in their Statement of Position, the individual who will serve as the party's representative in the proceeding, including for service of papers. 79 FR 7328.

The NPRM also proposed that, as part of its Statement of Position, the employer would be required to provide a list of all individuals employed by it in the petitioned-for unit. The list would include the same information described in relation to proposed § 102.62 except that the list served on other parties would not include contact information. If the employer contends that the petitioned-for unit is not appropriate, the NPRM proposed that the employer also would be required to file and serve a similar list of individuals in the most similar unit that the employer concedes is appropriate. 79 FR 7328-7329.

Under the proposed amendments, the list filed with the regional office, but not the list served on other parties, would also contain available email addresses, telephone numbers, and home addresses. The regional office could then use this additional information to begin preparing the electronic distribution of the Notice of Election discussed in relation to proposed § 102.67. 79 FR 7329.

As set forth in the NPRM, completion of the Statement of Position form would be mandatory only insofar as failure to timely file it would preclude a party from raising issues, such as the appropriateness of the unit, and participating in their litigation. A party would also be precluded from litigating most issues that it failed to raise in a timely filed Statement of Position. However, a party would not be precluded from contesting the Board's statutory jurisdiction to process the petition, or from challenging the eligibility of a particular voter during the election. 79 FR 7328, 7329, 7330, 7358.

The NPRM set forth the Board's view that the information requested by the Statement of Position would facilitate entry into election agreements and narrow the scope of pre-election hearings in the event parties are unable to enter into such agreements. The Statement of Position form would guide prehearing preparation, thereby reducing the time and other resources expended in preparing to participate in representation proceedings. The NPRM also explained that parties who enter into one of the forms of election agreement described in § 102.62 prior to the due date for completion of the Statement of Position would not be required to complete the Statement. 79 FR 7328-29.[272]

The NPRM provided that the Statement of Position would be due no later than the date of the hearing. 79 FR 7328. Some comments in favor of the Statement of Position argue that if the statement is to fulfill its intended purposes, then parties should be required to complete and serve it before the hearing. UFCW; SEIU; Testimony of Melinda Hensel on behalf of IUOE, Local 150 II. We agree. Requiring completion and service of the Statement of Position such that it is received by the parties named in the petition and the regional director at noon on the business day before the opening of the hearing will help facilitate meaningful negotiations concerning election agreements and will narrow the scope of preelection hearings in the event parties are unable to enter into election agreements. If the Statement of Position were not due until the opening of the hearing, then an employer would not need to disclose the information required by the form to the petitioner until the hearing actually opened. As more fully explained below, this would mean that if, as is often the case, the parties attempted to negotiate an election agreement before the opening of the hearing, the petitioner would lack much of the information necessary to intelligently evaluate the merits of the employer's positions. In fact, the parties to a representation case frequently attempt to negotiate election agreements the day before a hearing opens as the immediate prospect of litigation—and its attendant costs—serves to focus the parties' attention on the matter at hand. Accordingly, requiring the filing and service of the Statement of Position at noon on the business day before the opening of the hearing should help the parties negotiate election agreements at a time when they typically are actively engaged in doing that very thing.

Requiring filing and service of the Statement of Position at noon on the business day before the opening of the hearing will also help the parties narrow the scope of the hearing in the event parties are unable to enter into election agreements, thereby saving party and government resources. For example, even if the parties are unable to enter into an election agreement, the Statement of Position will enable the parties to know which issues will actually be contested at the hearing, so that it can run more smoothly and efficiently. In addition, as Caren Sencer testified on behalf of Weinberg, Roger & Start Printed Page 74363Rosenfeld II by enabling the parties to know what the disputed issues are prior to the day the hearing opens, the requirement of a Statement of Position could result in parties' needing to pull fewer employees from the workplace to testify at the preelection hearing, which could result in fewer disruptions to the employer's business.[273]

The Croft Board held that 5 days (excluding intervening weekends and holidays) constituted sufficient notice for an employer to prepare for a hearing. Croft Metal, Inc., 337 NLRB 688, 688 (2002). As explained below, the Board believes that the Statement of Position form largely requires parties to do what they currently do to prepare for a pre-election hearing.” [274] Accordingly, under amended § 102.63(b)(1-3), a party will be provided with 7 calendar days (5 business days) notice of the due date for completion of the form, and the hearing will ordinarily be set for 8 days from service of the notice so that the parties have approximately 1 business day to use the information on the form before the hearing opens.

Although many employer comments attack the time frame for completion of the Statement of Position form, its binding nature, and the consequences of failing to complete it, even the Chamber does not object to the proposal that parties be required to take positions on at least some of the matters addressed by the Statement of Position form. For example, the Chamber states in both its comments regarding the 2011 NPRM and the 2014 NPRM that in general it does not object to the proposed requirement that the employer state whether it agrees that the Board has jurisdiction and provide requested information concerning the employer's relation to interstate commerce, except with respect to the timing and legal effect of the Statement of Position form. Similarly, the Chamber does not object in general to the proposed requirements that the employer state whether it agrees that the proposed unit is appropriate, and if the employer does not so agree, state the basis of its contention that the proposed unit is inappropriate, except with respect to the timing and legal effect of the Statement of Position form. Chamber; Chamber II. Nor does the Chamber object in general to the requirement that the employer raise any election bars, and state the name and contact information of its representative. Chamber; Chamber II.

It is not surprising that the Chamber does not object to the requirement that an employer state whether it agrees that the Board has jurisdiction and provide requested information concerning the employer's relation to interstate commerce; that the employer state whether it agrees that the proposed unit is appropriate, and if the employer does not so agree, state the basis of its contention that the proposed unit is inappropriate; that the employer raise any election bars; and that the employer state the name and the contact information of its representative.[275] After all, requiring the employer to provide such information plainly facilitates entry into election agreements and helps narrow the scope of hearings in the event parties are unable to enter into election agreements. For example, if the employer explains why it believes that the proposed unit is not appropriate before the hearing, the petitioner may decide that the employer is correct and amend its petition to meet the employer's objections, thereby obviating the need for a hearing. Similarly, if the parties are unable to enter into an election agreement but the employer provides the requested commerce information and agrees that the Board has jurisdiction before the start of the hearing, the parties are spared the time and expense of litigating that issue.[276] Moreover, regional employees currently request such information prior to the opening of the pre-election hearing.[277] And, of course, requiring the employer to provide the name of, and contact information (including an email address and fax number) for, its representative will enable the Board and the other parties to utilize modern methods of communication to communicate with the employer to resolve election issues and transmit case-related documents.

To be sure, as comments by the Chamber (Reply) and CDW point out, the Statement of Position form is a departure from current practice because it mandates, rather than simply requests, that employers share such information prior to the hearing. However, the information sharing goals underlying the Statement of Position form are nothing new. Indeed, they are reflected in best practices promoted more than a decade ago, as well as the Casehandling Manual and the Hearing Officer's Guide. A model representation-case opening letter circulated in 1999 and the Casehandling Manual provide that regional personnel should arrange a conference at least 24 hours before the opening of the pre-election hearing, in order to explore entry into election agreements or to narrow the issues for hearing. In conjunction with the prehearing conference, regional office personnel solicit many of the same positions requested by the form, and although not requiring information disclosure, they encourage parties to share all available information at the pre-hearing conference. In particular, they seek the employer's permission to share a list of names and classifications of all employees at issue with all parties because it is “an excellent aid in resolving many of the eligibility and unit questions that arise during case processing.” See OM Memo 99-56, http://www.nlrb.gov/​reports-guidance/​operations-management-memos;​ Casehandling Manual Sections 11012, 11016, 11025.1.

Similarly, the Hearing Officer's Guide provides that the hearing officer should meet with parties' representatives prior to the hearing to discuss the issues they intend to raise, and that in preparation for the hearing, the hearing officer should question the parties regarding jurisdictional facts, unit scope, unit composition, availability of a list of employee classifications, inclusions and exclusions, and the issues that will be raised at the hearing. Hearing Officer's Guide at 2-5. The Guide instructs the hearing officer to encourage the parties at the prehearing conference to share information and documents, and to discuss the nature of the evidence to be presented. Hearing Officer's Guide at 4-5. Put simply, the Board believes that the information at issue is so helpful and important for purposes of facilitating entry into election agreements and narrowing the scope of pre-election hearings that the employer should be required to produce the information or be precluded from litigating certain issues if it refuses.Start Printed Page 74364

The Board also finds that use of the Statement of Position form is consistent with Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), where the Board observed,”[I]n order to effectuate the purposes of the Act through expeditiously providing for a representation election, the Board should seek to narrow the issues and limit its investigation to areas in dispute.” Thus, the amendments give all parties clear, advance notice of their obligations, both in the rules themselves and in the statement of procedures and Statement of Position form. However, the amendments are not intended to preclude any other formal or informal methods used by the regional offices to identify and narrow the issues.

Although the Chamber does not object to some of the information solicited by the Statement of Position form, the Chamber and many others do object to the requirement that the employer provide certain items of information. For example, many comments object to the requirement that the employer: (1) Describe the most similar unit that it concedes is appropriate if it contends that the proposed unit is not appropriate; [278] (2) provide the lists of employees in the proposed unit and in any proposed alternative unit; [279] (3) identify any individuals occupying classifications in the proposed unit whose eligibility to vote the employer intends to contest at the pre-election hearing, and the basis for each such contention; [280] (4) identify all other issues it intends to raise at the hearing; [281] and (5) state its position on election details such as the type, date, time, and location of any election.[282]

Except as noted below, the Board is not persuaded by the comments objecting to the content of the information requested by the Statement of Position form. Thus, the Board believes that the Statement of Position form asks parties to provide information that would facilitate entry into election agreements and narrow the scope of hearings in the event parties are unable to enter into such agreements, so as to eliminate unnecessary litigation and help the Board expeditiously conduct an election if it determines that a question of representation affecting commerce exists. By doing so, the Statement of Position form helps the Board to fairly and expeditiously resolve questions concerning representation.[283] The Board also believes that the Statement of Position largely requires parties to do what they currently do to prepare for a pre-election hearing.” Amy Bachelder, a former NLRB field attorney of 25 years, agrees. She testified that “the issues related to the required Statement of Position in the pre-election hearing reflect little more than what is current standard pre-election hearing practice.” [284]

1. Identification of Alternative Unit

Numerous comments address the Board's proposal (in § 102.63(b)(1)(i)) that, in those cases in which the employer takes the position that the proposed unit is not an appropriate unit, it would be required to “describe the most similar unit that the employer concedes is appropriate.” Many comments also address the Board's related proposal (in § 102.63(b)(1)(iii)) that, if the employer contends that the proposed unit is not appropriate, it would be required to file and serve a list of individuals in the “most similar unit” that it concedes is appropriate. As discussed in the NPRM, these proposed changes were intended to assist the parties in identifying issues that must be resolved at a pre-election hearing and thereby facilitate entry into election agreements. They were also intended to codify parties' existing practice where they contend that the proposed unit is not appropriate because the smallest appropriate unit includes additional classifications or facilities. See, e.g., Westinghouse Electric Corp., 137 NLRB 332 (1962).

A large number of comments oppose these proposals. In general, those comments argue that an employer should not have to concede the appropriateness of any unit before evidence is presented at a hearing and the petitioner clarifies who specifically it wants included in, or excluded from, the unit. For example, NAM contends that the requirement that an employer posit an alternate appropriate unit “places the employer, as the non-petitioning party, in the extraordinary position of having to concede the appropriateness of a unit where it may oppose the propriety of the unionization effort and where it is without determinative evidence that its employees wish to be unionized.” SHRM, among others, contend that this proposed requirement is vastly different from the Board's current representation case procedures, which, “[a]t most * * * require non-petitioning parties to take a position with respect to the appropriateness of the petitioned for unit.”

Other comments, such as SHRM's, question the Board's statutory authority for requiring non-petitioning parties to define the “most similar unit” when the current rules permit parties to propose alternative units that merely may be appropriate under the particular circumstances. Those comments further contend that the Board should explain the specific legal framework that it will use to determine whether the alternative units proposed by employers are, in fact, the “most similar” to the unit described in the petition. SHRM further seeks clarification that employers will not be required to identify all potentially appropriate units or else risk waiver of any arguments regarding such alternative unit descriptions at the hearing given the large number of potentially appropriate bargaining units and the potential difficulty in determining which alternative unit would be the “most similar.”

Similarly, comments like CDW's object on the ground that the Act does not require that elections occur in the most appropriate unit. See Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950) (the Board need not determine “that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act requires only that the unit be `appropriate'”) (emphasis in original). CDW further contends that the proposed “most similar unit” rule unfairly favors unions by permitting them to choose among the complete array of potential “appropriate” units while, at the same time, limiting employers to a single potential unit that is “most similar” to what the union has proposed.

The Chamber argues that, unless and until the proposed unit has been subject to examination at a hearing and either been agreed upon by the parties or deemed appropriate by the Board, the proposed “most similar unit” requirement poses a significant burden on employers. Other comments, including the Chamber's, argue that the proposed requirement that an employer not only agree or disagree with the union's petitioned-for unit, but go Start Printed Page 74365further and make a proposal itself, “amounts to a forced pleading and raises serious due process and free speech concerns.”

At least one comment questions the need for the proposed “most similar unit” rule in the acute health care field. Thus, AHA asserts that there is no need for an employer in the acute health care field to recommend an alternative unit, as there are only eight appropriate units under the Board's regulations, and unions organizing under those rules are familiar with what constitutes an appropriate unit.

After careful consideration of all the comments concerning the “most similar unit” requirement proposed in the NPRM, the Board has decided to modify this aspect of the NPRM. Accordingly, the final rule will not require that, in those cases in which the employer takes the position that the proposed unit is not an appropriate unit, the employer “describe the most similar unit that the employer concedes is appropriate.” Rather, in those cases where the employer takes the position that the proposed unit is not an appropriate unit, § 102.63(b)(1)(i) of the final rule will require the employer to “state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit.” [285]

The Board believes that the final rule will assist the parties in identifying issues—including the appropriateness of the proposed unit—that must either be agreed to by the parties and approved by the regional director, or be resolved at a pre-election hearing. Specifically, identification of the precise objections to the appropriateness of a proposed unit before the pre-election hearing will facilitate entry into election agreements and narrow the scope of hearings in the event parties are unable to enter into such agreements. Accordingly, the Board believes that the requirement will enable it to more promptly resolve questions concerning representation.

To begin, the Board disagrees with comments, including SHRM's, that argue that the proposed unit-appropriateness requirements are vastly different from the Board's current representation-case procedures. Merely by virtue of explaining the alleged problems with the proposed unit, the employer typically must identify the necessary changes to that unit. Thus, for example, if an employer with multiple facilities says that a proposed single facility unit is not appropriate, the only way to explain or support this argument is to point out what it believes is inappropriate about it, i.e, that it excludes the employees of its other facility, located across the street, who do the same work under the same conditions and who frequently transfer back and forth between the two facilities. And the employer is free to later agree to the appropriateness of a different unit if the petitioner alters its position regarding the unit in response to the position taken by the employer. As such, the final rule merely codifies and standardizes the best party practices under the current representation case procedures and, therefore does not differ dramatically from the current procedures.[286] The biggest difference, as explained above, is that employers will be required, rather than requested, to share their positions on unit appropriateness, including inclusions and exclusions of certain job classifications, locations, or other employee groupings at noon on the business day before the hearing.

The Board believes that the change to the final rule language moots comments based on statutory concerns for the proposed “most similar unit” requirement since the Act does not require that elections occur in the most appropriate unit, only an appropriate unit. Some of those comments contend that it could be extremely difficult for non-petitioning parties to determine which possible alternative unit would be the “most similar” to the proposed unit, especially where the proposed rules do not define what is meant by “most similar.” [287] In response, the final rule makes clear that an employer only has to specify the changes necessary to make an appropriate unit. And the Board hereby clarifies, in response to SHRM's comment, that under the final rule, a non-petitioning party that takes the position that the proposed unit is not an appropriate unit does not have to identify all potentially appropriate units; rather, it would merely have to specify the basis for its contention, and state the classifications, locations or other employee groupings that it believes must be added to or excluded from, the proposed unit to make it an appropriate unit (singular).

The Board concludes that the final rule will not significantly burden employers. As explained above concerning the Statement of Position form more generally, the Board believes that the time and resources expended by employers to determine which classifications, locations or other employee groupings must be added to or excluded from, the proposed unit to make it an appropriate unit are largely the same resources that would be expended in any event by a reasonably prudent employer in preparing to either enter into an election agreement or take contrary positions at a pre-election hearing under the current rules.

The Board also disagrees with AHA's assertion that there is no need for an alternative unit requirement in the acute health care field. Under the final rule, if an employer takes the position that the proposed unit is not an appropriate unit under the Board's regulations that specifically apply to the acute health care field, the employer will simply have to specify the classifications, locations or other employee groupings that it believes must be added to or excluded from, the proposed unit to make it an appropriate unit under those regulations.

Other comments, such as the Chamber's, object that the proposed rules absolve the Board of its responsibility to determine the appropriate unit. To the extent that the rationale of those objections also applies to the amended language of the final rule, the Board believes that they are nevertheless in error. As the Chamber's comment correctly points out, it is the Board's responsibility under Section 9(b) of the Act to make appropriate unit determinations. Nothing in the final rule changes that. Indeed, the final rule ensures that the Board will have sufficient evidence in the record to make an appropriate unit determination even if the employer fails to complete its Statement of Position. Specifically, if the employer fails to take a position regarding the appropriateness of a proposed unit that is not presumptively appropriate, then as discussed below in connection with § 102.66, the regional director may direct the hearing officer to permit the petitioner to introduce evidence regarding the appropriateness of the proposed unit.

Thus, contrary to CDW, the final rule does not permit the Board to direct an election in an inappropriate unit simply because the employer does not suggest an alternative unit in the Statement of Position. Moreover, contrary to comments by ALFA and ACE, among Start Printed Page 74366others, the Board has not shifted the burden. The final rule is consistent with Allen Health Care Services, 332 NLRB 1308 (2000), in which the Board held that even when an employer refuses to take a position on the appropriateness of a proposed unit, the regional director must nevertheless take evidence on the issue unless the unit is presumptively appropriate. The final rule thus permits the petitioner to offer evidence in such circumstances and merely precludes non-petitioners, which have refused to take a position on the issue, from offering evidence or cross-examining witnesses.

Likewise, there is no merit in Littler Mendelson's argument that, under the proposed rules, the unit-appropriateness question will necessarily turn on “the extent to which employees have organized,” in violation of Section 9(c)(5) of the Act. Prepared Testimony of David Kadela on behalf of Littler Mendelson. In NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441-442 (1965), the Supreme Court made clear that, under Section 9(c)(5), the Board may consider the wishes of a petitioning union as a factor in the making a unit determination, but those wishes cannot be the only factor. Accordingly, in cases where the proposed unit is not presumptively appropriate, the Board cannot stop with the observation that the petitioning union proposed a particular unit, but must proceed to determine, based on community-of-interest factors, that the proposed unit is an appropriate unit. Again, nothing in the final rule changes that, and the deletion of the “most similar” language removes the application of the rule even further from Littler Mendelson's concern.

2. Initial Employee Lists

The NPRM proposed that the employer provide as part of its Statement of Position a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit, and if the employer contends that the proposed unit is inappropriate, to also provide a list of the full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer concedes is appropriate. 79 FR 7355. The NPRM also proposed that the initial lists provided to the regional director, but not the parties, also include contact information for such employees. 79 FR 7355. Several comments, such as ALFA's, question why production of such employee lists (without personal contact information) is necessary until an appropriate unit is identified by the regional director. Others, like SHRM's, take issue with the necessity for multiple lists to be provided as part of the Statement of Position form when the employer proposes alternative groupings of employees to those petitioned for by the union. And COLLE claims (Testimony of Deakins on behalf of COLLE II) that the proposal to require employers to disclose names and job classifications as part of the Statement of Position conflicts with the NPRM proposal to defer deciding individual eligibility or inclusion questions under the so-called 20 percent rule. In contrast, SEIU's comment requests a blanket rule that employee lists complete with contact information be provided to the petitioner within 2 days of the petition being filed.

As discussed above, the final rule provides that in the event the employer contends that the proposed unit is not appropriate, the employer shall state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit. Amended § 102.63(b)(1)(i). The Board concludes that requiring the employer additionally to furnish a list of the names, job classifications, work locations, and shifts of the individuals in the proposed unit, a similar list for the individuals that the employer contends must be added to the proposed unit to make it an appropriate unit, and the names of the individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit will help the Board to expeditiously resolve questions of representation by facilitating entry into election agreements, narrowing the scope of the preelection hearing in the event that parties are unable to enter into an election agreement, and reducing the need for election-day challenges based solely on lack of knowledge of the voters' identities.

As an initial matter, the Board concludes that the lists will help ensure that all parties have access to the information they need to resolve disputes concerning the appropriate unit in which to conduct the election. As the comments of Caren Sencer (Testimony of Sencer on behalf of Weinberg, Roger and Rosenfeld II) and Supplemental Written Testimony of Thomas W. Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly demonstrate, one of the impediments to reaching an election agreement is that the parties sometimes talk past each other regarding the appropriate unit in which to conduct the election because, unbeknownst to them, they are using different terminology to describe the very same employees.[288] In our experience, parties also sometimes use different terms to describe work locations and shifts. The requirement that employers disclose the names, job classifications, work locations and shifts of employees will enable the parties to discover if that is the problem, and therefore assist the parties in entering into an election agreement.

Requiring employers to furnish this information to the nonemployer parties to the case plainly facilitates entry into election agreements and helps narrow the issues in dispute in the event the parties are unable to enter into election agreements even if the parties do not have a terminology problem. Under the current rules, the names of the individuals occupying classifications (or falling within other employee groupings) that the employer would like added to or excluded from the unit in many cases are unknown to the petitioning union. Often, the union also does not know where and on what shifts individuals in those classifications (or in those employee groupings) work, what they do, or even how many employees in each such classification (or employee grouping) there are. Accordingly, the petitioner cannot make an informed decision about whether it agrees with the employer's objections to the proposed unit and with the employer's proposed alterations to the unit. However, with information from such lists, a petitioner, in consultation with its employee supporters, should be able to make informed decisions about whether to amend its petition to conform in whole or in part to the alternate unit suggested by the employer.[289] Accordingly, the Start Printed Page 74367requirement that the employer provide the information in question serves the goals of facilitating entry into election agreements which obviates the need for pre-election litigation and by narrowing the number of issues in dispute between the parties in the event the parties are unable to enter into an election agreement.

Indeed, as illustrated by comments like NNU's, without the information contained in the initial lists, petitioning unions are often “in the dark” as to the actual contours of any alternative units proposed by an employer, including the alternative unit's size. If parties are to reach reasonable agreements concerning which classifications, locations or employee groupings the bargaining unit should include, then nonemployers should have access to the information that is necessary for them to intelligently evaluate an employer's claim that certain classifications, locations or other employee groupings should be added to or excluded from, the petitioner's proposed unit. The Board is not persuaded that employers should be allowed to keep plainly pertinent information to themselves that would clearly assist parties to knowledgeably reach a voluntary resolution of the issue.

The Board also concludes, in agreement with AFL-CIO II, that the information will serve the salutary function of facilitating entry into Norris-Thermador agreements, whereby parties definitely resolve issues of eligibility by constructing a list of eligible voters and including it in their election agreement. See Casehandling Manual Section 11324 (discussing Norris-Thermador Corp., 119 NLRB 1301 (1958)). Such agreements obviously can expedite the period between the conduct of the election and the certification of the results by essentially limiting the potential universe of post-election disputes to those involving election objections. Put simply, it will be easier for the nonemployer parties to enter into a Norris-Thermador agreement if the employer is required to disclose as part of its Statement of Position the names, job classifications, work locations and shifts of employees in the proposed unit and for any alternative unit it proposes.

The Board further concludes that the production of employee lists complete with each employee's name, work location, shift, and job classification prior to the opening of the pre-election hearing furthers the second purpose articulated by the Board in Excelsior. Thus, production of the initial lists of employees should reduce the need for election-day challenges based solely on lack of knowledge of the voters' identities by giving the nonemployer parties more time to investigate and formulate knowledgeable positions about the eligibility of any such employees.

For all these reasons, amended § 102.63(b)(1)(iii) of the final rule requires the employer to provide a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit, and if the employer contends that the proposed unit is inappropriate, to (1) separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit and (2) indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit.[290] And because, as shown, the information on the lists is useful for purposes beyond resolving individual eligibility issues, we reject COLLE's claim (Testimony of Deakins on behalf of COLLE II) that there is a conflict between the initial list disclosure requirements in § 102.63 and the Board's conclusion discussed below in connection with §§ 102.64 and 102.66 that resolution of disputes concerning the eligibility or inclusion of individual employees ordinarily is not necessary in order to determine if a question of representation exists, and, therefore, that such disputes can be resolved, if necessary, post-election.

To be sure, facilitating agreements and thereby avoiding litigation of these issues might best be served by mandating disclosure of employee list information (including contact information) within 2 days of a petition's filing (and well before the opening of a pre-election hearing), as SEIU suggests. However, as discussed above in connection with § 102.62, the Board does not believe it would be appropriate to require disclosure of employee contact information to the nonemployer parties to the case before the regional director finds that a question of representation exists (or the employer admits that a question of representation exists by entering into an election agreement). Moreover, given employer protests about their abilities to prepare for a hearing in 7 days (when a petition's filing actually takes them by surprise), the Board is hesitant to impose a blanket requirement that such disclosures should occur so quickly after every petition. At a minimum, the Board believes that stipulations concerning the unit will be better facilitated and any pre-election hearings will avoid unnecessary litigation, if the additional information is made available 1 business day before the hearing is set to open. Accordingly, the final rule provides that employee lists complete with full names, job classifications, work locations, and shifts, will be part of the Statement of Position, to be provided to the nonemployer parties to the case at noon on the business day before the opening of the pre-election hearing.

This amendment is yet another effort to build upon the existing best practices in the Board's regional offices. Regional personnel currently request from the employer—early in a representation case's processing—a list of employees' names and job classifications in the petitioned-for unit and each other unit that the employer contends is appropriate for purposes of checking the showing of interest and resolving potential eligibility and unit issues.[291] Because regions know that the provision of such information to all parties to the case is an excellent aid in resolving many of the eligibility and unit questions that arise during case processing, regions encourage the employer to permit the region to provide the lists to the petitioner and all other parties. See Casehandling Manual Sections 11009, 11025.1, 11030.5; OM Memo 99-56; Hearing Officer's Guide at 2-5. But employers currently are not required to provide such information. Indeed, an employer's refusal to do so currently has no legal consequences beyond inhibiting the Board agent's efforts to resolve eligibility and unit issues. The Board agrees with the AFL-CIO that parties should be able to more promptly resolve disputes if this information is required to be provided to both the Board and the nonemployer parties before any pre-election hearing has begun, and therefore the rule precludes the employer from litigating certain issues if the employer fails to Start Printed Page 74368share the information.[292] As discussed above, the final rule's provision for the initial employee list(s) being provided to the nonemployer parties no later than at noon on the business day before a pre-election hearing is set to open should, consistent with the AFL-CIO's analysis, make election agreements more likely and, in the event a hearing is required, reduce the issues to be litigated and therefore reduce cost and resources otherwise expended.

