Representation-Case Procedures, 36812-36847 [2011-15307]

Download as PDF 36812 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules NATIONAL LABOR RELATIONS BOARD 29 CFR Parts 101, 102 and 103 RIN 3142–AA08 Representation—Case Procedures AGENCY: National Labor Relations Board. ACTION: Notice of Proposed Rulemaking. As part of its ongoing efforts to more effectively administer the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes to amend its rules and regulations governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining with their employer. The Board believes that the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. The proposed amendments would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, postelection request. The proposed amendments would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election. DATES: Comments regarding this proposed rule must be received by the Board on or before August 22, 2011. Comments replying to comments submitted during the initial comment period must be received by the Board on or before September 6, 2011. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted. The Board intends to issue a notice of public hearing to be held in Washington, DC, on July 18–19, at which interested persons would be invited to share their views on the proposed amendments and to make any other proposals concerning the Board’s representation case procedures. ADDRESSES: You may submit comments identified by 3142–AA08 only by the following methods: Internet—Federal eRulemaking Portal. Electronic comments may be submitted through https://www.regulations.gov. To locate the proposed rule, search ‘‘documents open for comment’’ and use emcdonald on DSK2BSOYB1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 key words such as ‘‘National Labor Relations Board’’ or ‘‘representationcase procedures’’ to find documents accepting comments. Follow the instructions for submitting comments. Delivery—Comments should be sent by mail or hand delivery to: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Washington, DC 20570. Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. The Board encourages electronic filing. It is not necessary to send comments if they have been filed electronically with regulations.gov. If you send comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273–1067 (this is not a toll-free number). Individuals with hearing impairments may call 1–866– 315–6572 (TTY/TDD). Only comments submitted through https://www.regulations.gov, hand delivered, or mailed will be accepted; ex parte communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at https:// www.regulations.gov and during normal business hours (8:30 a.m. to 5 p.m. EST) at the above address. The Board will post, as soon as practicable, all comments received on https://www.regulations.gov without making any changes to the comments, including any personal information provided. The Web site https:// www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or Internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and e-mail addresses in their comments, as such submitted information will become viewable by the public via the https://www.regulations.gov Web site. It is the commenter’s responsibility to safeguard his or her information. Comments submitted through https:// www.regulations.gov will not include the commenter’s e-mail address unless the commenter chooses to include that information as part of his or her comment. FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 14th Street, NW., Washington, DC 20570, (202) 273–1067 (this is not a tollfree number), 1–866–315–6572 (TTY/ TDD). SUPPLEMENTARY INFORMATION: I. Background Section 7 of the National Labor Relations Act (the Act or the NLRA), 29 U.S.C. 157, vests in employees the right ‘‘to bargain collectively through representatives of their own choosing * * * and to refrain from * * * such activity.’’ The Act vests in the National Labor Relations Board (the Board) a central role in the effectuation of that right when employers, employees, and labor organizations are unable to agree on whether the employer should recognize a labor organization as the representative of the employees. Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to determine if such a ‘‘question of representation’’ exists and, if so, to resolve the question by conducting ‘‘an election by secret ballot.’’ Congress left the procedures for determining if a question of representation exists and for conducting secret ballot elections almost entirely within the discretion of the Board. The Supreme Court has repeatedly recognized that ‘‘Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.’’ NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). ‘‘The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.’’ NLRB v. Waterman S.S. Co., 309 U.S. 206, 226 (1940); see also Southern S.S. Co. v. NLRB, 316 U.S. 31, 37 (1942). Since 1935, the Board has exercised its discretion to establish standard procedures in representation cases largely through promulgation and revision of rules and regulations or internal policies.1 Thus, 29 CFR part 1 The Board’s failure to rely on rulemaking in other areas has met widespread scholarly criticism. See R. Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 351– 52 (2010); Merton C. Bernstein, The NLRB’s Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 Yale L.J. 571 (1970); Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 (1985); Jeffrey S. Lubbers, The Potential of Rulemaking by the NLRB, 5 FIU L. Rev. 411, 414– 17, 435 (Spring 2010); Kenneth Kahn, The NLRB and Higher Education: The Failure of Policymaking Through Adjudication, 21 UCLA L. Rev. 63 (1973); Charles J. Morris, The NLRB in the Dog House—Can E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 102, subpart C sets forth the Board’s Rules and Regulations governing ‘‘Procedure Under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees and for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act.’’ Subparts D and E set forth related rules and regulations governing ‘‘Procedures for Unfair Labor Practice and Representation Cases Under Section 8(b)(7) and 9(c) of the Act’’ and ‘‘Procedure for Referendum Under Section 9(e) of the Act.’’ 29 CFR part 101, subparts C, D and E set forth the Board’s Statements of Procedures in the same three types of cases. The Board’s Casehandling Manual at Sections 11000 through 11886 describes procedures in representation cases in greater detail, including the mechanics of elections.2 Congress intended that the Board adopt procedures that permit questions concerning representation to be resolved both quickly and fairly. As the Supreme Court has noted, ‘‘[T]he Board must adopt policies and promulgate rules and regulations in order that employees’ votes may be recorded accurately, efficiently and speedily.’’ A.J. Tower Co., 329 U.S. at 330–31. The Board has repeatedly recognized ‘‘the Act’s policy of expeditiously resolving questions concerning representation.’’ 3 ‘‘In * * * representation proceedings under Section 9,’’ the Board has observed, ‘‘time is of the essence if Board processes are to be effective.’’ 4 Indeed, the Board’s Casehandling Manual stresses that ‘‘[t]he expeditious processing of petitions filed pursuant to the Act represents one of the most significant aspects of the Agency’s operations.’’ 5 an Old Board Learn New Tricks?, 24 San Diego L. Rev. 9 (1987); Cornelius Peck, The Atrophied Rulemaking Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961); Cornelius J. Peck, A Critique of the National Labor Relations Board’s Performance in Policy Formulation: Adjudication and Rule-Making, 117 U. Pa. L. Rev. 254 (1968); David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921 (1965); Carl S. Silverman, The Case for the National Labor Relations Board’s Use of Rulemaking in Asserting Jurisdiction, 25 Lab. L.J. 607 (1974); and Berton B. Subrin, Conserving Energy at the Labor Board: The Case for Making Rules on Collective Bargaining Units, 32 Lab. L.J. 105 (1981). 2 The Casehandling Manual is prepared by the Board’s General Counsel and is not binding on the Board. Hempstead Lincoln, 349 NLRB 552, 552 n.4 (2007); Pacific Grain Products, 309 NLRB 690, 691 n.5 (1992). 3 See, e.g., Northeastern University, 261 NLRB 1001, 1002 (1982). 4 Tropicana Products, Inc., 122 NLRB 121, 123 (1958). 5 Pt. 2, Representation Proceedings, Section 11000. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 Expeditious resolution of questions concerning representation is central to the statutory design because Congress found that ‘‘refusal by some employers to accept the procedure of collective bargaining lead[s] to strikes and other forms of industrial strife and unrest, which have the intent or the necessary effect of burdening and obstructing commerce.’’ 6 Thus, Congress found that the Board’s expeditious processing of representation petitions and, when appropriate, conduct of elections would ‘‘safeguard[] commerce from injury, impairment or interruption.’’ 7 One of the primary purposes of the original Wagner Act was to avoid ‘‘the long delays in the procedure * * * resulting from applications to the federal appellate courts for review of orders for elections.’’ AFL v. NLRB, 308 U.S. 401, 409 (1940). The Senate Committee Report explained that one of the ‘‘weaknesses in existing law’’ was ‘‘that the Government can be delayed indefinitely before it takes the first step toward industrial peace’’ by conducting an election.8 For this reason, Congress did not provide for direct judicial review of either interlocutory orders or final certifications or dismissals in representation proceedings conducted under section 9 of the Act. Rather, in order to insure that elections were conducted promptly, judicial review was permitted only after issuance of an order under section 10 relying, in part, on the Board’s certification under section 9. A. Evolution of Board Regulation of Representation Case Procedures 1. Legislative and Administrative Delegation of Authority To Process Petitions in Order To Expedite Resolution of Questions Concerning Representation The Board initially exercised its discretion over the conduct of representation elections through a procedure under which, in the event the parties could not agree concerning the conduct of an election, an employee of one of the Board’s regional offices would develop a record at a pre-election hearing.9 At the close of the hearing, the record was forwarded to the Board in Washington, DC, which either directed an election or made some other disposition of the matter.10 However, requiring the Board itself to address all 6 29 U.S.C. 151. 7 Id. 8 S. Rep. No. 573, 74th Cong., 1st Sess. pp. 5–6. See also H. Rep. No. 1147, 74th Cong., 1st Sess. p. 6. 9 29 CFR 102.63 and 102.64 (1959). 10 29 CFR 102.67 and 102.68 (1959). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 36813 of the myriad disputes arising out of the thousands of representation petitions filed annually resulted in significant delays. Accordingly, in 1959, as part of the amendments of the NLRA effected by the Labor-Management Reporting and Disclosure Act, Congress revised Section 3(b) of the Act to authorize the Board to delegate its election-related duties to the directors of the Board’s regional offices, subject to discretionary Board review.11 Section 3(b) provides: The Board is * * * authorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists, and to direct an election or take a secret ballot under subsection (c) or (e) of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director. As Senator Goldwater, a member of the Conference Committee which added the new section to the amendments, explained, ‘‘[Section 3(b)] is a new provision, not in either the House or Senate bills, designed to expedite final disposition of cases by the Board, by turning over part of its caseload to its regional directors for final determination. * * * This authority to delegate to the regional directors is designed, as indicated, to speed the work of the Board.’’ 12 Soon after the authorizing amendment was adopted in 1959, the Board made the permitted delegation to its regional directors by amending its rules and regulations.13 Since the delegation, the Board’s regional directors have resolved pre-election disputes and directed elections, subject to a procedure through which aggrieved parties can seek Board review of regional directors’ pre-election decisions.14 The Board’s amended rules made such review discretionary, only to be granted in compelling circumstances, and that process was subsequently upheld by the Supreme Court.15 As intended by Congress, the implementation of the new procedure led to a significant decrease in the time it took to conduct representation 11 Public Law 86–257 (codified as amended in 29 U.S.C. 153(b)). 12 105 Cong. Rec. 19770. 13 26 FR 3885 (May 4, 1961). 14 29 CFR 102.67 (1961). 15 Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971). E:\FR\FM\22JNP2.SGM 22JNP2 36814 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 elections. Immediately following the Board’s amendment of its rules in 1961, the median number of days necessary to process election petitions to a decision and direction of election was roughly cut in half.16 By 1975, the Board was conducting elections in a median of 50 days from the filing of an election petition.17 The Board’s next major improvement in the efficiency of its election procedures came in 1977. After a decade and a half of experience with the request for review procedure, the Board again amended its rules to reduce delay in elections after the Board granted review of a regional director’s decision and direction of election or a preliminary ruling.18 Specifically, the Board established a procedure whereby the regional directors would proceed to conduct elections as directed, notwithstanding the Board’s decision to grant review, unless the Board ordered otherwise. Under this procedure, the regional director impounds the ballots at the conclusion of the election, and delays tallying them until the Board issues its decision. Although this change did not have a significant effect on the overall median number of days from petition to election, it substantially decreased the time it took to conduct elections in the small number of cases in which the Board granted review.19 These procedures remain in place today. The Board continued to focus on processing representation petitions expeditiously in the years following implementation of the vote and impound procedure. As a result, more than 90 percent of elections were conducted within 56 days of the filing of a petition during the last decade, with 16 See NLRB Office of the General Counsel, Summaries of Operations (Fiscal Years 1961–1962) (reporting that the ‘‘median average’’ number of days from petition to a decision and direction of election was reduced from 82 days in 1960 to 43 days in 1962). 17 See U.S. DEP’T OF LABOR & U.S. DEP’T OF COMMERCE, COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, FACTFINDING REPORT, 68, 82 (1994) (‘‘Dunlop Commission Fact Finding’’). 18 See 42 FR 41117 (Aug. 15, 1977); Chairman’s Task Force on the NLRB for 1976, Volume 1, Board Action on Recommendations of the Chairman’s Task Force Memorandum to the Task Force, 3 (May 25, 1977); Chairman’s Task Force, Volume 7, Task Force Report Memorandum to the Board, 10–15 (January 28, 1977). 19 See Dunlop Commission Fact Finding, 82. Comparing the change in figures from 1975 to 1985 demonstrates that the percentage of total elections conducted more than 60 days from the filing of a petition decreased from 20.1 percent to 16.5 percent, and the percentage of total elections conducted more than 90 days from the filing of a petition decreased from 11 percent to 4.1 percent. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 a median time of 37–38 days between petition and election.20 Notably, however, the nature of the Board’s review of regional directors’ decisions varies, depending on whether the decision was issued before or after the election.21 As described above, the Board has exercised its authority to delegate to its regional directors the task of processing petitions through the conduct of an election subject only to discretionary Board review. In contrast, the current rules provide that any party, unless it has waived the right in a preelection agreement, may in most cases obtain Board review of a regional director’s resolution of any post-election dispute, whether concerning challenges to the eligibility of a voter or objections to the conduct of the election or conduct affecting the results of an election. The right to review of regional directors’ post-election decisions has caused extended delay of final certification of election results in many instances.22 2. Limiting the Pre-Election Hearing to Issues Genuinely in Dispute and Material to Determining if a Question Concerning Representation Exists a. Identification and Joinder of Issues Other than the petition, the parties to a representation proceeding under section 9 of the Act are not required to file any other form of pleading. The current regulations do not provide for any form of responsive pleading, in the nature of an answer, through which non-petitioning parties are required to give notice of the issues they intend to raise at a hearing. As a consequence, the petitioner is not required to join any such issues. The Board has, nevertheless, developed administrative practices in an effort to identify and narrow the issues in dispute before or at a preelection hearing. The regional director’s initial letter to an employer following the filing of a petition asks the employer to state its position ‘‘as to the appropriateness of the unit described in the petition.’’ 23 In some cases, regions will conduct pre-hearing conferences either face-to-face or by telephone in an effort to identify and narrow the issues in dispute. Further, section 11217 of the 20 See NLRB Office of the General Counsel, Summary of Operations (Fiscal Years 2002–2010). 21 This is the case even when the issue addressed by the regional director is precisely the same one as, for example, when an eligibility issue is raised, litigated and decided pre-election and when the same issue is raised through a challenge and litigated and decided post-election. 22 See, e.g., Manhattan Crowne Plaza, 341 NLRB 619 (2004) (exceptions concerning alleged threat contained in single, written memorandum pending before the Board for almost three years). 23 Casehandling Manual section 11009.1(e). PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Casehandling Manual provides, ‘‘Prior to the presentation of evidence or witnesses, parties to the hearing should succinctly state on the record their positions as to the issues to be heard.’’ However, none of these practices is mandatory, and they are not uniformly followed in the regions. In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board observed, ‘‘in order to effectuate the purposes of the Act through expeditiously providing for a representation election, the Board should seek to narrow the issues and limit its investigation to areas in dispute.’’ In Bennett, the Board sustained a hearing officer’s ruling preventing an employer from introducing evidence relevant to the supervisory status of two classes of employees and included employees in the two classes in the unit without further factual inquiry when the employer refused to take a position concerning whether the employees were supervisors. The Board reasoned: The Board’s duty to ensure due process for the parties in the conduct of the Board proceedings requires that the Board provide parties with the opportunity to present evidence and advance arguments concerning relevant issues. However, the Board also has an affirmative duty to protect the integrity of the Board’s processes against unwarranted burdening of the record and unnecessary delay. Thus, while the hearing is to ensure that the record contains as full a statement of the pertinent facts as may be necessary for determination of the case (NLRB Statement of Procedure Sec. 101.20(c)), hearings are intended to afford parties ‘‘full opportunity to present their respective positions and to produce the significant facts in support of their contentions.’’ (emphasis added). Id. In Allen Health Care Services, 332 NLRB 1308 (2000), however, the Board held that even when an employer refuses to take a position on the appropriateness of a petitioned-for unit, the regional director must nevertheless take evidence on the issue unless the unit is presumptively appropriate. The Board held that, ‘‘absent a stipulated agreement, presumption, or rule, the Board must be able to find—based on some record evidence—that the proposed unit is an appropriate one for bargaining before directing an election in that unit.’’ Id. at 1309. The Board did not make clear in Allen whether a party that refuses to take a position on the appropriateness of a petitioned-for unit must nevertheless be permitted to introduce evidence relevant to the issue. The Casehandling Manual provides that parties should be given the following, equivocal notice in such circumstances: ‘‘If a party refuses to state its position on an issue and no controversy exists, the E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 party should be advised that it may be foreclosed from presenting evidence on that issue.’’ Section 11217. b. Identification of Genuine Disputes as to Material Facts The current regulations also do not expressly provide for any form of summary judgment or offer-of-proof procedures through which the hearing officer can determine if there are genuine disputes as to any material facts, the resolution of which requires the introduction of evidence at a preelection hearing. The Board has developed such a procedure in reviewing post-election objections to the conduct of an election or conduct affecting the results of an election. The current regulations provide that any party filing such objections shall also file, within seven days, ‘‘the evidence available to it to support the objections.’’ 29 CFR 102.69(a). Casehandling Manual section 1132.6 further specifies, ‘‘In addition to identifying the nature of the misconduct on which the objections are based, this submission should include a list of the witnesses and a brief description of the testimony of each.’’ If an objecting party fails to file such an offer of proof or if the offer fails to describe evidence which, if introduced at a hearing, could require the election results to be overturned, the regional director dismisses the objection without a hearing. In the post-election context, the courts of appeals have uniformly endorsed the Board’s refusal to hold a hearing when no party has created a genuine dispute as to any material fact. See, e.g., NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir. 1967), cert. denied, 389 U.S. 917 (1967); NLRB v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 249 (5th Cir. 1964). The Board has also endorsed an offerof-proof procedure in pre-election hearings when the petitioned-for unit is presumptively appropriate. See, e.g., Laurel Associates, Inc., 325 NLRB 603 (1998); Mariah, Inc., 322 NLRB 586, 587 (1996). In such circumstances, the Board has sustained a hearing officer’s refusal to hear evidence after an employer has either refused to make an offer of proof or offered proof not sufficient to create a genuine dispute as to facts material to the question of whether the presumption of appropriateness can be rebutted. Because the current regulations do not describe a procedure for identifying genuine disputes as to material facts, there has been continuing uncertainty concerning the circumstances under which an evidentiary hearing is necessary. In Angelica Healthcare VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 Services Group, Inc., 315 NLRB 1320 (1995), for example, the Board reversed the decision of an acting regional director to direct an election without a hearing when an incumbent union contended there was no question concerning representation because its collective-bargaining agreement with the employer barred an election. The Board stated, ‘‘We find that the language of Section 9(c)(1) of the Act and Section 102.63(a) of the Board’s Rules required the Acting Regional Director to provide ‘an appropriate hearing’ prior to finding that a question concerning representation existed and directing an election.’’ Id. at 1321. But the Board noted expressly, ‘‘[W]e find it unnecessary to decide in this case the type of hearing that would be necessary to satisfy the Act’s ‘appropriate hearing’ requirement.’’ Id. at 1321 n. 6. c. Deferral of Litigation and Resolution of Issues Not Relevant to the Determination of Whether a Question Concerning Representation Exists Section 9(c) of the Act provides that, after the filing of a petition, the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists, it shall provide for an appropriate hearing upon due notice. * * * If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. The statutory purpose of a pre-election hearing is thus to determine if a question concerning representation exists. If such a question exists, the Board conducts an election in order to answer the question. Whether individual employees are eligible to vote may or may not affect the outcome of an election, but it is not ordinarily relevant to the preliminary issue of whether a question concerning representation exists that an election is needed to answer. For that reason, the Board has consistently sustained regional directors’ decisions to defer resolving questions of individual employees’ eligibility to vote until after an election (in which the disputed employees may cast challenged ballots). In Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004), the Board characterized this procedure as the ‘‘tried-and-true ‘vote under challenge procedure.’ ’’ See also HeartShare Human Services of New York, Inc., 320 NLRB 1 (1995). The Eighth Circuit has stated that ‘‘deferring the question of voter eligibility until after an election is an accepted NLRB practice.’’ Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir. 1994). Even when a regional PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 36815 director resolves such a dispute preelection, the Board, when a request for review is filed, often defers review of the resolution, permitting the disputed individuals to vote subject to challenge. See, e.g., Medlar Elec., Inc., 337 NLRB 796, 796 (2002); Interstate Warehousing of Ohio, LLC, 333 NLRB 682, 682–83 (2001); American Standard, Inc., 237 NLRB 45, 45 (1978). In Barre-National, Inc., 316 NLRB 877 (1995), however, the Board considered whether a regional director had acted properly when he deferred both litigation and a decision concerning the eligibility of 24 line and group leaders (constituting eight to nine percent of the unit) until after an election, over the objection of the employer contending that the leaders were supervisors. Quoting both section 102.66(a) and 101.20(c) of the existing regulations, the Board held that the two sections ‘‘entitle parties at [pre-election] hearings to present witnesses and documentary evidence in support of their positions.’’ Id. at 878. For that reason, the Board held that the regional director had erred by deferring the taking of the employer’s testimony until after the election. But the Board did not hold in BarreNational that the disputed issue had to be resolved before the regional director directed an election. In fact, the Board expressly noted, ‘‘[O]ur ruling concerns only the entitlement to a preelection hearing, which is distinct from any claim of entitlement to a final Agency decision on any issue raised in such a hearing.’’ Id. at 879 n. 9. The Board further noted that ‘‘reviewing courts have held that there is no general requirement that the Board decide all voter eligibility issues prior to an election.’’ Id. 3. Provision of a List of Eligible Voters In elections conducted under Section 9 of the Act, there is no list of employees or potentially eligible voters generally available to interested parties other than the employer and, typically, an incumbent representative. The Board addressed this issue in Excelsior Underwear, Inc., 156 NLRB 1236, 1239– 40 (1966), where it held: [W]ithin 7 days after the Regional Director has approved a consent-election agreement * * * or after the Regional Director or the Board has directed an election * * *, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. E:\FR\FM\22JNP2.SGM 22JNP2 36816 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules Although several Justices of the Supreme Court expressed the view that the requirement to produce what has become known as an ‘‘Excelsior list’’ should have been imposed through rulemaking rather than adjudication, the Court upheld the substantive requirement in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 768 (1969). In Excelsior, the Board explained the primary rationale for requiring production of an eligibility list: As a practical matter, an employer, through his possession of employee names and home addresses as well as his ability to communicate with employees on plant premises, is assured of the continuing opportunity to inform the entire electorate of his views with respect to union representation. On the other hand, without a list of employee names and addresses, a labor organization, whose organizers normally have no right of access to plant premises, has no method by which it can be certain of reaching all the employees with its arguments in favor of representation, and, as a result, employees are often completely unaware of that point of view. This is not, of course, to deny the existence of various means by which a party might be able to communicate with a substantial portion of the electorate even without possessing their names and addresses. It is rather to say what seems to us obvious—that the access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters. emcdonald on DSK2BSOYB1PROD with PROPOSALS2 156 NLRB at 1240–41 (footnote omitted). The Supreme Court endorsed this rationale in Wyman-Gordon, 394 U.S. at 767, ‘‘The disclosure requirement furthers this objective [to ensure the fair and free choice of bargaining representatives] by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses.’’ The Board also articulated a second reason for requiring production of an eligibility list in Excelsior: The [voter] list, when made available, not infrequently contains the names of employees unknown to the union and even to its employee supporters. The reasons for this are, in large part, the same as those that make it difficult for a union to obtain, other than from the employer, the names of all employees; i.e., large plants with many employees unknown to their fellows, employees on layoff status, sick leave, military leave, etc. With little time (and no home addresses) with which to satisfy itself as to the eligibility of the ‘‘unknowns,’’ the union is forced either to challenge all those who appear at the polls whom it does not know or risk having ineligible employees vote. The effect of putting the union to this choice, we have found, is to increase the number of challenges, as well as the likelihood that the challenges will be determinative of the election, thus requiring VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 investigation and resolution by the Regional Director or the Board. Prompt disclosure of employee names as well as addresses will, we are convinced, eliminate the necessity for challenges based solely on lack of knowledge as to the voter’s identity. Furthermore, bona fide disputes between employer and union over voting eligibility will be more susceptible of settlement without recourse to the formal and time-consuming challenge procedures of the Board if such disputes come to light early in the election campaign rather than in the last few days before the election when the significance of a single vote is apt to loom large in the parties’ calculations. Thus the requirement of prompt disclosure of employee names and addresses will further the public interest in the speedy resolution of questions of representation. 156 NLRB at 1242–43. Since Excelsior was decided, almost 50 years ago, the Board has not significantly altered its requirements despite significant changes in communications technology, including that used in representation election campaigns, and identification of avoidable problems in administering the requirement, for example, delays in the regional offices’ transmission of the eligibility list to the parties. B. Evolution of the Board’s Electronic Filing and Service Requirements The Board’s effort to promote expeditious case processing under the NLRA by utilizing advances in communications technology is nearly a decade old. The Board first began a pilot project in 2003, permitting the electronic filing of documents with the Agency.24 Thereafter, the use and scope of electronic filing by parties to NLRB proceedings expanded significantly. By January 2009, more than 12,000 documents had been filed electronically with the Board and its regional offices.25 The Board currently permits most documents in both unfair labor practice and representation proceedings to be filed electronically with only a limited number of expressly specified exceptions.26 The NLRB public Web site sets out instructions for the Agency’s E-filing procedures in order to facilitate their use, and the instructions ‘‘strongly encourage parties or other persons to use the Agency’s E-filing program.’’ 27 However, included among documents that may not currently be filed 24 See 74 FR 5618, 5619 (Jan. 30, 2009), revising § 102.114 of the Board’s Rules and Regulations, corrected 74 FR 8214 (Feb. 24, 2009). 25 Id., 74 FR at 5619. 26 See NLRB Rules and Regulations Section 102.114(i); https://www.nlrb.gov, under Cases & Decisions/File Case Documents/E-file. 27 See https://www.nlrb.gov, under E-filing Rules. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 electronically are representation petitions.28 In 2008, the Board initiated another pilot project to test the ability of the Agency to electronically issue its decisions and those of its administrative law judges.29 Parties who register for electronic service of decisions in their cases receive an e-mail constituting formal notice of the decision and an electronic link to the decision. The NLRB public Web site sets out instructions for signing up for the Agency’s electronic issuance program.30 In 2009, the Board revised its regulations to require that service of e-filed documents on other parties to a proceeding be effectuated by e-mail whenever possible, which aligned Board service procedures more closely with those in the federal courts, and acknowledged the widely accepted use of e-mail for legal and official communications.31 In 2010, the Board took further notice of the spread of electronic communications in its decision in J. Piccini Flooring, 356 NLRB No. 9 (2010), to require that respondents in unfair labor practice cases distribute remedial notices electronically when that is their customary means of communicating with employees. The Board recognized that the use of e-mail, internal and external Web sites, and other electronic communication tools, is now the norm for the transaction of business in many workplaces, among unions, and by the government and the public it serves. The Board concluded that its ‘‘responsibility to adapt the Act to changing patterns of industrial life’’ 32 required it to align its remedial requirements with ‘‘the revolution in communications technology that has reshaped our economy and society.’’ J. Piccini Flooring, slip op. at 4. C. Purposes of the Proposed Amendments The Board now proposes to revise its rules and regulations to better insure ‘‘that employees’ votes may be recorded accurately, efficiently and speedily’’ and to further ‘‘the Act’s policy of expeditiously resolving questions concerning representation.’’ 33 28 See https://www.nlrb.gov, under What Documents Can I E-file? 29 See 74 FR at 5619. 30 See https://www.nlrb.gov, under What is E-Service? 31 See 74 FR 8214 (Feb. 24, 2009), correcting 74 FR 5618; NLRB Rules & Regulations § 102.114(a) and (i). 32 NLRB v. Weingarten, 420 U.S. 251, 266 (1975). 33 NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946); Northeastern University, 261 NLRB 1001, 1002 (1982). E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules The proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. In addition to making the Board processes more efficient, the proposed amendments are intended to simplify the procedures, to increase transparency and uniformity across regions, and to provide parties with clearer guidance concerning the representation case procedure. The proposed amendments would provide for more timely and complete disclosure of information needed by both the Board and the parties to promptly resolve matters in dispute. The proposed amendments are also intended to eliminate unnecessary litigation concerning issues that may be, and often are, rendered moot by election results. In addition, the proposed amendments would consolidate Board review of regional directors’ determinations in representation cases in a single, post-election proceeding and would make review discretionary after an election as it currently is before an election. The Board anticipates that the proposed amendments would leave a higher percentage of final decisions about disputes arising out of representation proceedings with the Board’s regional directors who are members of the career civil service. Finally, the proposed amendments are intended to modernize the Board’s representation procedures, in particular, through use of electronic communications technology to speed communication among the parties, and between the parties and the Board, and to facilitate communication with voters. Given the variation in the number and complexity of issues that may arise in a representation proceeding, the amendments do not establish inflexible time deadlines or mandate that elections be conducted a set number of days after the filing of a petition. Rather, the amendments seek to avoid unnecessary litigation and establish standard and fully transparent practices while leaving discretion with the regional directors to depart from those practices under special circumstances. Consistent with Executive Order 13563, Improving Regulation and Regulatory Review, section 6(a) (January 18, 2011), the proposed amendments would eliminate redundant and outmoded regulations.34 The proposed 34 While the Executive Order is not binding on the Board as an independent agency, the Board has, as requested by the Office of Management and Budget, given ‘‘consideration to all of its provisions.’’ Office of Management and Budget, Memorandum for the Heads of Executive Departments and Agencies, and of Independent Regulatory Agencies: Executive Order 13563, VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 amendments would eliminate one entire section of the Board’s current regulations and consolidate the regulations setting forth procedures under section 9 of the Act, currently spread across three separate parts of the regulations, into a single part. The Board anticipates that, if the proposed amendments are adopted, the cost of invoking and participating in the Board’s representation case procedures would be reduced for parties, and public expenditure in administering section 9 of the Act would be similarly reduced. While the proposed amendments are designed to eliminate unnecessary barriers to the speedy processing of representation cases, the proposed amendments, like previous congressional and administrative reforms aimed at expediting the conduct of elections, do not in any manner alter existing regulation of parties’ campaign conduct or restrict any party’s freedom of speech. The Board invites comments on each of the proposed rule changes described below.35 D. Summary of Current Representation Case Procedures Every year, thousands of election petitions are filed in NLRB regional offices by employees, unions, and employers to determine if employees wish to be represented by a labor organization for purposes of collective bargaining with their employer.36 A lesser number are filed by employees to determine whether the Board should ‘‘Improving Regulation and Regulatory Review’’ 11– 12 (Feb. 2, 2011), https://www.whitehouse.gov/omb/ memoranda. In regard to section 2(c) of the Order, concerning seeking the views of those who are likely to be affected prior to publication of a notice of proposed rulemaking, the Board determined that public participation would be more orderly and meaningful if it was based on the specific proposals described herein and thus the Board has provided for the comment and reply periods and public hearing described above. 35 The Board has provided for an initial 60-day comment period followed by a 14-day reply period. In addition, the Board intends to issue a notice of public hearing to be held in Washington, DC on July 18–19 during the initial comment period in order to receive oral comments on the proposed amendments. The Board believes that all persons interested in the proposed amendments—including those best able to provide informed comment on the details of the Board’s representation case procedures, the attorneys and other practitioners who regularly participate in representation proceedings—will have ample time and opportunities to do so within the two comment periods and at the public hearing. 36 In 2010, 2,447 such petitions were filed. See Chart 9—Representation Elections (RC) and Chart 11—Employer petitioned Elections (RM), https:// www.nlrb.gov/chartsdata/petitions. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 36817 decertify an existing representative.37 Under current procedures, the petitioner is not required to serve the petition on other interested parties. For example, a labor organization is not required to serve a petition through which it seeks to be certified as the representative of a unit of employees on the employees’ employer. Rather, that task is imposed on the regional office. In addition, the petitioner is not required, at the time of filing, to supply evidence of the type customarily required by the Board to process the petition. For example, a labor organization is not required to file, along with its petition, evidence that a substantial number of employees support the petition (the ‘‘showing of interest’’). Rather, the petitioner is permitted to file such evidence within 48 hours of the filing of the petition. After a petition is filed, the regional director serves the petition on the parties and also submits additional requests to the employer. The regional director serves on the employer a generic notice of employees’ rights,38 with a request that the employer post the notice, and a commerce questionnaire, seeking information relevant to the Board’s jurisdiction to process the petition,39 which the employer is requested to complete. The regional director also asks the employer to provide a list of the names of employees in the unit described in the petition, together with their job classifications, for the payroll period immediately preceding the filing of the petition. Finally, the regional director solicits the employer’s position on the appropriateness of the unit described in the petition. After the filing of a petition, Board agents conduct an ex parte, administrative investigation to determine if the petition is supported by the required form of showing. In the case of a petition seeking representation or seeking to decertify an existing representative, for example, this showing would be that 30 percent of employees in the unit support the petition. Shortly after a petition is filed, the regional director serves a notice on the parties named in the petition setting a pre-election hearing. In many cases, the parties, often with Board agent assistance, are able to reach agreement regarding the composition of the unit and the date, time, place, and other mechanics of the election, thereby 37 In 2010, 530 such petitions were filed. See Chart 10—Decertification Elections (RD), https:// www.nlrb.gov/chartsdata/petitions. 38 Form NLRB–5492, Notice to Employees. 39 Form NLRB–5081. E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36818 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules eliminating the need for a hearing and a formal decision and direction of election by the regional director.40 Parties may enter into three types of preelection agreements: A ‘‘consentelection agreement followed by a regional director’s determination of representatives,’’ providing for final resolution of post-election disputes by the regional director; a ‘‘stipulated election-agreement followed by a Board determination,’’ providing for resolution of post-election disputes by the Board; and a ‘‘full consent-election agreement,’’ providing for final resolution of both pre- and post-election disputes by the regional director.41 In cases in which parties are unable to reach agreement, a Board agent conducts a hearing at which the parties may introduce evidence on issues including: (1) Whether the Board has jurisdiction to conduct an election; (2) whether there are any bars to an election in the form of existing contracts or prior elections; (3) whether the election is sought in an appropriate unit of employees; and (4) the eligibility of particular employees in the unit to vote. Parties can file briefs with the regional director within one week after the close of the hearing. After the hearing’s close, the regional director will issue a decision either dismissing the petition or directing an election in an appropriate unit. The regional director may defer the resolution of whether certain employees are eligible to vote until after the election, and those employees will be permitted to vote under challenge. Parties have a right to request Board review of a regional director’s decision and direction of election within 14 days after it issues. Neither the filing nor grant of a request for review operates as a stay of the direction of election unless the Board orders otherwise. If the Board does not rule on the request before the election, the ballots are impounded pending a Board ruling. Consistent with the Board’s current Statements of Procedures, the regional director ‘‘will normally not schedule an election until a date between the 25th and 30th day after the date of the decisions, to permit the Board to rule on any request for review which may be filed.’’ 42 Within seven days after the regional director’s decision issues, the employer must file a list of employees in the bargaining unit and their home addresses with the regional director. 40 In the last decade, between 86 and 92 percent of representation elections have been conducted pursuant to either a consent agreement or stipulation. NLRB Office of the General Counsel, Summaries of Operations (Fiscal Years 2002–2010). 41 See 29 CFR 101.19. 42 29 CFR 101.21(d). VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 The regional director, in turn, makes the list available to all other parties in order to allow all parties to communicate with eligible employees about the upcoming election and to reduce the necessity for election-day challenges based solely on the parties’ lack of knowledge of voters’ identities. The non-employer parties must have this list at least ten days before the date of the election unless they waive that right. The regional director has discretion to set the dates, times, and location of the election. The regional director typically exercises that discretion after consultation with the parties and solicitation of their positions on the election details. Once the regional director sets the dates, times, and locations of the election, the regional office prepares a notice of election to inform eligible voters of those details.43 The regional director serves the notice on the employer, which is responsible for posting the notice in the workplace for at least three days before the election. If a manual election is held, each party to the election may be represented at the polling site by an equal number of observers who are typically employees of the employer. Observers have the right to challenge the eligibility of any voter for cause, and the Board agent conducting the election must challenge any voter whose name is not on the eligibility list. Ballots of challenged voters, including any voters whose eligibility was disputed at the pre-election hearing but not resolved by the regional director, are segregated from the other ballots in a manner that will not disclose the voter’s identity. Representatives of all parties may choose to be present when ballots are counted. Elections are decided by a majority of votes cast. Challenges may be resolved by agreement before the tally. If the number of unresolved challenged ballots is insufficient to affect the results of an election in which employees voted to be represented, the unit placement of any individuals whose status was not resolved may be resolved by the parties in collective bargaining or determined by the Board if a petition for unit clarification is filed. If the number of unresolved challenged ballots is insufficient to affect the results of an election in which employees voted not to be represented, the results are certified unless objections are filed. Within one week after the tally of ballots has been prepared, parties may file with the regional director objections to the conduct of the election or to 43 Form NLRB–707 or Form NLRB–4910 (in the case of a mail ballot election). PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 conduct affecting the results of the election. A party filing objections has an additional week to file a summary of the evidence supporting the objections. The regional director may initiate an investigation of any such objections and unresolved, potentially outcomedeterminative challenges, and notice a hearing only if they raise substantial and material factual issues. If they do not, the regional director will issue a supplemental decision or a report disposing of the challenges or objections. If there are material factual issues that must be resolved, the regional director will notice a postelection hearing before a hearing officer to give the parties an opportunity to present evidence concerning the objections or challenges. After the hearing’s close, the hearing officer will issue a report resolving any credibility issues and containing findings of fact and recommendations. Depending upon the type of election, a party may file exceptions to the hearing officer’s report either with the regional director or the Board, whereupon the regional director or the Board will issue a decision. If the right is not waived in a pre-election agreement, a party may appeal a regional director’s disposition of election objections or challenges by filing exceptions with the Board. II. Authority Section 6 of the NLRA, 29 U.S.C. 156, provides, ‘‘The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act.’’ The Board interprets Section 6 as authorizing the proposed amendments to its existing rules. The Board believes that the proposed amendments relate almost entirely to ‘‘rules of agency organization, procedure or practice’’ and are therefore exempt from the Administrative Procedure Act’s notice and comment requirements under 5 U.S.C. 553(b)(A), but the Board has decided nevertheless to issue this Notice of Proposed Rulemaking and seek public comments. III. Overview of the Amendments Part 101, Subparts C–E The Board’s current regulations are divided into part 102, denominated Rules and Regulations, and part 101, denominated Statement of Procedures. Because the regulations in part 102 are procedural, however, the two sets of provisions governing representation E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules proceedings in §§ 102.60–102.88 and 101.17–101.30 are almost entirely redundant. Describing the same representation procedures in two separate parts of the regulations may create confusion. Section 101.1 states that part 101 is a statement of ‘‘the general course and method by which the Board’s functions are channeled and determined’’ and is issued pursuant to 5 U.S.C. 552(a)(1)(B). The Board believes that such a description of procedures would better serve the statutory purpose of informing the public concerning Agency procedures and practices if it were incorporated into the Board’s procedural rules in part 102. The proposed amendments would thus eliminate those sections of part 101 related to representation cases, §§ 101.17 through 101.30, and incorporate into part 102 the few provisions of current part 101 that are not redundant or superfluous. A separate statement of ‘‘the general course and method by which the Board’s functions are channeled and determined’’ in representation proceedings is also set forth in section I(D) above. To the extent any amendments are adopted by the Board, the preamble of the final rule will contain a statement of the general course and method by which the Board’s functions will be channeled and determined under the amendments. Moreover, the Board will continue to publish and update its detailed Casehandling Manual, Part Two of which describes the Board’s representation case procedures. The Manual is currently available on the Board’s Web site. emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Part 102, Subpart C—Procedure Under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees and for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act Sec. 102.60 Petitions The proposed amendments would permit parties to file petitions electronically. In conformity with ordinary judicial and administrative practice, the amendments also require that the petitioner serve a copy of the petition on all other interested parties. For example, a labor organization filing a petition seeking to become the representative of a unit of employees is required to serve the petition on the employer of the employees. This will insure that the earliest possible notice of the pendency of a petition is given to all parties. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 The proposed amendments would also require service of two additional documents that would be available to petitioners in the regional offices and on the Board’s public Web site. The first document, which would substitute for and be an expanded version of the Board’s Form 4812, would inform interested parties of their rights and obligations in relation to the representation proceeding. The second document the petitioner would serve along with the petition would be a Statement of Position form, which would substitute for NLRB form 5081, the Questionnaire on Commerce Information. The contents and purpose of the proposed Statement of Position form is described further below in relation to § 102.63. Sec. 102.61 Contents of Petition for Certification; Contents of Petition for Decertification; Contents of Petition for Clarification of Bargaining Unit; Contents of Petition for Amendment of Certification Section 102.61 describes the contents of the various forms of petitions that may be filed to initiate a representation proceeding under section 9 of the Act. The Board would continue to make each form of petition available at the Board’s regional offices and on its Web site. The proposed amendments would add to the contents of the petitions in two respects. First, the revised petition would contain the allegation required in section 9. In the case of a petition seeking representation, for example, the petition would contain a statement that ‘‘a substantial number of employees * * * wish to be represented for collective bargaining.’’ 29 U.S.C. 159(c)(1)(a)(i). Second, the petitioner would be required to designate, in the revised petition, the individual who will serve as the petitioner’s representative in the proceeding, including for purposes of service of papers. The proposed amendments would also require that the petitioner file with the petition whatever form of evidence is an administrative predicate of the Board’s processing of the petition rather than permitting an additional 48 hours after filing to supply the evidence. When filing a petition seeking to be certified as the representative of a unit of employees, for example, petitioners would be required simultaneously to file the showing of interest supporting the petition. The Board’s preliminary view is that parties should not file petitions without whatever form of evidence is ordinarily necessary for the Board to process the petition. However, the proposed amendments are not PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 36819 intended to prevent a petitioner from supplementing its showing of interest, consistent with existing practice, so long as the supplemental filing is timely. Also consistent with existing practice, the amendments do not require that such a showing be served on other parties. The amendments are not intended to change the Board’s longstanding policy of not permitting the adequacy of the showing of interest to be litigated. See, e.g., Plains Cooperative Oil Mill, 123 NLRB 1709, 1711 (1959) (‘‘[T]he Board has long held that the sufficiency of a petitioner’s showing of interest is an administrative matter not subject to litigation.’’); O.D. Jennings & Co., 68 NLRB 516 (1946). Nor are the proposed amendments intended to alter the Board’s current internal standards for determining what constitutes an adequate showing of interest.44 The proposed amendments are not intended to permit or proscribe the use of electronic signatures to support a showing of interest under § 102.61(a)(12) and (c)(11) as well as under § 102.84. The Board continues to study the use of such signatures for these purposes. See Government Paperwork Elimination Act, Public Law 105–277 section 1704(2) (1998) (providing that Office of Management and Budget shall ensure that, commencing not later than five years after the date of enactment of the Act, executive agencies provide ‘‘for the use and acceptance of electronic signatures, when practicable’’); OMB, Implementation of the Government Paperwork Elimination Act, available at https://www.whitehouse.gov/omb/ fedreg_gpea2/; Electronic Signatures in Global and National Commerce Act, Public Law 106–229 sections 104(b)(1) and (2) (2000). The Board specifically seeks comments on the question of whether the proposed regulations should expressly permit or proscribe the use of electronic signatures for these purposes. Sec. 102.62 Election agreements; voter list Existing § 102.62 describes the three types of agreements parties may enter into following the filing of a petition. The proposed amendments would not in any manner limit parties’ ability to enter into such agreements, including the two forms of agreement that entirely eliminate the need for a pre-election hearing. In fact, the Board anticipates that the proposed amendments would facilitate parties’ entry into these forms of election agreements through an 44 See E:\FR\FM\22JNP2.SGM Casehandling Manual section 11023.1. 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36820 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules earlier and more complete identification of disputes and disclosure of relevant information. The proposed amendments explain the common designations used to refer to each type of agreement in current § 101.19 in order to more clearly inform the public what each form of agreement provides. The proposed amendments would revise the second type of agreement, described in § 102.62(b) (the so-called stipulated election agreement), to eliminate parties’ ability to agree to have postelection disputes resolved by the Board and to provide instead that the parties may agree that Board review of a regional director’s resolution of such disputes may be sought through a request for review. This is consistent with the changes proposed in §§ 102.65 and 102.67 eliminating the authority of regional directors to transfer cases to the Board at any time and making Board review of regional directors’ disposition of post-election disputes discretionary in cases where the parties have not addressed the matter in a pre-election agreement. The proposed amendments (in § 102.62 as well as in § 102.67(j)) would codify and revise the requirement created in Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and approved by the Supreme Court in NLRB v. WymanGordon Co., 394 U.S. 759, 768 (1969), for production and service of a list of eligible voters. The proposed amendments would require that both telephone numbers and, where available, e-mail addresses be included along with each unit employee’s name and address on the eligibility list. The proposed amendments would further require that the list include each employee’s work location, shift, and classification. The changes in the existing requirement for provision of a list of eligible voters embodied in the proposed amendments are intended to better advance the two objectives articulated by the Board in Excelsior. The provision of only a physical address no longer serves the primary purpose of the Excelsior list. Communications technology and campaign communications have evolved far beyond the face-to-face conversation on the doorstep imagined by the Board in Excelsior. As Justice Kennedy observed in Denver Area Educational Telecommunications Consortium, Inc. v. FTC, 518 U.S. 727, 802–803 (1996) (Kennedy, J., dissenting): Minds are not changed in streets and parks as they once were. To an increasing degree, the most significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media. The extent of VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 public entitlement to participate in those means of communication may be changed as technologies change. Similarly, in J. Picini Flooring, 356 NLRB No. 9 at 2–3 (2010) (footnotes omitted), the Board recently observed, While * * * traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members. Electronic communications are now the norm in many workplaces, and it is reasonable to expect that the number of employers communicating with their employees through electronic methods will continue to increase. Indeed, the Board and most other government agencies routinely and sometimes exclusively rely on electronic posting or email to communicate information to their employees. In short, ‘‘[t]oday’s workplace is becoming increasingly electronic.’’ The same evolution is taking place in pre-election campaign communication. The Board’s experience with campaigns preceding elections conducted under section 9 of the Act indicates that employers are, with increasing frequency, using e-mail to communicate with employees about the vote. See, e.g., Humane Society for Seattle, 356 NLRB No. 13, slip op. at 4 (2010) (‘‘On September 27, the Employer’s CEO, Brenda Barnette, sent an e-mail to employees asking that they consider whether ACOG was the way to make changes at SHS. On September 29, HR Director Leader e-mailed employees a link to a third-party article regarding ‘KCACC Guild’s petition and reasons the Guild would be bad for SHS.’’); Research Foundation of the State University of New York at Buffalo, 355 NLRB No. 170, slip op. at 19 (2010) (‘‘On January 12, Scuto sent the first in a series of e-mail’s [sic] to all Employer postdoctoral associates concerning the Petitioner’s efforts to form a Union at the Employer[,]. * * * explaining the Employer’s position on unionization * * *.’’); Black Entertainment Television, 2009 WL 1574462, at *1 (NLRB Div. of Judges June 5, 2009) (employer notified several employees by e-mail to attend a meeting in which senior vice-president spoke one-on-one with the employees regarding the election scheduled for the following day). For these reasons, the proposed rule would require that both telephone numbers and, where available, e-mail addresses be included on the Excelsior list.45 45 In Trustees of Columbia University, 350 NLRB 574, 576 (2007), the Board rejected an objection based on an employer’s refusal to include e-mail PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 In addition, the list currently required under Excelsior does little to further the second purpose for requiring its production—to identify issues concerning eligibility and, if possible, to resolve them without the necessity of a challenge. In many cases, the names on the list are unknown to the parties. The parties may not know where the listed individuals work or what they do. Only through further factual investigation, for example, consulting other employees who may work with the listed, unknown employees or contacting the unknown employees themselves at their home addresses, can the parties potentially discover the facts needed to assess eligibility. It would further the purpose of narrowing the issues in dispute—and thereby avoid unnecessary challenges and litigation—if the list also contained work location, shift, and classification. The proposed amendments would further require that the eligibility list be provided in electronic form unless the employer certifies that it does not possess the capacity to produce the list in the required form. In 1966, most employers maintained employee lists only on paper. Today, many, if not most, employers maintain electronic records. Yet when producing an Excelsior list, employers are still permitted to print out a copy of their electronic records and provide a paper list to the regional office which, in turn, mails or faxes a copy to the other parties. Requiring production of the list in electronic form would further both purposes of the Excelsior requirement. The proposed amendments would require that the employer serve the eligibility list on the other parties electronically at the same time it is filed with the regional office. The Board’s existing rule, as announced in Excelsior, requires only that the employer file the list with the regional director. 156 NLRB at 1240 (1966). Excelsior further provides that the regional director shall make the list available to all parties. It is the Board’s experience in administering elections that this twostep process has caused needless administrative burden, avoidable delay in receipt of the list, and unnecessary litigation when the regional office, for a variety of reasons, has not promptly made the list available to all parties. See, e.g., Special Citizens Futures addresses in the Excelsior list of employees on board a ship that was at sea for most of the preelection period. In so doing, the Board held only that, ‘‘given the Employer’s undisputed compliance with its Excelsior obligations as they stood as of the date of the Union’s request, we are unwilling, on the facts of this case, to characterize that compliance as objectionable conduct.’’ Id. at 576. E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Unlimited, 331 NLRB 160, 160–62 (2000); Alcohol & Drug Dependency Services, 326 NLRB 519, 520 (1998); Red Carpet Bldg. Maintenance Corp., 263 NLRB 1285, 1286 (1982); Sprayking, Inc., 226 NLRB 1044, 1044 (1976). If adopted, the proposed amendments would eliminate this unnecessary administrative burden—as well as potential source of delay and resulting litigation—by providing for direct service of the list by the employer on all other parties. The regional office would make the list available upon request to the parties. The proposed amendments would also shorten the time for production of the eligibility list from the current seven days to two days, absent agreement of the parties to the contrary or extraordinary circumstances specified in the direction. The Board’s preliminary view is that advances in electronic recordkeeping and retrieval, combined with the provision of a preliminary list as described below in relation to § 102.63, render the full seven-day period unnecessary. This conclusion is also supported by the fact that the median size of units ranged between 23 and 26 employees from 2001 to 2010. Finally, the proposed amendments would also impose a restriction on the use of the eligibility list, barring parties from using it for any purposes other than the representation proceeding and related proceedings. The Board specifically seeks comments regarding what, if any, the appropriate sanction should be for a party’s noncompliance with the restriction. Sec. 102.63 Investigation of petition by regional director; notice of hearing; service of notice; Initial Notice to Employees of Election; Statement of Position form; withdrawal of notice The proposed amendments provide that, absent special circumstances, the regional director would set the hearing to begin seven days after service of the notice of hearing. This provision reflects the current practice of some regions, but would make the practice explicit and uniform, thereby rendering Board procedures more transparent and predictable. Under the proposed amendments, parties served with a petition and description of representation procedures, as described above in relation to § 102.60, will thus be able to predict with a high degree of certainty when the hearing will commence even before service of the notice. The Board intends that the proposed amendments would be implemented consistent with the Board’s decision in Croft Metal, Inc., VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 337 NLRB 688, 688 (2002), requiring that, ‘‘absent unusual circumstances or clear waiver by the parties,’’ parties ‘‘receive notice of a hearing not less than 5 days prior to the hearing, excluding intervening weekends and holidays.’’ The proposed amendments would thus not require any party to prepare for a hearing in a shorter time than permitted under current law. Rather, as the Board held in Croft Metal, 337 NLRB at 688, ‘‘By providing parties with at least 5 working days’ notice, we make certain that parties to representation cases avoid the Hobson’s choice of either proceeding unprepared on short notice or refusing to proceed at all.’’ The Board specifically seeks comments on the feasibility and fairness of this time period and all other such periods proposed in this Notice as well as the wording and scope of the exceptions thereto. The proposed amendments provide that, with the notice of hearing, the regional director would serve a revised version of the Board’s Form 5492, currently headed Notice to Employees. Under the proposed amendments, the revised form would bear the heading Initial Notice to Employees of Election, would specify that a petition has been filed as well as the type of petition, the proposed unit, and the name of the petitioner, and would briefly describe the procedures that will follow. The Board anticipates that the Initial Notice would also provide employees with the regional office’s Web site address, through which they can obtain further information about the processing of the petition, including obtaining a copy of any direction of election and Final Notice to Employees of Election as soon as they issue. Employers would be required to post the revised Initial Notice to Employees of Election unlike current Form 5492. The proposed amendments further provide that the regional director would serve the petition, the description of procedures in representation cases, and the Statement of Position form on all non-petitioning parties. The proposed amendments would further require that the regional director specify in the notice of hearing the due date for Statements of Position. The Statements of Position would be due no later than the date of the hearing. In relation to small units, the regional director may choose to make the Statements of Position due on the date of the hearing and they may be completed at that time with the assistance of the hearing officer. The Statement of Position form would replace NLRB Form 5081, the Questionnaire on Commerce PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 36821 Information. Under the proposed rules, its completion would be mandatory only insofar as failure to state a position would preclude a party from raising certain issues and participating in their litigation. The statement of position requirement is modeled on the mandatory disclosures described in Fed. R. Civ. P. 26(a) as well as on contention interrogatories commonly propounded in civil litigation. The Board anticipates that early receipt of the Statement of Position form will assist parties in identifying issues that must be resolved at a pre-election hearing and thereby facilitate entry into election agreements. Parties who enter into one of the forms of election agreement described in § 102.62 would not be required to complete a Statement of Position under the proposed amendments. The Statement of Position form would solicit the parties’ position on the Board’s jurisdiction to process the petition; the appropriateness of the petitioned-for unit; any proposed exclusions from the petitioned-for unit; the existence of any bar to the election; the type, dates, times, and location of the election; and any other issues that a party intends to raise at hearing. In those cases in which a party takes the position that the proposed unit is not an appropriate unit, the party would also be required to state the basis of the contention and identify the most similar unit it concedes is appropriate.46 In those cases in which a party intends to contest at the pre-election hearing the eligibility of individuals occupying classifications in the proposed unit, the party would be required to both identify the individuals (by name and classification) and state the basis of the proposed exclusion, for example, because the identified individuals are supervisors. Finally, parallel to the amendment to the contents of petitions described in relation to § 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. The Board believes that the Statement of Position form would ask parties to do no more than they currently do in preparing for a pre-election hearing. In addition, the Board’s preliminary belief is that, by guiding such preparation, the proposed Statement of Position form 46 This requirement would codify parties’ existing practice where they contend that the petitioned-for unit is not appropriate because the smallest appropriate unit includes additional classifications or facilities. See, e.g., Westinghouse Electric Corp., 137 NLRB 332 (1962). E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36822 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules would reduce the time and other resources expended in preparing to participate in representation proceedings. In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board observed, ‘‘[I]n order to effectuate the purposes of the Act through expeditiously providing for a representation election, the Board should seek to narrow the issues and limit its investigation to areas in dispute.’’ The Board’s regional offices currently attempt to identify and narrow the issues through a number of procedures. In some cases, regions will conduct pre-hearing conferences either face-to-face or by telephone in an effort to identify and narrow the issues in dispute. Further, section 11217 of the Casehandling Manual provides, ‘‘Prior to the presentation of evidence or witnesses, parties to the hearing should succinctly state on the record their positions as to the issues to be heard.’’ The proposed amendments would incorporate the principles underlying these commendable practices, but would give all parties clear, advance notice of their obligations, both in the rules themselves and in the statement of procedures and Statement of Position form. The amendments are not intended to preclude any other formal or informal methods used by the regional offices to identify and narrow the issues in dispute prior to or at pre-election hearings. The proposed amendments provide that, as part of its Statement of Position, the employer would be required to provide a list of all individuals employed by the employer in the petitioned-for unit. The list would include the same information described above in relation to § 102.62 except that the list served on other parties would not include contact information. As explained above in section I(A)(3) and in relation to § 102.62, a central purpose of requiring the employer to prepare and file an eligibility list is to insure that all parties have access to the information they need to evaluate whether individuals should be in the unit and are otherwise eligible to vote, so that the parties can attempt to resolve disputes concerning eligibility rather than prolong them ‘‘based solely on lack of knowledge.’’ Excelsior, 156 NLRB at 1243. The Board further observed in Excelsior that ‘‘bona fide disputes between employer and union over voting eligibility will be more susceptible of settlement without recourse to the formal and timeconsuming challenge procedures of the Board if such disputes come to light early in the election campaign rather VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 than in the last few days before the election.’’ But that purpose is not well served by provision of the list of eligible voters seven days after a decision and direction of election. It is prior to and during the hearing that the parties are most actively engaged in attempting to resolve such disputes. For this reason, the proposed amendments would require filing and service of a list of individuals providing services to the employer in the petitioned-for unit by a date no later than the opening of the pre-election hearing. For the same reasons, the proposed amendments further provide that, if the employer contends that the petitionedfor unit is not appropriate, the employer also would be required to file and serve a similar list of individuals in the most similar unit that the employer concedes is appropriate. Under the proposed amendments, the list filed with the regional office, but not the list served on other parties, would contain available e-mail addresses, telephone numbers, and home addresses. The regional office could then use this additional information to begin preparing the electronic distribution of the Final Notice of Election discussed below in relation to § 102.67. Sec. 102.64 Conduct of Hearing The proposed amendments to § 102.64 are intended to insure that the hearing is conducted efficiently and is no longer than necessary to serve the statutory purpose of determining if there is a question concerning representation. Congress instructed the Board to conduct a pre-election hearing to determine if there is a question concerning representation that should be resolved through an election. But Congress did not intend the hearing to be used by any party to delay the conduct of such an election. The proposed amendments would make clear that, ordinarily, resolution of disputes concerning the eligibility or inclusion of individual employees is not necessary in order to determine if a question of representation exists and, therefore, that such disputes will be resolved, if necessary, post-election. The proposed amendments would also make clear that the duty of the hearing officers is to create an evidentiary record concerning only genuine disputes as to material facts. Finally, the proposed amendments would provide that the hearing shall continue from day to day until completed absent extraordinary circumstances. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 Sec. 102.65 Motions; Interventions Consistent with the effort to avoid piecemeal appeal to the Board, as discussed below in relation to § 102.67, the proposed amendments to § 102.65 would narrow the circumstances under which a request for special permission to appeal will be granted. The proposed amendments provide that such an appeal would only be granted under extraordinary circumstances when it appears that the issue will otherwise evade review. To further discourage piecemeal appeal, the amendments provide that a party need not seek special permission to appeal in order to preserve an issue for review postelection. Finally, consistent with current practice, the amendments provide that neither the filing of a request for special permission to appeal nor the grant of such a request will stay an election or any other action or require impounding of ballots unless specifically ordered by the Board. The proposed amendments provide that any intervenors, like the original non-petitioning parties, would be required to file or make a Statement of Position. The proposed amendments also make clear that neither a regional director nor the Board will automatically delay any decision or action during the time permitted for filing motions for reconsideration, rehearing, and to reopen the record. Sec. 102.66 Introduction of Evidence; Rights of Parties at Hearing; Subpoenas The proposed amendments to § 102.66 are intended to limit the evidence offered at hearings to that evidence which is relevant to a genuine dispute as to a fact material to an issue in dispute. The amendments would thus give parties the right to introduce evidence ‘‘relevant to any genuine dispute as to any material fact.’’ This standard was derived from Rule 56 of the Federal Rules of Civil Procedure. The proposed amendments would not prevent any party from presenting evidence concerning any relevant issue if there is a genuine dispute as to any material fact. In other words, the proposed amendments would accord parties full due process of law consistent with that accorded in the federal courts. The amendments would further describe a process to be followed by the hearing officer to identify issues in dispute and determine if there are genuine disputes as to facts material to those issues. The hearing officer would open the hearing by reviewing, or assisting the non-petitioning parties to E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules make, Statements of Position. The petitioner would then be required to respond to any issues raised in the nonpetitioning parties’ Statements of Position, thereby joining the issues. No party would be permitted to offer evidence or cross-examine witnesses concerning an issue it did not raise in its Statement of Position or did not join in response to another party’s Statement of Position. However, any party would be permitted to present evidence as to statutory jurisdiction,47 and the petitioner would be permitted to present evidence as to the appropriateness of the unit if the nonpetitioning parties decline to take a position on that issue. In addition, the hearing officer would retain discretion to permit parties to amend their Statements of Position and responses for good cause, such as newly discovered evidence. Consistent with the amendment’s intent to defer both litigation and consideration of disputes concerning the eligibility or inclusion of individual employees until after the election, no party would be precluded from challenging the eligibility or inclusion of any voter during the election on the grounds that no party raised the issue in a Statement of Position or response thereto. The proposed amendments would implement the decision in Bennett Industries, Inc., 313 NLRB 1363 (1994). The proposed amendments would also be consistent with Allen Health Care Services, 332 NLRB 1308 (2000), in which the Board held that even when an employer refuses to take a position on the appropriateness of a petitioned-for unit, the regional director must nevertheless take evidence on the issue unless the unit is presumptively appropriate. The proposed amendments would thus permit the petitioner to offer evidence in such circumstances and merely preclude non-petitioners, which have refused to take a position on the issue, from offering evidence or crossexamining witnesses. Consistent with both Bennett Industries and Allen Health Care, the proposed amendments would preclude any party from subsequently raising an issue or offering evidence or crossexamining witnesses at the pre-election hearing related to an issue (other than statutory jurisdiction) it did not raise or 47 Under the proposed amendments, the Board will continue its longstanding practice of presuming that an employer satisfies the Board’s discretionary jurisdictional standards when the employer refuses to voluntarily provide information requested by the Board in order to apply those standards. See, e.g., Seaboard Warehouse Terminals, Inc., 123 NLRB 378, 382–83 (1959); Tropicana Products, Inc., 122 NLRB 121, 123–24 (1958). VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 join in a Statement of Position or response thereto. In the case of exclusions from the proposed unit, for example, if no party timely asserts that an individual should be excluded, the Board would include the individual subject to challenge during the election, as explained above. If no party objects to a proposed exclusion, the Board would exclude the individual. In relation to the appropriateness of the unit, if all parties agree the unit is appropriate, the Board would so find unless it appears on its face to be a statutorily inappropriate unit or to be inconsistent with settled Board policy. If any party refuses to take a position on the appropriateness of the unit, that party would be precluded from contesting the appropriateness and offering evidence relating to the appropriateness of the unit. Such preclusion is consistent with existing precedent and clarifies parties’ rights under Allen Health Care. Under the proposed amendments, after the issues are properly joined, the hearing officer would require the parties to make an offer of proof concerning any relevant issue in dispute and would not proceed to take evidence unless the parties’ offers create a genuine issue of material fact. An offer of proof may take the form of an oral or written statement of the party or its counsel identifying the witnesses it would call to testify and summarizing their testimony. The requirement of an offer of proof is thus similar to that which exists under current procedures for a party filing objections post-election.48 The requirement is also consistent with existing practice in relation to a presumptively appropriate unit. See, e.g., Laurel Associates, Inc., 325 NLRB 603 (1998); Mariah, Inc., 322 NLRB 586, 587 (1996). The proposed amendments thus adopt standard practice in the federal and state courts and before other agencies. See, e.g., Fed. R. Civ. P. 56. The proposed amendments rest on the proposition that, if no disputed issues are identified or there are no disputed facts material to such issues, there is no need for an evidentiary hearing. The Board’s preliminary view is that ‘‘an appropriate hearing’’ does not mean an evidentiary hearing when either no issues are in dispute or no party has been able to make an offer of proof creating a genuine dispute as to any material fact. As Judge Learned Hand observed in 1949, 48 See Casehandling Manual section 1132.6 (‘‘In addition to identifying the nature of the misconduct on which the objections are based, this submission should include a list of the witnesses and a brief description of the testimony of each.’’) PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 36823 Neither the statute, nor the Constitution, gives a hearing where there is no issue to decide * * *. The Constitution protects procedural regularity, not as an end in itself, but as a means of defending substantive interests. Every summary judgment denies a trial upon issues formally valid. Where, as here, the evidence on one side is unanswerable, and the other side offers nothing to match or qualify it, the denial of a trial invades no constitutional privilege. These considerations are particularly appropriate when we consider that the Board must conduct its duties in a summary way; not, we hasten to add, without observing all the essentials of fair administration, but with as much dispatch as is consistent with those. Fay v. Douds, 172 F.2d 720, 725 (2d Cir. 1949).49 The common type of joinder of issues and offer-of-proof procedures set forth in the proposed amendments, which parallel even more common pleading and summary judgment procedures in the federal and state courts, are fully consistent with the statutory requirement of ‘‘an appropriate hearing’’ and all parties’ rights to due process of law. The proposed amendments would make clear that, although the Statement of Position form asks the nonpetitioning parties to state their positions on the type, dates, times, and location of the election, and the eligibility period, and that the hearing officer should solicit all parties’ positions on these issues, consistent with existing practice, the resolution of these issues remains within the discretion of the regional director, and the hearing officer shall not permit them to be litigated. The proposed amendments would provide that, if, at any time during the hearing, the hearing officer determines that the only genuine issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer will close the hearing. Congress specified that a hearing take place before an election in order to insure that the Board determine that a question concerning representation exists prior to directing that an election 49 Although Judge Hand’s analysis of the issue discussed in the text remains sound, the jurisdictional basis for Fay being heard in federal court prior to a final order in an unfair labor practice case has been ‘‘effectively discarded by all circuits’’ in subsequent decisions. Robert A. Gorman & Matthew W. Finkin, Labor Law: Unionization and Collective Bargaining § 4.11 (2d ed. 2004). See, e.g., NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99, 107 (3d Cir. 1979); Squillacote v. International Bhd. of Teamsters, Local 344, 561 F.2d 31, 39 (7th Cir. 1977) (collecting cases). E:\FR\FM\22JNP2.SGM 22JNP2 36824 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules be held in order to resolve the question. Thus, Section 9(c) provides that, after the filing of a petition, emcdonald on DSK2BSOYB1PROD with PROPOSALS2 the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists, it shall provide for an appropriate hearing upon due notice. * * * If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Congress did not, however, direct that every disputed issue related to the conduct of an election be litigated in the pre-election hearing or resolved prior to the conduct of the election. Litigation and resolution of individual eligibility issues prior to elections is not the norm within our political system. In Board-supervised elections, it often results in unnecessary litigation and a waste of administrative resources as the eligibility of potential voters is litigated and decided even when their votes end up not affecting the outcome of the election. If a majority of employees vote against representation, even assuming all the disputed votes were cast in favor of representation, the disputed eligibility questions become moot. If, on the other hand, a majority of employees choose to be represented, even assuming all the disputed votes were cast against representation, the Board’s experience suggests that the parties are often able to resolve the resulting unit placement questions in the course of bargaining and, if they cannot do so, either party may file a unit clarification petition to bring the issue back before the Board.50 As the Eighth Circuit observed, ‘‘The NLRB’s practice of deferring the eligibility decision saves agency resources for those cases in which eligibility actually becomes an issue.’’ Bituma Corp. v. NLRB, 23 F.3d 1432, 1436 (8th Cir. 1994). The Sixth Circuit similarly found that ‘‘[s]uch a practice enables the Board to conduct an immediate election.’’ Medical Center at Bowling Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir. 1983). The proposed revision of this section of the rules together with the elimination of section 101.20(c) removes the basis for the Board’s holding in Barre-National, Inc., 316 NLRB 877 (1995), that the hearing officer must permit full litigation of all eligibility issues in dispute prior to the direction of an election, absent consent of all 50 See New York Law Publishing Co., 326 NLRB No. 93, slip op. at 2 (2001) (‘‘The parties may agree through the course of collective bargaining on whether the classification should be included or excluded. Alternatively, in the absence of such an agreement, the matter can be resolved in a timely invoked unit clarification petition.’’) VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 parties to defer litigation of the issues. Congress specified that a hearing must be held to determine if ‘‘a question concerning representation exists.’’ Adjudication of the eligibility of the 24 individuals at issue in Barre-National was not necessary to determine whether a question concerning representation existed. Moreover, the Board did not hold in Barre-National that the disputed issue had to be resolved before the regional director directed and conducted an election. In fact, the Board expressly noted, ‘‘our ruling concerns only the entitlement to a preelection hearing, which is distinct from any claim of entitlement to a final agency decision on any issue raised in such a hearing.’’ Id. at 878 n. 9. The Board further noted that ‘‘reviewing courts have held that there is no general requirement that the Board decide all voter eligibility issues prior to an election.’’ Id. As observed above, the Board has frequently deferred final adjudication of such issues until after election, permitting disputed individuals to vote subject to challenge. Thus, the Board’s holding in BarreNational required that an evidentiary hearing be held on the eligibility issue, potentially delaying the conduct of the election for a significant period of time, but the Board both in that case and in many others has permitted resolution of the issue to be deferred until after the election. Such an outcome serves no apparent purpose. Therefore, the proposed amendments would revise the regulations that formed the basis of the holding in Barre-National to permit deferral of both litigation and resolution of disputes that need not be resolved in order to determine that a question of representation exists. The unit’s scope must be established and found to be appropriate prior to the election. But the Board is not required to and should not decide all questions concerning the eligibility or inclusion of individual employees prior to an election. The Board’s preliminary view is that deferring both the litigation and resolution of eligibility and inclusion questions affecting no more than 20 percent of eligible voters represents a reasonable balance of the public’s and parties’ interest in prompt resolution of questions concerning representation and employees’ interest in knowing precisely who will be in the unit should they choose to be represented. The proposed amendments are consistent with, but seek to improve, the Board’s current practice concerning post-election rulings on eligibility and inclusion. In a variety of circumstances, most typically when the Board has granted a pre-election request for review PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 concerning the scope of the unit or employee eligibility, but not ruled on the merits until after the election, the Board has addressed the question of when a post-election change in the unit described in the notice of election requires a new election. The Board has uniformly held that a change representing no more than 20 percent of the unit does not require a new election. See, e.g., Morgan Manor Nursing and Rehabilitation Center, 319 NLRB 552 (1995) (20 percent); Toledo Hospital, 315 NLRB 594 (1994) (19.5 percent). In Morgan Manor, the Board stated that ‘‘the exclusion of one classification from a facilitywide service and maintenance unit comprised of employees in nine other specifically named classifications, represents a numerical change which we * * * do not view as signifying a sufficient change in unit size to warrant setting aside of the election.’’ 319 NLRB at 553. Similarly, in Toledo Hospital, the Board found, ‘‘We do not view the change in the size of the unit here (19.5 percent * * *) as signifying a sufficiently significant change in character and scope to warrant setting aside the election.’’ 315 NLRB at 594. In a small number of cases,51 courts of appeals have reversed the Board’s conclusion that a new election was not necessary when the size of the unit was altered by less than 20 percent.52 These courts have based their holdings on the particular nature of the change in the unit, concluding that it significantly altered the scope or character of the original unit. More importantly, these courts found that, by informing employees that they were voting to be represented in one unit and then changing the scope and character of the unit after the election, the Board was ‘‘misleading the voters as to the scope of the unit.’’ NLRB v. Lorimar Productions, Inc., 771 F.2d 1294, 1302 (9th Cir. 1985) (involving approximately 35 percent reduction in size of unit); see also NLRB v. Beverly Health and Rehabilitation Services,, 120 F.3d 262 (4th Cir. 1977) (per curiam) (unpublished) (‘‘Where employees are led to believe that they are voting on a particular bargaining unit and that bargaining unit is subsequently modified post-election, such that the bargaining unit, as modified, is fundamentally different in scope or 51 The Board has identified only two such cases, cited in the following footnote. 52 See NLRB v. Beverly Health and Rehabilitation Services, 120 F.3d 262 (4th Cir. 1997) (per curiam) (unpublished) (reversing Morgan Manor, cited in text, involving a 20 percent reduction in size of unit); NLRB v. Parsons School of Design, 793 F.2d 503 (2d Cir. 1986) (involving a less than 10 percent reduction in size of unit). E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules character * * *, the employees have effectively been denied the right to make an informed choice in the representation election.’’) The Board’s preliminary view is that adoption of a bright-line numerical rule requiring that questions concerning the eligibility or inclusion of individuals constituting no more than 20 percent of all potentially eligible voters be litigated and resolved, if necessary, post-election, best serves the interests of the parties and employees as well as the public interest in efficient administration of the representation case process.53 In order to insure that prospective voters are in no way misled as to the scope of the unit, under the proposed amendments, if resolution of eligibility or inclusion disputes is deferred, the Final Notice to Employees of Election would so inform employees (including an explanation of how the dispute will be resolved) and the disputed employees would be permitted to vote subject to challenge as explained below in relation to § 102.67. Consistent with existing practice, the proposed amendments also provide that a party that has been served with a subpoena may be required to file or orally present a motion to quash prior to the five days provided in section 11(1) of the Act. Both the Board and federal courts have construed the five days provided in the Act as a maximum, not a minimum. The Casehandling Manual provides: There is case authority which holds that the 5-day period is a maximum and not a minimum. Absent a showing of prejudice, the subpoenaed party may be required to file and argue its petition to revoke and, if ordered by the Administrative Law Judge or hearing officer, produce subpoenaed testimony and documents at hearing in less than 5 days from receipt of the subpoena. See Packaging Techniques, Inc., 317 NLRB 1252, 1253–54 (1995) and NLRB v. Strickland, 220 F.Supp. 661, 665–66 (D.C.W. Tenn., 1962), affd. 321 F.2d 811, 813 (6th Cir. 1963). emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Section 11782.4; see also Brennan’s French Restaurant, 129 NLRB 52, 54 n.2 (1960) (judge’s ruling found moot by Board). The proposed amendments would codify existing practice vesting discretion in the hearing office to determine how much time a party served with a subpoena should be accorded to move to quash up to the 53 The Board has permitted regional directors to defer resolution of the eligibility of an even higher percentage of potential voters. See, e.g., Northeast Iowa Telephone, 341 NLRB 670, 671 (2004) (‘‘While we recognize that allowing 25 percent of the electorate to vote subject to challenge is not optimal, the Employer’s opportunity to raise its supervisory issues remains preserved through appropriate challenges and objections to the election or through a subsequent unit clarification petition.’’) VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 statutory maximum of five days. As the judge reasoned in Packaging Techniques, 317 NLRB at 1254, ‘‘the case law suggests a common sense application of the rule.’’ Finally, the proposed amendments provide that at the close of the hearing, parties would be permitted to make oral arguments on the record. Parties would be permitted to file briefs only with the permission of the hearing officer and within the time permitted by and subject to any other limitations imposed by the hearing officer. Given the recurring and often uncomplicated legal and factual issues arising in pre-election hearings, it is the Board’s preliminary view that briefs are not needed in every case to permit the parties to fully and fairly present their positions or to facilitate prompt and accurate decisions. Sec. 102.67 Proceedings Before the Regional Director; Further Hearing; Action by the Regional Director; Review of Action by the Regional Director; Statement in Opposition To Appeal; Final Notice of Election; Voter List Consistent with the proposed amendment to § 102.66, the proposed amendments to § 102.67 would provide that if the regional director finds at any time that the only issues remaining in dispute concern the eligibility or inclusion of employees who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the regional director shall direct that those individuals be permitted to vote subject to challenge. The proposed amendments would further provide that the Final Notice to Employees of Election shall explain that such individuals are being permitted to vote subject to challenge and the procedures through which their eligibility will be resolved. The proposed amendments would give the regional director discretion to issue a direction of election with a decision to follow no later than the time of the tally of votes. Because the proposed amendments would defer the parties’ right to request Board review of pre-election rulings until after the election, in order to avoid delaying the conduct of the election, regional directors may exercise their discretion to defer issuance of the decision up to the time of the tally without prejudice to any party. Because the parties will have fully stated their positions on the type, dates, times, and locations of the election either in their Statements of Position or at the hearing, under the proposed amendments the regional director would address these election details in the direction of election and issue the PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 36825 Final Notice to Employees of Election with the direction. Consistent with both the statutory purpose for conducting elections and existing practice, the proposed amendments would provide that the regional director shall set the election for the earliest date practicable. Both the decision and direction of election and the Final Notice to Employees of Election would be electronically transmitted to all parties when they have provided e-mail addresses to the regional office. When the parties have provided e-mail addresses of affected employees, the regional office would also transmit the notice electronically to those employees.54 In addition, the employer would be required to post the Final Notice to Employees of Election in those places where it customarily posts notices to employees as well as electronically if the employer customarily uses electronic means to communicate with its employees. Because of the potential unfairness of conclusively presuming that the employer received the notice if it does not inform the region to the contrary within five work days, the proposed amendments would also eliminate the provision in § 103.20 creating such a conclusive presumption. Because of the provision of a mandatory and more detailed initial notice of election, as described in relation to § 102.60 above, for manual and electronic posting of the final notice by employers, and for electronic transmission of the final notice of election to individual, eligible voters, in all cases where such notice is feasible, the proposed rules would also reduce the minimum time between the posting of the final notice and the election from three to two work days. The Board anticipates that continuing advances in electronic communications and continuing expanded use of e-mail may, in the near future, enable regional offices in virtually all cases to transmit the final notice of election directly to all eligible voters, rendering employer posting of the final notice of election unnecessary. The Board similarly anticipates that the proposed amendments’ adoption of dual notice procedures will be an interim measure. During this interim period, while the employer remains obligated to post the 54 The proposed rules provide in §§ 102.62, 102.63, and 102.67 that both the preliminary and final eligibility lists include telephone numbers as well as e-mail addresses (when available) both to facilitate use of the final list for the purposes described in Excelsior and to permit the regions potentially to test the use of automated phone calls for the purpose of providing prompt notice of the election to each eligible voter. E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36826 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules final notice of election, the Board does not intend that the failure of a regional office to provide electronic notice to any eligible voter would be the basis for overturning the results of an election under the proposed amendments. The proposed amendments would make the same changes in the form, content, and service of the list of eligible voters that the employer must file after a direction of election as were described above in relation to § 102.62 after entry into any form of consent or stipulated election agreement. In addition, because of advances in recordkeeping technology and because in most cases the employer will have provided a preliminary list of employees in the proposed or alternative units as described in relation to § 102.63 above, the proposed amendments would also reduce the time during which the list must be filed and served from seven days to two work days. Consistent with existing practice, reflected in Mod Interiors, Inc., 324 NLRB 164 (1997), and Casehandling Manual section 11302.1, an election shall not be scheduled for a date earlier than ten days after the date by which the eligibility list must be filed and served, unless this requirement is waived by the petitioner and any other parties whose names will appear on the ballot. The proposed amendments would eliminate the regional director’s authority to transfer a case at any time to the Board for decision. This authority has rarely been used and, when it has been used, has led to extended delays in the disposition of petitions. See, e.g., Centurion Auto Transport, Inc., 329 NLRB 394 (1999) (transferred December 1994, decided September 1999); Roadway Package System, Inc., 326 NLRB 842 (1998) (transferred May 1995, decided August 1998); PECO Energy Co., 322 NLRB 1074 (1997) (transferred Sept 1995, decided February 1997); Johnson Controls, Inc., 322 NLRB 669 (1996) (transferred June 1994, decided December 1996). As under the current rules, if the regional director dismisses the petition, parties would be permitted to file a request for review with the Board. If the regional director directs an election, however, the proposed amendments would defer all parties’ right to request Board review until after the election. The proposed amendments would retain the provisions for a request for special permission to appeal a determination by the regional director, modified as described above in relation to § 102.65 above. The Board’s current Statements of Procedures provide that elections ‘‘normally’’ are delayed for a period of VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 at least 25 days after the regional director directs that an election should be conducted, in order to provide the parties an opportunity to request Board review of the regional director’s determinations. The parties have the right to request review of any final decision of the Regional Director, within the times set forth in the Board’s Rules and Regulations, on one or more of the grounds specified therein. Any such request for review must be a self-contained document permitting the Board to rule on the basis of its contents without the necessity of recourse to the record, and must meet the other requirements of the Board’s Rules and Regulations as to its contents. The Regional Director’s action is not stayed by the filing of such a request or the granting of review, unless otherwise ordered by the Board. Thus, the Regional Director may proceed immediately to make any necessary arrangements for an election, including the issuance of a notice of election. However, unless a waiver is filed, the Director will normally not schedule an election until a date between the 25th and 30th days after the date of the decision, to permit the Board to rule on any request for review which may be filed. 29 CFR 101.21(d). Thus, while the rules provide for discretionary review and expressly provide that requesting such review shall not operate as a stay of the election, the Statements of Procedures suggest that there should normally be a waiting period of 25–30 days. This is the case even though such requests are filed in a small percentage of cases, are granted in an even smaller percentage,55 and result in orders staying the conduct of elections in virtually no cases at all. For these reasons, such a waiting period appears to serve little purpose even under the existing rules permitting a pre-election request for review. The proposed amendments would eliminate the pre-election request for review and the accompanying waiting period. All pre-election rulings would remain subject to review post-election if they have not been rendered moot. The Board anticipates that the proposed amendments would eliminate unnecessary litigation concerning issues that may be and often are rendered moot by the election results and thereby reduce the expense of participating in representation proceedings for the 55 A comparison of the total number of elections to the total number of grants of review (including grants of review after petitions were dismissed) during the period 2002 to 2009 reveals that review was granted in less than 1.3 percent of all representation cases in which an election was conducted and in approximately 15 percent of those cases in which a request was filed. See NLRB Annual Reports (Fiscal Years 2001–2009) and NLRB Office of the General Counsel, Summaries of Operations (Fiscal Years 2002–2009 with 2002 including summary for 2001). PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 parties as well as the government. Similarly, by consolidating all Board review post-election, the proposed rules would relieve parties of the burden of petitioning for pre-election review in order to preserve issues that may be rendered moot by the election results and, even if that is not the case, would allow parties to raise all issues in a single petition and thereby preserve both private and public resources. In other words, the Board anticipates that the proposed amendments would not simply shift litigation from before to after elections, but would significantly reduce the total amount of litigation. Section 102.68 Record; What Constitutes; Transmission to Board The proposed amendments to this section would conform its contents to the amendments to other sections. Sec. 102.69 Election Procedure; Tally of Ballots; Objections; Requests for Review of Directions of Elections, Hearings; Hearing Officer Reports on Objections and Challenges; Exceptions to Hearing Officer Reports; Requests for Review of Regional Director Reports or Decisions in Stipulated or Directed Elections The proposed amendments to § 102.69 would maintain the current time period (seven days after the tally) for the filing of objections to the conduct of the election or to conduct affecting the results of the election. The current rules provide a filing party with an additional seven days to file an offer of proof. The proposed amendments would require that a party filing objections simultaneously file a written offer of proof supporting the objections as described above in relation to § 102.66(b). The proposed change is based on the view that objections to a secret-ballot election should not be filed by any party lacking factual support for the objections and, therefore, that a filing party should be able to describe the facts supporting its objections at the time of filing. The proposed amendments codify existing practice permitting parties to file, but not serve, evidence in support of objections. The proposed amendments would also codify existing practice permitting the regional director to investigate the objections by examining evidence offered in support thereof to determine if a hearing is warranted. Thus, if there are potentially determinative challenges or the regional director determines that objections together with an accompanying offer of proof raise a genuine issue of material fact, the proposed amendments would require that the regional director serve a notice E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules of hearing setting the matters for hearing within 14 days of the tally or as soon thereafter as practicable. If the resolution of questions concerning the eligibility of individuals in the unit was deferred by the hearing officer, as described in § 102.66 above, and the votes of such individuals are potentially outcome determinative, the deferred questions would be addressed in the post-election hearing. The proposed amendments would further provide that any such hearing would open with the parties stating their positions on any challenges and objections, followed by offers of proof as described above in relation to § 102.66. The proposed amendments would provide that if no potentially determinative challenges exist and no objections are filed, any party may file a request for review of the regional director’s decision and direction of election within 14 days of the tally. If there are potentially determinative challenges or objections, a request for review of the regional director’s decision and direction of election may be filed within 14 days of the regional director’s disposition of the postelection disputes and may be consolidated with any request for review of post-election rulings. The proposed amendments would create a uniform procedure in those cases in which there are potentially outcome determinative challenges or the regional director determines that objections together with an accompanying offer of proof raise genuine issues of material fact that must be resolved. Adopting the procedure currently contained in §§ 102.69(d) and (e), the proposed amendments would provide that, in such cases, the regional director shall provide for a hearing before a hearing officer who shall, after such hearing, issue a report containing recommendations as to the disposition of the issues. Within 14 days after issuance of such a report, any party may file exceptions with the regional director. Finally, consistent with the proposed changes described above in relation to § 102.62, the proposed amendments would make Board review of a regional director’s resolution of post-election disputes discretionary in cases involving directed elections as well as those involving stipulated elections.56 The Board anticipates that 56 The Board anticipates that permitting it to deny review of regional directors’ resolution of postelection disputes—when a party’s request raises no compelling grounds for granting such review— would eliminate the most significant source of administrative delay in the finality of election results. Together with simultaneous filing of objections and offers of proof and prompt VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 this proposed change would leave a higher percentage of final decisions concerning disputes arising out of representation proceedings with the Board’s regional directors who are members of the career civil service. Subparts D and E, §§ 102.73 Through 102.88, Procedures for Unfair Labor Practice and Representation Cases Under Section 8(b)(7) and 9(c) of the Act and Procedures for Referendum Under Section 9(e) of the Act The proposed amendments in these two subparts are intended solely to conform their provisions to the amendments in Subpart C described above. Subpart I—Service and Filing of Papers Sec. 102.112 Filing Date of Service; Date of The proposed amendments would correct an omission concerning the effective date of service by electronic mail. Sec. 102.113 Methods of Service of Process and Papers by the Agency; Proof of Service The proposed amendments would add electronic mail as an approved method of service of Board papers other than complaints, compliance specifications, final decisions and orders in unfair labor practice cases, and subpoenas. The existing rules include regular mail, private delivery service and facsimile transmission (with consent), along with personal service and certified and registered mail. Section 102.114 has provided for service of parties’ papers by electronic mail since 2009. Sec. 102.114 Filing and Service of Papers; Form of Papers; Manner and Proof of Filing and Service; Electronic Filings The proposed amendments to this section are intended solely to conform its provisions to the amendments in Subpart C described above. scheduling of post-election hearings, when they are necessary, the Board anticipates that the proposed amendments would reduce the period of time between the tally of votes and certification of the results. Such an outcome would reduce the time during which employers are uncertain about their legal obligations because, after a tally showing a majority vote in favor of representation, employers violate the duty to bargain by unilaterally changing the status quo only if a representative is ultimately certified. See Mike O’Conner Chevrolet, 209 NLRB 701, 703 (1974). PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 36827 Part 103, Subpart B—Election Procedures Sec. 103.20 Posting of Election Notices The proposed amendments eliminate this section, the only section of part 103 of the regulations governing procedures in representation proceedings, and integrate its contents into part 102, modified as explained above in relation to § 102.67. Request for Comment Regarding Blocking Charges Just as the Board seeks through the proposed amendments to prevent any party from using the hearing process established under section 9 of the Act to delay the conduct of an election though unnecessary litigation, the Board also believes that no party should use the unfair labor practice procedures established under sections 8 and 10 to unnecessarily delay the conduct of an election. As set forth in the Casehandling Manual, ‘‘The Agency has a general policy of holding in abeyance the processing of a petition where a concurrent unfair labor practice charge is filed by a party to the petition and the charge alleges conduct that, if proven, would interfere with employee free choice in an election, were one to be conducted.’’ Section 11730. This ‘‘blocking charge’’ policy is not set forth or implemented in the current rules, but it has been applied by the Board in the course of adjudication.57 The Board therefore specifically invites comment on whether any final amendments should include changes in the current blocking charge policy as described in sections 11730 to 11734 of the Casehandling Manual or whether any changes in that policy should be made by the Board through means other than amendment of the rules. The Board further specifically invites interested parties to comment on whether the Board should provide that (1) any party to a representation proceeding that files an unfair labor practice charge together with a request that it block the processing of the petition shall simultaneously file an offer of proof of the type described in relation to §§ 102.66(b) and 102.69(a); (2) if the regional director finds that the party’s offer of proof does not describe evidence that, if introduced at a hearing, would require that the processing of the petition be held in abeyance, the regional director shall continue to process the petition; (3) the party seeking to block the processing of a 57 See, e.g., Bally’s Atlantic City, 338 NLRB 443 (2002). See generally Berton B. Subrin, The NLRB’s Blocking Charge Policy: Wisdom or Folly?, 39 LAB. L.J. 651 (1988). E:\FR\FM\22JNP2.SGM 22JNP2 36828 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 petition shall immediately make the witnesses identified in its offer of proof available to the regional director so that the regional director can promptly investigate the charge as required by section 11740.2(c) of the Casehandling Manual; (4) unless the regional director finds that there is probable cause to believe that an unfair labor practice was committed that requires that the processing of the petition be held in abeyance, the regional director shall continue to process the petition; (5) if the Regional Director is unable to make such a determination prior to the date of the election, the election shall be conducted and the ballots impounded; (6) if the regional director finds that there is probable cause to believe that an unfair labor practice was committed that would require that the processing of the petition be held in abeyance under current policy, the regional director shall instead conduct the election and impound the ballots; (7) if the regional director finds that there is probable cause to believe that an unfair labor practice was committed that would require that the petition be dismissed under section 11730.3 of the Casehandling Manual, the regional director shall instead conduct the election and impound the ballots; (8) the blocking charge policy is eliminated, but the parties may continue to object to conduct that was previously grounds for holding the processing of a petition in abeyance and the objections may be grounds for both overturning the elections results and dismissing the petition when appropriate; or (9) the blocking charge policy should be altered in any other respect. IV. Response to Dissent The dissent, which is printed below, criticizes both the procedure followed by the Board in proposing and seeking public comment on the possible reforms set forth in this Notice and the content of the proposed amendments. Many of these criticisms are based on inaccurate characterizations of this rulemaking proceeding, the substance of the proposed amendments, and the historical context in which they arise. However, to the extent that the dissent reflects the legitimate concerns of participants in the Board’s representation case procedures and of other members of the public affected by those procedures, it offers precisely the kind of commentary that the Board hopes and expects to receive during the comment period and will consider carefully before issuing any final rule. The dissent acknowledges that this rulemaking is being conducted in full compliance with all of the numerous VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 and substantial legal requirements governing such proceedings. Yet it declares such compliance with congressional commands ‘‘utterly beside the point,’’ seeking to portray this proceeding as an attempt to deny interested members of the public the opportunity to communicate to the Board their views on the subjects addressed by the proposed amendments. In fact, this proceeding has been designed to elicit the broadest and most detailed public input on the subject of representation case procedure in the 76-year history of the agency. The Board’s procedures relating to the conduct of elections were first established in 1935. They have since been changed administratively on at least three dozen occasions. The Board has only rarely utilized the Administrative Procedure Act’s noticeand-comment rulemaking procedure; most often the Board simply implemented the changes without prior notice or request for public comment. This procedure was permissible because notice and comment is not required in order to promulgate or amend ‘‘rules of agency organization, procedure, or practice.’’ See 5 U.S.C. 553(b)(A). The vast majority of the amendments proposed herein are procedural in nature, and the Board was not required to proceed by notice and comment with respect to them. The Board has nevertheless, in the interest of maximizing public participation, chosen to give notice and seek public comment as to all of the proposed amendments.58 The dissent criticizes the Board’s publication of the text of proposed amendments prior to soliciting public comments on their subject matter, characterizing it as a limitation on public participation in the rulemaking process. In fact, the publication of proposed rules greatly enhances the 58 The Board’s approach here is consistent with its recent solicitations of briefs from the broader labor-management community in connection with pending cases. See, e.g., Specialty Healthcare, 356 NLRB No. 56 (2010). There, the Board majority stated its strong belief ‘‘that asking all interested parties to provide [the Board] with information and argument * * * is the fairest and soundest method of deciding whether our rules should remain the same or be changed and, if the latter, what the new rules should be.’’ Slip op. at 2. In dissent, Member Hayes disagreed, arguing that ‘‘copious information is already available in-house’’ and predicting that ‘‘what [the Board] will receive will be mostly subjective or partisan justification for changing the law rather than any useful information.’’ Id. at 5. See also Rite-Aid Store 6473–Lamons Gasket Co., 355 NLRB No. 157, slip op. at 5 (dissent of Members Schaumber and Hayes) (observing that in response to invitation to file briefs, ‘‘Board will predictably receive mostly subjective and partisan claims’’ critical of current precedent and that ‘‘Board already has its own reliable and objective empirical data for evaluation’’). PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 opportunity for interested members of the public to submit meaningful comments. This level of disclosure is not required by the Administrative Procedure Act; it would suffice legally for the Board simply to describe the substance of the proposed amendments. However, the Board has chosen to maximize the openness of the process by disclosing in as much detail as possible its thinking at this preliminary stage of the rulemaking process. It is expected that providing proposed rule text in addition to more general descriptions and explanations will enable interested members of the public to understand the proposals in greater depth and to submit more specific and useful comments. It is because of the value that the Board places on public comment that it has elected to provide notice of the proposed rulemaking in the most detailed form possible. The dissent’s use of the Board’s health-care unit rulemaking proceeding as a benchmark is inapt. Even that proceeding generated fundamental disagreement among the Board members about the purpose and possible value of rulemaking.59 For all of its length and complexity, that proceeding led not to consensus among stakeholders, or even to grudging acceptance of the Board’s rule, but to litigation that culminated only with a Supreme Court decision upholding the Board’s action. American Hospital Ass’n v. NLRB, 499 U.S. 606 (1991). Nor is it clear that the procedure followed by the Board—described by one commentator as ‘‘procedural overkill’’—actually generated more useful information, in a cost-effective way, than a simpler, shorter proceeding would have provided.60 In any case, the 59 See Mark H. Grunewald, The NLRB’s First Rulemaking: An Exercise in Pragmatism, 41 Duke L.J. 274, 290 (1991). (‘‘The disagreement over the usefulness of rulemaking became even more contentious when the discussion turned to the question of whether to include a specific proposal in the notice of proposed rulemaking or merely to indicate an intent to make a rule on the subject of health care units.’’). 