The Board rejects the notion, raised by SHRM and others, that the initial employee lists constitute improper unilateral pre-hearing discovery. In fact, as the AFL-CIO points out (Reply), the Statement of Position form—of which the initial employee lists are a part—constitutes the employer's response to positions already taken by a union in its petition, including: a description of the unit it desires to represent, categories of employees it believes should be included in or excluded from the unit, an estimate of the unit's total size, and the type, date(s), time(s) and location(s) of election it seeks. As described more fully in § 102.66 below, immediately after the Statement of Position is received into evidence at the hearing, the petitioning union is required to respond to each position raised in the statement. In the Board's view, there is no additional bilateral discovery that employers would need from a petitioning union to adequately contest unit issues at the hearing. After all, it is nearly always the employer who is in possession of the relevant evidence on virtually all issues likely to be contested at a pre-election hearing concerning the proposed bargaining unit. Thus, as discussed more fully below, the employer knows its employees' terms and conditions of employment because it established them. And, as shown, regions already ask employers for name and classification information.

As noted, the NPRM proposed that the initial lists provided to the regional director, but not the parties, would include employee contact information for the employees on the list(s). 79 FR 7355. Some comments, such as those filed by ACE and the Chamber II, question the need for that information. The NPRM proposed that the regional office would use the email addresses and telephone numbers from this separate list to begin preparing for electronic transmission of the election notice that is issued once the parties enter into an election agreement or the regional director directs an election. 79 FR 7329. ALFA criticizes the proposal on the grounds that the provision of greater information through the vehicle of initial employee lists will generate more issues for litigation.

However, as discussed below in connection with § 102.67, the Board has decided to reject the proposal in the NPRM to require the regional director to serve the affected employees with the election notice. Accordingly, the Board has likewise decided to reject the proposal in the NPRM to require the employer to disclose to the regional director as part of its Statement of Position contact information for employees on the initial lists. Accordingly, employers will not be required to disclose employee contact information to either the regional director or the nonemployer parties to the case as part of its Statement of Position.

Cook Illinois, among others, express concerns about petitioners misusing information received from an initial employee list, and Littler Mendelson fears unions filing petitions simply to acquire employee information concerning units that it has no intention of representing. As expressed in § 102.62 above, the Board has not experienced significant misuse of information long-provided in Excelsior lists, and it does not reasonably expect misuse of employee names simply because that information will be provided prior to a direction of election. Nor does the Board expect such misuse simply because the employer will now be required to disclose job classifications, work locations, and shifts. If such misuse occurs, then the Board can provide a remedy. Currently, in appropriate circumstances, a regional director may limit a petitioner's ability to refile a petition as a condition for approving the withdrawal. See Casehandling Manual Section 11118. Similarly, as mentioned in § 102.60, the regional directors and the Board will continue to have discretion to reject a petitioner's request for withdrawal of the petition if the request would run counter to the purposes of the Act. See Casehandling Manual Section 11110.

Some comments argue that it will be particularly burdensome to produce multiple lists, but the Board believes that with modern record-keeping and retrieval technology, the requirement can be easily met by most employers.[293] Whether the employer asserts that the unit should go far beyond what the petitioner proposed is, of course, up to the employer. For example, employers sometimes assert that a proposed unit containing a handful of employee classifications must instead be “wall-to-wall” (including every employee classification at the location) in order to be appropriate. If the employer's position on the unit is proven correct, or nearly so, then the full information about all or most of those employees would have to be provided pursuant to an amended petition anyway when the election is directed. If the employer's position is untenable, then the burden of producing a list of employees in that alternative unit is truly self-imposed because the employer chose to take an extreme litigating position. In any event, as discussed above, the final rule language no longer contains a requirement that the employer produce lists corresponding to “the most similar unit that the employer concedes is appropriate.” So, to the extent some comments foretold a need to produce multiple alternative unit lists because of a lack of clarity concerning which concededly appropriate iteration was “most similar” to the petitioned for unit, that concern should be alleviated. Instead, if the employer contends that the unit described in the petition is inappropriate, the final rule clarifies that the employer need only produce one alternative list containing information about employees in the unit that the employer contends is an appropriate unit. Moreover, as discussed above, the Board has decided to reject the proposal that employers provide separate lists to the regional director containing contact information. In short, employers will be required to produce fewer lists under the final rule than the NPRM proposed, and the employer may file the same list(s) with the regional director that it provides to the nonemployer parties to the case.

We are not persuaded by SHRM's contention that there is little reason to require the initial employee lists because they will not necessarily reflect an accurate list of eligible voters. As already explained above, the initial lists provided to the nonemployer parties to the case should facilitate entry into election agreements and narrow the scope of pre-election hearings in the Start Printed Page 74369event parties are unable to enter into election agreements. Moreover, the nonemployer parties to a case may still find it prudent to begin their investigation of the eligibility of any unknown employees notwithstanding the possibility of turnover in the unit—between the date the initial lists are provided and the close of the eligibility period—in which the election is ultimately directed. That the initial lists may not entirely eliminate the need for election-day challenges in all cases certainly does not mean that provision of the lists cannot reduce the need for at least some election-day challenges in some cases. Thus, the Board believes that more information earlier in the process will avoid unnecessary delay in conducting elections and resolving questions of representation.

Baker and McKenzie questions whether the employer will be obligated to update the employee information that it provides in connection with the Statement of Position when it provides the voter list pursuant to § 102.67 after an election is directed. The answer is “yes.” To be sure, some of the information required to be produced as part of the Statement of Position is also required to be produced as part of the voter list in the event an election is agreed to or directed. For example, both the Statement of Position and the voter list amendments require employers to furnish the employees' names, job classifications, work locations, and shifts. However, there may be employee turnover between the time the Statement of Position is filed and the eligibility date for voting in the election, even assuming the unit in which the election is conducted does not differ from the petitioned-for unit. It is also possible that employee job classifications, work locations, and shifts may change during this interval. It would hardly serve the purpose of maximizing the likelihood that all eligible voters be exposed to the nonemployer party arguments concerning representation if the employer were permitted to provide the nonemployer parties with an outdated list of employees. Nor would it serve the goal of avoiding challenges based solely on lack of knowledge of the identities of the voters if the employer were permitted to provide the nonemployer parties with a list of eligible voters containing outdated information about them.[294] Moreover, although an employer is not required to furnish the nonemployer parties with employee contact information as part of its Statement of Position, the employer is required to furnish the nonemployer parties with employee contact information shortly after the parties enter into an election agreement or the regional director directs an election. Accordingly, as the amendments to §§ 102.62(d) and 102.67(l) make clear, once an election is agreed to or directed, the employer must furnish the nonemployer parties to the case and the regional director with an (up-to-date) list of the full names, work locations, shifts, job classifications and contact information (including home addresses, available personal email addresses and telephone numbers) of all eligible voters, and in a separate section of the list the same information for those individuals the parties have agreed to permit to vote subject to challenge or those individuals who, according to the direction of election, will be permitted to vote subject to challenge.[295]

3. Identification of Individual Eligibility and Other Issues

As noted above, the NPRM proposed that as part of its Statement of Position, the non-petitioner identify any individuals occupying classifications in the petitioned-for unit whose eligibility to vote it intends to contest at the pre-election hearing and the basis for each such contention, and describe all other issues the non-petitioner intends to raise at hearing.[296] Comments criticize these requirements as imposing unfair and unrealistic burdens because, for example, it may not be possible to identify all legal issues until testimony is taken.[297]

The Board is not persuaded by these comments. It clearly facilitates entry into election agreements and helps narrow the scope of the hearing if all parties state what they believe the open issues (including eligibility issues) are and what they seek to litigate in the event of a hearing. It is thus not surprising that Board agents currently ask the parties to do precisely that now. For example, prior to the scheduled hearing, Board agents attempt to secure the basic facts with respect to each potential issue, including bargaining unit and eligibility issues, and they use the payroll lists to resolve eligibility and unit issues. Casehandling Manual Sections 11009, 11012, 11016, 11025, 11187. As also shown, the hearing officer attempts to meet with parties' representatives prior to the hearing to discuss the issues they intend to raise, and the hearing officer is instructed to discuss at the pre-hearing conference “each party's position on each issue.” Hearing Officer's Guide, 2-3, 5, 15-18 (emphasis added); OM Memo 99-56.

Given that Board agents are already asking the parties to state the issues (including individual eligibility issues) that they intend to raise at the hearing, we reject the argument that it is unfair and unrealistic for the Board to require the parties to do so as part of their Statements of Position. Some comments, such as the Chamber's and ACC's, complain that it will be difficult to identify individual eligibility questions if the union's petition describes the unit in vague terms. However, that situation could arise under the prior rules and the employer may move to amend its Statement of Position if union clarification of its positions at the hearing calls for more nuanced responses from the employer.[298]

Start Printed Page 74370

4. Election Details

The NPRM also proposed that the Statement of Position form require the non-petitioning party to state its preferences with respect to the type, date(s), time(s), and location(s) of the election and the eligibility period. 79 FR7328, 7355. The final rule adopts this proposal.[299] This requirement eliminates unnecessary barriers to the expeditious resolution of questions concerning representation in two ways. First, it facilitates entry into election agreements. Parties enter into election agreements only if they agree, among other things, on the election details. It plainly serves the goal of making it easier for parties to promptly enter into election agreements if the petitioner is advised of the nonpetitioner's position on those matters prior to the hearing. Second, in cases where the parties are unable to enter into an election agreement, the amendment (in conjunction with the provision in § 102.66(g) that the hearing officer solicit all parties' positions concerning the election details) ordinarily will make it possible for the regional director to specify the election details in the direction of election, and to simultaneously issue the Notice of the Election with the Decision and Direction of Election, because the parties will have provided their positions on the election details prior to, and at, the hearing.

Currently, however, the regional director frequently is unaware of the parties' positions concerning the election details when the director issues the direction of election, and, not surprisingly, the decision and direction of election frequently does not specify those details. Instead, a Board agent must contact the parties after the direction issues to solicit their positions. After obtaining the positions, the regional director must decide those details and then draft and serve the official Notice of Election on the employer for posting. This takes time and can unnecessarily delay the election.

The Chamber objects that until the appropriate unit is determined, an employer cannot develop a reasoned position on the type, date(s), time(s), and location(s) of the election and the eligibility period. To the extent the Chamber is suggesting that the requirement is unreasonable because an employer may have one position on these matters if the petitioned-for unit is found to be appropriate, but another position if the director finds some other unit, such as an employer's alternate unit, appropriate, the Board disagrees. The employer will be permitted to state its preferences in the alternative. And as the amendments to § 102.66(g) indicate, the hearing officer shall solicit the parties' positions on the election details prior to the close of the hearing. Thus, if the petitioner has modified its position on the unit during the hearing in response to the employer's Statement of Position, the employer will be able to present its position regarding any new unit sought by the petitioner. Moreover, given the relatively small size of bargaining units in representation cases, the Board anticipates that it will be the exceptional case, rather than the norm, where differences between the petitioned-for unit and any other unit would cause the employer to feel the need to take such alternative positions regarding the election details.[300]

ALFA characterizes this requirement as indicating a possible “abandonment of the long-established Board presumption favoring manual ballot elections at employers' premises.” However, the new requirement is not intended to change Board policy in this respect.

C. Scheduling of Pre-Election Hearing

A great number of comments responded to the Board's call for comments on the feasibility, fairness and proper scope of the proposed exceptions to the NPRM provision that, absent special circumstances, the regional director would set the hearing to begin 7 days after service of the notice of hearing.[301] As explained in the NPRM, this proposal reflects the current practice of some regions, but would make the practice explicit and uniform, thereby rendering Board procedures more transparent and predictable. Under the proposed amendments, parties served with a petition and description of representation procedures, as described in relation to proposed § 102.60, would thus be able to predict with a high degree of certainty when the hearing will commence even before service of the notice. 79 FR 7328.

In the NPRM, the Board proposed that the amendments would be implemented consistent with the Board's decision in Croft Metals, Inc., 337 NLRB 688, 688 (2002), requiring that, “absent unusual circumstances or clear waiver by the parties,” parties “receive notice of a hearing not less than 5 days prior to the hearing, excluding intervening weekends and holidays.” The amendments would thus not require any party to prepare for a hearing in a shorter time than permitted under current law. Rather, as the Board held in Croft Metals, 337 NLRB at 688, “By providing parties with at least 5 working days' notice, we make certain that parties to representation cases avoid the Hobson's choice of either proceeding unprepared on short notice or refusing to proceed at all.” [302] Thus, contrary to PCA, the NPRM's choice of a 7-day time frame was not arbitrary. The existing regional best practice is to set the hearing in 7 days, and that practice comports with the minimum notice standard that has governed Board hearings for the last decade.

Several comments directly suggest that the Board should alter the proposed language governing exceptions to the hearing and Statement of Position time frames. Specifically, the Board proposed that the regional director would set a pre-election hearing to open in 7 days “absent special circumstances.” Dissatisfied with the standard's perceived leniency, the AFL-CIO argues that “special circumstances” should be exchanged for “unusual circumstances” consistent with Croft Metals, while Start Printed Page 74371SEIU advocates that “extraordinary circumstances” would be the appropriate descriptor. Attorney Nicholas Karatinos urges the Board to allow regional directors to delay the opening of the hearing by 1-3 days upon a showing of hardship, and the Chamber (reply) submits that the Board should adhere to section 11082.3 of the Casehandling Manual's guidance that “requests for postponement of the hearing will be granted only for good cause.” Maury Baskin, testifying on behalf of ABC II, argued that “sufficient cause, sometimes called good cause,” is a “good standard.” Curiously, COLLE opines that regional directors' rigid adherence to internal time targets make it a fool's errand to consider which exception language would be most appropriate. Thus, in COLLE's view “the Board's invitation to suggest language to guide exceptions to the target, even if it results in a stated test for doing so that is not unreasonable, is likely to be ignored in practice by the Regional Directors.”

The Board has carefully considered the comments in this area—including COLLE's fatalistic assertion—and believes that the competing interests represented would best be balanced by altering the language in the proposed rules in several ways. First, as shown, consistent with Croft Metals' concern for adequate hearing preparation, § 102.63 of the final rule, will guarantee employers (and all nonpetitioning parties) 8 days notice of the hearing and 7 days notice of the due date for completion of the SOP form. Second, as also shown, in order to ensure that the Statement of Position serves its intended purposes of facilitating entry into election agreements and narrowing the scope of any pre-election hearings that must be held, § 102.63(b)(1) of the final rule requires the form to be filed with the regional director and served on all parties such that it is received by them at noon on the business day before the opening of the hearing. Third, to allow for both changes listed above, § 102.63(a)(1) of the final rule provides that except in cases presenting unusually complex issues, the regional directors will set pre-election hearings to open, in 8 days from service of the notice excluding intervening Federal holidays, not 7.[303] (Of course, if the 8th day would fall on a weekend or Federal holiday, then the rule provides that the regional director shall set the hearing to open on the following business day.) Thus, based on the regional director's analysis of the complexity of the issues raised by the petition, a director will have discretion, even without a party filing a motion, to set the opening of the hearing beyond the normal 8-day time frame if the director concludes such extra time is warranted. Fourth, even if the director sets the hearing for the normal 8-day time frame, the director will retain discretion under § 102.63(a)(1) of the final rule to extend the opening of the hearing for up to 2 business days upon request of a party showing special circumstances. By cabining the regional directors' discretion to extend the hearing's opening to 2 business days, the Board trusts that contrary to concerns exhibited in some comments, the exception will not swallow the rule. Finally, because the Board is persuaded that there may be the exceptional case that should not go to hearing within that time frame, regional directors will retain discretion under § 102.63(a)(1) of the final rule to postpone the opening of the hearing for more than 2 business days upon request of a party showing extraordinary circumstances. The Board has concluded that the hearing scheduling amendment will help the Board to expeditiously resolve questions concerning representation because, absent an election agreement, the Board may not conduct an election outside of the 8(b)(7)(C) and 9(e) contexts without first conducting a pre-election hearing. The amendment will also render Board procedures more transparent and uniform across regions.[304]

Some union comments suggest that the Board specify that regional directors serve the notice of hearing immediately.[305] We decline to do so, because the regions, among other things, check the showing of interest prior to serving the notice. However, in our experience, regions currently are promptly serving the notices, and we anticipate that the directors will issue the notices as soon as is practicable. SEIU suggests that the regional director should mark any correspondence regarding the hearing notice as “urgent” so as to help ensure that the recipient will pay proper attention to it. The Board agrees, and has so indicated in its statement of the general course.

Many employer comments attack the proposed time frames. Although, as shown, the final rule provides that, except in cases presenting unusually complex issues, the hearing will open in 8 days—not 7 days—from the notice and that parties will always have at least 7 days notice of the due date for completion of the Statement of Position form, we shall assume that all comments opposing the proposed time frames would similarly object to the 8-day hearing/7-day Statement of Position time frames.[306]

A number of comments assert, with little legal analysis, that the time frames for the opening of the pre-election hearing and completion of the Statement of Position violate employer due process rights.[307] However, due process does not require the Board to conduct a pre-election hearing. See Inland Empire District Council v. Millis, 325 U.S. 697, 707, 710 (1945). But, to be sure, Section 9(c) does require a pre-election hearing in the event parties are unable to reach an election agreement. And, in determining whether the notice given under the amendments is “due notice” as required by Section 9(c), the procedural due process case law provides some helpful analogies.

“[T]he timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved.” Goss v. Lopez, 419 U.S. 565, 579 (1975). Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), three factors are weighed in evaluating the adequacy of the notice: (1) The gravity of the private interest that will be affected by the official action, (2) the value of procedural safeguards, like additional time, in reducing the risk of error, and (3) the public interest—including the burden of additional time on the government.

The Board believes that the 8-day hearing/7-day Statement-of-Position-form time frames provide parties with Start Printed Page 74372“due notice.” The final rule provides in amended § 102.60 that the petition, which describes the unit sought, is served upon the employer as soon as it is filed in order to insure that the earliest possible notice of the pendency of a petition is given to all parties. Served together with the petition is an Agency form describing the Board's representation case procedures, and a copy of the Agency's Statement of Position form. Soon thereafter, the regional director serves the notice of hearing, specifically informing the parties of the time, place and subject of the hearing, and the deadline for the position statement. Amended § 102.63(a)(1) provides that except in cases presenting unusually complex issues, the hearing will be “8 days [after] the date of service of the notice [of hearing] excluding intervening Federal holidays,” and that the Statement of Position will be due at noon on the business day before the hearing, i.e. no sooner than 7 days from the notice of hearing.

The courts have held that less than 8 days notice constitutes due notice even when very substantial interests are at stake. For example, in Wilkinson v. Austin, 545 U.S. 209, 213, 216 (2005), the Supreme Court addressed the appropriateness of an Ohio procedure for placing prisoners in a “Supermax” prison. The procedures involved at least 48 hours written notice of the issues that would be addressed at the hearing. The unanimous Court held that the procedures satisfy due process. Id. at 229. In Wolff v. McDonnell, 418 U.S. 539, 564 (1974), the Court held that before a hearing on inmate discipline, “[a]t least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance [at the hearing.]” This advance notice was required in order to “give the charged party a chance to marshal the facts in his defense.” Id.

In the Federal context, employees facing termination for criminal conduct have a statutory right to “a reasonable time, but in any event not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of [their position].” 5 U.S.C. 7513(b)(2). This provision has been upheld against constitutional attack. Perez v. Dep't of Justice, 480 F.3d 1309, 1312 (Fed. Cir. 2007) (discussing cases). In Schapansky v. Dep't of Transportation, 735 F.2d 477, 480, 486-88 (Fed. Cir. 1984), for example, the Federal Circuit upheld the agency's firing of PATCO strikers after 7-days notice. See also Darnell v. Dep't of Transportation, 807 F.2d 943, 944-46 (Fed. Cir. 1986) (discharges not unlawful where air traffic controllers had 7 days to prepare and respond to notices of termination). And, in some cases, the interests at stake are considered of such minor significance and the value of additional preparation time so small that notice may be provided orally and contemporaneous with the hearing: “There need be no delay between the time `notice' is given and the time of the hearing.” Goss, 419 U.S. at 582 (suspension from school of 10 days or less).

Under the first Mathews factor, the arguable employer private interest at stake in pre-election litigation typically concerns the contours of the unit in which the election will be conducted, for the employer risks losing the right to deal directly with the unit employees. This interest, though important, is generally not so important to the employer as the question at stake in the election itself—that is, whether the Section 9 relationship will form. To the extent that the employer has a legally cognizable interest in being free to deal with its employees directly, the pre-election hearing cannot deprive the employer of that freedom, because an employer loses the right to deal directly with bargaining unit employees only if the union wins the election. In any event, the time given is sufficient to account for even the serious interests under Wilkinson, Wolff, and Perez.

The Board also is of the opinion that the time frames in question pose little risk of error, the second Mathews factor. The Board has substantial experience applying the NLRA to various industries over the last 7 decades. The factual subject matter that is the focus of the hearing typically is not all that complex to litigate, and is intimately familiar to the employer, permitting very rapid preparation. As discussed, the Board need not direct an election in the most appropriate unit; it need only select an appropriate unit. In determining whether a group of employees constitutes an appropriate unit, the Board analyzes whether the employees in that unit share a community of interest by examining the employees' terms and conditions of employment, the employees' job duties, skills, training, and work locations, the employees' supervision, the extent of employee interchange and contact with one another, and the history of collective bargaining. The employer already knows all those things before the petition is even filed. Thus, the employer knows its employees' terms and conditions of employment because it established its employees' terms and conditions of employment. The employer knows its employees' job duties, work locations, and supervision, because it assigned those job duties, work locations, and supervisors to its employees. The employer knows its employees' skills because it sets the skill requirements for its positions, and hires and evaluates its employees. Similarly, the employer is aware of the collective bargaining history of its employees, as well as the level of employee interchange and contact, and the training it provides for its employees.[308] The employer likewise knows its connection to interstate commerce, and whether the petitioned-for employees are covered by a collective-bargaining agreement or participated in a valid election in the preceding 12-month period, thereby barring an election. Even if preparation within “a few hours” would not be feasible in some cases, within a few days an employer should reasonably be able “to gather his thoughts and his evidence and to make an informed decision about the best way to respond” regarding the community of interest and other issues. Staples v. City of Milwaukee, 142 F.3d 383, 385-86 (7th Cir. 1998). Furthermore, in those cases where the timeline would be too short, the final rule provides exceptions so that, in practice, there should be no impact on the likelihood of error.

The Board also believes that the proposed time frames serve very important public interests, the third Mathews factor. Put simply, permitting a timely choice of representative is of inherent value under the Act; each delay in resolving the question concerning representation causes public harm by denying the employees their right to bargain collectively through representatives of their own choosing—or denying employees their right to rid themselves of an unwanted incumbent Start Printed Page 74373representative. Moreover, Congress has already determined that the expeditious resolution of questions concerning representation “safeguards commerce from injury, impairment or interruption.” 29 U.S.C. 151. As favorable comments indicate, providing such standard time frames also has the salutary effect of conveying to the employees that the Board, not the parties, is in charge of the process, and reduces chances of manipulation of the process by the parties.[309] The establishment of uniform time frames across the regions also has the salutary effect of affording employees' Section 7 rights the same treatment across the country.[310] The ability to exercise Section 7 rights should not turn on the particular region where the petition is filed. The timeline will also reduce the Board's expenses and make the process more economically efficient by discouraging abusive delays by the parties and encouraging prompt settlement without litigation.

For all the foregoing reasons, the Board believes that the time frames do not run afoul of constitutional due process or statutory due notice requirements. The Board also rejects the argument of many comments that, as a matter of policy, the time frames proposed in the NPRM are wholly insufficient,[311] virtually impossible,[312] draconian,[313] facially absurd,[314] unconscionable,[315] and just too short.[316] A major premise of many of these comments is that employers are completely unaware of any union organizing until the petition is filed, and therefore have not even begun to think about contacting an attorney or other advisor about how to respond to a petition. However, as discussed more fully above in connection with the opportunity for free speech and debate, these comments offer no reliable empirical evidence establishing that employers are frequently blindsided by the petition, and our experience and recent scholarly research suggest the opposite. Put simply, in the multitude of cases where employers are aware of the union drive before the petition, they have more, often much more, than 7 days to contact an attorney or advisor or otherwise begin to consider the issues listed on the Statement of Position form and to prepare for a possible hearing.

But even in cases where employers are caught completely unaware by the petition, we reject the notion that employers will be unable to consult advisors, complete the Statement of Position form, and prepare for the hearing in the allotted time frames. As some of the comments appear to concede, at least some employers facing petitions will have ready access to labor counsel. Although we recognize that some employers may not have labor counsel on retainer, in our experience, employers are able to promptly retain advisers and prepare for the hearing in relatively short order. For example, as the testimony of Russ Brown on behalf of LRI and of Michael Pearson, a retired NLRB field examiner with nearly 34 years of experience, indicate, under the Board's current rules, management consultants regularly survey public notice of the filing of representation petitions to offer their services to employers named in the petition, and they would continue to be able to do so under the final rule. Indeed, this is such a widespread practice that a regional director's model opening letter to employers to accompany service of the petition advises employers that they may be contacted by organizations or persons who seek to represent the employer before the Board in connection with the representation case, but that such persons or organizations do not have any “inside knowledge” or “favored relationship” with the Board. See OM Memo 99-56.[317] Similarly, the retired field examiner commented that it was his experience that even small employers were able to obtain competent legal counsel in short order. Michael Pearson supplemental statement; Testimony of Pearson.

Indeed, despite the comments to the contrary, the proposed time frames do not constitute a radical change from the status quo. Under the final rule, hearings ordinarily will be scheduled to open 8 days from service of the notice of hearing, but a party may for special circumstances move to postpone the hearing by up to 2 business days and for extraordinary circumstances for more than 2 business days. A 1997 Report of the Best Practices Committee provided that hearings should open between 10 to 14 days of the petition's filing. GC 98-1. A model opening letter in 1999 indicated that the hearing should open no later than 7 days after service of the notice, which should issue no more than 3 days after the filing of the petition. OM 99-56. The 2002 Board held that 5 business days notice was sufficient: “By providing parties with at least 5 working days notice, we make certain that parties to representation cases avoid the Hobson's choice of either proceeding unprepared on short notice or refusing to proceed at all.” Croft Metals, Inc., 337 NLRB 688, 688 (2002). And, according to ALFA, “[m]any Regions now schedule hearings within seven (7) days and are reluctant to grant any postponements.” Most pre-election representation case hearings last only 1 day. Accordingly, the reality is that under the current rules, employers sometimes must already formulate, assert, and produce supporting evidence for all their positions before a hearing officer within 7 days even though the current rules do not mandate completion of a Statement of Position form.[318] Because the proposed time frames are not radically different from the status quo and the Statement of Position form largely requires an employer to do what it currently does to prepare for a hearing, the Board rejects the Bluegrass Institute's contention that the proposed time frames will result in significantly higher legal fees for employers.[319]

Start Printed Page 74374

The Board likewise rejects the notion that the amended scheduling provisions are unfair because if a union does not know the correct individual to serve, the petition might not be received by the proper recipient for a day or more. Cook-Illinois; California Healthcare Association (CHA) II. Thus, the same possibility existed under the prior rules. Moreover, as shown, the region will also serve the petition, the Statement of Position form, and related papers with the notice of hearing (§ 102.63(a)(1)), and it is the practice of the regional offices to have a Board agent contact parties as soon as possible after the filing of a petition in order to facilitate the election process. See Casehandling Manual Section 11010. The Board likewise rejects COLLE's suggestion that the Board is incapable of timely serving the notice of hearing on the person specifically named in the petition as the employer representative to contact. In any event, a nonpetitioning party may move to postpone the opening of the pre-election hearing (and the date for filing the Statement of Position) if it does not receive the notice of hearing (or the Statement of Position form) in a timely manner.

Although many comments complain about the consequences of failing to note something on the Statement of Position form, the fact of the matter is that the Board's prior rules and case precedent already required parties to raise contentions at specified times in the process or face preclusion. Indeed, even taking the preclusion provisions into account, the 7-day time frame for completion of the Statement of Position—which can be extended up to two business days for special circumstances and even further for extraordinary circumstances—does not constitute a material change from what could, and sometimes did, occur under the Board's prior rules and case precedent. Prior to the NPRM, the Board held that a hearing officer may refuse to allow an employer to introduce evidence regarding the supervisory status of employees in certain job classifications if the employer refuses to take a position on their status and their inclusion or exclusion from the unit. Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994). Similarly, under the rules in effect prior to the NPRM, a party could “not [in a request for review of a regional director's decision and direction of election] raise any issue or allege any facts not timely presented to the regional director.” 29 CFR 102.67(d) (2010). Accordingly, even under the Board's prior rules, if a party failed to present facts or take a position before the hearing officer at a hearing, including one which opened and closed within 7-days of the notice, it could not do so later.[320]

In view of the foregoing, the Board rejects as unfounded those comments that complain that the proposed time frames are so short as to inevitably cause parties to make mistakes.[321] Moreover, the Board indicated in the preamble to the NPRM that the hearing officer would retain discretion to permit parties to amend their Statements of Position for good cause. 79 FR at 7330. In its reply comment, the Chamber complains (Reply) that the proposed regulations themselves did not so provide.[322] In response to the comment, the Board has modified §§ 102.63 and 102.66 to provide that the regional director may permit parties to amend their Statements of Position in a timely manner for good cause.[323]

The dissent argues that the Statement-of-Position and preclusion provisions should be modified so that a party retains the right to address issues it did not raise in its initial Statement of Position in response to another party's contentions. No modification is necessary. The Statement of Position in large part constitutes a response to positions previously taken by the petitioner in its petition. For example, after a union files a petition which identifies the unit it seeks, the employer is required to state whether it agrees that the petitioned-for unit is appropriate and whether there is a bar to conducting an election in that unit. The final rule also provides that the regional director may permit a party to amend its Statement of Position in a timely manner for good cause. And a party typically will have good cause to timely amend its Statement of Position to raise an issue that is presented by virtue of a petitioner's amending its petition. For example, it would constitute good cause for an employer to amend its Statement of Position to raise for the first time a contract bar issue if a petitioner amended its petition to change the petitioned-for unit from one which is entirely unorganized to one including employees who are covered by an existing collective-bargaining agreement. Contrary to the dissent, the good-cause standard governing amendments of statements-of positions is less strict than the Pergament standard governing whether the Board may find a violation that was never alleged in an unfair labor practice complaint. See Pergament United Sales, Inc., 296 NLRB 333, 333-334 (1989) (Board may find a violation even in the absence of a specific complaint allegation if the unalleged violation is closely connected to the subject matter of the complaint and has been fully litigated). Thus, if a union seeks to amend its petition in a fundamental way, an employer may have good cause to amend its Statement of Position even if the amendment is not closely related to the original position taken by the employer. Moreover, it is not clear how many of the retrospective criteria used to determine whether Pergament's fully-litigated prong has been satisfied could have any kind of coherence in the context of the position statement, particularly where amendment is sought early in the process.

At least one comment suggests that the Board should make clear that the Statement of Position is required only to alert the Board to issues that need to be decided during the pre-election stage, not to foreclose legitimate issues that may be raised after the election. The Board believes that the proposed Start Printed Page 74375language already does so. Certainly, nothing in the NPRM or final rule suggests that a party must raise post-election issues, such as objectionable conduct, in its pre-election Statement of Position.

Although some employer comments concede that requiring completion of the Statement of Position form is a good idea in theory, many complain that it will be a bad idea in practice because the time frame for completing it—coupled with the preclusion provisions—will cause employers to list every conceivable issue on the form to preserve their right to litigate such issues, which will only lengthen (and increase the number of) hearings.[324] The Board disagrees. As shown, we do not believe that the information sought, time frames and preclusion provision are unreasonable. To the contrary, they are similar to what could occur under the Board's prior rules and case precedent. And, as shown, under existing rules, most hearings currently last only a day, and the Board's current rules and case precedent obviously are not preventing the parties from entering into election agreements.

Moreover, the Board is of the opinion that some of the comments suggest that the Board adopt time frames which bear no relation to reality. For example, NADA suggests that a 30-day period to complete the Statement of Position form is necessary. Other comments suggest a much shorter period is necessary, though not as short as the 7 day period set forth in the amendments. Thus, the Indiana Chamber suggests a period of 14-18 days. Put simply, we categorically reject any notion that the Statement of Position form will routinely require such long periods of time to complete. As shown, the Statement of Position form largely requires parties to do what they currently do to prepare for a pre-election hearing. The Croft Board held that 5 days (excluding intervening weekends and holidays) constituted adequate notice of such a hearing, and some hearings are already occurring within 7 calendar days.

We also find it significant that parties commit to enter into stipulated election agreements in 7 days or less. Under current rules, by entering into a stipulated election agreement, a party waives the right to raise issues at a pre-election hearing, and is precluded from later challenging matters such as the appropriateness of the unit. See, e.g., Micro Pacific Development, Inc. v. NLRB, 178 F.3d 1325, 1335-1336 (D.C. Cir. 1999). As is well known, approximately 90 percent of Board elections are conducted pursuant to election agreements. Frankly, the Board finds it difficult to believe that an employer would commit to enter into a stipulated election agreement—and thereby waive its right to raise issues at a pre-election hearing—before satisfying itself that the Board did in fact have jurisdiction over it, that there were no bars to an election, and that the unit described in the agreement was appropriate. Indeed, as Jonathan Fritts testified on behalf of CDW, “it's hard to say that negotiating a stip[ulated election agreement] would necessarily take less time than preparing for the hearing[.] I think that everything that precedes the negotiation, at least in my experience, is something that you would do to identify the issues that may be subject to litigation. And so, if you're going to negotiate a stip I think you have to know what the issues are that you might go to hearing on, and then you have to decide if you can resolve them. The process of identifying those issues, what the evidence is, what the circumstances are, that's going to happen I think regardless of whether you go to a hearing or whether you go to a stip. It's only once you've done all that that you really begin the process of negotiating a stip.” Testimony of Fritts on behalf of CDW II.[325] In other words, the fact that parties currently agree to enter into stipulated election agreements in 7 days constitutes powerful evidence that employers can in fact obtain advisers and have the conversations necessary to formulate positions on the issues covered by the Statement of Position form (and that would be addressed at a pre-election hearing) in the time frames set forth in the final rule. And the Board is confident that, if parties do not enter into election agreements, the offer-of-proof procedures discussed below in connection with § 102.66 provide tools for the region to swiftly dispose of unsupported contentions that a party may set forth in its Statement of Position simply to avoid triggering the preclusion provisions.[326]

The Chamber II argues that the Board should have analyzed the impact of the Board's decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), affd sub. nom, Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) before making the proposals in the NPRM. However, Specialty Healthcare has not had, and is not likely to have, a significant impact on representation case processing by the Board. Specialty Healthcare sets forth a clear test for unit determinations when an employer contends that a proposed bargaining unit is inappropriate because additional groups of employees are excluded from the bargaining unit. Specialty Healthcare, slip op. at 14. These issues are not addressed by the NPRM, which does not affect the appropriateness of bargaining units. Likewise, Specialty Healthcare does not implicate representation-case procedures, which are addressed by the NPRM. Before Specialty Healthcare, regional directors were required to determine whether the petitioned-for unit was appropriate prior to directing an election but were not required to resolve all individual eligibility issues in the pre-election decision, and both remain true after Specialty Healthcare.

Some comments argue that Specialty Healthcare renders the proposed time periods too short.[327] They claim that more time is needed because Specialty Healthcare constitutes a dramatic Start Printed Page 74376change in the law and heightens the employer's burden when it wishes to contest the appropriateness of the petitioned-for unit. However, the premises for that argument were rejected in Specialty Healthcare and in the litigation which followed. See Specialty Healthcare, slip op. at 14 (“Our dissenting colleague is simply wrong when he says that `[t]oday's decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board's jurisdiction.' Our decision adheres to well-established principles of bargaining-unit determination, reflected in the language of the Act and decades of Board and judicial precedent.”). Thus, Specialty Healthcare holds that “the traditional community of interest test * * * will apply as the starting point for unit determinations in all cases not governed by the Board's Health Care Rule,” and sets forth a clear test—“using a formulation drawn from Board precedent and endorsed by the District of Columbia Circuit”—for those cases in which an employer contends that a proposed bargaining unit is inappropriate because additional groups of employees are excluded from the bargaining unit. Ibid. In such cases, the Board held, “the employer must show that the excluded employees share an `overwhelming community of interest' with the petitioned-for employees.” Ibid.

When the employer subsequently challenged the Specialty Healthcare standard in the Sixth Circuit, the employer and amici such as COLLE and the American Health Care Association, raised the same argument that Specialty Healthcare had fundamentally changed the standard for determining whether the petitioned-for unit is appropriate. See 2012 WL 1387314 *3, *44 (employer brief); 2012 WL 1494162 * 3-4 (COLLE amicus brief); 2012 WL 1494157 *17 (American Health Care Association amicus brief). The Sixth Circuit squarely rejected the argument. See Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552, 561 (6th Cir. 2013) (“Kindred argues that this overwhelming-community-of-interest standard represents a `material change in the law' and is not a mere reiteration nor clarification. But this is just not so. The Board has used the overwhelming-community-of-interest standard before, so its adoption in Specialty Healthcare II is not new.”).

We also agree with the AFL-CIO that Specialty Healthcare makes preparation easier by clarifying the standard. Reply II. As the Board made clear in Specialty Healthcare, “employees in the petitioned-for unit must be readily identifiable as a group and the Board must find that they share a community of interest using the traditional criteria before the Board applies the overwhelming-community-of-interest standard to the proposed larger group.” Specialty Healthcare, slip op. at 11 n.25 (emphasis added). And the employer possesses the evidence relevant to whether the petitioned-for employees constitute a readily identifiable group; [328] whether the petitioned-for employees share a community of interest,[329] and whether the employees it seeks to add share an overwhelming community of interest with the petitioned-for employees.[330] Accordingly, we reject the contention that Specialty Healthcare renders the proposed time frames unworkable in the typical case. In any event, as discussed above, if a petition raises an unusually complex issue, the regional director has discretion to set the hearing for a later date on the director's own initiative, and parties remain free to file postponement requests themselves.[331]

A number of comments also request exemptions from the time frames proposed in the NPRM for particular employers, industries, or types of petitions. We deal with these in turn.

1. Small Employers

Many comments complain that the time frames are particularly unworkable for small employers because they may not have ready access to labor relations advice and have no experience with Board proceedings.[332] Some of these comments, such as that filed by COSE, also complain that the amendments “disproportionately harm[] small businesses,” because they do not have large staffs, and the requirements will distract them from running their businesses.

The Board declines to carve out an exemption for small employers in all cases. Prior to the NPRM, the Board did not have one set of best practices for cases involving small employers and a different set of best practices for cases involving large employers. Moreover, as shown, the timing of the pre-election hearing under these amendments will not be dramatically different from that which existed prior to the amendments. Small employers, no less than large employers, are intimately familiar with the factual subject matter of the Statement of Position form and the hearing. Thus, for example, they know their employees' terms and conditions of employment because they established those terms and conditions. As previously discussed, small employers, like large employers, may learn of the union drive prior to the petition, in which case they may well retain advisors before the filing of the petition. Even when the filing of the petition catches small employers by surprise, they may retain advisors in relatively short order. In some cases, they may well be solicited by firms providing labor relations advice. As we note above in connection with the section discussing the opportunity for free speech and debate, the well-documented growth of the labor relations consulting industry undermines the contention that small businesses are unable to obtain advice quickly. And, small employers, like their larger counterparts, may be members of trade organizations which provide assistance in responding to the petition and in locating counsel. Testimony of Sencer on behalf of Weinberg Roger & Rosenfeld II; Testimony of Maciel on behalf of NGA II. As a former examiner commented, it was his experience that small Start Printed Page 74377employers, like their larger counterparts, were able to retain counsel in short order. Pearson supplemental statement; Testimony of Pearson. The rule also provides that parties may move that the opening of the hearing be postponed up to 2 business days based on special circumstances and may move that the hearing be postponed for an even longer period of time based on extraordinary circumstances.[333]

In the final analysis, however, the Board believes that small employers, like their larger counterparts, will be able to appropriately respond to the filing of a petition. Congress deemed it appropriate to grant Section 7 rights to employees, notwithstanding any resulting distractions to employers, even those of relatively small size. The Board is confident that small employers can locate competent advisors, should they choose to do so, within the time frames set forth in the rule.

Nevertheless, the Board emphasizes that the final rule fully protects small employers with respect to the two issues that, in our experience, most concern small employers. First, even if a small employer fails to complete a Statement of Position form, the small employer will be able to challenge the Board's statutory jurisdiction at any time. Second, even if a small employer fails to complete a Statement of Position form, it will be able to challenge the eligibility of a particular individual at the polls. See amended § 102.66(d). Accordingly, we reject as mistaken comments such as the National Meat Association's that argue that a small employer would waive “even objections to [statutory] jurisdiction” if they did not raise the issue in a Statement of Position.

2. Faculty Managerial Cases

ACE argues that the Board should exempt institutions of higher education from the Statement-of-Position and hearing time frames. As justification, ACE stresses the difficulty of adequately preparing in such a short period for a hearing to determine whether petitioned-for faculty are employees entitled to the protection of the NLRA or managers without Section 7 rights to organize and bargain collectively. ACE II. The Board declines to carve out a generalized exemption because the parties may be able to complete the Statement of Position form and adequately prepare for hearing in that time frame. For example, where the Board has previously found the faculty at issue to be statutory employees and the faculty are seeking to decertify the union currently representing them, the Board believes that the 7-day Statement of Position, 8-day hearing time frame would be appropriate.

However, the Board recognizes that petitions concerning faculty may sometimes present unusually complex issues prompting regional directors on their own initiative—or upon a party's motion—to set the opening of the hearing beyond the normal time frame. The legal test for determining the managerial status of college faculty involves consideration of “a long list of relevant factors” (LeMoyne-Owen College v. NLRB, 357 F.3d 55, 57 (D.C. Cir. 2004)); requires “an exacting analysis of the particular institution and faculty at issue * * * [which] is made more difficult by the fact * * * that the Act is not easily applied to labor relations in the university setting” (Point Park University v. NLRB, 457 F.3d 42, 48 (D.C. Cir. 2006)); and has met with some criticism in recent years. See id. at 47-51; LeMoyne-Owen College v. NLRB, 357 F.3d at 57, 61. In addition, the nonpetitioner bears the burden of proving that the petitioned-for faculty are managers, and such cases typically involve large units. Accordingly, while the Board declines to carve out an exemption for all faculty managerial cases, the Board recognizes that cases involving numerous or complex factual or legal issues may require additional time and the rules provide a process by which the regional director on the director's own initiative may grant more time as well as a process by which the parties themselves can request additional time.

3. Construction Industry

Some comments argue that the Board should exempt construction industry employers from the time frames governing the hearing and Statement of Position. For example, AGC appears to argue that there is no need to more expeditiously resolve questions concerning representation in the construction industry because, in contrast to typical representation cases, the petitioned-for construction industry unit may already be covered by a collective-bargaining agreement pursuant to Section 8(f) of the NLRA.[334]

The Board disagrees for several reasons that it should carve out an exemption for cases involving construction industry employers. By definition, AGC's argument has no force whatsoever in those cases where the petitioned-for unit is not already covered by an 8(f) collective-bargaining agreement. Moreover, there are important reasons to expeditiously resolve questions concerning representation even in those cases where the petitioned-for employees are already covered by an 8(f) collective-bargaining agreement. Section 8(f) imposes no enforceable obligations in the absence of a collective-bargaining agreement. Allied Mechanical Services, Inc., 351 NLRB 79, 83 (2007), enforced, 668 F.3d 758, 761, 771 (D.C. Cir. 2012). Accordingly, as soon as the 8(f) collective-bargaining agreement expires, the employer is free to unilaterally change the existing terms and conditions of employment and withdraw recognition from the union as the representative of its employees. By contrast, an employer that has a Section 9(a) relationship with a union is obligated to maintain the status quo even after expiration of its collective-bargaining agreement. See American Automatic Sprinkler Systems, Inc. v. NLRB, 163 F.3d 209, 211, 214-15 (4th Start Printed Page 74378Cir. 1998). In short, because a Section 9(a) relationship provides much greater protection to the unit employees than a Section 8(f) relationship, a union and the unit employees it represents pursuant to Section 8(f) have ample reason to desire a prompt resolution of the union's 9(a) status through a Board-conducted election. See M&M Backhoe Service, Inc. v. NLRB, 469 F.3d 1047, 1048-50 (D.C. Cir. 2006). Similarly, employees already covered by an 8(f) collective-bargaining agreement may wish to rid themselves of union representation entirely or change their representative. Indeed, it may be especially important to expeditiously resolve questions concerning representation in the construction industry because construction industry work can be of short duration.

In addition, the Board finds it highly significant that construction industry employers frequently perform services on a common job site alongside many other employers and groups of employees. The Board is all too aware of how quickly labor strife between one employer and a union on a common site can spill over and embroil neutral employers, employees, and the public. See, e.g., NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 677-80, 688-92 (1951); NLRB v. International Union of Elevator Constructors, 902 F.2d 1297, 1303-05 (8th Cir. 1990). Accordingly, the Board is unable to conclude that the public has less of an interest in the expeditious resolution of questions concerning representation in construction industry cases than it does in cases arising outside the construction industry.

Alternatively, AGC, AGC II, ABC, ABC II, and many others argue that the time frames are simply not feasible for construction industry employers because of the complexity of issues arising in that industry and the industry's unique nature.[335] For example, ABC argues that it will not be possible in the allotted time for them to produce the lists of employees in the petitioned-for unit and in their alternative units, because there is a special eligibility formula in the construction industry that requires analysis of 2-years worth of payroll records.[336]

The Board disagrees. As the comment filed by The Building and Construction Trades Department, AFL-CIO (BCTD) notes, the amendments do not require the employer to produce a preliminary Daniel/Steiny eligibility list as part of its Statement of Position. Instead, it need only produce lists of the individuals employed at the time the petition is filed, and the employer will have 7 days notice of the due date for the Statement of Position. In a contested case, an eligibility list complying with the Daniel/Steiny formula need only be produced 2 business days after an election is directed, which will be more than a week after service of the petition. ABC's and AGC's related comment—that they cannot produce the final voter list within the allotted time—is addressed in the sections dealing with the voter list issues generally.

Comments, such as those filed by AGC and ABC, also argue that such an early hearing is not feasible because petitions involving construction industry employees present complex matters, such as the appropriate unit, disappearing and expanding units, craft issues, and the supervisory status of working foremen. However, as BCTD notes, Board precedent on these issues generally is long-standing and settled. Individual supervisory issues may end up being deferred, because, as discussed below in connection with §§ 102.64 and 102.66, disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved prior to the election. And the number and difficulty of the issues presented will vary from case to case. Thus, for example, the issues are likely to be fewer in cases where an incumbent union seeks to convert its relationship from 8(f) to 9(a).[337] Accordingly, the Board disagrees that it should carve out a categorical exemption for all construction industry employers.

4. Businesses Whose Owners or Employees Speak Foreign Languages

CNLP comments that the time frames are unworkable in those cases where English is the not the primary language of the employer or the petitioned-for employees. We decline to carve out a categorical exemption for all such cases. Employers operating in the United States are subject to the laws of this country whether English is the owner's primary language or not. Some business owners and employees can understand English even if English is not their primary language. Even if certain business owners do not understand English at all, they may have advisors or assistants who do. In any event, employers remain free to file motions for postponements based on their particular circumstances. Similarly, employers (and unions) remain free to request that Board notices and ballots be translated into foreign languages based on the needs of unit employees. Casehandling Manual Sections 11315. In short, the Board is confident that regional directors will continue to reasonably exercise their discretion to accommodate the language needs of the public.

5. Other Industries

A host of other comments argue that additional industries, such as the healthcare industry, require exemptions from the standard time frames, but they offer no persuasive justifications.[338] For example, AHA complains that hospitals don't have the capability to focus solely on the completion of the Statement of Position for an entire week, that the rule will place putative supervisors and unit members under a week of scrutiny, and that the accelerated time frames will distract from the employers' primary goal of treating and caring for ill patients. However, they offer no specifics to support any of these assertions. For example, the comments do not show, and the Board does not believe, that hospitals will actually ask the medical professionals who provide direct patient care to complete the employee lists or decide what positions to take regarding a proposed bargaining unit. Nor does the Board believe that the Statement of Position and hearing will require an entire week of preparation that necessitates employer surveillance. The employer already knows what its employees do because it assigns those duties to them, and the employer Start Printed Page 74379already knows their terms and conditions of employment because it established them. Indeed, AHA appears to take the position elsewhere in its comment that the Board's healthcare rule (29 CFR 103.30) eases the parties' task by setting forth the appropriate units for cases involving acute care hospitals.[339]

6. Decertification Cases

The SEIU argues that an exception should be created for decertification cases, because, in essence, the interest in expedition is not as strong where an employer is free to withdraw recognition without having to go through the election process. The Board disagrees. The Act makes no distinction as to the importance of expedition in these two situations, and we decline to do so here. Although employer agreement—whether by voluntary recognition, or withdrawal of recognition, or even by procedural election agreements—can eliminate delay in the effectuation of NLRA policies, as discussed elsewhere, this does not alter the NLRA policy in favor of timely representation procedures where no such agreement is forthcoming. The Board takes seriously its responsibility to expeditiously resolve questions concerning representation in the decertification context just as in an initial organizing context.

D. Mandatory Posting of Notice of Petition for Election

The final rule adopts in amended § 102.63(a)(1) the NPRM proposal that, along with the petition, notice of hearing, description of procedures in representation cases, and the Statement of Position form, the regional director will serve a revised version of the Board's Form 5492, currently headed Notice to Employees, on the parties. 79 FR 7328.[340] The revised form will bear the heading “Notice of Petition for Election,” (rather than the proposed heading “Initial Notice to Employees of Election”) to reflect that, as discussed below, although such petitions seek Board-conducted elections, elections do not necessarily occur in all cases after the filing of such petitions. It will specify that a petition has been filed, as well as the type of petition, the proposed unit, and the name of the petitioner; briefly describe the procedures that will follow, and, just as it does currently, it will list employee rights and set forth in understandable terms the central rules governing campaign conduct. The notice will also provide employees with the Board's Web site address, through which they can obtain further information about the processing of petitions. Unlike current Form 5492, which has no posting requirement, the final rule requires employers to post the Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted,[341] and employers who customarily communicate with their employees electronically will also be required to distribute the notice electronically. The final rule further requires that employers maintain the posting until the petition is dismissed or withdrawn or the Notice of Petition for Election is replaced by the Notice of Election. The Board has concluded that the Notice of Petition for Election will provide useful information and guidance to employees and the parties.

Baker & McKenzie question how soon the employer must post the notice to comply with the proposed requirement that the Employer “immediately” post it. While we believe that most employers should be able to comply with this provision by posting the notice on the same day that it is received, the Board will not judge an employer to have failed to comply with this provision so long as the notice is posted within 2 business days of receipt, and, accordingly, the final rule states that the employer shall post the Notice of Petition for Election within 2 business days after service of the notice of hearing. We leave to future case by case adjudication whether some unforeseen set of factual circumstances might justify an employer taking a longer period of time to post the notice. Accordingly, amended § 102.63(a)(2) further provides that the employer's failure properly to post or distribute the Notice of Petition for Election “may be” grounds for setting aside the election when proper and timely objections are filed. Just as is the case with respect to the election notice, a party may not object to the nonposting of notices if it is responsible for the nonposting, and likewise may not object to the nondistribution of the Notice of Petition for Election if it is responsible for the nondistribution.

Baker & McKenzie also question whether an employer needs to electronically distribute the notice to all employees in the petitioned-for unit if the employer customarily communicates with only some of the employees through electronic means. If the employer customarily communicates with all the employees in the petitioned-for unit through electronic means, then the employer must distribute the Notice of Petition for Election electronically to the entire unit. If the employer customarily communicates with only some of the employees in the petitioned-for unit through electronic means, then the employer need only distribute the Notice of Petition for Election electronically to those employees.

Few objections were expressed as to the merit of the mandatory posting requirement, and several comments emphasize the importance of timely informing employees of an impending representation proceeding and their related rights.[342] Prompt posting of the Notice of Petition for Election will inform not only the employees whose representation is at issue but also the employer of the rights and protective requirements imposed by the NLRA in the representation context. Such posting will also assist employees in obtaining additional information on a timely basis.

However, GAM expresses concern that the requirement to distribute the notice electronically if the employer customarily communicates with its employees electronically could lead to additional grounds for filing objections to the election and subsequent litigation. The possibility was also raised of unequal treatment of potential voters, since some will have electronic access and some will not.

The Board recognizes that electronic distribution to employees does not, in itself, guarantee that all eligible voters will receive the Notice of Petition for Election. However, electronic Start Printed Page 74380distribution will act in conjunction with the posting of paper notices in conspicuous places, including all places where notices to employees are customarily posted. Unless the employer can be shown to have departed from its customary practice in electronic distribution, there will be no basis for an objection and the requirement will only increase the desired flow of information to employees.

ALFA suggests that the notice should warn employees that final decisions have not been made regarding the unit and whether an election will be conducted. The Board agrees that such warnings would accurately describe the reality when the regional director furnishes the notice to the employer for posting and distribution. Accordingly, the final rule provides in § 102.63(a)(2) that the Notice of Petition for Election shall indicate that no final decisions have been made yet regarding the appropriateness of the petitioned-for bargaining unit and whether an election shall be conducted.

ALFA and the ACC complain that the Board should have included a copy of the proposed Notice in the NPRM to permit the public to comment on it. However, as discussed in the NPRM, it has long been the Board's practice to ask the employer to voluntarily post a generic notice of employee rights—Form 5492—upon the filing of a petition; the NPRM described how the Board proposed to modify the contents of that notice, such as by including a description of the proposed unit and the name of the petitioner (79 FR 7324, 7328); and that notice was available to the public. Accordingly, the Board rejects any suggestion that the public was unable to comment on the proposal to require the employer to post a notice after the filing of a petition but before an election is agreed to by the parties or is directed by the regional director.[343] As it has in the past, the Board will use due care in crafting the notices, the notices will be consistent with the regulations the agency has promulgated, and the notices will comply with all existing laws and regulations governing notices utilized by Federal agencies, including the Paperwork Reduction Act as separately analyzed. Should a party feel there is any error in a notice as promulgated, it can bring that to the attention of the Board.[344]

Sec. 102.64 Conduct of Hearing

As explained in the NPRM, the proposed amendments to § 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. 79 FR at 7329. The final rule largely embodies the proposed amendments.