60 As one scholar observed, in a study prepared for the Administrative Conference of the United States: Almost two years elapsed between the time when the Board decided to engage in rulemaking and when it issued the final rule. During this period, substantial staff time, including a significant amount of high-level staff time, was used to manage the rulemaking and to assist in the analysis of the product of the hearings and comment periods. * * * Not only was the time commitment significant as an absolute matter, but also because regular staff rather than special rulemaking staff was used, this staff time was thus invested at a cost to other matters. * * * Moreover, a portion of the two years was consumed with a procedure not required for notice and comment rulemaking— multi-location hearings with an opportunity for a form of cross-examination. * * * Under the circumstances of this rulemaking, particularly its E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 contrast between the subject matter of the health care rulemaking—the nature and organization of work in a complex industry on a nationwide basis—and the current proceeding could not be greater. No party possesses greater knowledge of the Board’s own procedures than the Board itself.61 Parties to representation cases would of course be affected by changes in the Board’s procedures, including in ways that may not be obvious to the Board; their detailed written commentary is therefore being solicited and will be carefully considered before any changes are effectuated. In addition, the Board intends to issue a notice of public hearing to be held in Washington, DC, on July 18–19, at which it will hear public comments on the proposed amendments as well as such other ideas as speakers may wish to offer for improvement of the representation case process. But the suggestion that a proceeding similar to the one conducted for purposes of health-care unit rulemaking is needed here fails to consider the differences in the subject matters in the respective proceedings. This misapprehension also leads the dissent to criticize the opportunities for public comment provided here as too brief. Our colleague concedes that the initial 60-day period violates no statutory or other requirement that applies to the rulemaking process. Indeed, a 60-day period has become a common benchmark. See, e.g., E.O. No. 13563 (‘‘Improving Regulation and Regulatory Review’’), 76 FR 3821 (Jan. 18, 2011); E.O. No. 12866 (‘‘Regulatory Planning and Review’’), 58 FR 51735 (Sept. 30, 1993). Measured against the comment periods adopted by other agencies, the period provided for here is hardly abnormally short. See Steven J. Balla, Brief Report on Economically Significant Rules and the Duration of Comment Periods, https://www.acus.gov/ wp-content/uploads/downloads/2011/ 04/COR-Balla-Supplemental-ResearchBrief.pdf (2011) (the average duration of the comment periods for proposed actions that are economically significant novelty for the Board, the hearings were probably a desirable choice. Certainly as a legal matter, however, and perhaps as a practical matter, the hearings were procedural overkill and the burdens created by the number and structure of the hearings would have to be considered as part of the overall cost-benefit evaluation of the rulemaking. Grunewald, NLRB’s First Rulemaking, supra, 41 Duke L.J. at 319–320. 61 The Supreme Court has made clear that, ‘‘[a]bsent constitutional constraints or extremely compelling circumstances,’’ it is a ‘‘very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure,’’ consistent with statutory requirements. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543–44 (1978). VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 is 45.1 days, and 38.7 days for all other types of actions). Moreover, the 60-day initial comment period will be followed by a 14-day reply period and will be supplemented with a public hearing. As to the substance of the proposed amendments, the dissent raises a number of important questions of policy. These questions will be considered carefully in arriving at a final rule. However, the dissent also contains several errors that are worth pointing out: The dissent states that the proposed amendments will ‘‘substantially limit the opportunity for full evidentiary hearing or Board review on contested issues.’’ In fact, the proposed amendments simply import the norms of modern civil procedure from the federal judicial system and apply them to adjudication of representation-case issues. The proposed amendments would require the parties to identify the issues that separate them and the evidence supporting their respective positions and permit an evidentiary hearing only as to triable issues of material fact. Like the Federal Rules of Civil Procedure, the proposed amendments would do away with litigation for the sake of litigation, allowing only litigation that is genuinely needed to resolve disputed issues material to the outcome of the case. The Board expects that this reform alone would result in substantial savings to both the parties and the agency, given the high cost of litigation. As to Board review, there is no issue as to which any party’s right to seek Board review is proposed to be eliminated. Rather, in the interest of efficiency, requests for Board review would be consolidated into a single post-dismissal or post-election request instead of the pre-election request and post-election exceptions permitted under current practice, and review of regional director’s resolution of post-election disputes would be discretionary as is currently the case in relation to preelection disputes. Again, it is expected that the proposed reform would result in substantial savings to the parties and the public. The dissent also contends that the proposed amendments will ‘‘substantially shorten the time between the filing of the petition and the election date,’’ and that the purpose of this change is ‘‘to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining’’ in order to increase the election success rate of unions. That accusation is unwarranted. The Board seeks to gain the efficiency and savings that would result from streamlining of PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 36829 its procedures. What effect the proposed changes would have on the outcome of elections is both unpredictable and immaterial. The dissent’s charges ignore important facts about the proposed amendments: (1) The proposed rules would apply equally to all parties and to both elections seeking to certify and to decertify a representative of employees; (2) the limitations on evidentiary hearings would apply equally to pre- and post-election hearings; (3) the proposed rules would likely shorten post-election proceedings by avoiding altogether litigation of issues that are mooted by election results, among other efficiencies, eliminating unnecessary litigation, and by substituting a request for review procedure for the current exceptions procedure; and (4) the proposed rules do not impose any limitations on the election-related speech of any party. Finally, the dissent relies heavily on the fact that the agency has met its own time targets for the processing of representation cases. But those time targets have been set in light of the agency’s current procedures, including their built-in inefficiencies. The history of congressional and administrative efforts in the representation-case area has consisted of a progression of reforms to reduce the amount of time required to ultimately resolve questions concerning representation, which, as Congress has found, can disrupt the workplace and interfere with interstate commerce. With each reform, the waiting time has been reduced, the result has been widely viewed as progress, and the achievement of the full measure of time savings by agency employees has been lauded as success. The Board conceives of the proposed amendments as the next step for the agency in improving its performance of this critical part of its statutory mission. V. Dissenting View of Member Brian E. Hayes Member Hayes, dissenting, Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: To stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. For my part at least, I can and do dissent. First, the rulemaking process: The last substantive rulemaking effort of comparable scale involved the determination of appropriate bargaining E:\FR\FM\22JNP2.SGM 22JNP2 36830 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 units in the health care industry. The need for this effort was obvious, based on years of litigation highlighting specific problems and differences among the Board, the courts of appeals, and health care industry constituents. The initial July 2, 1987 notice of proposed rulemaking was followed by a series of four public hearings, the last one held over a 7-day period, in October 1987. Thereafter, the written comment period was extended. Another rulemaking notice followed on September 1, 1988. It reviewed the massive amount of oral testimony (3545 pages and 144 witnesses) and written comments (1500 pages filed by 315 individuals and organizations) received during the prior year and announced a revised rule with another 6-week period for written comment. The final rule was published on April 21, 1989, almost 2 years after the initial notice. In marked contrast to the health care unit rulemaking, my colleagues put forth proposals on their own initiative, not in response to any petition for rulemaking or in response to any specific problems defined by prior litigation. The need for their proposed electoral reform, which directly affects every employer and employee in every industry subject to Board jurisdiction, is far from obvious. The proposed revisions largely reflect the narrow concerns and proposals of a few academicians.62 Rather than proceeding with the preparation and publication of rules responsive to just this one small and ideologically homogenous group, it was incumbent on the Board to have a far more inclusive public discussion of the need for electoral reform before determining what rule revisions to propose formally in the Federal Register.63 In this regard, President Obama’s Executive Order 13563 specifically states that ‘‘[b]efore issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such 62 E.g., Charles Craver, The National Labor Relations Act at 75: In Need of a Heart Transplant, 27 Hofstra Lab. & Emp. L.J. 311 (2010); William B. Gould, The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States, 43 U.S.F.L. Rev. 291 (2008); Charles J. Morris, Renaissance at the NLRB—Opportunity and Prospect for NonLegislative Procedural Reform at the Labor Board, 23 Stetson L. Rev. 101 (1993). 63 I disagree with my colleagues’ characterization of the proposed rule revisions as ‘‘almost entirely’’ procedural in nature. Accordingly, I find that the notice and comment procedure is mandatory, not discretionary. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 rulemaking.’’ 64 While this Order is not binding on the Board, as an independent agency, ‘‘such agencies are encouraged to give consideration to all of its provisions, consistent with their legal authority.’’ 65 It was both ‘‘feasible and appropriate’’ for the Board to seek the views of those likely to be affected before issuing the notice of proposed rulemaking. At the very least, the proposals should have been previewed for comment by the Board’s standing Rules Revision Committee, a group of agency officials specifically identified as responsible for considering and recommending modifications in existing rules and proposed new rules,66 and by the Practice and Procedures Committee of the American Bar Association, a group representative of the broad spectrum of private and public sector labormanagement professionals that frequently serves as a sounding board for revisions of our Rules. I believe the Board should also have exercised its discretion to hold an open meeting under the Government in Sunshine Act 67 when voting to authorize a rule revision proposal.68 Alternatively, the Board could have undertaken negotiated rulemaking.69 Any of the suggested processes could have encouraged consensus in rulemaking, rather than the inevitably divisive approach my colleagues have chosen by publishing their proposed rules with no advance notice or public discussion of their purpose or content. The limitation on public participation in this process continues with my colleagues’ choice of a 60-day written comment period, a 14-day reply period, and one public hearing for discussion about the proposed rules. Again, the contrast with health care unit rulemaking is marked. While I do not 64 E.O. 13563, 76 FR 3821, 3821–23 (Jan. 21, 2011) (emphasis added). 65 Office of Management and Budget Memo 11– 10, Memorandum for the Heads of Executive Departments and Agencies, and of Independent Regulatory Agencies: Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’ (February 2, 2011), available at https:// www.whitehouse.gov/omb/memoranda. 66 See May 23, 2011, letter from Board Executive Secretary submitting the Board’s Preliminary Plan to Review Significant Regulations to the OMB Office of Information and Regulatory Affairs in response to Section 6 of Executive Order 13563, available at https://www.slideshare.net/whitehouse/ national-labor-relations-board-preliminary-reformboard. 67 Government in the Sunshine Act, 5 U.S.C. 552b. 68 My point is not that the process followed to date is impermissible. It is that a more open public process would be far more preferable and consistent with Executive Order guidelines. 69 See Negotiated Rulemaking Act, 5 U.S.C. 561 et seq. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 suggest that the proposed rulemaking process needs to last 2 years, I think it manifest that 2 and a half months in the dead of summer is too little time, and written comment with a single hearing is too limited a method, for public participation in discussing the myriad issues raised. There needs to be a more extended comment period and a full opportunity for broad stakeholder input through multiple public hearings on proposed rules of this magnitude. It is utterly beside the point, and should be of little comfort to the majority, that its actions may be in technical compliance with the requirements of the Administrative Procedure Act (APA) and other regulations bearing on the rulemaking process. President Obama’s Memorandum on Transparency and Open Government, issued on January 21, 2009,70 makes clear that independent agencies have an obligation to do much more than provide minimum due process in order to assure that our regulatory actions implement the principles of transparency, participation, and collaboration. As explained in the subsequent directive from the Director of the Office of Management and Budget, these principles ‘‘form the cornerstone of an open government.’’ 71 Sadly, my colleagues reduce that cornerstone to rubble by proceeding with a rulemaking process that is opaque, exclusionary, and adversarial.72 The sense of fait accompli is inescapable. Now, to the proposed rules themselves: Parts of what my colleagues propose seem reasonable enough. On the other hand, the whole of proposed reform is much, much more than the sum of its parts and out of all proportion to specific problems with the Board’s current representation casehandling procedures. While the preamble frequently refers to the Board’s interest in the expeditious resolution of questions concerning representation, 70 74 FR 4685, 4685–86 (Jan. 26, 2009). of Management and Budget Memo 10– 06, Memorandum for the Heads of Executive Departments and Agencies: Open Government Directive (February 2, 2011), available at https:// www.whitehouse.gov/omb/memoranda. 72 The majority suggests an inconsistency between my dissenting position in Specialty Healthcare and Rehabilitation Center of Mobile, 356 NLRB No. 56 (2010), and in the present rulemaking scenario. In both instances, I find that the majority has provided an insufficient explanation for reexamining extant law and procedure. In Specialty, an adjudicatory proceeding, I further objected to the expansion of inquiry far beyond the issues specifically raised by the parties. That inquiry, if undertaken, should have entailed the rulemaking process. 71 Office E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules there is no certainty that the rule revisions even address the problems that have caused undue delay in a very small number of representation cases or that they will shorten the overall timeframe for processing an election case from the filing of a petition until final resolution. What is certain is that the proposed rules will (1) substantially shorten the time between the filing of the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after ‘‘quickie election’’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining. It may be best to begin a substantive analysis of the proposed rules with an accounting of the Board’s current representation casehandling procedures. The Acting General Counsel’s summary of operations for Fiscal Year 2010 took special note of facts that: (1) 95.1 percent of all initial elections were conducted within 56 days of the filing of the petition; (2) initial elections were conducted in a median of 38 days from the filing of the petition; and (3) the agency closed 86.3 percent of all representation cases within 100 days, surpassing an internal target rate of 85 percent.73 The Acting General Counsel described the achievement of these results as ‘‘outstanding.’’ 74 The Board’s total representation case intake for Fiscal Year 2010 (including all categories of election petitions) was 3,204, a 10 percent increase from the Fiscal Year 2009 intake of 2,912. For all petitions filed, the average time to an election was 31 days. Voluntary election agreements were obtained in 92 percent of the merit petitions. In contested cases, Regional Directors issued 185 preelection decisions after hearing in a median of 37 days, well below the target median of 45 days. In 56 cases, postelection objections and/or challenges were filed that required an investigative 73 General Counsel Memorandum 11–03 at ‘‘Introduction’’ (Jan. 10, 2011), available at https:// www.nlrb.gov/publications/general-counsel-memos. Agency performance has continued at essentially the same level for the first 3 months of fiscal year 2011. See GC Memo 11–09, supra at 18. 74 GC Memo11–03, supra at ‘‘Introduction.’’ VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 hearing. Decisions or Supplemental Reports issued in those cases after hearing in 70 median days from the election or the filing of objections. In 32 cases, post-election objections and/or challenges could be resolved without a hearing. Decisions or Supplemental Reports in those cases issued in 22 median days. The General Counsel’s goal in hearing cases is 80 median days and 32 days in non-hearing cases.75 It is not at all apparent from the foregoing statistical picture why my colleagues have decided that it is now necessary to (1) eliminate pre-election evidentiary hearings, as much as is statutorily permissible (or arguably well beyond that point), (2) eliminate preelection requests for review and defer decision on virtually all issues heretofore decided at the preelection stage in the small percentage of contested cases, (3) impose pleading requirements and minimal response times on election parties, most notably on employers, who risk forfeiture of the right to contest issues if they fail timely to comply with these requirements, and (4) eliminate any automatic right to post-election Board review of contested issues. I absolutely agree that the Board should be concerned about unreasonable delay in any case, particularly in those involving questions concerning representation. It should never take 424 days from the filing of a petition to resolve pre-election issues, as happened with respect to one case in Fiscal Year 2010;76 nor should it take years to resolve post-election objections, as it did in a trio of recently-decided Board cases.77 However, as measured by the Board and General Counsel’s own time targets and performance goals, such delay is the exception rather than the norm. Notably, my colleagues make no reference to these time targets while drastically departing from them when reducing the number of days from petition filing to an election. Further, the majority makes no effort whatsoever to identify the specific causes of delay in those cases that were unreasonably delayed. Without knowing which cases they were, I cannot myself state with certainty what caused delay in each instance, but I can say based on experience during my tenure as Board member that vacancies or partisan shifts in Board membership and the inability of the Board itself to deal promptly with complex legal and factual issues have 75 GC Memo11–09, supra at 18. City Repertory Theatre, 17–CA–12647. 77 Jury’s Boston Hotel, 356 NLRB No. 114 (2011), Mastec/Direct TV, 356 NLRB No. 110 (2011), and Independence Residences, Inc., 355 NLRB No. 153 (2010). 76 Kansas PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 36831 delayed final resolution far more often than any systemic procedural problems or obstructionist legal tactics. That was the situation in each of the aforementioned extremely delayed cases, and in none of those cases would the majority’s current proposals have yielded a different result. Further, it is far from clear that shortening the time period from the filing of a petition to the conduct of an election will have the corresponding effect of shortening the median time from filing to final resolution, which should be the primary goal of any revision of the rules. Again, the majority provides no explanation. By impeding the process of timely resolving preelection issues and eliminating any right to automatic Board review of regional decisions, the proposed revisions seemingly discourage parties from entering into any form of election agreement, thereby threatening the current high percentage of voluntary election agreements. In addition, at least in those cases where the union wins the election, the deferral of pre-election issues seems merely to add time from the pre-election period to the postelection period, with no net reduction in overall processing time. This will not save time or money for the parties or the Board. Finally, the proposed rule revision permitting up to 20 percent of individuals whose eligibility is contested to cast challenged ballots casts a cloud of uncertainty over the election process. Employees who do belong in the bargaining unit may be so mislead about the unit’s scope or character that they cannot make an informed choice, instead basing their vote on perceived common interests or differences with employee groups that ultimately do not belong in the unit.78 The oft-repeated aim of the Board to resolve questions concerning representation expeditiously does not mean that we must conduct elections in as short a time as possible In truth, the 78 As stated by the Fourth Circuit in NLRB v. Beverly Health and Rehabilitation Services, Inc., No. 96–2195, 1997 WL 457524, at *4 (4th Cir. 1997): Where employees are led to believe that they are voting on a particular bargaining unit and that bargaining unit is subsequently modified postelection, such that the bargaining unit, as modified, is fundamentally different in scope or character from the proposed bargaining unit, the employees have effectively been denied the right to make an informed choice in the representation election. See NLRB v. Parsons Sch. of Design, 793 F.2d 503, 506– 08 (2d Cir.1986); Lorimar Productions, 771 F.2d at 1301–02; Hamilton Test Sys., 743 F.2d at 140–42. Thus, the Board may not ‘‘inform employees that they are voting for representation in [one] unit and later * * * consider the ballot as a vote for representation in a [different] unit.’’ Hamilton Test Sys., 743 F.2d at 140; see also Lorimar Productions, 771 F.2d at 1301 (quoting Hamilton Test Sys.). E:\FR\FM\22JNP2.SGM 22JNP2 36832 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 ‘‘problem’’ which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections. The perception that this is a problem is based on the premise, really more of an absolute article of faith, that employer unfair labor practices greatly distort the representation election process. This leads to the conclusion that the more limited a role an employer has in this process, the less opportunity it will have to coerce employees, and the greater the prospect that the election results will reflect employees’ ‘‘true’’ choice on collective-bargaining representation, which will presumably mean a much higher percentage of union election victories. Inasmuch as unions prevailed in 67.6 percent of elections held in calendar year 2010 and in 68.7 percent of elections held in calendar year 2009,79 the percentage of union victories contemplated by the majority in the revised rules must be remarkably high. One way to limit employer participation is to shorten the time from petition filing to election date. Of course, limiting the election period does not operate selectively to deter unlawful coercive employer speech or conduct.80 It broadly limits all employer speech and thereby impermissibly trenches upon protections that Congress specifically affirmed for the debate of labor issues when it enacted Section 8(c) in 1947. As the Supreme Court stated in Chamber of Commerce v. Brown, 554 U.S. 60, 67–68 (2008): From one vantage, § 8(c) ‘‘merely implements the First Amendment,’’ NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), in that it responded to particular constitutional rulings of the NLRB. See S.Rep. No. 80–105, pt. 2, pp. 23–24 (1947). But its enactment also manifested a ‘‘congressional intent to encourage free debate on issues dividing labor and management.’’ Linn v. Plant Guard Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). It is indicative of how important Congress deemed such ‘‘free debate’’ that Congress amended the NLRA rather than leaving to the courts the task of correcting the NLRB’s decisions on a case-bycase basis. We have characterized this policy judgment, which suffuses the NLRA as a whole, as ‘‘favoring uninhibited, robust, and wide-open debate in labor disputes,’’ stressing that ‘‘freewheeling use of the 79 ‘‘Number of NLRB Elections Held in 2010 Increased Substantially from Previous Year,’’ Daily Lab. Rep. (BNA), No. 85, at B–1 (May 3, 2011). 80 Indeed, the ‘‘quickie’’ election procedure may not deter such conduct at all. Employers who are wont to use impermissible means to oppose unionization will simply be encouraged to act at the first hint of organizational activity, prior to the filing of an election petition. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 written and spoken word * * * has been expressly fostered by Congress and approved by the NLRB.’’ Letter Carriers v. Austin, 418 U.S. 264, 272–73, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). Admittedly, the Court recognized the Board’s right to police ‘‘a narrow zone of speech to ensure free and fair elections,’’ 81 but neither the Court’s reasoning nor the congressional intent to encourage free debate can be squared with my colleagues’ proposal generally to limit the opportunity for employers to engage in a legitimate pre-election campaign opposing unionization. Another way to limit employer participation is to reduce opportunities for litigation of contested issues before the Board. That is the transparent purpose of the proposed rules’ transformation of discretionary questionnaires into mandatory pleading requirements and the imposition of limitations on full evidentiary hearings, briefing, and Board review. All of these revisions are focused on preventing parties, primarily employers, from litigating issues in representation proceedings, even when legitimate issues are raised and a full record and Board review would seem to be essential. It is difficult to identify which proposed rule change is most egregious, but a solid candidate for that dishonor might be the expanded, mandatory ‘‘questionnaire’’ process. As described by the majority,82 the proposed Statement of Position Form would require an employer to state its position on: the appropriateness of the petitioned-for unit; any proposed exclusions from the petitionedfor unit; the existence of any bar to the election; the type, dates, times, and location of the election; and any other issues that a party intends to raise at hearing. In those cases in which a party takes the position that the proposed unit is not an appropriate unit, the party would also be required to state the basis of the contention and identify the most similar unit it concedes is appropriate. In those cases in which a party intends to contest at the pre-election hearing the eligibility of individuals occupying classifications in the proposed unit, the party would be required to both identify the individuals (by name and classification) and state the basis of the proposed exclusion, for example, because the identified individuals are supervisors. Such matters deserve inquiry and definition, hopefully leading to resolution, in the preelection process. However, the proposed rules further mandate that a hearing be held 7 days 81 Chamber of Commerce v. Brown, supra at 74. form itself is not appended to the notice of proposed rulemaking, as one might logically expect it to be. 82 The PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 from service of the petition and the Statement of Position Form, and they bar a party from offering evidence or cross-examining witnesses as to any issue it did not raise in its own statement or in response to the statement of another party. In effect, a party must raise issues and state its basis for raising them in a maximum of 7 days or forfeit all legal right to pursue those issues. It may be that employers of a certain size have legal counsel or labor consultants readily available to evaluate the election petition and proposed bargaining unit, identify any issues to be contested, and prepare the required statement in a week or less. However, the Board conducts many representation elections among employees of small business owners who have no such counsel readily at hand, have no idea how to obtain such counsel in short order, and are themselves unaware of such legal arcania as appropriate unit, contract bar, statutory supervisory status, and voter eligibility. The proposed rules, if implemented, will unconscionably and impermissibly deprive these small business owners of legal representation and due process.83 There is yet another aspect of the proposed rules’ impact on employers that deserves mention. Under current law, an employer’s obligation to bargain with a union attaches from the election date. Thus, an employer acts at its peril when making any unilateral changes pending resolution of post-election issues if the Board ultimately certifies the union’s representative status.84 Those post-election issues have heretofore been limited to election objections and challenges. Now, with the shift of virtually all pre-election issues to the post-election phase, the majority substantially increases the potential costs to all employers who have the temerity to attempt to conduct normal business operations while contesting legitimate election issues. Of course, there is no comparable burden on unions. The proposed rule revisions are cause enough for dissent. However, one cannot help but wonder if they are a prelude to further changes. The same academicians whose treatises have inspired the current proposal have also advocated a host of other initiatives 83 The majority relies in part on conformity of the proposed rules with practices under the Federal Rules of Civil Procedure, which are, of course, not binding on administrative agency proceedings and which the Board has steadfastly refused for decades to follow with respect to prehearing discovery in unfair labor practice proceedings. 84 See Mike O’Conner Chevrolet, 209 NLRB 701, 703 (1974). E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules designed to give unions greater access to employees and to limit further the opportunities for employers to communicate their views on collective bargaining representation. These initiatives include requiring an employer to provide access to employees on its premises and conducting elections off-site, by mail ballot, or by electronic vote. Finally, proceeding on a parallel adjudicatory course, my colleagues have signaled a willingness to entertain petitions for bargaining units that have heretofore not been found appropriate under Section 9(b) and 9(c)(5) of the Act.85 The Board has not finally decided any of these issues, but the mere pendency of them should raise substantial concerns among those commenting on the proposed election rule revisions. There exists the possibility that the Board has only just begun an unprecedented campaign to supplant congressional action, subvert legal precedent, and return labor relations law to the supposed ‘‘golden era’’ of the Wagner Act’s early years.86 In sum, the Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues. Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress. Disclaiming any statutory obligation to provide any preliminary notice and opportunity to comment, the majority deigns to permit a limited written comment period and a single hearing when the myriad issues raised by the proposed rules cry out for far greater public participation in the rulemaking process both before and after formal publication of the proposed rule. The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections. I dissent from this undertaking, and I anticipate that many public voices will join in opposing it in spite of the limited opportunity to comment. 85 See Specialty Healthcare, supra. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Cornell Univ. Press 2005). VI. Regulatory Procedures Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (‘‘RFA’’), 5 U.S.C. 601 et seq., requires agencies promulgating proposed rules to prepare an initial regulatory flexibility analysis and to develop alternatives, wherever possible, when drafting regulations that will have a significant impact on a substantial number of small entities. The focus of the RFA is to ensure that agencies ‘‘review rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the [RFA].’’ E.O. 13272, Sec. 1, 67 FR 53461 (‘‘Proper Consideration of Small Entities in Agency Rulemaking’’). An agency is not required to prepare an initial regulatory flexibility analysis for a proposed rule if the Agency head certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). As explained below, the Board concludes that the proposed amendments will not affect a substantial number of small entities. In any event, the Board further concludes that the proposed amendments will not have a significant economic impact on such small entities. Accordingly, the Agency Chairman has certified to the Chief Counsel for Advocacy of the Small Business Administration (‘‘SBA’’) that the proposed amendments will not have a significant economic impact on a substantial number of small entities. The RFA does not define either ‘‘significant economic impact’’ or ‘‘substantial’’ as it relates to the number of regulated entities. 5 U.S.C. 601. In the absence of specific definitions, ‘‘what is ‘significant’ or ‘substantial’ will vary depending on the problem that needs to be addressed, the rule’s requirements, and the preliminary assessment of the rule’s impact.’’ See A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, Office of Advocacy, U.S. Small Business Administration at 17 (available at www.sba.gov) (‘‘SBA Guide’’). The Board has determined that the proposed amendments would not affect a substantial number of small entities within the meaning of 5 U.S.C. 605(b). There are approximately six million private employers in the United States, the vast majority of which are classified as small entities under the Small Business Administration’s standards.87 86 See VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 87 The Small Business Administration estimates that of the roughly six million private sector PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 36833 Nearly all of those employers are subject to the Board’s jurisdiction.88 Because, under section 9 of the Act, parties have filed fewer than 4,000 petitions per year for the past five years and the Board has conducted fewer than 2,500 elections per year for the past five years,89 the number of small employers participating in representation proceedings each year is less than onetenth of one percent of the small employers in this country. Moreover, the employers that would be affected by the proposed amendments are not concentrated in one or a few sectors, but are found in every sector and industry subject to the Board’s jurisdiction. Accordingly, the Board finds that the proposed amendments would not affect a substantial number of small entities within the meaning of 5 U.S.C. 601. In any event, the Board estimates that the net effect of the proposed amendments could be to decrease costs for small entities. While certain of the proposed amendments—when viewed in isolation—could result in small cost increases, those costs should be more than offset by the many efficiencies in the Board’s representation procedures created by the proposed amendments. For example, by permitting electronic filing, providing greater transparency and compliance assistance, reducing the length of evidentiary hearings, deferring litigation of issues that may be rendered moot by elections, deferring requests for review that may be rendered moot by elections, consolidating requests for review into a single proceeding, and making such review discretionary, the proposed amendments should help small entities conserve resources that they might otherwise expend when they are involved in a representation case under the Board’s current rules and regulations. To the extent that any individual requirements—isolated from the employers in 2007, all but about 18,300 were small businesses with fewer than 500 employees. Source: SBA Office of Advocacy estimates based on data from the U.S. Department of Commerce, Bureau of the Census, and trends from the U.S. Department of Labor, Bureau of Labor Statistics, Business Employment Dynamics. 88 The principal private sector employers exempt from the Board’s jurisdiction are employers of agricultural laborers and firms covered by the Railway Labor Act, 45 U.S.C. 151. See section 2 of the National Labor Relations Act, 29 U.S.C. 152(2), (3). Employers whose connection to interstate commerce is so slight that they do not satisfy the Board’s discretionary jurisdictional standards are also treated as exempt. See 29 U.S.C. 164(c); An Outline of Law and Procedure in Representation Cases, Chapter 1, found on the Board’s Web site, https://www.nlrb.gov. 89 See NLRB Office of the General Counsel, Summaries of Operations (Fiscal Years 2006–2010) (reporting that the annual number of representation elections conducted decreased from 2,296 to 1,790). E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36834 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules proposed amendments’ overall efficiencies—could impose additional costs on small entities, those added costs would be de minimus. Indeed, even when aggregated, the potential additional costs that a small entity could face in a given representation proceeding would still be minimal. For example, four new requirements in the proposed amendments might impose a cost on small employers: (1) Posting and electronic distribution of the Board’s preliminary election notice and electronic distribution of the final notice; (2) completing the substantive portions of the Statement of Position form at or before any pre-election hearing; (3) providing the petitioner and the regional director with a list of the names and job information, and providing the regional director with contact information, for the employees at issue at or before any pre-election hearing; and (4) providing the petitioner and the regional director with additional job and contact information concerning employees eligible to vote following approval of an election agreement or issuance of a direction of election. The proposed amendments’ new notice requirements would involve merely posting paper copies of notices that will be sent to the employer by the regional director, as well as taking the few minutes to electronically distribute electronic versions of those notices, also supplied by the regional director, if the employer already regularly communicates with its employees over e-mail or via a Web site. The substantive portions of the Statement of Position form would only require a small employer to reduce to writing the positions on several issues that it would need to formulate, in any event, to effectively prepare for a pre-election hearing and which parties largely must already articulate at such a hearing under the current rules. And by entering into an election agreement, as do the vast majority of employers under the Board’s current rules, a small employer would not have to complete the Statement of Position at all. The additional information to be supplied regarding voting employees should already be contained in employers’ records, increasingly in readily retrievable electronic form, thereby allowing small employers to assemble such electronic lists without expending significant resources. Moreover, the typically small sizes of bargaining units at issue in Board elections (with medians ranging from 23 to 26 employees over the last decade) suggests that small employers will not be VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 significantly burdened by having to provide the additional information. For these reasons, the Board concludes that several of the proposed amendments would result in little to no adverse economic impact on the relatively few small entities who participate in representation proceedings each year, while the proposed amendments as a whole should actually reduce the costs incurred in connection with representation proceedings. Accordingly, the proposed amendments will not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act These proposed amendments would not impose any information collection requirements. Accordingly, they are not subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The NLRB is an agency covered by the PRA. 44 U.S.C. 3502(1) and (5). The PRA establishes rules for such agencies’ ‘‘collection of information.’’ 44 U.S.C. 3507. The Board has considered whether any of the provisions of the proposed amendments provide for a ‘‘collection of information’’ covered by the PRA. Specifically, the Board has considered the following proposed provisions that contain petition and response requirements, posting requirements, and requirements that lists of employees or eligible voters be filed: (1) Under the proposed amendments, as under the current rules, parties seeking to initiate the Board’s representation procedures are required to file a petition with the Board containing specified information relevant to the Board’s adjudication of the specific question raised by the filing of the petition. Under the proposed amendments, non-petitioning parties to such representation proceedings are required to file a Statement of Position setting forth the parties’ positions and specified information relevant to the Board’s adjudication of the question raised by the petition. Employers are currently asked to supply the portion of the information specified in the proposed amendments relating to their participation in interstate commerce. (2) Under the proposed amendments, employers are required to post an initial and final notice to employees of an election. The second posting requirement exists currently. Employers are currently asked but not required to post the first notice (in a different form). (3) Finally, under the proposed amendments, as under current case law, employers are required to file a list of PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 eligible voters prior to an election. Under the proposed amendments, a preliminary list of employees is required at or before the pre-election hearing. For the reasons given below, the Board believes that none of these actions constitutes a collection of information covered by the PRA. The PRA exempts from the definition of ‘‘collection of information’’ ‘‘a collection of information described under section 3518(c)(1)’’ of the Act. 44 U.S.C. 3502(3)(B). Section 3518(c) provides: • (c)(1) Except as provided in paragraph (2), this subchapter shall not apply to the collection of information— Æ (B) During the conduct of— Æ (ii) An administrative action or investigation involving an agency against specific individuals or entities; • (2) This subchapter applies to the collection of information during the conduct of general investigations * * * undertaken with reference to a category of individuals or entities such as a class of licensees or an entire industry. 44 U.S.C. 3518(c). The legislative history of this provision makes clear that it is not limited to prosecutorial proceedings. The Senate Report on the PRA states, ‘‘Section 3518(c)(1)(B) is not limited to agency proceedings of a prosecutorial nature but also include[s] any agency proceeding involving specific adversary parties.’’ S. Rep. No. 96–930, at 56 (1980). The Board believes that all of the above-described provisions of the proposed amendments fall within the exemption created by sections 3502(3)(B) and 3518(c)(1)(B)(ii). A representation proceeding under section 9 of the NLRA is ‘‘an administrative action or investigation involving an agency.’’ A representation proceeding is also ‘‘against specific individuals or entities’’ within the meaning of section 3518(c)(1)(B)(ii). The Board’s decisions in representation proceedings are binding on and thereby alter the legal rights of the parties to the proceedings. For example, the employer of any employees who are the subject of a petition is a party to the resulting representation proceeding.90 If the Board finds in a representation proceeding that a petition has been filed concerning an appropriate unit and that employees in that unit have voted to be represented, the Board will thereafter certify the petitioner as the employees’ representative for purposes of collective bargaining with the employer. As a direct and automatic consequence of the 90 See, e.g., Pace University v. NLRB, 514 F.3d 19, 23 (DC Cir. 2008); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 786–88 (7th Cir. 1953). E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Board’s certification, the employer is legally bound to recognize and bargain with the certified representative. If the employer refuses to do so, it commits an unfair labor practice.91 If such an employer is charged with a refusal to bargain, it is precluded from relitigating in the unfair labor practice proceeding any issues that were or could have been raised in the representation proceeding.92 Finally, if such an employer seeks review of the Board’s order in the unfair labor practice proceeding or the Board seeks to enforce its order in a court of appeals, the record from the representation proceeding must be filed with the court and ‘‘the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript.’’ 29 U.S.C. 159(d); see also Boire v. Greyhound Corp. 376 U.S. 473, 477–79 (1964).93 Three limitations on the filing and posting requirements in the proposed amendments lead to the conclusion that they fall within the statutory exemption. First, the amendments impose requirements only on parties to the representation case proceeding, an administrative action or investigation against specific individuals or entities within the scope of section 3518(c)(1)(B)(ii). Second, any adverse consequences for failing to provide the requested information are imposed only on persons and entities that are party to the representation proceeding. Third, the possible adverse consequences that may result from noncompliance do not reach beyond the representation case proceeding. The proposed amendments impose no consequences on any party based on its failure to file or provide information requested in a petition or statement of position form other than to prevent the party from initiating a representation proceeding or to restrict 91 See, e.g., Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (DC Cir. 2000); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882, 886 (DC Cir. 1988). 92 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). 93 Similarly, a union that has been certified or recognized as the representative of employees in an appropriate unit has a legal right to continue to be recognized as the exclusive representative of such employees. See Scepter, Inc. v. NLRB, 280 F.3d 1053, 1056 (DC Cir. 2002). However, if a petition is filed under section 9 seeking to decertify such a union, which is a party to the resulting representation proceeding, see Brom Mach. & Foundry Co. v. NLRB, 569 F.2d 1042, 1044 (8th Cir. 1978), and at the conclusion of the proceeding the Board certifies the results of an election finding that less than a majority of the voters cast ballots in favor of continued representation by the union, the union loses its legal right to represent the employees. Retail Clerks Int’l Ass’n v. Montgomery Ward & Co., 316 F.2d 754, 756–57 (7th Cir. 1963). VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 a party’s rights to raise issues or participate in the adjudication of issues in the specific representation proceeding and any related unfair labor practice proceeding. Similarly, as is the case currently,94 no consequences attach to a failure to post either notice or to file the eligibility list beyond the overturning of an election conducted as part of the specific proceeding. Sections 102.62(e), 102.63(a) and 102.67(i) of the proposed amendments require that an employer which is party to a representation proceeding post an Initial Notice to Employees of Election subsequent to the filing of a petition and, if an election is agreed to or directed, a Final Notice to Employees of Election. The Board will make available both notices to the employer in paper and electronic form, and employers will be permitted to post exact duplicate copies of the notices. The Board does not believe these posting requirements are subject to the PRA for the reasons explained above. Moreover, the Board does not believe that the notice posting requirements constitute a ‘‘collection of information’’ as defined in section 3502(3) of the PRA for an additional, independent reason. The notice posting requirements do not involve answers to questions or any form of reporting. Nor do they involve a ‘‘recordkeeping requirement’’ as that term is defined in section 3502(13) of the PRA. The proposed notice posting requirements do not require any party to ‘‘maintain specified records.’’ The Board notes that this construction is consistent with the Office of Management and Budget’s regulations construing and implementing the PRA, which provide that ‘‘[t]he public disclosure of information originally supplied by the Federal government to [a] recipient for the purpose of disclosure to the public’’ is not considered a ‘‘collection of information’’ under the Act. See 5 CFR 1320.3(c)(2). For all of these reasons, the Board concludes that the posting requirements are not subject to the PRA. Accordingly, the proposed amendments do not contain information collection requirements that require approval of the Office of Management and Budget under the Paperwork Reduction Act. List of Subjects Administrative practice and procedure, Labor management relations. 94 See John E. Higgins, Jr., The Developing Labor Law 595, 607 (5th ed. 2006) (noting that failure to provide Excelsior list or post notice of election constitutes grounds for setting aside election). Frm 00025 Fmt 4701 29 CFR Part 102 Administrative practice and procedure, Labor management relations. 