In amended § 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.[345] A question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative.[346] 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.[347]

Amended § 102.64(a) makes clear that, as discussed in the NPRM (79 FR at 7322, 7329), resolution of disputes concerning the eligibility or inclusion of individual employees ordinarily is not necessary in order to determine if a question of representation exists, and therefore 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 cast a ballot, and such disputes can be both litigated and resolved, if necessary, post-election. The proposed rule provided in § 102.64(a) (79 FR at 7356):

If, upon the record of the hearing, the regional director finds that such a question Start Printed Page 74381of 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 in § 102.64(a):

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, the director 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 § 102.66. For that reason, the language, “unless specifically provided otherwise in these rules,” has been removed. As more fully explained in relation to § 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, at the regional director's direction, evidence concerning such disputes on the grounds that such evidence is not relevant to the existence of a question of representation. In addition, because a question of representation cannot exist under the Act if there is a bar to an election, see, e.g., Deluxe Metal Furniture Co., 121 NLRB 995, 1007 (1958) (contract bar); Randolph Metal Works, Inc., 147 NLRB 973, 974-75 (1964) (election and contract bars); Seven Up Bottling Co., 222 NLRB 278, 279 (1976) (certification bar), the Board has concluded that it is superfluous for the regulatory text to refer to both the existence of a question of representation and the absence of a bar. Accordingly, the final rule provides that if the regional director finds that a question of representation exists, the director shall direct an election to resolve the question. See Section 9(c)(1) of the Act (“If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.”)

The proposed rule provided in § 102.64 (b) (79 FR 7356):

Subject to the provisions of § 102.66 of this subpart, it shall be the duty of the hearing officer to inquire fully into all genuine disputes as to material facts in order to obtain a full and complete record upon which the Board or the regional director may discharge their duties under Section 9(c) of the Act.

The final rule provides in § 102.64(b):

Subject to the provisions of § 102.66 of this subpart, 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.

The Board has removed the “genuine disputes as to material-facts” 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. Therefore, amended § 102.64(b) will provide, “Subject to the provisions of § 102.66 of this subpart, 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 § 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 amendments to § 102.64(a) and (b). Those that do, question our construction of Section 9(c) of the Act in § 102.64 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 § 102.66.

The Board's current rules provide that the hearing officer may, in the officer's discretion, continue the hearing from day to day or adjourn it to a later date. Although, as noted above, there was a great deal of comment about the proposal to open the pre-election hearing 7 days from service of the notice absent special circumstances, there were few comments about the proposal that the hearing continue day to day until completed absent extraordinary circumstances. 79 FR at 7356. The AFL-CIO and AFSCME submitted comments in support of this change. The AFL-CIO argues that “[t]his requirement is critical because the current process, under which a 3-day hearing may extend over several weeks, presents opportunities for manipulating the timing of the election and maximizing the delay before any election is conducted.” AFSCME adds that the amendment should not be controversial and benefits all parties by injecting certainty into the election process. The AFL-CIO also points out that the proposed amendment would merely codify a “best practice” listed in the General Counsel's 1997 “Report of Best Practices Committee—Representation Cases.” [348]

However, the AFL-CIO suggests that the Board should require parties to meet a stricter standard when seeking a continuance. Thus, the AFL-CIO suggests that instead of requiring that hearings be conducted on consecutive days “absent extraordinary circumstances,” the Board adopt the language “unless the most compelling circumstances warrant otherwise,” which is used in Section 11082.3 of the Board's Casehandling Manual. In its reply to the AFL-CIO's comment, the Chamber requests (Reply) at a minimum that the Board not abandon the “extraordinary circumstances language.” However, the Chamber also urges the Board to temper the requirement of consecutive day hearings. Thus, it suggests that the Board merely require a moving party to demonstrate “good cause” for a hearing's continuance. According to the Chamber (Reply), employers and their counsel will need to reschedule other matters in order to comply with the 7-day hearing and statement-of-position provisions, which will increase the chances of scheduling conflicts if the hearing runs more than 1 day.

After careful consideration, the Board has decided to adopt the proposed amendment with one change in amended § 102.64(c) to make clear that the regional director, rather than the hearing officer, will make the determination in question. The Board concludes that continuing the pre-election hearing from day to day until completed (absent extraordinary circumstances) will remove unnecessary barriers to the expeditious resolution of questions concerning representation because, absent an election agreement, the election that is designed to answer the question of representation cannot be held until the pre-election hearing is completed. Thus, eliminating unnecessary delay in concluding the pre-election hearing helps eliminate unnecessary delay in resolving questions of representation. The amendment also allows the Board, rather than the parties, to control the hearing schedule, and renders hearing scheduling more transparent and uniform across regions.

The Board declines to adopt the Chamber's suggestion—that the Board adopt a good-cause standard for granting Start Printed Page 74382continuances—as largely being unnecessary in light of the final rule's adoption of revised language in § 102.63 regarding the scheduling of the pre-election hearing and the changes to § 102.64 and § 102.66 regarding the conduct of the hearing. As set forth in amended § 102.63, except in cases presenting unusually complex issues, the pre-election hearing will be scheduled to open 8 days from service of the notice, but parties may request that the hearing be postponed up to 2 business days for special circumstances, and for more than 2 business days for extraordinary circumstances. Moreover, the amendments to § 102.64(a), clarifying the purpose of the hearing and that disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted, and the amendments to §§ 102.63 and 102.66, providing for Statements of Position and responses to the Statements of Positions, should serve to streamline the hearing, making it less likely that the hearing will continue over several days.

The Board likewise declines to adopt the AFL-CIO's suggestion. Once the hearing opens, the Board expects that the hearing will continue from day to day until completed. In the Board's view, the “extraordinary circumstances” language does not differ significantly from the existing Casehandling Manual guidance of “the most compelling circumstances,” and in any event, is more widely used and easily understood by parties who are new to Board processes.

However, the Board has concluded that just as the regional director is the one who decides when the pre-election hearing will open, the regional director, rather than the hearing officer, should be the one to decide whether a pre-election hearing that requires more than 1 day should continue day to day until completed or should be adjourned to a later date. Accordingly, amended § 102.64(c) provides that the hearing will continue from day to day until completed unless the regional director concludes that extraordinary circumstances warrant otherwise.[349]

Sec. 102.65 Motions; Intervention; Appeals of Hearing Officer's Rulings

Consistent with the effort to avoid piecemeal appeals, the NPRM proposed to narrow the circumstances under which a request for special permission to appeal would be granted. More specifically, the NPRM proposed that such an appeal would only be granted under extraordinary circumstances when it appears that the issue will otherwise evade review. To further discourage piecemeal appeals, the NPRM proposed 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 NPRM provided that neither the filing of a request for special permission to appeal nor the grant of such a request would stay an election or any other action or require impounding of ballots unless specifically ordered by the Board. The NPRM also proposed that neither a regional director nor the Board would automatically delay any decision or action during the time permitted for filing motions for reconsideration, rehearing, or to reopen the record. 79 FR at 7329, 7356-7357.

Upon reflection, the Board has decided not to adopt the proposed narrower standard to govern requests for special permission 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 directors 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 proposed narrower standard to requests for special permission to appeal rulings of hearing officers to the regional director. However, to discourage such piecemeal appeals, the final rule makes clear in amended § 102.65(c) that a party need not seek special permission to appeal in order to preserve an issue for later. Consistent with current practice, the amendments provide that the filing of a request for special permission to appeal will not stay the proceedings unless otherwise ordered by the regional director.

Consistent with the interpretation of Section 3(b) of the Act that our colleagues advanced in their dissent to the NPRM (79 FR at 7343 & n.108), the Board has also decided to substitute the request for review procedure, as modified as described below in connection with § 102.67, for the request for special permission to appeal procedure that the NPRM proposed to apply with respect to rulings made by the regional director prior to the close of a hearing in proceedings governed by Subpart C of Part 102. Accordingly, the Board has decided to amend §§ 102.65 and 102.67 to clarify that any party may request Board review of any action taken by the regional director under to Section 3(b) of the Act except where the Board's rules provide otherwise.[350]

Few comments were submitted on the proposed amendments to § 102.65. AHCA contends 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. AHCA and ALFA argue that special permission to appeal serves little purpose because it will not stay proceedings. The Board need not address these comments at length because, as shown, the Board is not adopting the proposed narrower standard to govern requests for special permission to appeal hearing officer rulings to the regional director; the Board likewise has rejected the proposed narrower standard to govern appeals (to the Board) of regional director rulings made prior to the close of the hearing; and, as discussed below in connection with § 102.67, the Board has decided to permit parties to request review of a regional director's post-hearing decision and direction of election prior to the election. Moreover, the final rule does not preclude the regional director or the Board from granting a stay. Rather the final rule merely provides in amended § 102.65(c) and amended § 102.67(c) that such filings will not result in an automatic stay.

The final rule adopts the proposed amendments to § 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 Start Printed Page 74383when 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 challenge or 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.[351]

The final rule makes a few additional amendments to § 102.65. Under the Board's prior rules, the regional director could rule on motions to intervene and to amend petitions or could refer such motions to the hearing officer. 29 CFR 102.65(a), (b) (2010). As discussed below in connection with § 102.66, the Board received a number of comments criticizing the authority of the hearing officer at the pre-election hearing. Upon reflection, the Board has decided to amend § 102.65(a) and (b) to provide that the hearing officer shall rule on motions to intervene and to amend petitions only as directed by the regional director. Thus, the amendments make clear that it will be the regional director who decides whether a party may intervene and whether a petition may be amended. The final rule also moves a sentence about the record from § 102.65(c) into amended § 102.65(a). The final rule's other amendments to § 102.65 conform the provisions of this section to the remainder of the amendments.[352]

The NPRM also proposed that any person desiring to intervene in a representation case be required to complete a Statement of Position. 79 FR 7329, 7356. Upon reflection, the Board has decided to reject the proposed amendment. Intervention happens in a wide variety of circumstances and so regional directors should have discretion to follow the procedure that best facilitates development of the record in a particular case.

Sec. 102.66 Introduction of Evidence: Rights of Parties at Hearing; Preclusion; Subpoenas; Oral Argument and Briefs

In the NPRM, the Board proposed a number of amendments to § 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. As explained below, the final rule adopts only some of the proposals.

The NPRM proposed that hearing officers limit the evidence offered at hearings to that evidence which is relevant to a genuine dispute as to a material fact. 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 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 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 Board 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 5 days provided in Section 11(1) of the Act.

A. Rights of Parties at Hearing; Disputes Concerning Less Than 20 Percent of the Unit

Section 101.20(c) of the Board's pre-NPRM Statement of Procedures provided in pertinent part, “The parties are afforded full opportunity [at the pre-election hearing] to present their respective positions and to produce the significant facts in support of their contentions.” And the Board's pre-NPRM rules provided in § 102.66(a):

Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party and the hearing officer shall have power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence. Witnesses shall be examined orally under oath. The rules of evidence prevailing in courts of law or equity shall not be controlling. Stipulations of fact may be introduced in evidence with respect to any issue.

As discussed in more detail below, these provisions had been interpreted to give parties a right to produce evidence about issues that are not relevant to whether there is a question of representation.

The NPRM proposed to eliminate § 101.20 (and the rest of Subpart C of Part 101) and to amend § 102.66(a) to state as follows:

Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party and the hearing officer shall have power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence relevant to any genuine dispute as to a material fact. The hearing officer shall identify such disputes as follows:

* * * * *

The Board also proposed to require the hearing officer to bar litigation of disputes concerning the eligibility or inclusion of individuals comprising less than 20-percent of the unit (the so-called “20-percent rule”). Thus, § 102.66(d) of the NPRM provided:

(d) Disputes concerning less than 20 percent of the unit. If at any time during the hearing, the hearing officer determines that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the Start Printed Page 74384unit if they were found to be eligible to vote, the hearing officer shall close the hearing.[353]

The proposed amendments were designed to maximize procedural efficiency by ensuring 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. As discussed in the NPRM, whether or not a particular individual falls within an appropriate unit and is eligible to vote is not ordinarily relevant to whether a question of representation exists. 79 FR at 7322. The NPRM expressed the Board's “preliminary view * * * that deferring both the litigation and resolution of eligibility and inclusion questions affecting no more than 20 percent of all eligible voters represents a reasonable balance of the public's and parties' interest in prompt resolution of questions concerning representation and employees' interest in knowing precisely who will be in the unit should they choose to be represented.” 79 FR at 7331.

As noted below in connection with Part 101, the final rule adopts the proposal to eliminate Subpart C of Part 101, which contained § 101.20(c). The final rule also amends § 102.66(a) to provide:

Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses, and to introduce into the record evidence of the significant facts that support the party's contentions and are relevant to the existence of a question of representation. 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.[354]

Rather than the proposed standard “genuine dispute as to a material fact,” the Board has adopted the standard “significant facts that support the party's contentions and are relevant to the existence of a question of representation.” The proposed standard, which had been borrowed from Federal Rule of Civil Procedure 56, suggested that the hearing officer would be responsible for summary judgment, which struck commenters as a signal that the hearing officer's role would change in a way that was likely to pose administrative and statutory problems. The standard of “significant facts” adopted in the final rule comes from current 101.20(c), and preserves the hearing officer's essential role. However, unlike current regulations, the final rule makes clear that the “significant facts” that support the party's contentions must also be “relevant to the existence of a question of representation.” [355] As discussed below, paragraph (d) of proposed § 102.66 is deleted because the final rule does not adopt the 20-percent rule provisions, which would have required the hearing officer to exclude evidence regarding individual eligibility or inclusion issues involving less than 20 percent of the unit (and the regional director to defer deciding individual eligibility or inclusion questions involving less than 20 percent of the unit and to vote such disputed individuals subject to challenge). See 79 FR at 7332.

The final rule's amendment of § 102.66(a) together with the modification of the language which previously appeared in § 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 § 102.64(a), the amendment of § 102.66(a) makes clear that, while the regional director must determine that a proposed unit is appropriate in order to find that a question of representation exists, the regional director can defer litigation of individual eligibility and inclusion issues that need not be decided before the election.

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 and regional directors.[356] Generally, individual eligibility and inclusion issues concern either (1) whether an individual or group is covered by the terms used to describe the unit, or (2) whether an individual or group is within a particular statutory exclusion and cannot be in 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).

One exception concerns professional employees. The regional director must address whether there are any professional employees in an otherwise appropriate unit containing nonprofessionals. 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.[357] Similarly, if a party Start Printed Page 74385contends that, under Board precedent, an eligibility standard different than the Board's ordinary standard [358] 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.

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.[359] The Board disagrees. Section 9(c)(1) of the Act provides that the Board must provide for a hearing if it has “reasonable cause to believe that a question of representation affecting commerce exists,” and that the Board must direct an election if it finds, based on the record of that hearing, that “such a question of representation exists.” Thus, as explained above in relation to § 102.64, the statutory purpose of the pre-election hearing is to determine whether a question of representation exists. The amendments to §§ 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 evidence at the pre-election hearing that is relevant to whether a question of representation exists. Indeed, the amendment to § 102.66(a) expressly vests parties with a right to present evidence of the significant facts that support the party's contentions and are relevant to the existence of a question of representation. Nothing in Section 9(c) or any other section of the Act requires the Board to permit parties to introduce evidence at a pre-election hearing that is not relevant to whether a question of representation exists.

The final rule's amendment of §§ 102.64(a) and 102.66(a) is also consistent with the final sentence of current § 102.64(a), which the final rule does not amend, though the sentence will now appear in § 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 of significant facts 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, acting at the behest of the regional director, 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, among others, cites Barre-National, Inc., 316 NLRB 877 (1995) for the proposition that both current rules and Section 9(c) of the statute compel litigation of these matters. The Barre-National Board cited both §§ 102.66(a) and 101.20(c) in holding that litigation was required. 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 § 102.66(a), which then read:

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 § 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 those two provisions, the Board reasoned that, “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. The Barre-National Board went on to hold that, “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, as discussed further below, Barre-National cannot be read to rest on a construction of the Act. Rather, the Barre-National Board based its holding on its reading of §§ 102.66(a) and 101.20(c). In light of the regulatory changes made today, that reliance is no longer relevant.[360]

In addition, as explained in the NPRM, the result in Barre-National is not administratively rational. The Board in that case recognized 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, acknowledging 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 878 n.9. 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. It serves no purpose to require the hearing officer at a pre-election hearing to permit parties to present evidence that relates to matters that need not be addressed in order for the hearing to fulfill its statutory function of creating a record upon which the regional director can Start Printed Page 74386determine 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. The final rule eliminates such wholly unnecessary litigation that serves as a barrier to the expeditious resolution of questions of representation.

Thus, the central question is whether Congress intended that the term “appropriate hearing” in Section 9(c) compel pre-election litigation of matters that would not be decided before the election—and likely would never need to be decided by the regional director. Commenters, most notably CDW II, argue that the answer is yes. We disagree.

The term “appropriate hearing” comes from the original 1935 Wagner Act. As stated by the Supreme Court: “The section is short. Its terms are broad and general * * *. Obviously great latitude concerning procedural details is contemplated.” Inland Empire Council v. Millis, 325 U.S. 697, 706-710 (1945). Although the hearing should provide parties a “full and adequate opportunity to present their objections,” [361] nothing in Inland Empire suggests that the Board must give a hearing to matters which will not be decided. To the contrary, the phrase “an appropriate hearing” was intended to “confer[] broad discretion upon the Board as to the hearing [required],” so as to avoid unnecessary litigation delays. Id.[362] In 1947, when Congress revised the Act to ensure that a hearing was held before the election, it left this essential language intact.[363] Despite the many comments on this matter, no one has identified any case in any legal or administrative context in which litigation was required regarding issues that were not being decided—except Barre-National.

Even assuming that the Barre-National Board did look to Section 9(c)—a point previously debated at length, see 76 FR 80165; 77 FR 25550-51; 77 FR 25562-63—the statutory analysis in Barre-National is essentially non-existent. There is no meaningful discussion of the statutory language, no analysis of the legislative history or the plain language of Section 9(c), and no explanation for why it would make sense to require litigation of issues that will not be decided—in short, nothing whatsoever to substantively support its supposed interpretation of the statute. On the contrary, the Board, for the reasons discussed above, believes that the legislative history shows the Board is not required to allow pre-election litigation of issues that will not be decided pre-election. It is beyond dispute that “reviewing courts have held that there is no general requirement that the Board decide all voter eligibility issues prior to an election.” Barre-National, 316 NLRB at 878 n.9. Put plainly, “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).[364] This has been so since the early days of the Act. Brown & Sharp Mfg., 70 NLRB 709, 709 (1946); Humble Oil, 53 NLRB 116, 126 (1943). As the Supreme Court expressly held in NLRB v. AJ Tower Co., 329 U.S. 324, 330-35 (1946), the Board has authority to resolve voter eligibility through the election-day challenge procedure.[365] As discussed below in relation to the rejected “20-percent rule,” this rule does not change which issues will be decided.

Therefore, in light of the broad discretion accorded by Section 9, and the express purpose of ensuring that litigation does not unnecessarily delay the proceeding, we do not find the interpretation of Section 9(c) posited by SHRM and CDW, or that of the Barre-National Board, to be persuasive. In our considered view, Section 9 does not give parties a right to litigate questions of individual eligibility or inclusion at the pre-election hearing if the regional director will not decide those questions prior to the election. For these reasons, the Board hereby overrules Barre-National, together with cases resting solely upon its holding such as North Manchester Foundry, Inc., 328 NLRB 372 (1999).

The Board also concludes that without clear regulatory language giving the regional director authority to limit the presentation of evidence to that relevant to the existence of a question of representation, the possibility of using unnecessary litigation to gain strategic advantage exists in every case.[366] That specter, sometimes articulated as an express threat according to some comments,[367] 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 Start Printed Page 74387regulations, 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 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. Some commenters specifically stressed that the current rules have the effect of disenfranchising statutory employees. According to these commenters, instead of resolving bargaining unit issues on their merits, election agreements are driven by the threat of a hearing devoted to the litigation of unnecessary issues.[368]

The temptation to use the threat of unnecessary litigation to gain such strategic advantage is heightened by both the right under the current rules to take up to 7 days to file a post-hearing brief (with permissive extensions by hearing officers of up to 14 additional days) and the 25-day waiting period, both of which are triggered automatically when a case proceeds to hearing. Every experienced participant in the Board's representation proceedings who wishes to delay the election in order to gain strategic advantage knows that under the current rules, once the hearing opens, at least 32 days (7 days after the close of the hearing and 25 days after a decision and direction of election) will pass before the election can be conducted. The incentive to insist on presenting evidence, even though there are no disputes as to facts relevant to the existence of a question of representation, is thus not simply the delay occasioned by the hearing process, but also the additional mandatory 32-day delay, not to mention the amount of time it will take the regional director to review the hearing transcript and write a decision—a task that has added a median of 20 days to the process over the past decade. Accordingly, the bargaining units and election details agreed upon in the more than 90% of representation elections that are currently conducted without pre-election litigation are unquestionably influenced by the parties' expectations concerning what would transpire if either side insisted upon pre-election litigation.

Of course, distinct aspects of the final rule eliminate the 25-day waiting period and the default position of allowing 7 and up to an additional 14 days to file a post-hearing brief. Yet in the Board's preliminary view at the NPRM stage (79 FR 7331), even without these collateral delays, there remained no persuasive reason to allow parties to lengthen the hearing and decisional process by unnecessarily litigating individual eligibility issues that are not relevant to the question concerning representation.[369] We did not, and do not, view permitting the litigation of individual eligibility issues as a cost-free proposition. Every non-essential piece of evidence that is adduced adds time that the parties and the Board's hearing officer must spend at the hearing, and simultaneously lengthens and complicates the transcript that the regional director must analyze in order to issue a decision. The Board expects that if irrelevant litigation at the pre-election hearing were reduced, then not only would hearings be shorter (with attendant savings to the parties), but also that regional directors would correspondingly have to spend less time writing pre-election decisions, and be able to issue those decisions in less time than the current 20-day median. Thus, the Board viewed its mandatory proposal of barring litigation or resolution of individual eligibility issues regarding less than 20% of a petitioned-for unit as an overall benefit to agency efficiency, in addition to being a reasonable balance of the public's and parties' interest in prompt resolution of questions concerning representation and in employees' interest in knowing who would be in the unit should they choose to be represented.

There is certainly reason to believe that the 20% figure proposed in the NPRM—and upon which the Board has historically relied in terms of deferring resolution of individual eligibility issues—is indeed an administratively appropriate balance. For example, more than 70% of elections in FY 2013 were decided by a margin greater than 20% of all unit employees, suggesting that deferral of up to 20% of potential voters in those cases (and thus allowing up to 20% of the potential bargaining unit to vote via challenged ballots, segregated from their coworkers' ballots) would not have compromised the Board's ability to immediately determine election results in the vast majority of cases.[370] Thus, had any thorny litigation issues concerning individual eligibility been deferred in those cases, it would likely have saved significant party and agency resources in that the pre-election hearings would have been shorter, the director's decisions issued quicker and with less effort, and the representation dispute resolved sooner, all without necessitating another post-election hearing to resolve those issues because they would have been proven by the tally of ballots to be non-determinative of the election outcome. And in the comparatively smaller percentage of cases in which the election margin required resolution of the challenged voters' ballots, the regional director could have committed resources to developing and analyzing the relevant evidence in a post-election hearing with full confidence that the effort would not be wasted.[371]

Start Printed Page 74388

Nevertheless, the Board is mindful that a one-size-fits-all approach may not be the most desirable or necessary method to accomplish the gains in efficiency sought by the proposed 20-percent rule. Specifically, the changes to 102.64 and 102.66(a) provide regional directors with the tools to defer unnecessary litigation, and it may produce a better outcome on a case-by-case basis if regional directors retain discretion to apply those tools or to provide for litigation and resolution of discrete issues as the regional directors deem appropriate.[372] For example, the regional director may be able to quickly discern that certain eligibility issues—presented by the parties in their offers of proof—could be quickly and easily disposed of, in which case little would be gained from deferring the issue. Moreover, given the mandatory language of the proposed 20-percent rule, parties could argue that elections should be set aside based solely on the ground that the hearing officer and director made a minor computational error in concluding that the individual eligibility or inclusion issues they were deferring involved less than 20 percent of the unit. In our view, having to set aside elections merely because of computational errors (such as deferral of individual eligibility questions involving 21—rather than 20—percent) would be particularly unfortunate when the addition of the disputed employees to the unit would not be unfair to the voters (because it would not materially change the character or scope of the unit). We further conclude that the mandatory proposal could perversely encourage parties to raise frivolous individual eligibility issues that they otherwise would not have raised just so the 20-percent ceiling was breached.

Accordingly, the Board has decided to preserve the discretion that regional directors enjoyed even before the NPRM to defer resolving disputes concerning individuals' eligibility to vote or inclusion in the unit until after the election or to decide such disputes before the election in the decision and direction of election. In the final rule, rather than require hearing officers to bar parties from introducing evidence regarding individual eligibility or inclusion issues involving less than 20 percent of the unit, the Board has decided to grant hearing officers the authority, on the instruction of the regional director, to exclude evidence concerning such disputes. However, the regional director is free to direct that such evidence be admitted if the director resolves to decide prior to the election the individual eligibility questions at issue, or if the director is uncertain about whether to decide an issue. In sum, while we continue to believe that individual eligibility disputes ordinarily need not be litigated at the pre-election hearing or resolved in a direction of election, we no longer adhere to the preliminary view expressed in the NPRM that adoption of a bright-line, mandatory 20-percent deferral rule best serves the interests of the parties and the employees as well as the public interest in the effective administration of the representation case process.[373]

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.[374] 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.[375] 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[376] or impeding their ability to determine whether they share a community of interest with the other voters.[377] Similarly, a number of comments express the view that deferral of eligibility issues would engender confusion among the voting employees.[378] 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,[379] 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 election.[380] Finally, with respect 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,[381] and SHRM asserts that employees would be Start Printed Page 74389chilled in the exercise of their Section 7 and First Amendment rights.

However, in this final rule the Board has determined not to adopt the 20-percent rule, but rather, to retain the existing discretion of regional directors to defer deciding such questions until after the election. Prior to the amendments, regional directors were free to decide individual eligibility and inclusion questions prior to the election 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, at the direction of the regional director, 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 some eligibility and inclusion questions—the regional director is free to direct that such evidence be admitted if the director resolves to consider the 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 to effectively campaign against union representation.[382] 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 one or more individual employees, the employer nevertheless has in its employ managers and supervisors whose status is not disputed and is undisputable.[383]

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 5 business days after the notice), the hearing must be completed, and the regional director must issue a decision. Thus, even where the regional director resolves the individual eligibility issue in the decision and direction of election, the employer will not have the benefit of the decision for a substantial part of any campaign, including a substantial part of the “critical period” between the filing of the petition and the election.[384] Third, under the current rules, even if the regional director issues a decision concerning an individual eligibility question, the decision is subject to a request for review by the Board. The Board rarely rules on such requests until shortly before the election and, sometimes, not until after the election. 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, Di v. 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 find that the showing of interest is 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 issued prior to an election, the Board decision is potentially subject to review in the courts of appeals and the court of appeals' decision cannot be issued pre-election. See 29 U.S.C. 159(d) and 160(e); Boire v. Greyhound Corp., 376 U.S. 473, 476-79 (1964).[385] Thus, the uncertainty with which the comments are concerned, which affects all parties, exists under the current rules and cannot be fully eliminated.

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 (via the Notice of Election) as to the description of the unit, and will be able to 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 or groups 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, because, as explained above, regional directors were free to defer deciding individual eligibility or inclusion questions prior to directing an election (and parties were free to agree to permit disputed employees to vote subject to challenge in the election agreement context). In addition, as pointed out by SEIU, 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 for inclusion with a bargaining unit of non-professional employees and the results of that separate vote, which takes place simultaneously with the vote in the non-professional unit, are not known when any of the 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 Start Printed Page 74390NPRM, those two decisions represent the minority view in the courts, and the Board continues to disagree with them. The majority of the courts of appeals have upheld the Board's vote-under-challenge procedures and upheld election results even when the eligibility or inclusion of certain employees was not resolved until after the election.[386] Moreover, under the final rule, the regional director has discretion to permit litigation and to resolve eligibility and inclusion questions, and we expect regional directors to permit litigation of, and to resolve, such questions when they 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 help prevent exactly that form of change in unit definition from occurring by codifying regional directors' discretion to defer deciding individual eligibility or inclusion questions until after the election and by providing in amended § 102.67(b) that where the director does defer deciding such questions, the Notice of Election will inform employees prior to the election that the individuals in question “are neither included in, nor excluded from, the bargaining unit, inasmuch as the regional director has permitted them to vote subject to challenge,” and that their unit placement “will be resolved, if necessary, following the election.” 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. The Board views this alteration to the election notice as meeting the concerns raised by the Beverly court and as specifically countenanced by the Second Circuit in Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992) (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”).[387]

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, 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.[388] 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 challenged ballots 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 unavoidable 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.[389]

The Board is also unaware of any evidence of 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).

Nor is the Board persuaded by SHRM II's attempt to analogize to scholarly criticism of states' voter challenge laws in political elections as evidence that the Board's challenged ballot procedure does or would lead to reduced participation in NLRB elections. The Board agrees with the AFL-CIO II (Reply) that the significant differences between the political challenge process and the NLRB challenge process undermine SHRM's attempted analogy. In particular, during political elections, voters' veracity is challenged, and they are often subject to questioning and required to swear an oath before voting; whereas during NLRB elections, voters will know in advance via the election notice that although their eligibility to vote—through no fault of their own—has not yet been determined with finality, they will be permitted to cast ballots, they will be advised as to the procedure for their voting, and they will be invited to contact a Board agent with any questions that they may have in advance of the election about the challenge process. The Board also agrees with SEIU II (Reply) that the additional structural safeguards in a Board election—including its supervision by a Board agent, the presence of observers Start Printed Page 74391for both sides, and the Board agent's duty to disallow argument concerning the merits of the challenge and to explain to the voter the measures that will be taken to protect the secrecy of the challenged ballot[390] —make it unlikely that challenged voters in NLRB elections would decide not to cast a ballot. Furthermore, as both the AFL-CIO and SEIU point out, SHRM cites no evidence of voter suppression in NLRB elections resulting from our longstanding challenge procedures,[391] nor does SHRM attempt to grapple with the differences between the challenge processes in political elections and NLRB elections.

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 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. Furthermore, the required showing of interest is purely an internal administrative matter, as explained in current § 101.18(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, as discussed in connection with Part 101 below. 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.

In a related vein, Jonathan Fritts on behalf of CDW II raised a series of thoughtful questions concerning exactly how the proposed 20-percent rule would be implemented in the context of several possible hearing contingencies. Of course, the 20-percent rule is not being adopted. Nevertheless, given our expectation that regional directors will consider the relative percentage as a significant factor in deciding whether to decide or defer an issue, we address those questions below.

CDW's first three questions concern how the choice to take evidence would interact with the proposed 20-percent threshold. Specifically, CDW asks:

If, at the outset of the hearing, there are eligibility and inclusion issues that affect more than 20% of the bargaining unit, will the hearing officer take evidence on all of those issues?

Or will the hearing officer take evidence on only “just enough” issues so that the remaining eligibility issues fall below 20%? If so, how will the hearing officer decide which issues to take evidence on in these situations?

As explained more thoroughly in connection with the offer of proof proposal below, the discretion to determine which issues will be deferred or decided will reside with the regional director. Recognizing that there is no mandatory 20-percent rule, if the regional director wished to defer deciding individual eligibility or inclusion questions involving 20% of the unit, the regional director would simply identify a subset of the issues which impacted 20% of the unit and defer them, and would take evidence on the rest. This exercise of discretion is analogous to what currently happens in post-election proceedings involving determinative challenges, where there is a known margin before challenged ballots are opened, and regional directors sometimes decide to resolve only a few of the challenged ballot issues and open the resolved ballots in order to see whether the new tally obviates having to resolve the remaining challenges.[392] We expect that the regional director would consider many of the same factors that the regional directors currently consider in deciding whether to rule on all determinative challenges or just a few. For example, the regional director might consider how long it would take the parties to present their evidence on the disputed individuals, and then decide to take evidence on the individuals who require the least amount of time and defer the remainder. The regional director might also instruct the hearing officer to see whether the parties can agree on which individuals' eligibility should be litigated in order to leave a smaller percentage to be deferred. The regional director might also consider offers of proof and decide which issues would be easiest to resolve or whether a common issue would resolve the eligibility status of multiple individuals, and take evidence accordingly. In sum, regional directors will not be mandated to follow Start Printed Page 74392any particular course of decision-making as to the taking of evidence on individual eligibility issues, but will instead retain discretion to use their judgment as to what evidentiary structure will result in the most efficient use of party and agency resources.

CDW next questions how 20% of the unit would be measured if the size of the unit is in dispute, asking specifically:

If the appropriateness of the bargaining unit is in dispute, how will the 20% be measured? Will it be 20% of the petitioned-for unit?

If the employer asserts that the only appropriate unit is a larger unit, will the rule be applied based on 20% of that larger unit?

If there are significant differences in the sizes of the parties' preferred bargaining units, then regional directors should evaluate the individual eligibility and inclusion issues in dispute relative to the petitioned-for unit, and any other unit in which the petitioner is willing to proceed to an election. For example, if the petitioner asserts at hearing that it would be unwilling to proceed to an election concerning an employer's alternative unit that is larger than the petitioned-for unit, then the regional director need not take into account the employer unit's size in evaluating individual eligibility or inclusion issues to be deferred, because there will either be an election in the petitioned-for unit—if found appropriate by the regional director—or no election at all. If, on the other hand, the petitioner is willing to proceed to an election in a significantly larger unit as proposed by the employer, then the regional director will retain discretion to decide the most efficient means of structuring the litigation of potential individual eligibility issues. In such a situation, the regional director may, of course, consider the relative percentage of individual eligibility issues presented in each of the proposed units. Each such case will present its own complications, and there is no particular litigation structure mandated by the final rule.

CDW also questions whether and how unit appropriateness issues might be deferred under the final rule. The primary answer to these questions is that under the final rule, as under the Board's current regulations, the regional director must always decide on the appropriateness of the unit before directing or conducting an election. So, a regional director will not defer taking evidence or resolving individual eligibility or inclusion issues whose resolution could render inappropriate an otherwise appropriate unit.

However, under the final rule, as under the Board's current regulations, and completely apart from the 20-percent proposal in the NPRM, a hearing officer will be free to require an offer of proof concerning any unit appropriateness arguments raised by an employer.[393] If the evidence sought to be introduced would be insufficient to sustain the employer's position—for example, whether to overcome a presumptively appropriate unit or to show an overwhelming community of interest between petitioned-for classifications and excluded classifications—then the regional director would direct the hearing officer not to allow the evidence to be received.[394] This is distinct from deferring a question to the challenge process: as has always been the case under Board rules only “significant facts” can be litigated, and if a party's contentions are meritless they are never entitled to litigate them, nor can these voters be challenged without good cause. Thus, although regional directors cannot defer consideration of unit appropriateness issues under the final rule, they will continue to enjoy discretion to instruct hearing officers to deny the introduction of evidence to “protect the integrity of [the Board's] processes against unwarranted burdening of the record and unnecessary delay.” Laurel Associates d/b/a Jersey Shore Nursing and Rehabilitation Center, 325 NLRB 603, 603 (1998).

CDW then poses a follow-up question running to whether certain classifications of employees—excluded from the petitioned-for unit by virtue of a legally insufficient offer of proof made by their employer—will nevertheless be eligible to vote in the election, subject to challenge. Generally, no, but the answer will vary from case to case. Thus, the rules do not require the casting of challenged ballots in such circumstances and the Board's policy continues to be that when a regional director has specifically ruled on an employee's inclusion in or exclusion from the unit, then it would generally not be appropriate to vote that employee, even subject to challenge. However, as discussed below in connection with § 102.67, the final rule contains a procedure for requesting segregation and impoundment of ballots, and so challenged ballots concerning unit appropriateness issues may be permitted in a particular case.

Some comments criticize the 20-percent rule on the grounds that it will lead to more post-election litigation and result in more elections being set aside as a result of post-election rulings concerning the eligibility of employees.[395] Similarly, at least 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.[396] 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, their eligibility may be litigated and the resolution may affect the results of the election, but it will not lead to the results of the election being set aside. 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 §§ 102.62(b) and 102.69, any Board review of the disposition will be expedited by the final rule.

Finally, a few comments argue that deferral of voter eligibility questions will create more issues for the parties to address during first contract negotiations.[397] AHA makes the related claim that “leaving the individuals' inclusion or exclusion from the unit to be used as a bargaining chip is unfair to employees and disrespectful of their Section 7 rights and counter to the Act's purposes of promoting labor peace[.]” Start Printed Page 74393As 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.[398] Neither does the Board believe that negotiations between the parties concerning employees' inclusion in or exclusion from the bargaining unit is substantively different, vis-à-vis their Section 7 rights, whether the parties are negotiating a first contract or a stipulated election agreement. Both are inherently acceptable mechanisms under the Board's extant procedures, and AHA does not suggest, for example, that the Board cease accepting party stipulations concerning the parameters of proposed bargaining units in deference to employees' Section 7 rights.[399] In any event, we would reject such a suggestion for the same reason that we reject AHA's instant comment: the fundamental design of the Act is to encourage agreement between the parties as much as possible and not to interject the Board's judgments in place of collectively-negotiated terms.[400] So long as parties negotiate terms regarding which individuals or classifications to include in a bargaining unit that do not contravene the Act's provisions or settled Board policies, then it would be inappropriate for the Board to disallow their agreements.[401] In relation to AHA's concerns about the promotion of labor peace, the Board believes that labor peace is more likely if parties are permitted to voluntarily resolve their differences.

Many comments additionally challenge the proposed amendments to 102.66 by arguing against the aggregated effects of the various proposed changes, including the mandatory 20-percent rule. For example, comments question: the hearing officer's role in administering the changed pre-election hearing; whether hearings under the proposed amendments would result in an inadequate record for subsequent appeals; and whether the hearings under the proposed amendments would be inconsistent with Section 9(c) of the Act. We respond to each of these groups of commentary below in connection with the changes regarding joinder and offers of proof.

B. Identification of Issues in Dispute; Discretionary Offers of Proof; Preclusion

In the NPRM, the Board proposed a number of amendments to § 102.66 which 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. 79 FR 7329-32. 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 properly 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, a standard derived from Rule 56 of the Federal Rules of Civil Procedure.

The Board also proposed that a party would be precluded from raising any issue, or presenting any evidence or argument about 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. However, any party would be permitted to present evidence as to the Board's statutory jurisdiction, and the petitioner would be permitted to present evidence as to the appropriateness of the unit if the nonpetitioning parties declined to take a position on that issue. In addition, consistent with the proposed amendments' intent to defer both litigation and consideration of disputes concerning the eligibility or inclusion of individual employees until after the election, no party would be precluded from challenging the eligibility or inclusion of any voter during the election on the grounds that no party raised the issue in a Statement of Position or response thereto. 79 FR 7329-30.

The Board received a great number of comments about these proposals. As discussed at length in relation to § 102.63, the Board has decided to adopt the proposal requiring nonpetitioners to complete Statements of Position, but has revised the due date for the completion of the Statements so that the Statements can serve their intended purposes of facilitating entry into election agreements and narrowing the scope of pre-election hearings in the event the parties do not enter into such agreements. Thus, amended § 102.63(b) requires nonpetitioners to file and serve their Statements of Position such that they are received by the regional director and all parties identified in the petition by noon on the business day before the scheduled opening of the pre-election hearing.

After careful consideration of the comments, and as more fully discussed below, the Board has decided to require, in amended § 102.66(b), the other parties to respond to each issue raised in a Statement of Position. The same paragraph expressly authorizes the regional director to permit Statements of Position, as well as responses, to be amended in a timely manner for good cause.[402] It then provides that “[t]he hearing officer shall not receive evidence concerning any issue as to which parties have not taken adverse positions.” We believe that this amendment will help the Board maximize hearing efficiency by eliminating unnecessary litigation, expeditiously resolve questions of representation and make Board procedures more transparent and uniform across regions. As discussed in relation to § 102.63, although parties currently are asked to provide much of the information requested by the Start Printed Page 74394Statement of Position form, they are not required to do so, and some parties do not disclose the information even though it is needed to ensure efficient hearings and to expeditiously resolve questions of representation. Similarly, parties are not currently required to respond to positions taken by other parties on issues that need to be determined by the regional director. The required Statements of Position and responses will enable the hearing officer and the parties to ascertain at the outset of the hearing the issues in dispute and, conversely, those that are not in dispute. As to the latter, it follows as a matter of administrative efficiency and common sense that litigation would unjustifiably waste the time and resources of the Board and the parties. Thus, the amendment will prevent wasteful litigation of matters that are not in dispute.[403] It also helps to streamline the hearing and ensure that the hearing proceeds in an orderly fashion if parties are precluded from raising issues that they did not raise in their Statements of Position or place in dispute in response to another party's Statement. Absent good cause, parties should not be permitted to raise new issues just prior to the close of the hearing.[404]

The Board declines to adopt the proposed rule's use of the term “joinder” in connection with the requirement of responses to issues raised in a Statement of Position. While, as explained above, the important concept of identifying the issues in dispute and precluding litigation of undisputed matters is retained in the final rule, the term “joinder” is not necessary to describe the concept and might give rise to a mistaken belief that the body of law concerning civil pleading requirements was intended to be imported and applied to our representation-case proceedings. We believe that would be inappropriate for the relatively informal administrative hearings governed by this rule. The Board has also eliminated the duplicative numbered subdivisions of § 102.66(a), consolidating their provisions, as modified, as § 102.66(b).

The Board adopts in all material respects the “Preclusion” paragraph of the proposed rule, numbered here as § 102.66(d). This complements §§ 102.63(b) and 102.66(b), and helps achieve an important objective of those provisions. As explained above, the requirements of the Statement of Position and responses, permitting identification of the issues in dispute, together with the preclusion of evidence of issues not timely raised, substantially improves the Board's procedures by saving the parties and the Board the time and expense of wasteful litigation. As also discussed here and in connection with § 102.63, hearing officers working under the prior rules often sought to obtain this result by soliciting the positions of the parties in order to narrow the issues and avoid unnecessary litigation. However, parties sometimes failed or refused to provide the necessary information, thereby frustrating those efforts. Section 102.66(d) supplies the incentive for parties to comply with the requirements of §§ 102.63(b) and 102.66(b), consistent with Board precedent discussed above, by precluding parties from litigating issues as to which they have failed to take positions required either as part of a Statement of Position or in response to a Statement of Position. Put another way, § 102.66(d) constitutes the enforcement mechanism for §§ 102.63(b) and 102.66(b), in a way that tracks Board precedent. It includes an exception for litigation of the issue of statutory jurisdiction, and it expressly exempts from the preclusive effect of the paragraph a party's ability to challenge the eligibility of any voter during the election.

Upon reflection, the Board has decided not to adopt the proposed mandatory offer-of-proof procedure. Under the proposal, once the issues raised in a party's statement of position were properly responded to by the petitioner, 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. Thus, the proposed rule provided, in relevant part:

(b) Offers of proof; discussion of election procedure. After identifying the issues in dispute pursuant to paragraph (a) of this section, the hearing officer shall solicit offers of proof from the parties or their counsel as to all such issues. The offers of proof shall take the form of a written statement or an oral statement on the record identifying each witness the party would call to testify concerning the issue and summarizing the witness' testimony. The hearing officer shall examine the offers of proof related to each issue in dispute and shall proceed to hear testimony and accept other evidence relevant to the issue only if the offers of proof raise a genuine dispute as to any material fact. . . .

79 FR at 7358 (§ 102.66(b)). The final rule provides with respect to offers of proof (emphasis added):

(c) Offers of proof. The regional director shall direct the hearing officer concerning the issues to be litigated at the hearing. The hearing officer may solicit offers of proof from the parties or their counsel as to any or all such issues. Offers of proof shall take the form of a written statement or an oral statement on the record identifying each witness the party would call to testify concerning the issue and summarizing each witness's testimony. If the regional director determines that the evidence described in an offer of proof is insufficient to sustain the proponent's position, the evidence shall not be received.

See amended § 102.66(c).

The final rule thus makes clear that hearing officers will not require parties to make offers of proof raising genuine disputes as to material facts before Start Printed Page 74395proceeding to hear testimony and accept other evidence. Instead, consistent with pre-existing practice, the Board has decided to leave it to the hearing officer's discretion whether to require parties to submit offers of proof on disputed issues. The Board has also removed the language drawn from Federal Rule of Civil Procedure 56. The substitute language makes clear that in the event the hearing officer decides to require parties to make an offer of proof, the evidence will not be received if the regional director determines that the evidence described in the offer of proof is insufficient to sustain the proponent's position.

The Board believes that codifying hearing officers' discretion to require offers of proof (and regional directors' discretion to determine that the evidence described therein is insufficient to sustain the proponent's position and thus that it will not be received) will help the Board to avoid unnecessary litigation and expeditiously resolve questions of representation in a manner that fully protects the rights of all parties. As discussed above, subject to the provisions of § 102.66, the hearing officer has a duty “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.” Amended § 102.64(b) (which was formerly § 102.64(a)). However, as the Hearing Officer's Guide has long recognized, the hearing officer “also [has a] duty . . . to keep the record as short as is commensurate with its being complete.” Hearing Officer's Guide at 1. Thus, the Board has a concomitant “duty to protect the integrity of its processes against unwarranted burdening of the record and unnecessary delay.” Laurel Associates, Inc. d/b/a Jersey Shore Nursing & Rehabilitation Center, 325 NLRB 603, 603 (1998). See Casehandling Manual Section 11188.1 (“The hearing officer should . . . exclude irrelevant and cumulative material.”).

In order to protect against unwarranted burdening of the record and unnecessary delay, the Board has long sanctioned a hearing officer's authority to require a party to submit an offer of proof summarizing and explaining its proffered evidence as well as a hearing officer's authority to rule on the offer of proof. See Laurel Associates, Inc., 325 NLRB at 603; Mariah, Inc., 322 NLRB 586, 586 (1996). Indeed, because offers of proof can be an effective tool for controlling and streamlining the hearing and achieving an uncluttered record free of irrelevant and cumulative material, the Hearing Officer's Guide expressly encourages the hearing officers to utilize offers of proof. Hearing Officer's Guide at 6, 38 (“the hearing officer should . . . utilize offers of proof in order to achieve an uncluttered record.”). See Casehandling Manual Section 11185, 11188.1. But, we no longer believe that we need insist on a rigid formality by mandating that offers of proof be taken on every potential issue before any evidence is introduced. We think that hearing officers will continue to be capable of judging when offers of proof are likely to be helpful in safeguarding the record, and will continue to require them as appropriate, without removing their discretion to let the hearing proceed organically where pro forma offers of proof might burden, rather than streamline, the hearing record. However, given protests in the comments concerning the hearing officers' role (as discussed below), out of an abundance of caution we clarify that hearing officers must seek the regional director's determination as to whether to receive proffered evidence relating to an issue that the regional director determined should be litigated. This ensures that discretion to foreclose litigation resides with the statutorily appropriate agent of the Board. This comports with current best practices, where hearing officers briefly adjourn hearings to communicate with regional directors to ensure that the record is developed consistent with the regional director's view of the case.[405]

In sum, amended § 102.66(c) does no more than reaffirm and codify the authority of the hearing officer to require parties to make offers of proof if the hearing officer believes it would be useful to do so. See Laurel Associates, Inc., 325 NLRB at 603 & n.1 (hearing officer properly required employer to make an offer of proof in support of its claim that the presumptively appropriate petitioned-for unit was not in fact appropriate and then properly rejected it); Mariah, Inc., 322 NLRB at 586 n.1, 588 (hearing officer properly permitted employer to make, and then properly rejected, an offer of proof regarding the eligibility of strikers because such matters are decided post election if necessary); Franklin Hospital Medical Center, 337 NLRB 826, 826-27 & n.2 (2002) (hearing officer properly rejected employer's offer of proof regarding alleged supervisor status of certain individuals); Colgate-Palmolive Co., 120 NLRB 1567, 1568 & n.2 (1958) (hearing officer properly rejected proffered evidence because it was not material); W.B. Willet, 85 NLRB 761, 761 n.2 (1949) (hearing officer properly rejected offer of proof in support of party's contract bar claim, because it could not have constituted a bar to the proceeding).

A number of comments criticize the role of, and the authority assigned to, the hearing officer under the proposed rule. Of those comments, several suggest that the Board's proposed procedures represent an unprecedented expansion of the hearing officer's role and vest the hearing officer with too much discretion.[406] Similarly, some comments express the view that the statute prohibits hearing officers from making decisions such as whether disputed issues relate to a material fact, or whether offers of proof are sufficient to establish the existence of a genuine dispute as to a material fact, as Section 9(c) prohibits hearing officers from even making recommendations with respect to the representation hearing.[407] In addition, several comments note that not all hearing officers are attorneys,[408] and numerous comments questioned the competency of hearing officers—particularly in the absence of guidance from the Board—to assess the parties' position statements and offers of proof and to apply the legal standards embodied in Federal civil procedure to make judgments as to what constitutes a disputed issue of material fact.[409] According to several comments, the likely result of such required judgments—which may not be made in a uniform manner among hearing officers—will be an increase in post-election litigation and post-certification challenges.[410]

Responsive comments express the contrary position that the proposed rules grant no greater discretion to hearing officers than that which they Start Printed Page 74396already exercise under current Board procedures, as hearing officers have always been responsible for controlling the hearing, assuring that there is a complete record, and excluding evidence that is not material to the case.[411] In addition, SEIU asserts that the proposed rules do not suggest that hearing officers are to weigh the proffered evidence of the parties, or to ascertain whether assertions made in position statements are accurate or reliable; rather, the hearing officer is to examine the position statements and offers of proof to ascertain whether there is conflicting evidence as to any material fact.

Many comments also focus on the use of language similar to that used in Rule 56. The AFL-CIO supports the proposal claiming that it will appropriately eliminate the ability of a party to strategically delay the election by forcing the litigation of undisputed or immaterial issues and provide the hearing officer with the authority to prevent an “empty show” hearing, while simultaneously ensuring that the parties are provided the opportunity to present their positions on all issues and to present evidence or offers of proof on all material factual issues. In addition, the AFL-CIO contends that “most major agencies in the Federal system have opted to make available procedures for the summary disposition of adjudicatory matters,” and that such procedures are particularly appropriate in the context of an “informal and nonadversarial” pre-election hearing. Similarly, several comments assert that the offer-of-proof procedure is consistent with both the Board's current post-election practice and civil litigation in Federal and state courts.[412]

Conversely, several comments express the position that the mandatory offer-of-proof procedure inappropriately deprives the parties of the opportunity to develop a full and complete record.[413] Other comments assert that the procedures proposed in 102.66 deny employers the due process protections to which they are entitled,[414] and that they are inconsistent with the statutory requirement that the Board provide an “appropriate hearing” prior to the election. In the latter regard, several comments argue that Section 9(c) of the Act requires a pre-election evidentiary hearing at which the parties are afforded the opportunity to present their evidence and positions, and cross-examine witnesses.[415]

Several responsive comments dispute the claims that the Board's proposed procedures are violative of due process guarantees.[416] These comments assert that there is a notable absence of support for the claim that due process requires the Board to expend resources in connection with the litigation of issues that are neither material nor in dispute, and that due process requires “something less than a full evidentiary hearing.” Similarly, several comments express support for the Board's preliminary view in the NPRM that the statutorily-prescribed “appropriate hearing” does not mean an evidentiary hearing when there are no issues in dispute or the parties fail to submit an offer of proof demonstrating a genuine dispute as to a material fact.[417] The comments additionally assert that, pursuant to the Supreme Court's interpretation of Section 9(c) of the Act, the Board has discretion to determine the appropriate parameters of the investigatory representation hearing.

In addition to challenging the Board's proposed limitations on the hearing as inconsistent with due process and statutory requirements, many of the comments in opposition to the proposed procedures express the view that, contrary to the Board's suggestion in the NPRM, the summary procedures are not analogous to the summary judgment framework established by Rule 56 of the Federal Rules of Civil Procedure. More specifically, a number of comments contend that a fundamental distinction between the Board's proposed procedures and Rule 56 is the fact that summary judgment under the Federal rule takes place only after the parties have had the opportunity to conduct discovery.[418] According to comments from SHRM and ACE, non-petitioning parties cannot reasonably be expected to articulate and substantiate their positions through an informal summary judgment process in the absence of a full record or, at a minimum, access to all of the relevant evidence. SHRM, ACE, and AHA additionally contend that the Board's analogy to Rule 56 is inapt in that summary judgment procedures are utilized to resolve legal questions only after the facts have been established to the point where no material facts are in dispute; the summary judgment procedure has never been used to determine whether to receive and evaluate evidence.

A comment from NAM II additionally asserts that, as the Board's proposal requires the non-moving party to identify issues, submit an offer of proof, marshal arguments, and introduce evidence supporting its position, it completely reverses the burden of proof applicable under Rule 56. In addition, unlike the Federal rule, the Board's procedures do not afford the parties the opportunity for oral argument.

In response to the comments criticizing the Board's reliance on Rule 56, the SEIU (Reply) counters that, under the Board's proposed rules, “employers may force hearings by producing far less than a litigant must produce under Rule 56, and may easily meet its burden without the discovery that often precedes summary judgment motions.” Indeed, argues the SEIU, employers would be subjected to a much lower bar than that necessary to overcome a summary judgment motion; whereas a non-moving party under Rule 56 cannot rest on its pleadings, but must submit significant probative evidence in support of its claims, a party seeking to introduce evidence at a representation hearing need only raise an issue in its position statement and, subsequently, submit an offer of proof identifying its likely witnesses and summarizing their anticipated testimony. See FRC.P. 56(e).

We agree with the criticism of the proposed rule's use of Rule 56 of the Federal Rules of Civil Procedure as a model for the procedural rules governing representation cases, based on the substantial differences between the different kinds of proceedings. The Federal Rules are designed for formal judicial actions before a Federal judge or magistrate judge that may address any issue raised in connection with almost the full range of claims cognizable under Federal or state statutory or common law. The Board's representation cases, by contrast, involve informal administrative proceedings that address a narrow subset of the issues arising under a single Federal statute. The range of issues is even narrower in pre-election Start Printed Page 74397proceedings. The cases are presided over and decided by hearing officers and regional directors, respectively, some of whom are not lawyers, and it is more common than in district court for parties not to be represented by counsel. We agree that it makes little sense to burden an informal proceeding that performs a simple, narrow function with trappings of full-dress Federal litigation. We therefore have declined to adopt the language of proposed § 102.66(c) that was drawn from Rule 56. Similarly, in §§ 102.64(b) and 102.66(a) we have rejected proposed language imported from Rule 56, and in § 102.66(a) we have eliminated the proposed “joinder” nomenclature in connection with the identification of disputed issues through the responses to statements of position.

It is important to recognize, however, that § 102.66 of the final rule, Rule 56, and many other rules governing adjudication of disputes are animated by a common principle of economy and common sense: A tribunal need not permit litigation of a fact that will not, as a matter of law, affect the result, or as to which the party that seeks to litigate the fact cannot identify evidence that would sustain its position. For example, suppose that a party asserts, concerning a petition for a unit including all dispatchers, that dispatchers are supervisors, and suppose that even if all of its witnesses testify credibly as it says they will testify and all of the documents it proposes to introduce show what it says they will show, the party's testimonial and documentary evidence will not, as a matter of law, establish that dispatchers are supervisors. Under such circumstances, there is no need for an evidentiary hearing on the issue. There is no need to require the hearing officer to try the factual issue to find out whether the party's witnesses might by some chance testify to something different from what the party said they would. That would be the definition of unnecessary litigation, and the formalities of summary judgment under Rule 56 are not needed to reach the obvious conclusion that the issue should not be tried.

The Board is confident that hearing officers are fully capable of performing their role under the final rule, including asking petitioners to respond to each position taken by the nonpetitioners and administering the preclusion provision. Put simply, we believe that the amendments to § 102.66(b) codify nothing more than what hearing officers are supposed to do currently. The Hearing Officer's Guide has long provided that at the outset of the hearing, the hearing officer should have the parties clearly state their positions on each issue. Hearing Officer's Guide at 6, 13, 14, 16. Casehandling Manual Sections 11187 and 11188 likewise provided long before the NPRM that the hearing officer should guide, direct and control the hearing, seek responses to issues raised by the parties, and take an active role in exploring all potential areas of agreement and narrowing the issues that remain to be litigated. Similarly, hearing officers have experience precluding parties from presenting evidence relating to an issue if the parties have not taken a position on that issue. See Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994). See also Casehandling Manual Section 11217 (the hearing officer should advise a party that refuses to state its position on an issue that it may be foreclosed from presenting evidence on that issue). Accordingly, we believe that hearing officers are capable of determining when parties are seeking to present evidence about issues they did not raise in their Statements of Position or in response thereto.[419]

Nor would the Board be persuaded by any claim that hearing officers are incapable of administering the amended offer-of-proof procedure. As discussed above, amended § 102.66(c) does not expand the hearing officer's role beyond that which existed under the Board's prior rules; rather, it merely confirms that the hearing officer—in the interests of protecting the record from being burdened by cumulative or unhelpful evidence and preventing unnecessary delay—has the discretion to require the parties to submit an offer of proof. Thus, the hearing officer's role is limited to the traditional one of “guid[ing], direct[ing], and control[ling] the hearing, excluding irrelevant and cumulative material, and not allowing the record to be cluttered with evidence submitted `for what it's worth.' ” Hearing Officer's Guide at 6, 38. See Casehandling Manual Section 11188.1. As shown, prior to the NPRM, hearing officers had discretion to require parties to submit offers of proof. Under the final rule, hearing officers continue to have discretion to require offers of proof, subject to the clarification that it is the regional director who will make the ultimate decision on the offer's sufficiency. Nothing in the amendments denies parties the ability to argue orally about whether a particular offer of proof should be rejected. In our experience, hearing officers have been fully capable of requesting offers of proof and seeking direction from regional directors on whether to allow evidence to be received, and there is no reason to think that the amendments will change that.[420]

There will be adequate evidence on the record to decide the relevant issues. To be sure, prior to the NPRM, the Board had construed its rules as granting parties the right to litigate individual eligibility or inclusion questions, whereas the final rule provides that disputes concerning individuals' eligibility to vote or inclusion in the unit found appropriate ordinarily need not be litigated or resolved before an election is conducted. The Board has concluded that, although this provision may operate to exclude evidence from the record concerning individuals' eligibility to vote or inclusion in the unit found appropriate, such evidence is not relevant to the existence of a question of representation. As such, it would be administratively irrational to require that parties be permitted to litigate such issues at the pre-election hearing if the regional director will not be deciding those issues prior to the election. But, under the final rule, regional directors are free to direct that evidence regarding individuals' eligibility to vote or inclusion in the unit be admitted if the director resolves to consider the individual eligibility question at issue prior to the election.[421]

Start Printed Page 74398

Contrary to some of the comments, the hearing officer's determination to require a party's offer of proof and seeking a ruling from the regional director on whether to receive the described evidence does not constitute a “recommendation” or decision for purposes of Section 9(c)(1) of the Act. Thus, in deciding whether to require an offer of proof, and presenting that offer to the regional director, the hearing officer is not recommending, or deciding, whether a question of representation exists or whether an election should be directed to resolve that question. See Casehandling Manual Section 11185 (“The hearing officer's role is to guide, direct, and control the presentation of evidence at the hearing [but] [t]he hearing officer does not make any recommendations or participate in any phase of the decisional process.”) [422] Moreover, as discussed above, the final rule makes clear in amended § 102.66(c) that it is the regional director, not the hearing officer, who will determine the issues to be litigated and whether evidence described in an offer of proof will be admitted.

We would also find unpersuasive any claim that the amendments deprive parties of their right to an “appropriate” pre-election hearing under Section 9(c) of the Act. Section 9(c)(1) of the Act states that the Board must provide for “an appropriate hearing” if it has “reasonable cause to believe that a question of representation affecting commerce exists,” and that the Board must direct an election if it finds, based on the record of that hearing, that “such a question of representation exists.” Thus, the statutory purpose of the pre-election hearing is to determine whether a question of representation exists.[423] In the absence of an election agreement, the Board's duty under Section 9(c) of the Act 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.

Amended § 102.66 does not deprive parties of their right to “an appropriate [pre-election] hearing” under Section 9(c) of the Act. After all, as explained above, amended § 102.66(a) expressly provides that parties have the right to introduce evidence “of the significant facts that support the party's contentions and are relevant to the existence of a question of representation.” Codifying hearing officers' discretion to require parties to make offers of proof in § 102.66(c) likewise does not deprive parties of their right to “an appropriate [pre-election] hearing” or their right to litigate relevant issues. To the contrary, offers of proof are a recurring feature of pre-election hearings under the NLRA (and of administrative and state and Federal court hearings across the land). An offer of proof is simply a tool to enable the regional director to determine whether it is appropriate to receive the evidence a party wishes to introduce. See Hearing Officer's Guide at 38. Thus, for example, if the proffered evidence is not relevant to whether a question of representation exists and the offer is rejected, parties have not been deprived of their right to a pre-election hearing, because parties have no right—under the NLRA, the APA, or the due process clause of the United States Constitution—to present evidence that is not relevant to the statutory purpose of the pre-election hearing.[424] Indeed, as shown, hearing officers had authority under the Board's prior rules to seek responses to party positions and to require parties to make offers of proof.

Moreover, because offers of proof are part of the record as discussed below in connection with amended § 102.68, parties' rights are preserved even if the evidence is rejected in error. Thus, the offer of proof is in the record for the regional director (or the Board or a reviewing court) to review, and if the director (or the Board or a reviewing court) concludes that the evidence was rejected in error and that the error prejudiced the party making the offer, then the director (or the Board or a reviewing court) can order that the record be reopened and the evidence taken. Hearing Officer's Guide at 38.[425]

Nor will the preclusion provisions prevent development of an adequate record upon which the regional director can determine whether there is an appropriate unit in which the Board may properly conduct an election. As explained in the NPRM, hearing officers had authority under the Board's prior rules to preclude parties from presenting evidence when they refused to take positions on issues. See 79 FR 7329-30; Bennett Industries Inc., 313 NLRB 1363, 1363 (1994) (hearing officer properly refused to allow employer to introduce evidence regarding Start Printed Page 74399supervisory status of leadpersons and quality control inspectors because employer refused to take a position regarding their status and their inclusion or exclusion from the unit); Allen Health Care Services, 332 NLRB 1308 (2000); Casehandling Manual Section 11217. Even if the hearing officer exercises the authority to limit an employer's presentation of evidence when the employer fails to take a position regarding the appropriateness of a petitioned-for unit, the regional director will retain the discretion to direct the receipt of evidence needed to make the required determination concerning a petitioned-for unit which is not presumptively appropriate. 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.

Thus, for example, amended § 102.66(b) contains an exception which explicitly provides that “this provision shall not preclude the receipt of evidence regarding the Board's jurisdiction over the employer or limit the regional director's discretion to direct the receipt of evidence concerning any issue, such as the appropriateness of the proposed unit, as to which the regional director determines that record evidence is necessary.” [426] And amended § 102.66(a) provides that the hearing officer “shall also have the power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence.” 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. And we reiterate our further conclusion that not vesting hearing officers with clear authority to limit such employers' participation in the hearings under those circumstances threatens the hearing officer's ability to control the proceedings and avoid burdening the record.

In short, if the parties do not enter into an election agreement, there will be a pre-election hearing. But Section 9(c) does not require a full evidentiary hearing in every case. Rather, it requires “an appropriate hearing.” The Board concludes that a hearing where irrelevant evidence must be introduced is an inappropriate hearing. Thus, if the parties come to the hearing and the regional director 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 10-person 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). On the other hand, if, as discussed above, the petitioned-for unit is not presumptively appropriate and the employer refuses to take a position on the appropriateness of the unit, then although the amendments to § 102.66 preclude the employer from presenting evidence and argument about the appropriateness of the unit, the amendments allow the petitioner to demonstrate the appropriateness of the unit at the hearing, or adduce evidence concerning any other issue for which record evidence is necessary. See § 102.66(b). Thus, the amendments are consistent with Allen Health Care Services, 332 NLRB 1308, 1308-09 (2000), where the Board held that if the employer refuses to take a position on a unit that is not presumptively appropriate, the hearing officer must take evidence sufficient to allow the regional director to find that the unit is appropriate before the director may direct an election in that unit.[427] Similarly, unless the employer concedes the Board has jurisdiction, evidence must be taken on the Board's statutory jurisdiction to process the petition. Indeed, amended § 102.66(b) provides that receipt of evidence regarding the Board's jurisdiction will not be precluded even if the employer takes no position on this issue, and amended § 102.66(d) contains language that expressly provides that “no party shall be precluded from * * * presenting evidence relevant to the Board's statutory jurisdiction to process the petition.”

Many comments specifically claim that the rule's preclusion provision is unfair, biased, or too severe a consequence for an employer's failure to raise an issue in its position statement, particularly in light of the abbreviated period of time permitted for its preparation; [428] one such comment (ACC) additionally questions the Board's authority to preclude litigation of significant issues based on an inadvertent omission from the position statement. In addition, a number of comments argue that the short-time frame will lead employers to file “pro forma” position statements and may cause employers to put forward every argument rather than risk preclusion.[429] We have already explained above in relation to § 102.63 why we disagree with the claim that the Statement of Position form due date and the pre-election hearing scheduling provisions render preclusion unfair. We have likewise explained above why we disagree with the notion advanced in some comments that the preclusion proposal will lengthen pre-election hearings and therefore will be counterproductive.

We also disagree with the comments that appear to challenge the very notion of preclusion itself as well as the Board's authority to preclude parties from raising issues that they did not raise in their Statements or in response to another party's Statement. Thus, the fact of the matter is that, as discussed above, prior to the NPRM, parties were required to raise contentions at specified times in the process or face preclusion. Indeed, as shown, Casehandling Manual Section 11217 provided that the hearing officer should advise parties that they may be Start Printed Page 74400foreclosed from presenting evidence on issues if they refuse to take a position on those issues. Prior to the NPRM, the Board had held that a hearing officer may preclude an employer from introducing evidence regarding the supervisory status of employees in certain job classifications if the employer refuses to take a position on their status and their inclusion or exclusion from the unit. Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994). Similarly, under the rules in effect prior to the NPRM, a party could “not [in a request for review of a regional director's decision and direction of election] raise any issue or allege any facts not timely presented to the regional director.” 29 CFR 102.67(d) (2010). Moreover, § 102.65(e)(1) of the prior rules provided that motions for reconsideration or to reopen the record needed to be based on extraordinary circumstances, and that neither the regional director nor the Board would entertain a motion for reconsideration or to reopen the record with respect to any matter which could have been but was not raised pursuant to any other section of the Board's rules. Accordingly, even under the Board's prior rules, if a party failed to present facts or take a position before the hearing officer at a hearing which opened and closed within 7-days of the notice, it could not do so later regardless of whether the failure was inadvertent. In addition, as discussed above in connection with § 102.63 (and § 102.66), we have explicitly provided that parties may seek to amend their Statements of Position either before or during the hearing in a timely manner for good cause.

In view of the foregoing, we categorically reject those comments that contend that we lack authority to impose preclusion, and that preclusion is too severe a consequence, for a party's failure to complete the Statement of Position form. We likewise reject Professor Estreicher's suggestion that the preclusive effect of failing to take a position required by the Statement of Position form should not extend beyond the pre-election period. Put simply, the Board believes, for example, that permitting parties to raise unit appropriateness issues after the election even if they did not raise those issues before the election would be inconsistent with the Board's goal of expeditiously resolving questions of representation, and would thwart the Board's interest in certainty and finality of election results. Moreover, as shown, the Board's prior rules already required parties to raise certain issues before the election in order to preserve their ability to raise those issues subsequent to the election.

Contrary to comments of GAM, the amendments do not operate to preclude challenges to the eligibility of an individual voter at the polls merely because the party seeking to challenge the voter at the polls failed to provide the initial lists of employees as part of its Statement of Position or failed to raise the issue of that individual's eligibility at the hearing. Amended § 102.66(d) merely provides that the employer “shall be precluded from contesting * * * the eligibility or inclusion of any individuals at the pre-election hearing” if it fails to furnish the lists of employees as part of its Statement of Position. (emphasis added). Similarly, amended § 102.66(d) explicitly provides that “no party shall be precluded, on the grounds that a voter's eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of any voter during the election.” In short, as noted above, even if an employer fails to complete a Statement of Position form, it will generally be able to challenge the eligibility of a particular individual at the polls, unless, of course, the regional director specifically ruled on that individual's eligibility prior to the election. Cf. Casehandling Manual Section 11338.7 (“Persons in job classifications specifically excluded by the Decision and Direction of the Election should be refused a ballot, even under challenge, unless there have been changed circumstances.”) GAM argues that the provisions are confusing, but does not provide suggested language for clarifying the provisions. The Board does not view the language as confusing, and thus has determined that no change is necessary.

SHRM argues that the preclusive effect of the rules is unfair because it operates primarily against the employer. We disagree. The preclusion provisions do not just apply in RC cases where the employer is the nonpetitioner and must complete the Statement of Position form. Rather, under amended § 102.66(b) and (d), the preclusion provisions apply in all cases, without distinction, including RD (decertification cases) as well as RM cases, where the individual or labor organization currently representing employees, or seeking to represent employees, is the nonpetitioner and is responsible for completing a Statement of Position form. Moreover, where a labor organization is the petitioner, amended § 102.66(b) and (d) preclude it from seeking to introduce evidence concerning any issue that it did not place in dispute in response to another party's Statement of Position. We also reiterate that, contrary to SHRM's contentions that the amendments favor unions and impose one-sided burdens, if the employer refuses to take a position regarding the appropriateness of a petitioned-for unit that is not presumptively appropriate (or claims that the unit is not appropriate but fails to specify the classifications, locations, or other employee groupings that must be added to or excluded from, the petitioned-for unit to make it an appropriate unit), the petitioner cannot simply rest, but must demonstrate the appropriateness of the petitioned-for unit. Similarly, evidence must be taken as to the Board's statutory jurisdiction to process the petition if the employer refuses to concede jurisdiction and fails to provide the commerce information in its Statement of Position form. See amended § 102.66(b). This is so even though the nonpetitioner employer unquestionably has greater access to the relevant information relating to those issues, as the employer established its employees' terms and conditions of employment and knows the extent of the connection between its business and interstate commerce.

C. Subpoenas

The final rule does not adopt the proposed amendment to § 102.66(c) specifying 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 5 days provided in Section 11(1) of the Act. The Board had proposed to codify the existing practice noted in the Casehandling Manual, which provides that case authority “holds that the 5-day period is a maximum and not a minimum.” Section 11782.4.[430] Upon reflection, however, the Board does not feel that it would be appropriate to codify the limited caselaw in this area, and instead prefers to allow the continued development of best practices among the Board's regional directors and its administrative law judges concerning motions to quash subpoenas.[431]

D. Discussion of Election Details

The NPRM proposed that prior to closing the hearing, the hearing officer would inform the parties what their obligations under these rules would be Start Printed Page 74401if the regional director directs an election. The NPRM also proposed that the hearing officer would solicit all parties' positions on the type, dates, times, and location of the election, and the eligibility period. However, the NPRM also made clear that although parties would be solicited to provide their positions on the election details in their statements of position and at the hearing, the resolution of these issues would remain within the discretion of the regional director, and the hearing officer would not permit them to be litigated. 79 FR at 7330, 7358.

The Board has decided to adopt these proposals in amended § 102.66(g), which provoked little comment. The Board believes that parties to a representation proceeding will be provided with useful guidance if the hearing officer advises them what their obligations will be if the director directs an election.

In addition, as noted above in relation to § 102.63, the Board believes that the solicitation of the parties' positions regarding the election details will help the Board to expeditiously resolve questions of representation. Because the parties will have fully stated their positions on the election details either in their statements of position or at the hearing, the regional director will be able to take the parties' positions on those matters into account and ordinarily will be able to specify the election details in the direction of election, instead of needing a series of unnecessary phone calls or emails with the parties to discuss election details after the decision. And, because the director ordinarily will specify the election details in the direction of election, the director ordinarily will be able to issue the Notice of Election simultaneously with the direction. This will avoid unnecessary delay, because the election cannot be conducted until the details of the election are set, and the Notice of Election advises the employees of when, where, and how they may vote. And by enabling the director to let the employees vote sooner, the amendment will help the Board to more expeditiously resolve questions of representation.

As discussed above in connection with § 102.63, the Chamber claims that it is not possible for a party to state its position regarding the election details until the regional director determines the unit. We find this objection unpersuasive in this context as well. Thus, parties are free at the hearing to present their positions on election details in the alternative if they believe that the parties' various unit positions would impact their views on the election details. Moreover, given the small size of bargaining units in representation cases in recent years, the Board anticipates that it will be the exceptional case rather than the norm where differences between the petitioned-for unit and any other unit would cause the employer to feel the need to take such alternative positions regarding the election details. Finally, a regional director has discretion to contact the parties to ascertain their positions regarding the election details if the director ultimately chooses to direct an election in a unit that is materially different from that proposed by either party at the hearing.[432]

GAM questions whether the Board intends to abandon its current practice of taking into account the parties' positions on the election details. The answer is “no.” The very purpose of soliciting the parties' positions on these details in the Statement of Position and at the hearing is so the regional director can consider them in setting the election. Contrary to the comment, parties remain free under the final rule to explain the background reasons for their positions regarding the details of the election even though the issue is not litigable at the pre-election hearing. The Board points out, however, that even prior to the NPRM, the Board was not bound by the parties' preferences. See, e.g., Casehandling Manual Section 11302. Accordingly, contrary to GAM, the Board does not believe that the amendment will decrease the likelihood that parties will enter into election agreements. To the contrary, just as was the case prior to the amendments, one of the reasons why parties may want to enter into an election agreement and waive a pre-election hearing is to gain certainty over the election details.

E. Oral Argument and Briefs

The NPRM proposed amending §§ 102.67 and 102.66(h) to vest the hearing officer with discretion to control the filing, subjects, and timing of any post-hearing briefs. The final rule amends this proposal to vest the regional director with discretion to grant a request to file a post-hearing brief in amended § 102.66(h).

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 §§ 102.67(a) and 101.21(b), in nearly all cases parties are afforded a right to file briefs at any time up to 7 days after the close of the hearing, with permissive extensions granted by hearing officers of up to 14 additional days.[433] By exercising that right or even by simply declining to expressly waive that right until after the running of the 7-day period, parties could potentially delay the issuance of a decision and direction of election and the conduct of an election unnecessarily.

Various comments, including those of SHRM, AHA, AHA II, AHCA II 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, ACE, and AHA point out that this cannot be done as effectively in oral argument at the close of the hearing because the full transcript is not yet available and parties need time to conduct research and formulate legal arguments. Bruce E. Buchanan argues 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.” [434]

Curt Kirschner opposed the proposed amendment on the ground that hearing officers are not authorized to control briefing under Section 9(c)(1). Testimony on behalf of AHA II. And numerous other comments argue that Start Printed Page 74402elimination of briefing by right denies parties due process.[435]

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 § 102.66(h) does not prevent parties from filing post-hearing briefs. Rather, as amended, the final rule simply vests the regional director with discretion to permit or not permit such filings and to otherwise control the content and timing of any post-hearing briefs. Vesting the regional director with the authority and discretion to decide whether post-hearing briefs are necessary in a particular case eliminates any concerns that hearing officers are not permitted to control briefing under Section 9(c)(1). In addition, where complex issues arise, parties can argue to the regional director why briefing is necessary in that particular case. In the majority of representation cases, where briefing is not necessary, the final rule will eliminate unnecessary delay. Moreover, there is no denial of due process because 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 typical pre-election hearing lasts for one day or less.

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; Hearing Officer's Guide 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.”).

Regarding the arguments that the proposal denies due process, 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 if such a request is granted. 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, in pertinent part, that in formal agency adjudication “parties are entitled to a reasonable opportunity to submit * * * proposed findings and conclusions * * * and supporting reasons for the * * * proposed findings or conclusions.” But Section 5(6) of the APA, 5 U.S.C. 554(a)(6), specifically exempts from the category of formal adjudication those cases involving “the certification of worker representatives.” The courts have held that this exemption applies to both pre- and post-election hearings. See In re Bel Air Chateau Hospital, Inc., 611 F.2d 1248, 1252-1253 (9th Cir. 1979); NLRB v. Champa Linen Service Co., 437 F.2d 1259, 1262 (10th Cir. 1971). The Senate Committee Report explained that the exemption was inserted into the APA because the Board's “determinations rest so largely upon an election or the availability of an election.” S. Rep. No. 752, at 202 (1945). The committee also pointed to “the simplicity of the issues, the great number of cases, and the exceptional need for expedition.” Senate Committee on the Judiciary Comparative Print on Revision of S. 7, 79th Cong., 1st Sess. 7 (1945).

Congress did not revisit this decision in 1947 when Section 9 of the NLRA was amended, and the APA continues to exempt representation cases from its formal adjudication requirements. In fact, between 1964 and 1966, Congress considered removing all the exceptions contained in Section 5 from the APA, but decided not to do so. In 1965, the Board's Solicitor wrote to the Chairman of the Senate Subcommittee on Administrative Practice and Procedure objecting strenuously to removal of the exemption for representation cases. The Solicitor specifically objected that “election case handling would be newly freighted and greatly retarded by * * * [s]ubmission to the hearing officer of proposed findings of fact and conclusions of law.” Administrative Procedure Act: Hearings on S. 1663 Before the Subcomm. on Admin. Practice and Procedure of the Comm. on the Judiciary, 88th Cong., 2d Sess. 532 (1964) (letter submitted by William Feldesman, NLRB Solicitor, May 11, 1965). The Solicitor concluded, “After Congress has done so much to help speed the processing of election cases to avoid the dangers of delay, this would hardly be the time to inaugurate procedural changes which serve dilatory ends and have the potential to cause that bottleneck the Board has for years been attempting to prevent.” Id. at 534. In 1966, the Senate Committee on the Judiciary reported out a bill containing a provision, not ultimately enacted, that would have removed all the exemptions. But the Committee Report carefully explained, “It should be noted, however, that nonadversary investigative proceedings which Congress may have specified must be conducted with a hearing, are not to be construed as coming within the provisions of section 5(a) because of the deletion of the exemptions. An example of such a proceeding would be certification of employee representatives proceedings conducted by the National Labor Relations Board.” S. Rep. No. 1234, 89 Cong., 2d Sess. 12-13 (1966). This history demonstrates that Congress's intent in the APA was to Start Printed Page 74403ensure that written briefing was not required in representation cases because of the interest in expedition. Congress has steadfastly maintained this view, and has expressly rejected any written briefing requirement in representation cases whenever the matter has arisen. The change is therefore consistent with the requirements of the law and the intent of Congress.

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 regional director who will be writing the decision 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. Accordingly, we decline to set a 14-day limit on post-hearing briefing.

Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; Action by the Regional Director; Appeal From Actions of the Regional Director; Statement in Opposition; Requests for Extraordinary Relief; Notice of Election; Voter List

The NPRM proposed a number of amendments to § 102.67, addressing matters such as the regional director's discretion to transfer a case to the Board before issuing a decision, the contents of the pre-election decision, the final election notice, the voter list, and the pre-election request for review procedure and the accompanying 25-day waiting period. 79 FR at 7332-33, 7358-60. As discussed below, after careful consideration, the Board has decided to adopt some of the amendments as originally proposed, to adopt modified versions of other proposals, and to reject the remainder.

A. Elimination of Transfer Procedure

In the NPRM, the Board proposed to eliminate the regional director's authority to transfer a case at any time to the Board for decision. 79 FR at 7333. This authority has rarely been used and, when it has been used, has led to extended delays in the disposition of petitions. See, e.g., Centurion Auto Transport, Inc., 329 NLRB 394 (1999) (transferred December 1994, decided September 1999); Roadway Package System, Inc., 326 NLRB 842 (1998) (transferred May 1995, decided August 1998); PECO Energy Co., 322 NLRB 1074 (1997) (transferred October 1995, decided February 1997); Johnson Controls, Inc., 322 NLRB 669 (1996) (transferred June 1994, decided December 1996). The Board did not receive any significant comments regarding this proposal, and the final rule adopts it. Accordingly, the final rule eliminates, for example, §§ 102.67 (h), (i), and (j) of the current rules which referenced the transfer procedure, and reletters various subparts of § 102.67.[436]

B. The 20-Percent Rule

As discussed above in connection with § 102.66, the Board has decided to reject the proposed 20-percent rule which in relevant part would have required the hearing officer to close the hearing if the only issues 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. 79 FR at 7330. The Board has likewise decided to reject the portion of the proposed 20-percent rule which would have required the regional director to defer deciding individual eligibility or inclusion questions involving less than 20 percent of the unit. 79 FR at 7332. Instead, for the reasons discussed above in connection with § 102.66, the Board has decided to preserve the discretion regional directors enjoyed even before the NPRM to defer resolving disputes concerning individuals' eligibility to vote or inclusion in the unit until after the election or to decide such disputes before the election in the decision and direction of election. However, the final rule adopts in § 102.67(b) the NPRM proposal that, in the event a regional director defers deciding individual eligibility or inclusion questions until after the election, the Notice of Election shall explain that the individuals in question “are neither included in, nor excluded from, the bargaining unit, inasmuch as the regional director has permitted them to vote subject to challenge,” and the procedures through which their eligibility will be resolved. 79 FR at 7332, 7359.[437] The Board concludes that this provision will ensure that employees will not in any manner be misled about the unit. Rather, they will cast their ballots understanding, if applicable, that the eligibility or inclusion of a small number of individuals in the unit has not yet been determined. The amendment thereby provides guidance to employees and the parties and renders Board procedures more transparent.

GAM asserts that the inclusion in the election notice of an explanation that individuals whose eligibility has not been determined will be permitted to vote subject to challenge precludes employees from “know[ing] the voting unit,” and that this violates the Act and due process pursuant to the reasoning in the Fourth Circuit's unpublished decision in NLRB v. Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir. 1997). However, under the amendments, as under the prior rules, the regional director must determine the unit's scope and appropriateness prior to directing the election, and employees will be informed of the unit via the Notice of Election. Accordingly, as noted in connection with § 102.66, 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 was also the case under the Board's current rules, as explained above, because regional directors and the Board have long had the discretion to defer deciding individual eligibility or inclusion questions until after the election, and parties could agree to permit disputed employees to vote subject to challenge. Indeed, Section 11084.3 of the Casehandling Manual in effect prior to the NPRM provided that where the parties agree that certain classifications of employees should vote subject to challenge, the notice of election “should indicate the classifications that will vote subject to challenge.”

Moreover, the court's concern in Beverly 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 help prevent exactly that form of change in unit definition from occurring by codifying regional directors' discretion to defer deciding individual eligibility or inclusion questions until after the election and by Start Printed Page 74404providing in amended § 102.67(b) that if the direction of election provides for individuals to vote subject to challenge because their eligibility has not been determined, the Notice of Election shall so state, thereby advising employees prior to the election that the individuals in question “are neither included in, nor excluded from, the bargaining unit, inasmuch as the regional director has permitted them to vote subject to challenge,” and that their unit placement “will be resolved, if necessary, following the election.” As already explained, the Board views this alteration to the Notice of Election as meeting the concerns raised by the Beverly court and as specifically countenanced by the Second Circuit in Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992).

C. Direction of Election With Statement of Reasons to Follow

In the NPRM, the Board proposed to grant the regional director discretion to issue a direction of election without simultaneously providing a statement of reasons so long as the director provided his findings and statement of reasons prior to tallying the ballots. The Board expressed its tentative view that granting such discretion to the regional director would avoid unnecessary delay in the conduct of elections. 79 FR at 7332.

SEIU praised the proposal, claiming it could be instrumental in facilitating a timely election. On the other hand, GAM claims that the proposed amendment would be unfair because, without knowing the basis for the direction of election, parties could not evaluate whether to request review of the regional director's direction of election. Negative comments also claimed, among other things, that the proposal would lead to poor decision-making by the regional directors (Fox, GAM); could give rise to unhelpful suspicion regarding the basis for the direction of election (Testimony of Curt Kirschner on behalf of AHA II); and could cause regional directors to set later election dates in complex cases (Fox).

Upon reflection, the Board has decided to reject the proposal. The NPRM set forth the Board's tentative view that the proposal to permit the regional director to direct an election without simultaneously providing a statement of reasons would not prejudice any party in light of another proposed amendment which would defer parties' right to request Board review of pre-election rulings until after the ballots cast in the election were tallied. 79 FR at 7332. In other words, no party would be prejudiced by the proposal because the regional director would be required to furnish his statement of reasons before the ballots were tallied and because the time for filing a request for review of the direction of election would not start to run until after the tally of ballots. However, as discussed below, the Board has decided to reject that other proposal that would have deferred all parties' right to request review of the regional director's pre-election rulings until after the election. Because, under the final rule, a party may file a request for review of a direction of election prior to the election, the Board has likewise decided to reject the proposal that would have permitted the regional director to direct the election without simultaneously providing a statement of reasons. Rejection of this proposal will not create a new source of delay in conducting elections because the pre-NPRM rules already require regional directors to set forth their findings and conclusions in the decision and direction of election. 29 CFR 102.67(b) (2010).[438] Moreover, upon reflection, we conclude, in agreement with the testimony of Kirschner II that the time savings that would have been achieved by adopting the proposal would have been relatively modest because they would have represented only the time it would have taken for the regional director to memorialize the decision. Thus, even under the proposal, the director could not have directed an election without first concluding that a question of representation did indeed exist in the unit in which an election was being directed.

D. Specification of Election Details in Direction of Election; Scheduling of Election

In the NPRM, the Board proposed that in the event the regional director directs an election, the direction of election “shall specify” the type, date, time, and place of the election, and the eligibility period. 79 FR at 7359. Under prior practice, these details were resolved after the hearing and decision in sometimes lengthy phone consultations and negotiations with the various parties. As one commenter noted, “It is really frustrating when you go back to a bargaining unit and say, `We have your decision and direction of election, and now we'll start the negotiation process about when your election is actually going to be held.' * * * [The rule] eliminates one of the choke points later on in getting to an election in a timely manner * * *.” Testimony of Gabrielle Semel on behalf of CWA II.

Instead of requiring the regional director to specify the election details in every direction of election, the Board has decided to provide in § 102.67(b) of the final rule that the direction of election “ordinarily will” specify the election details.[439] Because, as discussed above in connection with §§ 102.63 and 102.66, the parties will have stated their positions on the election details in their petitions, in their Statements of Position and at the hearing, the regional director ordinarily will not need to solicit their positions on the election details yet again after issuing the direction of election, and therefore ordinarily will be able to specify the election details in the direction of election. And, because the director ordinarily will specify the election details in the direction of election, the director ordinarily will be able to issue the Notice of Election for the employer to post and distribute simultaneously with the direction, and amended § 102.67(b) so provides. These amendments will enable the regional director to let the employees vote sooner, because the election cannot be conducted until the details of the election are set and the Notice of Election advises the employees of when, where, and how they may vote. In sum, by enabling the regional director to conduct the election without unnecessary delay, the amendments will help the Board to more expeditiously resolve questions concerning representation.

GAM suggests that some employers might refuse to allow elections on their premises if the regional director simply sets the election details in the direction of election instead of first contacting the employer. This comment misunderstands the rule. The Board hearing officer will “contact” the employer at the hearing itself, and there is no reason to think that contact at that time would be less efficacious in obtaining employer consent than contact after the decision.[440] The change Start Printed Page 74405will obviate the need for a wasteful post-decision consultation process in favor of more efficient consultations during the hearing itself. Given that all parties will be present at the pre-election hearing, it seems eminently reasonable to solicit the parties' positions at that time, rather than have the Board agent attempt to solicit input individually after the direction issues. In any event, as shown, the final rule leaves the director free to consult with the parties yet again after issuing a direction of election if the director concludes that it is appropriate to do so. For example, if the regional director directs an election in a unit significantly different from the union petitioner's proposed unit and the employer's alternative unit, the regional director should consult with the parties concerning the election details. Moreover, contrary to the suggestion in the comment, regional directors were not bound by the parties' preferences regarding the election details prior to the NPRM. See Casehandling Manual Section 11302.[441]

The final rule also adopts in § 102.67(b) the NPRM proposal that in the event the regional director directs an election, the director “shall schedule the election for the earliest date practicable consistent with these rules.” 79 FR at 7332, 7359. Many comments object to the NPRM proposals, claiming (incorrectly) that the Board improperly focused on the need to expeditiously resolve questions concerning representation to the exclusion of other factors. In fact, as discussed above in connection with the need for the rule and the opportunity for free speech and debate, the Board did not focus exclusively on the statutory goal of expeditiously resolving questions concerning representation. The Board likewise categorically rejects the notion that the proposed language, which the final rule adopts, constitutes a sea change from the Board's practice which existed prior to the NPRM. In fact, it represents no change. Thus, the Casehandling Manual in effect prior to the NPRM already provided that “[a]n election should be held as early as is practical[,]” Casehandling Manual Section 11302.1.[442] The language in the final rule is virtually identical to the Casehandling Manual language which predated the NPRM, going back decades. See, e.g., Casehandling Manual Section 11302.1 (1975). The Board takes this opportunity to reassure the public that, as noted above in connection with the opportunity for free speech and debate, the regional director will continue to consider the various policies protected by the Act—as well as operational considerations and the relevant preferences of the parties—in selecting an election date. Id.[443] Thus, for example, the regional director should avoid scheduling the election on dates on which past experience indicates that the rate of attendance will be low. Id. At the same time, just as was the case prior to the NPRM, the regional director is not bound by the parties' desires concerning the election date. Casehandling Manual Section 11302.[444] The Board intends to leave the precise scheduling of elections to the discretion of the regional directors under the supervision of the General Counsel.

E. Regional Director Transmission of Direction of Election and Notice of Election; Posting and Distribution of Notice of Election

In the NPRM, the Board proposed that both the decision and direction of election and the election notice be electronically transmitted to the parties' designated representatives when the parties have provided the relevant email addresses to the regional office or the documents would be transmitted by facsimile.[445] If a party provides neither an email address nor a facsimile number, the regional director would transmit the direction of election and the election notice via overnight mail. 79 FR at 7332, 7359. The final rule adopts these proposals in § 102.67(b). The final rule also provides in § 102.67(b) that those documents will also be transmitted in the same manner to the parties themselves. This is consistent with Casehandling Manual Section 11842.3, which provides that the regional director furnish both the parties and their representatives with election notices and representation case decisions. And, because, as discussed above, the director ordinarily will specify the election details in his direction of election, the final rule likewise provides that the Notice of Election will ordinarily be transmitted simultaneously with the direction of election. These amendments permit the Board to use modern methods of communication to transmit important representation case documents and to expeditiously resolve questions of representation in a more cost-efficient manner as electronic mail is cheaper and quicker than more traditional means of transmitting documents.

Section 103.20 of the Board's current rules addresses the posting of the election notices. The NPRM proposed to eliminate § 103.20, the only section of part 103 of the regulations governing procedures in representation proceedings, and to integrate its contents into part 102, as modified in proposed § 102.67. 79 FR at 7334. The final rule adopts this proposal which should make it easier for parties to comply with their obligations by describing the obligations in one place.

The NPRM proposed that employers be required to post copies of the election notice “in conspicuous places,” but that the notice to be posted upon the filing of the petition (before an election is agreed to by the parties or directed by the regional director) be posted where notices to employees are customarily posted. 79 FR at 7354, 7359. Upon reflection, the Board has concluded that to help ensure wide dissemination of the important information contained in the Notice of Election, it should be posted “in conspicuous places, including all places where notices to employees in the unit are customarily posted,” and the final rule so provides in amended § 102.67(k). This amendment parallels the final rule's amendment to § 102.63(a)(2) concerning the “Notice of Petition for Election.”

The NPRM also proposed to require the employer to electronically distribute the election notice if it customarily communicates with its employees electronically. 79 FR at 7359-7360. The final rule adopts this proposal in § 102.67(k), which parallels the amendments to § 102.63(a)(2) regarding the Notice of Petition for Election. Thus, if the employer customarily Start Printed Page 74406communicates with employees in the unit by emailing them messages, it will need to email them the Notice of Election. Similarly, if the employer customarily communicates with its employees by posting messages on an intranet site, it will need to do that. The Board concludes that the amendment will facilitate wider dissemination of the important information in the Notice of Election, thereby providing greater guidance to the employees.

The proposal to require the employer to electronically distribute the election notice was received with little controversy in the comments. Some comments, such as those filed by GAM and U.S. Poultry II, express concern that the requirement to distribute the election notice to employees electronically if the employer customarily communicates with its employees electronically could lead to additional grounds for filing objections to the election and subsequent litigation, particularly if some intended recipients do not receive the transmission. Unless an employer can be shown to have departed from its customary practice in electronic distribution, there will be no basis for an objection. The Board views the possibility of litigation delays, where an employer fails to comply with the final rule's electronic distribution requirement, as outweighed by the expected benefit of more effective distribution of the election details to eligible voters.

GAM also speculates that employees are likely to print and distribute the notices to each other, but it is unclear why it would be objectionable if employees merely distributed copies of the actual election notice. GAM expresses concern that employees may modify the sample ballots on the notice which will lead to objections, but just as was the case prior to the NPRM, the Notice of Election will warn employees that the notice must not be defaced by anyone, that any markings on any sample ballot or on the notice were made by someone other than the National Labor Relations Board, and that the National Labor Relations Board “does not endorse any choice in the election.” Form 707. In any event, the possibility of employees marking up the sample ballot on the election notice existed under the prior rules because the employer was required to physically post the notices in “conspicuous places.” See 29 CFR 103.20(a)(2010).

The NPRM also proposed to reduce the minimum time for posting of the notice of the election from 3 to 2 working days, because of the provisions for the mandatory posting of a more detailed initial notice of election, for manual and electronic posting of the final notice by employers, and, to the extent practicable, for electronic transmission of the final notice of election to affected employees by the regional director. 79 FR at 7332. However, as discussed below, under the final rule, the regional director will not be transmitting the Notice of Election directly to the affected employees. Accordingly, the Board has decided to maintain the current 3 working-day posting requirement, rather than reduce it to 2 days. The final rule preserves in amended § 102.67(k) the relevant language about the time for posting that previously appeared in § 103.20(a) and (b).[446]

Consistent with the pre-NPRM version of § 103.20(c), and (d), the final rule also provides in § 102.76(k) that the employer's failure properly to post (or distribute) the election notices shall be grounds for setting aside the election whenever proper and timely objections are filed. However, just as was the case prior to the NPRM, the final rule also provides that a party is estopped from objecting to the nonposting if it is responsible for the nonposting, and likewise is estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.

The NPRM also proposed that the regional director would electronically transmit the notice to the affected employees to the extent practicable. 79 FR at 7359. Thus, if the employer provided employee email addresses to the regional director, the regional director would transmit the notice to those employees. 79 FR at 7332.

The AFL-CIO praises this proposal as a positive contribution to information-sharing. Some comments, such as those filed by ALFA and GAM object on the grounds that it could cause an increase in the number of objections being filed if, for example, the Board fails to serve employees or the Board's attempts at service are blocked by the recipients' spam filter. Moreover, Ms. Kutch (relying on her background in online organizing and bulk email delivery) explained that navigating spam filters to ensure high rates of bulk email deliverability to the individuals at issue would likely be beyond the agency's technological capacity (or our foreseeable budgetary restrictions). Testimony of Jess Kutch on behalf of Coworker.org II. ALFA also implies that direct notification by the regional office is unnecessary since the NPRM would still require the employer to post paper copies of any election notice.

Upon reflection, the Board has decided to reject the proposal that the regional director transmit the election notice to employees to the extent practicable. Under the final rule, an employer must post the Notice of Election in paper form in conspicuous places, including all places where notices to employees in the unit are customarily posted for at least 3 full working days. In addition, as discussed above, if the employer customarily communicates with its employees by emailing them messages, it will need to email the Notice of Election to them as well. Similarly, if the employer customarily communicates with its employees by posting messages on an intranet site, it will need to post the notice on its intranet site as well. So any transmission by the Board in those circumstances would be largely duplicative. Moreover, given Jess Kutch's testimony that email providers can, and often do, block bulk emails (even if the intended recipients would like to receive the emails in question), it seems highly speculative that regional directors could effectively transmit the Notice of Election to unit employees electronically. In any event, the regional director will not have the information necessary to transmit the Notice of Election to employees at work under the final rule, because the final rule does not require the employer to furnish either the work email addresses or work phone numbers to the regional director. As for personal email addresses, if the employer customarily communicates with its employees via their personal email addresses, it will be required to distribute the notices that way as well under the final rule. And because the employer must furnish the nonemployer parties to the case with the available personal email addresses of its employees, the nonemployer parties will be able to transmit the Notice of Election themselves if they care to do so (even if the employer does not customarily communicate with them via personal email addresses). Accordingly, the Board declines to adopt the proposal to require the regional director to electronically transmit the final election notice to employees.

F. Voter List

The final rule makes the same changes with respect to the content, timing, format and service of the list of eligible voters that the employer must file after a direction of election as were Start Printed Page 74407described above in relation to § 102.62 after entry into any form of consent or stipulated election agreement. In addition, § 102.67(l) provides that the employer shall also include in a separate section of the list the voter list information for those individuals who, according to the direction of election, will be permitted to vote subject to challenge, including, for example, individuals in classifications or other groupings that will be permitted to vote subject to challenge. The Board concludes that this requirement will serve the goal of ensuring that employee votes are recorded accurately and efficiently and help the Board to expeditiously resolve questions of representation. Thus, if the names of such disputed individuals are put in a separate section of the list, it makes it more likely that the Board agent (and the parties' observers) will realize which employees who show up to vote were directed to vote subject to challenge, and therefore makes it more likely that those employees will be instructed to put their ballots in challenged ballot envelopes before placing them in the ballot box. See Casehandling Manual Sections 11338.2(b), 11338.3.[447] This provision will reduce the chances of objections being filed on the grounds that disputed employees' ballots were comingled with other employees' ballots. This provision is also consistent with the amendments providing that in the event a regional director chooses to defer deciding individual eligibility or inclusion questions until after the election, the Notice of Election shall explain that such individuals are being permitted to vote subject to challenge and what that means.

G. Requests for Review of the Regional Director's Decision and Direction of Election

In the NPRM, the Board proposed amendments to the current pre-election request-for-review procedure. Under the current rules, the parties are required to request Board review within 14 days of a regional director's decision 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 in the decision and direction of election. § 102.67(b), (f); see, e.g., A.S. Horner, Inc., 246 NLRB 393, 394-95 (1979). But elections were scheduled no sooner than 25 days after the direction of election, and thus, as a practical matter, parties were required to file a request for review of the direction of election prior to the election. This was the only opportunity for Board review of this decision.

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. The Board explained that the proposed consolidation of Board review 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 would result in efficiencies for the parties and the Board. 79 FR at 7329, 7333.

Comments praising the proposal to eliminate the current pre-election request for review procedure point out that it would conform Board procedures with the ordinary rules in both Federal and state courts, which generally disfavor interlocutory appeals as wasteful, piecemeal litigation that can cause delay and which therefore generally require parties to conclude all litigation in a case before filing an appeal or seeking review. See, e.g., AFL-CIO II; Supplemental Testimony of Thomas Meikeljohn; Testimony of Brian Petruska on behalf of LIUNA MAROC II. There is a great deal of force to this argument, which is consistent with sound judicial and administrative policy developed over centuries, and is in the best interest of all parties to representation cases.[448]

However, Section 3(b) states that “upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director.” The argument has been presented that this provision grants parties a right to request interlocutory review.[449] Although we do not agree that the statute compels this result,[450] we have concluded that the Board's objectives are better served by amending the rules in a manner that preserves the opportunity to request review of “any action of a regional director delegated to him under Section 3(b)” at any time, and, where necessary, to request a stay.

The final rule is intended to codify the text of the statute. Thus, the relevant portion of the final rule begins by stating, in § 102.67(c):

Upon the filling of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under Section 3(b) of the Act except as the Board's rules provide otherwise, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director.

The emphasized language is the only alteration from the text of the statute, and its purpose is primarily to clarify that parties which waive the right to Board review in an election agreement under § 102.62(a) or (c), or under § 102.67(g) are no longer entitled to request review under this provision.[451] The rule then goes on to state that: “The request for review may be filed at any Start Printed Page 74408time following the action until 14 days after a final disposition of the proceeding by the regional director. No party shall be precluded from filing a request for review of the direction of election within the time provided in this paragraph because it did not file a request for review of the direction of election prior to the election.” Finally, a number of other changes are made to carry out and clarify the essential amendments here.

1. The Parties Will Have Greater Latitude to Choose When to File a Request for Review

The first notable change is that the due date for filing requests is relaxed. The Board's current practice of requiring parties to seek such review of directions of election before the election—or be deemed to have waived their right to take issue with the decision and direction of election—not only encourages unnecessary litigation, but actually requires parties to conduct unnecessary litigation. Thus, 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 elections are removed from consideration.[452] For example, if the regional director rejects an employer's contention that a petitioned-for unit is inappropriate and directs an election in the unit sought by the union, rather than in the alternative unit proposed by the employer, the Board's current rules require the employer to request review of that decision prior to the election or be precluded from contesting the unit determination at any time thereafter. But if the union ends up losing an election, even though it was conducted in the union's desired unit, the employer's disagreement with the regional director's resolution becomes moot (because the employer will not have to deal with the union at all), eliminating the need for litigation of the issues at any time. The current rules thus impose unnecessary costs on the parties by requiring them to file pre-election requests for review in order to preserve issues.

Accordingly, the Board has decided to amend the current pre-election request for review procedure and to provide that any party may request review of a regional director decision to direct an election either before the election or after the election. Thus, the final rule provides that the request for review of the direction of election may be filed at any time after the direction of election issues until 14 days after a final disposition of the proceedings by the regional director. Under the amendments, a party can choose to file a request for review of the regional director's decision to direct an election before the election or can choose to wait to file the request for review until after the election.[453] We conclude that this amendment, which relieves parties of the burden of requesting pre-election review in order to preserve issues that may be mooted by the election results, will further the goal of reducing unnecessary litigation because, in our view, rational parties ordinarily will wait to file their requests for review until after the election, to see whether the election results have mooted the basis for such an appeal. The amendment should also reduce the burdens on the other parties to the case and the government, by avoiding the need for the other parties to file responsive briefs and for the Board to rule on issues which could well be rendered moot by the election results.

Some comments also raise policy arguments which could apply to the final rule's provision permitting parties to file requests either before or after the election. 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 ultimately grants, the election is regularly held anyway 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,[454] the number of cases of the type described in these comments is likely to be very small. In any event, under the final rule, a party may still file a request for review before the election.

AHA comments that the Board's own failings in timely processing requests is not a basis for eliminating the right of parties to review. This point is no longer applicable because parties will retain the right to seek pre-election review. In addition, 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 the requirement that parties file pre-election requests for review should, 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.

Other comments suggest that limiting pre-election review will mean that the parties will be unsure who is a supervisor during the pre-election campaign.[455] This objection is addressed at length above in relation to § 102.66. 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. In addition, under current procedures, 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 Start Printed Page 74409will be thwarted if the pre-election request for review is eliminated.

We also reject any suggestion that the final rule will increase the number of technical 8(a)(5) cases by denying parties “the palliative of Board review” of the regional director's pre-election determinations. Chamber II. Under the final rule, parties retain the right to request review of the regional director's decision to direct an election. The change is only that rather than being required to file the request for review prior to the election, parties may request such review either before or after the election, if the election results have not rendered the basis for such an appeal moot. As for parties being able to seek Board review of a regional director's post-election determinations, that issue has been addressed above in connection with § 102.62.

2. Ballots Will No Longer Be Automatically Impounded While a Request for Review is Pending

Second, the final rule eliminates the automatic impound procedure. The amendments thereby codify the statute's approach to stays, which will not take place “unless specifically ordered by the Board.” The current rules contain the following language on stays:

The Regional Director shall schedule and conduct any election directed by the decision notwithstanding that a request for review has been filed with or granted by the Board. The filing of such a request shall not, unless otherwise ordered by the Board, operate as a stay of the election or any other action taken or directed by the Regional Director: Provided, however, That if a pending request for review has not been ruled upon or has been granted ballots whose validity might be affected by the final Board decision shall be segregated in an appropriate manner, and all ballots shall be impounded and remain unopened pending such decision.

In amending the rules to codify Section 3(b) as written, the amendments eliminate the segregation and impoundment proviso of the former rules, which appear nowhere in the statute. As Section 3(b) contemplates, the regional director will continue to schedule and conduct elections notwithstanding that a request for review has been filed with or granted by the Board; however, the voting and counting of ballots will now also proceed notwithstanding the request for review, unless the Board specifically orders otherwise. This is consistent with the purpose of Section 3(b) to prevent delays in the Board's processing from impacting regional Section 9 proceedings.

As discussed above, some comments argue that the proposed rule would result in unnecessarily re-running elections. Of course, impoundment, standing alone, could not and did not prevent rerunning elections. Rather, comments argue that prior procedures for segregating ballots might permit the Board to issue a decision on review which would obviate the need for a rerun, and by postponing requests for review until after the election the proposed amendments-eliminate that possibility. However, as discussed below, the final rule contains a procedure for requesting segregation and impoundment, as well as a pre-election request for review, and so the Board will still have the option to segregate and impound where necessary in a particular case. In addition, if, as discussed above, a regional director has chosen to defer deciding an individual eligibility or inclusion question and to permit such individuals to vote subject to challenge, then those employees will indeed cast challenged ballots and their ballots will be segregated and impounded. Finally, the possibility of reruns is minimized further because the Board rarely reverses the regional director.

3. Motions for Expeditious Consideration, Stays, and Impoundment May Be Filed

Finally, in light of the references in the rules to requests for a stay, a new paragraph (j) in § 102.67 is created. This paragraph states that parties may separately move the Board for expedited consideration; a stay; or impoundment and/or segregation of ballots. The paragraph also clarifies, however, that “[t]he pendency of a motion does not entitle a party to interim relief, and an affirmative ruling by the Board granting relief is required before the action of the regional director will be altered in any fashion.” Id. As discussed above, the current rules stated that stays would not be granted “unless otherwise ordered by the Board,” and the final rules continue and expand this prohibition of stays “unless specifically ordered by the Board” in conformity with the statutory text. And yet, notwithstanding this implicit reference to orders by the Board on stays, the current rules provided no specific procedural mechanism for filing a motion for such a stay. In cases where such relief was sought, parties generally cited a catchall “special permission to appeal” procedure.

The final rule makes explicit the right to request a stay, or related forms of immediate Board relief such as expeditious consideration, or segregation or impoundment of ballots. This is not intended to reflect any change in the current practice or standards for moving for or granting such relief; however, in light of the changes to the Board's existing automatic impoundment process discussed above, we recognize that this provision is likely to be of increased significance to some parties seeking interlocutory review of regional director actions.

Two additional points should be addressed. First, under current practice, these motions are very rarely granted, and we expect that this will remain true, particularly in light of the strong statutory and regulatory policy against unnecessary stays or litigation delays expressed above. The requirement of a “clear showing that it is necessary under the particular circumstances of the case” will not be routinely met.

Second, although we expect that motions under this paragraph will generally be acted upon in a timely fashion, we emphasize that, as is the case with motions more generally, “the pendency of a motion does not entitle a party to interim relief, and an affirmative ruling by the Board granting relief is required before the action of the regional director will be altered in any fashion.” Thus, filing a motion for a stay is not the same as having a motion granted, and the proceeding will continue unless and until any such motion is granted.

H. The 25 Day Waiting Period

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 would be eliminated by the elimination of the pre-election request for review. 79 FR at 7333.

The Board's current Statements of Procedures provide that elections “normally” are delayed for a period of at least 25 days after the regional director directs that an election should be conducted, in order to provide the Board with an opportunity to rule on any request for review that may be filed:

The parties have the right to request review of any final decision of the Regional Director, within the times set forth in the Board's Rules and Regulations, on one or more of the grounds specified therein. Any such request for review must be a self-contained document permitting the Board to rule on the basis of its contents without the necessity of recourse to the record, and must meet the other requirements of the Board's Rules and Regulations as to its contents. The Regional Director's action is not stayed by the filing of such a request or the granting of review, unless otherwise ordered by the Board. Thus, the Regional Director may proceed immediately to make any necessary arrangements for an election, including the Start Printed Page 74410issuance of a notice of election. However, unless a waiver is filed, the Director will normally not schedule an election until a date between the 25th and 30th days after the date of the decision, to permit the Board to rule on any request for review which may be filed.

29 CFR 101.21(d) (2010).

The final rule adopts the proposal to eliminate the 25-day waiting period. 79 FR at 7333. Elimination of the 25-day waiting period eliminates an unnecessary barrier to the fair and expeditious resolution of questions concerning representation. By definition, the waiting period delays the election, which is designed to answer the question of representation. The 25-day waiting period—which effectively stays the election in every contested case for 25 days—is in tension with Congress' instruction in Section 3(b) of the Act that even the grant of review of a regional director's action “shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director.” Although the 25-day waiting period by its terms only applies to contested cases, the waiting period also has the effect of delaying elections in stipulated-election cases. As discussed above in connection with § 102.66, bargaining takes place in the shadow of the law, and some parties use the threat of insisting on a pre-election hearing—and the resulting 25 day waiting period—to extract concessions concerning election details, such as the date of the election and the unit itself. The 25-day waiting period also serves little purpose under the existing rules. The stated purpose of the 25-day period is merely “to permit the Board to rule on any request for review which may be filed.” 29 CFR 101.21(d) (2010). However, such requests are filed in a small percentage of cases, are granted in an even smaller percentage,[456] and result in orders staying the conduct of elections in virtually no cases at all. Thus, 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.[457] Finally, there is even less reason for the waiting period under the final rule, which should reduce the number of requests for review filed before elections by virtue of the amendment permitting parties to file such requests after the election.

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.[458] 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.[459]

Some comments, such as the hearing testimony of Jay P. Krupin on behalf of NGA, 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 § 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. However, their proposal would create a perverse incentive for parties to file a request for review solely to delay the election. 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. Under current procedures, 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. However, the statute does not provide for a 25-day waiting period, and the 25-day waiting period provided by the Board in the current rules was not intended to give parties an opportunity to campaign. Instead, once again, the stated purpose of the 25-day waiting period was merely to give the Board an opportunity to rule on any request for review which might be filed. The more general point is addressed at length above in connection with the opportunity for free speech and debate.

§ 102.68 Record in Pre-Election Proceeding; What Constitutes; Transmission to Board

The proposed amendments to § 102.68, which currently defines the record in a proceeding conducted pursuant to § 102.67, were quite minor as they were designed merely to conform its contents to the proposed amendments to other sections. First, the Board clarified that Statements of Position would be part of the record. While many comments objected to the requirement that parties make a binding statement of position on various issues, there were no significant comments concerning the proposal to make the Statement of Position a part of the record. Second, the proposed amendment deleted references to the transfer procedure, because the Board proposed eliminating the ability of regional directors to transfer a case to the Board before deciding it. The Board Start Printed Page 74411received no significant comments regarding that proposed change either. The final rule in § 102.68 adopts those portions of the proposal. The final rule also amends § 102.68 to make responses to Statements of Position part of the record. In the NPRM, the Board also proposed adding language to state that § 102.68 would define the record in proceedings conducted pursuant to § 102.69. Although no significant comments were filed concerning this proposed change, the Board has considered the matter and is now of the view that the proposed addition is unnecessary, because § 102.69(d)(1) defines the record in proceedings conducted pursuant to § 102.69.

GAM and U.S. Poultry II complain that there is no express provision that the record also includes written offers of proof. Prior to the amendments, there was no express provision that the pre-election hearing record include written offers of proof. Yet, prior to the amendments, offers of proof, whether written or oral, could be part of the record of the pre-election hearing. Thus, if the offer of proofs were in written form, they could be received as “exhibits;” if oral, they could be part of “the stenographic report of the hearing.” In response to the comment, however, the final rule explicitly provides in § 102.68 that offers of proof made at the pre-election hearing are part of the record.

Sec. 102.69 Election Procedure; Tally of Ballots; Objections; Certification by the Regional Director; Hearings; Hearing Officer Reports on Objections and Challenges; Exceptions to Hearing Officer Reports; Regional Director Decisions on Objections and Challenges

The proposed amendments to § 102.69 dealt with a variety of matters including the filing and service of objections, the procedure to be used by the regional director when faced with election objections or determinative challenges, post-election hearing scheduling and procedure, and appeals of decisions and directions of elections and decisions on objections and challenged ballots.

A. Simultaneous Service of Objections on Parties; Simultaneous Filing of Offer of Proof With Election Objections

In the NPRM, the Board proposed to amend § 102.69 to require that a party filing objections simultaneously file a written offer of proof supporting the objections as described above in relation to § 102.66(c) and serve the objections, but not the offer of proof, on the other parties. After carefully considering the proposal in light of the commentary, the Board has decided to adopt it with one modification, which would grant regional directors discretion to permit additional time for filing the offer of proof upon a showing of good cause. The Board has concluded that the amendments will provide the parties with the earliest possible notice of the pendency of election objections, reduce unnecessary litigation, and help the Board to more expeditiously resolve election objections, and thereby help it more expeditiously resolve questions of representation.

The Board's prior rules did not require a party filing objections to simultaneously serve a copy of its objections on the other parties, just as the Board's prior rules did not require a party filing a representation petition to simultaneously serve a copy of its petition on the parties named in the petition. Requiring a party that files election objections to simultaneously serve a copy of its objections on the other parties to the representation case provides the other parties with the earliest possible notice of the pendency of the election objections, just as amended § 102.60's new requirement—that every petitioner simultaneously serve a copy of its representation petition when it files it with the Board—gives the other parties the earliest possible notice of the pendency of the petition.

The final rule maintains the current time period (7 days after the tally) for the filing of objections to the conduct of the election or to conduct affecting the results of the election. The final rule also maintains the current requirement that a party's objections contain a short statement of the reasons therefor. However, the final rule eliminates the extra 7-day period parties currently enjoy to file evidence in support of their objections.[460]

Many employer comments complain that 7 days is an insufficient time both to investigate objections and provide an offer of proof.[461] The Board is not persuaded by these comments. Under the Board's prior rules, a party had only 7 days to file election objections, and those objections had to contain a short statement of the reasons therefor. 29 CFR 102.69(a) (2010). The only change concerns the time to produce the offer of proof in support of the objections. The change is based on the view that objections to a secret-ballot election should not be filed by any party lacking factual support for the objections and, therefore, a filing party should be able to describe the facts supporting its objections at the time of filing. The Board notes in this regard that objections may be filed concerning events that occurred before the election and events that occurred during the election. The Board presumes that a party that becomes aware of objectionable conduct before the election will note such misconduct and begin gathering evidence relating to the misconduct immediately. Accordingly, a party often has more than 7 days to prepare the offer of proof regarding such misconduct. As to misconduct that occurs during the election in the polling area, parties are commonly represented by an equal number of observers, and the parties typically speak with their observers immediately after the election before the tally of ballots even begins. For this reason, the Board believes that parties generally should be aware of both the misconduct and possible witnesses to it shortly after the balloting ends. Accordingly, the Board finds unpersuasive the complaints that 7 days ordinarily will be an insufficient amount of time to produce evidence in support of objections.

Moreover, the amendment furthers the goal of expeditiously resolving questions concerning representation. For example, a question of representation cannot be answered until the election results are certified, which cannot occur until objections and determinative challenges are resolved. And a regional director cannot evaluate the objections until it receives the objecting party's supporting evidence. Because requiring the evidence in support of objections at the same time the objections are filed serves the goal of timely certifications, SEIU supports the proposed amendment even though it believes that the amendment poses a greater burden on unions than employers, who have greater access to the workforce. The amendment is also consistent with the policy articulated in Casehandling Manual Section 11360.1, that “the prompt resolution of challenges and/or objections should be given priority attention [because] certification of the employees' choice in the election is delayed by challenges and/or objections.”

The AFL-CIO suggests, however, that the Board provide that a party may move for additional time to file the offer of proof in support of its objections in “unusual circumstances,” such as when a union finds it difficult to locate and Start Printed Page 74412contact witnesses in a large unit. The Chamber (Reply) opposes the amendments reducing the period of time to file offers of proof, but argues that if an exception is to be provided, it should be for “good cause” rather than “unusual circumstances.”

Upon reflection, the Board has decided to amend § 102.69(a) to provide that a regional director may extend the time for filing the written offer of proof in support of the election objections upon request of a party showing good cause, as the Chamber suggests. As noted, the Board believes that ordinarily parties should be able to file their offers of proof in support of their election objections simultaneously with the objections. Indeed, the Board concludes that the amendments to §§ 102.62(d) and 102.67(l)—requiring the employer to include the available personal phone numbers and personal email addresses, of the employees on the voter list—makes this likely. However, as noted above in connection with § 102.62, some comments claim that some employers may not maintain records of their employees' personal phone numbers and email addresses, which would require that unions use slower forms of communication to contact potential witnesses to prepare the offers of proof, which in turn could make it more difficult to submit the offer of proof simultaneously with the election objections in some cases. In addition, depending upon the severity of the alleged objectionable misconduct, it may be difficult for a union or employer to persuade employees with knowledge of the relevant facts to come forward. The Board also notes that although the current rules afford parties an additional 7 days to produce the supporting evidence after they file their objections, regional directors have discretion to grant still more time. See 29 CFR 102.69(a) (2010) (“Within 7 days after the filing of objections, or such additional time as the Regional Director may allow, the party filing objections shall furnish * * * the evidence * * * to support the objections.”); Casehandling Manual Section 11392.6. Accordingly, the Board has concluded that a regional director should have discretion to grant additional time for filing the offer of proof when good cause is shown, and amended § 102.69(a) so provides.

In sum, requiring the objecting party to simultaneously serve a copy of its objections on the other parties and to simultaneously file an offer of proof with its election objections will provide the other parties with the earliest possible notice of the objections and help the Board to expeditiously resolve questions of representation because the election results cannot be certified until objections and determinative challenges are resolved. The amendment will also reduce unnecessary litigation and conserve resources for the Agency and the nonobjecting party by reducing the likelihood that a party will file objections that it cannot support. At the same time, when a party has allegedly engaged in conduct which has destroyed a fair election, the alleged abuse of workers' rights should not be disregarded merely because a party justifiably needs additional time to furnish its offer of proof. Accordingly, the final rule provides a good-cause exception to the simultaneous offer-of-proof requirement.

B. Uniform Procedure for Handling Objections and Potentially Determinative Challenges and Requests for Review of Regional Director Post-Election Determinations in Stipulated and Directed Elections

The final rule adopts the NPRM proposals to (1) 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, (2) establish a uniform procedure when a hearing is conducted, and (3) make Board review of regional directors' post-election dispositions discretionary in stipulated and directed elections. 79 FR at 7333-34, 7361.

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.[462] 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 § 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.[463] 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 regional director decides the matter upon the expiration of the period for filing such exceptions. Consistent with the changes described above in relation to § 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.[464] 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.

Some comments question whether the Board will resolve nondeterminative challenges post-election. The final rule maintains the status quo in this regard: Start Printed Page 74413The 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.” This contention has been addressed above in relation to § 102.66.

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 § 102.62, which also addresses discretionary Board review of the regional director's post-election determinations in stipulated election cases.

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. However, the final rule does not adopt the proposed 20-percent proposal. To the extent the commenter would raise the same objections to the final rule, the Board would find them unpersuasive. 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.” [465] 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 eligibility questions after the election than if the regional director decides them prior to the election, and the final rule corrects this anomaly.

Citing Member Hayes' dissent to the original 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.

A number of other amendments to this section conform its provisions to the remainder of the amendments. For example, the NPRM proposed to address the procedure for requesting review of the direction of election in § 102.69(b) in line with the proposed amendment deferring all parties' rights to request review of the decision and direction of election until after the election. 79 FR at 7333, 7360. However, as discussed above in connection with § 102.67, the Board has decided to reject that proposal and instead to permit parties to request review of the direction of election prior to the election if they choose to do so. Accordingly, the procedure for filing such requests appears in § 102.67 of the final rule, rather than in § 102.69(b) as proposed in the NPRM. And because parties will not be filing requests for review of the regional director decisions and directions of elections pursuant to proposed § 102.69(b), there is no need for this final rule to provide (as the December 22, 2011 final rule provided (76 FR at 80174, 80188)) in § 102.69(e)(1)(ii)) that the decision and direction of election and the record previously made as defined in § 102.68 will also be part of the record in a proceeding pursuant to § 102.69 in which no hearing is held. In other words, just as was the case prior to the NPRM, under the final rule, the record in a proceeding pursuant to § 102.69 in which no hearing is held will not include the decision and direction of election and the record previously made as defined in § 102.68.

Similarly, prior to the NPRM, § 102.69(b) provided, “If no objections are filed within the time set forth above, if the challenged ballots are insufficient in number to affect the results of the election, and if no runoff election is to be held pursuant to § 102.70, 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.” The final rule rejects the NPRM proposal to restyle this paragraph “§ 102.69(c) and to include a reference to no request for review being filed (proposals which the December 22, 2011 final rule adopted). Start Printed Page 7441479 FR at 7360-7361; 76 FR at 80187.[466] In cases where the election is conducted pursuant to one of the three types of election agreements, there is, by definition, no decision and direction of election about which a party can possibly seek review.[467] And where there are no objections, determinative challenges, or runoffs, the regional director should issue to the parties a certification of the results of the election, including certification of representative where appropriate, notwithstanding the possibility that a party may still file a request for review of any decision and direction of election previously issued. This is not unlike what happened under the prior rules in directed election cases. Casehandling Manual Section 11472.3 (In directed election cases, the regional director's supplemental decision based on an administrative investigation, a hearing or both, “should include the certification; issuance of the certification should not be delayed until after the expiration of the time for filing a request for review [of that decision].”) Similarly, certifications are issued under the current rules, notwithstanding parties may challenge the validity of the representation case decisions in a technical 8(a)(5) proceeding in the courts of appeals. However, the final rule makes one small change to the text of pre-existing § 102.69(b) by deleting the reference to the closure of proceedings. Because under the final rule a party may choose to wait to file its request for review of the decision and direction of election until after the election, a proceeding cannot necessarily be considered closed in the absence of the election objections, determinative challenges or a runoff election.

C. Post-Election Hearing Scheduling

The NPRM proposed that any post-election hearing on objections and challenged ballots would open within 14 days of the tally of ballots or as soon thereafter as practicable. 79 FR at 7333.

The Board received a number of comments about the proposed scheduling of the post-election hearing. The AFL-CIO supports the hearing-scheduling amendment, noting that Casehandling Manual Sections 11365.3 and 11395.4 already provide that “[s]ince postelection matters are to be resolved with the utmost dispatch, * * * the hearing should be scheduled at the earliest practical date.” SEIU likewise supports the amendment outside the context of decertification elections because timely post-election hearings are necessary for timely certifications, which in turn are necessary for labor relations stability. Professor Cutcher-Gershenfeld also supports the amendment, noting that the proposal “minimizes the risk of process delays being used by either side for tactical advantage,” and that establishment of consistent timing across regions comports with good administrative practice.

However, many employer comments complain about the time frame for post-election hearings, claiming the proposed schedule provides insufficient preparation time for both the party that filed the election objections and the nonobjecting party.[468] For example, some comments, such as those filed by ACC and AHCA II, complain that 14 days is not sufficient time for the aggrieved party to prepare for a hearing on its objections because it must also prepare its request for review of the decision and direction of election during this same time period. According to these comments, the proposed post-election procedure simply requires “too much, too soon.” Other comments, such as those filed by SHRM, complain that 14 days is insufficient time to prepare for the post-election hearing because, in addition to having to prepare to present evidence regarding the objections, parties may also be required to present evidence regarding the eligibility of employees who were permitted to cast challenged ballots pursuant to the proposed 20 percent rule. Buchanan complains that the proposed post-election hearing schedule raises due process issues because the nonobjecting party will have such a short time to prepare for the objections hearing. Buchanan also claims, along with the AHA, that the amendment will be counterproductive because it will leave regional directors with insufficient time to weed out frivolous objections. Thus, Buchanan posits that instead of eliminating wasteful litigation, the amendments will have precisely the opposite effect.

After careful consideration of the comments, the Board has decided to modify its proposal regarding the scheduling of the post-election hearing to provide (in amended § 102.69(c)(1)(ii)) that, unless the parties agree to an earlier date, the post-election hearing on objections and determinative challenges should open 21 days—rather than 14 days—from the tally of ballots or as soon as practicable thereafter, thereby affording all parties an additional 7 days between the due date for the filing of election objections and the opening of the post-election hearing. We believe that providing an additional week's time is appropriate. If a party took the full 7 days to which it is entitled to file its objections under § 102.69(a), the nonobjecting party would receive at most 7 days notice of the hearing if the hearing opened 14 days from the tally of ballots as proposed in the NPRM. Moreover, if a party filed its election objections at the close of business on the 7th day following the tally, the regional director might not be able to issue a notice of hearing until the 8th day following the tally. If the hearing in such a case opened on the 14th day following the tally as provided in the proposal, that would mean that the nonobjecting party received less than 7 days notice of the hearing. Accordingly, we believe that providing an additional week's time is responsive to the concerns raised in some of the comments about parties needing more than 14 days from the tally of ballots (and 7 days from the filing of objections) to prepare for the post-election hearing.[469]

Providing that the post-election hearing open 21 days from the tally (and 14 days from the filing of the objections) is also responsive to the criticism that the proposal might not provide enough time for the regional directors to weed out frivolous objections. By providing Start Printed Page 74415that the post-election hearing should open 21 days from the tally of ballots or as soon as practicable thereafter, we provide the regional directors with additional time to evaluate the objections and accompanying offers of proof—particularly in cases where they are not filed until the close of the 7th day following the tally, where the objections are voluminous, or where the regional director grants parties more time to file their supporting offers of proof—but still well within a time frame when the directors can issue notices of hearing in compliance with Board practice. And, just as was true under the Board's prior rules, directors may cancel previously scheduled hearings if subsequent developments render the hearing unnecessary.

In sum, we conclude that the revised 21-day post-election hearing schedule takes into account the critical comments in a manner that serves the goals of eliminating unnecessary litigation and expeditiously resolving questions of representation. In addition, the amendments should help make the scheduling of post-election hearings more uniform across regions and provide transparency to the parties.

To the extent that the authors of those critical comments would object that setting the post-election hearing to open 21 days from the tally of ballots (and 14 days from the filing of the objections) is still unfair to the nonobjecting party, the Board would find them to be unpersuasive. In cases where the objections allege that the election should be set aside because of employer misconduct, the union has to prove that the employer was responsible for the misconduct. Under the revised schedule, even if the notice of hearing issues 1 or more days after the objections are filed, the nonobjecting party should still have close to 2 weeks to investigate the objections and prepare its response unless, of course, the parties agree to an earlier hearing date. Thus, under the amendments, as under the prior rules and case law that the amendments leave undisturbed, the party seeking to overturn the election must file its objections within 7 days of the tally, and the objections must contain a specific, nonconclusory statement of the reasons therefor so as to provide notice of the alleged objectionable conduct. The nonobjecting party will promptly learn of the filing of objections, because the objecting party will now be required to simultaneously serve a copy of its objections on all parties when it files its objections with the regional director (and the regional director will continue the practice of furnishing a copy as well). § 102.69(a); Casehandling Manual Sections 11392.5 and 11392.9.

Accordingly, the nonobjecting party need not wait until the notice of the post-election hearing actually issues to begin investigating the objections and preparing its response, but instead can do so as soon as it is served with a copy of the objections, which will be at least 14 days before the opening of the post-election hearing, unless the parties agree to an earlier date. In most cases, given the relatively small median bargaining unit size in recent years, there is likely to be only a relatively limited number of potential witnesses with knowledge of the relevant facts. The employer should have ready access to its supervisors, managers, and agents. And even prior to the amendments, nonobjecting parties were sometimes requested to produce their evidence opposing the objections just 7 days after the objections were filed and, along with the objecting parties, were sometimes advised that the post-election hearing could open 14 days from the filing of objections (i.e. 21 days from the tally of ballots).[470] It also bears mentioning that because the hearing on objections only occurs after the election, parties desiring a labor attorney or consultant to represent them in connection with the post-election objections hearing in all likelihood will have retained the attorney or consultant before the objections will have even been filed, in contrast to the pre-election scenario painted by some comments of unrepresented employers being taken by surprise by the filing of a representation petition and having to scramble to retain an attorney or consultant.[471]

To the extent that ACC and AHCA would claim that a 21-day post-election hearing schedule is still unfair to the objecting party because the objecting party has to prepare its request for review of the direction of election at the same time it must prepare for the objections hearing, the Board would find such claims unpersuasive. In the Board's view, such claims would reflect a misunderstanding of the amendments. Amended § 102.67(c) makes clear that the request for review of the direction of election is not due until after the regional director disposes of election objections and determinative challenges. Accordingly, parties preparing for a post-election hearing on objections and or challenged ballots will not need to simultaneously prepare their requests for review of the decision and direction of election. Moreover, even if no objections are filed, a party seeking to file a request for review of the decision and direction of election will have more time to do so under the final rule than it has under the current rules.

The Board also finds unpersuasive the claim that the revised 21-day post-election hearing schedule is unfair because, in addition to having to prepare to present evidence regarding the objections, parties may also be required to present evidence regarding the eligibility of employees who were permitted to cast challenged ballots pursuant to the 20 percent rule. First of all, the Board has not adopted the 20 percent rule. Thus, the final rule grants the regional director discretion to instruct hearing officers to permit litigation of individual eligibility issues if the director resolves to consider them prior to the election. Accordingly, parties are free under the final rule to request that they be permitted to litigate individual eligibility issues at the pre-election hearing. By definition, if a party requests at the pre-election hearing that it be permitted to litigate an individual's eligibility or inclusion, that means that the party has prepared to litigate it at the pre-election hearing. The comments do not explain just why a party that has prepared to litigate an issue at the pre-election hearing should need substantial additional time to prepare to litigate the identical issue at a post-election hearing. And if in the direction of election, the regional director directs that particular individuals be permitted to vote subject to challenge, the parties are on notice that the status of such individuals is unresolved, and so they may begin to investigate the facts surrounding the individuals' eligibility at that time even before the election occurs.

Even in cases where election-day challenges take one of the parties by surprise, all parties can begin preparing their cases with respect to the determinative challenges immediately after the tally of ballots, because the Start Printed Page 74416parties know who cast challenged ballots no later than the tally of ballots.[472] Indeed, informing all parties at the election that they must present their evidence regarding determinative challenges by the date objections are due was labeled a best practice in 1997. See G.C. Memo. 98-1, “Report of Best Practices Committee—Representation Cases December 1997,” at 23. And, as was noted in connection with the scheduling of the pre-election hearing, the facts surrounding individual eligibility or inclusion questions are peculiarly within the employer's knowledge and control, because the employer established its employees' terms and conditions of employment. Accordingly, we would firmly reject any suggestion that 21 days is generally an insufficient amount of time to prepare for a hearing on objections, simply because the employer might also have to prepare to present evidence regarding challenges. We also note that the amendments grant the regional director discretion to open the hearing at a later date in an appropriate case.[473]

Finally, it bears emphasis that even prior to the NPRM, the post-election hearing could involve both objections and challenge issues. Thus, the regional director has long had discretion to defer deciding eligibility issues until after an election, and parties could always challenge voters for cause at the election.

Retired Field Examiner Michael Pearson suggests (Pearson Supplemental Statement) that the Board should require that post-election hearings on objections and challenged ballots, like pre-election hearings, continue on consecutive days until completed in order to avoid situations where multi-day hearings turn into multi-week affairs. The NPRM proposed to do just that, albeit not explicitly. Thus, proposed § 102.69(d)(1)(iii) provided that the post-election hearing be conducted in accordance with § 102.64 insofar as applicable, and proposed § 102.64(c) provided that the hearing should continue from day to day until completed absent extraordinary circumstances. However, to avoid any possible confusion, the final rule provides in amended § 102.69(c)(1)(iii) that the hearing on objections or on challenged ballots or on both shall continue from day to day until completed unless the regional director concludes that extraordinary circumstances warrant otherwise.[474] This amendment is consistent with the policy set forth in Casehandling Manual Sections 11365.3 and 11395.4, which provide that hearings on determinative challenges and objections “should be held on consecutive days until completed.” Conducting post-election hearings on consecutive days until completed serves the goal of expeditiously resolving questions concerning representation because in cases involving post-election hearings, the question concerning representation cannot be resolved until the hearing is completed. The amendment also renders Board procedures more transparent and uniform across regions.

D. Procedure at the Post-Election Hearing on Objections and Challenged Ballots

The NPRM proposed that the post-election hearing would open with the parties stating their positions on any challenges and objections, followed by mandatory offers of proof as described in proposed § 102.66. 79 FR at 7333-34. SHRM complains that such an offer-of proof procedure would deprive parties of their right to a meaningful post-election hearing.

However, as discussed above in relation to § 102.66, the Board has decided not to adopt the proposed mandatory offer-of-proof procedure at the pre-election hearing. The Board has likewise decided not to adopt the proposed mandatory offer-of-proof procedure at the post-election hearing. Instead, we have decided to codify hearing officers' discretion to require parties to make offers of proof and to permit hearing officers to rule on such offers.

To the extent that SHRM would argue that such a discretionary offer-of proof procedure deprives parties of their right to a meaningful post-election hearing, we would find it unpersuasive. While parties have a right to a pre-election hearing under the NLRA, they have no right to a post-election hearing under the NLRA. See NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 332 (5th Cir. 1991); NLRB. v. Metro-Truck Body, Inc., 613 F.2d 746, 751 (9th Cir. 1979), cert. denied, 447 U.S. 905 (1980). As discussed above even prior to the NPRM, regional directors could evaluate a party's objections and challenges and overrule them (without a hearing) if they did not raise substantial material issues. See also 29 CFR 102.69(d) (2009); Casehandling Manual Sections 11394.3, 11395.1. Moreover, hearing officers had discretion prior to the NPRM to require parties to make offers of proof before admitting evidence and to rule on the offers. See Casehandling Manual Section 11424.3(b); Hearing Officer's Guide at 38, 158 (“Offers of proof can be an effective tool for controlling and streamlining a hearing.”). As shown, an offer of proof is simply a tool to enable the hearing officer to determine whether it is appropriate to receive the evidence a party wishes to introduce. Thus, a party has no cause to complain if the hearing officer rejects proffered evidence that is not relevant to or probative of the matters to be determined at the post-election hearing.

Consistent with its complaints about the proposed offer-of-proof procedure to be used at the pre-election hearing, SHRM also complains that it is inappropriate for hearing officers, who may not even be attorneys, to administer a mandatory offer-of-proof procedure at the post-election hearing as well. Assuming that SHRM would argue that it is likewise inappropriate for hearing officers to administer the discretionary offer of proof procedure, we would find it unpersuas