29 CFR Part 103 Labor management relations. In consideration of the foregoing, the National Labor Relations Board proposes to amend chapter I of title 29, Code of Federal Regulations, as follows: PART 101—STATEMENTS OF PROCEDURES 1. The authority citation for part 101 continues to read as follows: Authority: Sec. 6 of the National Labor Relations Act, as amended (29 U.S.C. 151, 156), and sec. 552(a) of the Administrative Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1) of Pub. L. 100–236, 28 U.S.C. 2112(a)(1). Subpart C—[Removed and Reserved] 2. Remove and reserve subpart C, consisting of §§ 101.17 through 101.21. Subpart D—[Removed and Reserved] 3. Remove and reserve subpart D, consisting of §§ 101.22 through 101.25. Subpart E—[Removed and Reserved] 4. Remove and reserve subpart E, consisting of §§ 101.26 through 101.30. PART 102—RULES AND REGULATIONS, SERIES 8 5. The authority citation for part 102 continues to read as follows: Authority: Authority: Sections 1, 6, National Labor Relations Act (29 U.S.C. 151, 156). Section 102.117 also issued under section 552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and Section 102.117a also issued under section 552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and (k)). Sections 102.143 through 102.155 also issued under section 504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 504(c)(1)). Subpart C—Procedure Under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees And for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act 6. Revise § 102.60 to read as follows: 29 CFR Part 101 PO 00000 36835 Sfmt 4702 § 102.60 Petitions. (a) Petition for certification or decertification. A petition for investigation of a question concerning representation of employees under paragraphs (1)(A)(i) and (1)(B) of section 9(c) of the Act (hereinafter called a E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36836 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules petition for certification) may be filed by an employee or group of employees or any individual or labor organization acting in their behalf or by an employer. A petition under paragraph (1)(A)(ii) of section 9(c) of the Act, alleging that the individual or labor organization which has been certified or is being currently recognized as the bargaining representative is no longer such representative (hereinafter called a petition for decertification), may be filed by any employee or group of employees or any individual or labor organization acting in their behalf. Petitions under this section shall be in writing and signed, and either shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalty of perjury, that its contents are true and correct (see 28 U.S.C. 1746). One original of the petition shall be filed. A person filing a petition by facsimile or electronically pursuant to § 102.114(f) or (i) shall also file an original for the Agency’s records, but failure to do so shall not affect the validity of the filing by facsimile or electronically, if otherwise proper. Except as provided in § 102.72, such petitions shall be filed with the regional director for the Region wherein the bargaining unit exists, or, if the bargaining unit exists in two or more Regions, with the regional director for any of such Regions with a certificate of service on all parties named in the petition. Along with the petition, the petitioner shall serve a description of procedures in representation cases and a Statement of Position form. Prior to the transfer of the record to the Board, the petition may be withdrawn only with the consent of the regional director with whom such petition was filed. After the transfer of the record to the Board, the petition may be withdrawn only with the consent of the Board. Whenever the regional director or the Board, as the case may be, approves the withdrawal of any petition, the case shall be closed. (b) Petition for clarification of bargaining unit or petition for amendment of certification. A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation, may be filed by a labor organization or by an employer. Where applicable the same procedures set forth in paragraph (a) of this section shall be followed. 7. Revise § 102.61 to read as follows: VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 § 102.61 Contents of petition for certification; contents of petition for decertification; contents of petition for clarification of bargaining unit; contents of petition for amendment of certification. (a) RC Petitions. A petition for certification, when filed by an employee or group of employees or an individual or labor organization acting in their behalf, shall contain the following: (1) The name of the employer. (2) The address of the establishments involved. (3) The general nature of the employer’s business. (4) A description of the bargaining unit which the petitioner claims to be appropriate. (5) The names and addresses of any other persons or labor organizations who claim to represent any employees in the alleged appropriate unit, and brief descriptions of the contracts, if any, covering the employees in such unit. (6) The number of employees in the alleged appropriate unit. (7) A statement that a substantial number of employees in the described unit wish to be represented by the petitioner. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any other party. (8) A statement that the employer declines to recognize the petitioner as the representative within the meaning of section 9(a) of the Act or that the labor organization is currently recognized but desires certification under the act. (9) The name, affiliation, if any, and address of the petitioner, and the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding. (10) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced. (11) Any other relevant facts. (b) RM Petitions. A petition for certification, when filed by an employer, shall contain the following: (1) The name and address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding. (2) The general nature of the petitioner’s business. (3) A brief statement setting forth that one or more individuals or labor PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 organizations have presented to the petitioner a claim to be recognized as the exclusive representative of all employees in the unit claimed to be appropriate; a description of such unit; and the number of employees in the unit. (4) The name or names, affiliation, if any, and addresses of the individuals or labor organizations making such claim for recognition. (5) A statement whether the petitioner has contracts with any labor organization or other representatives of employees and, if so, their expiration date. (6) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced. (7) Any other relevant facts. (8) Evidence supporting the statement that a labor organization has made a demand for recognition on the employer or that the employer has good faith uncertainty about majority support for an existing representative. Such evidence shall be filed together with the petition, but if the evidence reveals the names and/or number of employees who no longer wish to be represented, the evidence shall not be served on any other party. However, no proof of representation on the part of the labor organization claiming a majority is required and the regional director shall proceed with the case if other factors require it unless the labor organization withdraws its claim to majority representation. (c) RD Petitions. Petitions for decertification shall contain the following: (1) The name of the employer. (2) The address of the establishments and a description of the bargaining unit involved. (3) The general nature of the employer’s business. (4) The name and address of the petitioner and affiliation, if any, and the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding. (5) The name or names and addresses of the individuals or labor organizations who have been certified or are being currently recognized by the employer and who claim to represent any employees in the unit involved, and the expiration date of any contracts covering such employees. (6) An allegation that the individuals or labor organizations who have been certified or are currently recognized by E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules the employer are no longer the representative in the appropriate unit as defined in section 9(a) of the Act. (7) The number of employees in the unit. (8) A statement that a substantial number of employees in the described unit no longer wish to be represented by the incumbent representative. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any other party. (9) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced. (10) Any other relevant facts. (d) UC Petitions. A petition for clarification shall contain the following: (1) The name of the employer and the name of the recognized or certified bargaining representative. (2) The address of the establishment involved. (3) The general nature of the employer’s business. (4) A description of the present bargaining unit, and, if the bargaining unit is certified, an identification of the existing certification. (5) A description of the proposed clarification. (6) The names and addresses of any other persons or labor organizations who claim to represent any employees affected by the proposed clarifications, and brief descriptions of the contracts, if any, covering any such employees. (7) The number of employees in the present bargaining unit and in the unit as proposed under the clarification. (8) The job classifications of employees as to whom the issue is raised, and the number of employees in each classification. (9) A statement by petitioner setting forth reasons why petitioner desires clarification of unit. (10) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding. (11) Any other relevant facts. (e) AC Petitions. A petition for amendment of certification shall contain the following: (1) The name of the employer and the name of the certified union involved. (2) The address of the establishment involved. (3) The general nature of the employer’s business. (4) Identification and description of the existing certification. VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 (5) A statement by petitioner setting forth the details of the desired amendment and reasons therefor. (6) The names and addresses of any other persons or labor organizations who claim to represent any employees in the unit covered by the certification and brief descriptions of the contracts, if any, covering the employees in such unit. (7) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding. (8) Any other relevant facts. (f) Provision of original signatures. Evidence filed pursuant to § 102.61(a)(7), (b)(8), or (c)(8) together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the regional director no later than two days after the facsimile or electronic filing. 8. Revise § 102.62 to read as follows: § 102.62 Election agreements; voter list. (a) Consent election agreements with final regional director determinations of post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of employees involved may, with the approval of the regional director, enter into an agreement providing for the waiver of a hearing and for an election and further providing that post-election disputes will be resolved by the regional director. Such agreement, referred to as a consent election agreement, shall include a description of the appropriate unit, the time and place of holding the election, and the payroll period to be used in determining what employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the regional director. The method of conducting such election shall be consistent with the method followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70 except that the rulings and determinations by the regional director of the results thereof shall be final, and the regional director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 36837 effect, in that case, as if issued by the Board, provided further that rulings or determinations by the regional director in respect to any amendment of such certification shall also be final. (b) Stipulated election agreements with discretionary board review. Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of the employees involved may, with the approval of the regional director, enter into an agreement providing for the waiver of a hearing and for an election as described in paragraph (a) of this section and further providing that the parties may request Board review of the regional director’s resolution of post-election disputes. Such agreement, referred to as a stipulated election agreement, shall also include a description of the appropriate bargaining unit, the time and place of holding the election, and the payroll period to be used in determining which employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the regional director. The method of conducting such election and the post-election procedure shall be consistent with that followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70. (c) Full consent election agreements with final regional director determinations of pre- and post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of the employees involved may, with the approval of the regional director, enter into an agreement, referred to as a full consent election agreement, providing that pre- and post-election disputes will be resolved by the regional director. Such agreement provides for a hearing pursuant to §§ 102.63, 102.64, 102.65, 102.66 and 102.67 to determine if a question concerning representation exists. Upon the conclusion of such a hearing, the regional director shall issue a decision. The rulings and determinations by the regional director thereunder shall be final, with the same force and effect, in that case, as if issued by the Board. Any election ordered by the regional director shall be conducted under the direction and supervision of the regional director. The method of conducting such election shall be consistent with the method followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70, except that the rulings and determinations by the regional director of the results thereof shall be final, and the regional director shall issue to the E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36838 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, provided further that rulings or determinations by the regional director in respect to any amendment of such certification shall also be final. (d) Voter lists. Absent agreement of the parties to the contrary specified in the election agreement or extraordinary circumstances specified in the direction, within two days after approval of an election agreement pursuant to paragraphs (a) or (b) of this section, or issuance of a direction of election pursuant to paragraph (c) of this section, the employer shall provide to the regional director and the parties named in the agreement or direction a list of the full names, home addresses, available telephone numbers, available e-mail addresses, work locations, shifts, and job classifications of all eligible voters. In order to be timely filed, the list must be received by the regional director and the parties named in the agreement or direction within two days after the approval of the agreement or issuance of the direction. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes related to the representation proceeding and related Board proceedings. (e) Final notices to employees of election. Upon approval of the election agreement pursuant to paragraphs (a) or (b) or with the direction of election pursuant to paragraph (c), the regional director shall promptly transmit the Board’s Final Notice to Employees of Election to the parties by e-mail, facsimile, or by overnight mail (if neither an e-mail address nor facsimile number was provided). The regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The Final Notice to VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 Employees of Election shall be posted in accordance with § 102.67(i). 9. Revise § 102.63 to read as follows: § 102.63 Investigation of petition by regional director; notice of hearing; service of notice; Initial Notice to Employees of Election; Statement of Position form; withdrawal of notice. (a) Investigations and notices. (1) After a petition has been filed under § 102.61(a), (b), or (c), if no agreement such as that provided in § 102.62 is entered into and if it appears to the regional director that there is reasonable cause to believe that a question of representation affecting commerce exists, that the policies of the act will be effectuated, and that an election will reflect the free choice of employees in an appropriate unit, the regional director shall prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a notice of hearing before a hearing officer at a time and place fixed therein. The regional director shall set the hearing for a date 7 days from the date of service of the notice absent special circumstances. A copy of the petition, a description of procedures in representation cases, an ‘‘Initial Notice to Employees of Election’’, and a Statement of Position form as described in paragraphs (b)(1) through (3) of this section, shall be served with such notice of hearing. Any such notice of hearing may be amended or withdrawn before the close of the hearing by the regional director on his own motion. (2) The employer shall immediately post the Initial Notice to Employees of Election, where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically. The employer shall maintain the posting until the petition is dismissed or the Initial Notice is replaced by the Final Notice to Employees of Election. Failure to properly post and distribute the Initial Notice to Employees of Election shall be grounds for setting aside the results of the election whenever proper objections are filed. (b)(1) Statement of Position in RC cases. After a petition has been filed under § 102.61(a) and the regional director has issued a notice of hearing, the employer shall file and serve on the parties named in the petition its Statement of Position by the date and in the manner specified in the notice unless that date is the same as the hearing date. If the Statement of PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 Position is due on the date of the hearing, its completion shall be the first order of business at the hearing before any further evidence is received, and its completion may be accomplished with the assistance of the hearing officer. (i) The employer’s Statement of Position shall state whether the employer agrees that the Board has jurisdiction over the petition and provide the requested information concerning the employer’s relation to interstate commerce; state whether the employer agrees that the proposed unit is appropriate, and, if the employer does not so agree, state the basis of the contention that the proposed unit is inappropriate, and describe the most similar unit that the employer concedes is appropriate; identify any individuals occupying classifications in the petitioned-for unit whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention; raise any election bar; state the employer’s position concerning the type, dates, times, and location of the election and the eligibility period; and describe all other issues the employer intends to raise at the hearing. (ii) The Statement of Position shall also state the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer. (iii) The Statement of Position shall further state the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer concedes is appropriate. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. (iv) In addition to the information described in paragraph (b)(1)(iii) of this section, the lists filed with the regional director, but not served on any other party, shall contain available telephone numbers, available e-mail addresses, and home addresses of all individuals referred to in paragraph (b)(1)(iii) of this section. E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules (v) The employer shall be precluded from contesting the appropriateness of the petitioned-for unit at any time and from contesting the eligibility or inclusion of any individuals at the preelection hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(1)(iii) and (iv) of this section. (2) Statement of Position in RM cases. If a petition has been filed under § 102.61(b), the individual or labor organization which is alleged to have presented to the petitioner a claim to be recognized shall file and serve on the regional director and the parties named in the petition its Statement of Position such that it is received by the regional director and the parties named in the petition on the date specified in the notice unless that date is the same as the hearing date. If the Statement of Position is due on the date of the hearing, its completion shall be the first order of business at the hearing before any further evidence is received, and its completion may be accomplished with the assistance of the hearing officer. (i) Individual or labor organization’s Statement of Position. The individual or labor organization’s Statement of Position shall describe all issues the party intends to raise at the hearing. (ii) Identification of representative for service of papers. The Statement of Position shall also state the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the individual or labor organization and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the individual or labor organization. (iii) Employer’s Statement of Position. Within the time permitted for filing the Statement of Position, the employer shall file with the regional director, and serve on the individual or labor organization, a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. (iv) Contact information for individuals in proposed unit. In addition to the information described in paragraph (b)(2)(iii) of this section, the lists filed with the regional director, but VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 not served on any other party, shall contain the full names, available telephone numbers, available e-mail addresses, and home addresses of all individuals referred to in paragraph (b)(2)(iii) of this section. (v) Preclusion. The employer shall be precluded from contesting the appropriateness of the unit at any time and from contesting the eligibility or inclusion of any individuals at the preelection hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(2)(iii) and (iv) of this section. (3) Statement of Position in RD cases. If a petition has been filed under § 102.61(c), the employer and the certified or recognized representative of employees shall file and serve on the regional director and the parties named in the petition their respective Statements of Position such that they are received by the regional director and the parties named in the petition on the date specified in the notice unless that date is the same as the hearing date. If the Statements of Position are due on the date of the hearing, their completion shall be the first order of business at the hearing before any further evidence is received, and their completion may be accomplished with the assistance of the hearing officer. (i) The Statements of Position of the employer and the certified or recognized representative shall describe all issues each party intends to raise at the hearing. (ii) The Statements of Position shall also state the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the employer or the certified or recognized representative of the employees and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer or the certified or recognized representative, respectively. (iii) The employer’s Statement of Position shall also state the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all individuals in the certified or recognized unit. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 36839 Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. (iv) In addition to the information described in paragraph (b)(3)(iii) of this section, the lists filed with the regional director, but not served on any other party, shall contain the full names, available telephone numbers, available e-mail addresses, and home addresses of all individuals referred to in paragraph (b)(3)(iii) of this section. (v) The employer shall be precluded from contesting the appropriateness of the petitioned-for unit at any time and from contesting the eligibility or inclusion of any individuals at the preelection hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(3)(iii) and (b)(3)(iv) of this section. (c) UC or AC cases. After a petition has been filed under § 102.61(d) or (e), the regional director shall conduct an investigation and, as appropriate, he may issue a decision without a hearing; or prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a notice of hearing before a hearing officer at a time and place fixed therein; or take other appropriate action. If a notice of hearing is served, it shall be accompanied by a copy of the petition. Any such notice of hearing may be amended or withdrawn before the close of the hearing by the regional director on his own motion. All hearing and posthearing procedure under paragraph (c) of this section shall be in conformance with §§ 102.64 through 102.69 whenever applicable, except where the unit or certification involved arises out of an agreement as provided in § 102.62(a), the regional director’s action shall be final, and the provisions for review of regional director’s decisions by the Board shall not apply. Dismissals of petitions without a hearing shall not be governed by § 102.71. The regional director’s dismissal shall be by decision, and a request for review therefrom may be obtained under § 102.67, except where an agreement under § 102.62(a) is involved. 10. Revise § 102.64 to read as follows: § 102.64 Conduct of hearing. (a) The purpose of a hearing conducted under section 9(c) of the Act is to determine if a question of representation exists. A question of representation exists if a petition as E:\FR\FM\22JNP2.SGM 22JNP2 36840 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules described in section 9(c) of the Act has been filed concerning a unit appropriate for the purpose of collective bargaining or, in the case of a petition filed under section 9(c)(1)(A)(ii), concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. If, upon the record of the hearing, the regional director finds that such a question of representation exists and there is no bar to an election, he shall direct an election to resolve the question and, subsequent to that election, unless specifically provided otherwise in these rules, resolve any disputes concerning the eligibility or inclusion of voters that might affect the results of the election. (b) Hearings shall be conducted by a hearing officer and shall be open to the public unless otherwise ordered by the hearing officer. At any time, a hearing officer may be substituted for the hearing officer previously presiding. Subject to the provisions of § 102.66, it shall be the duty of the hearing officer to inquire fully into all genuine disputes as to material facts in order to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the Act. (c) The hearing officer shall continue the hearing from day to day until completed absent extraordinary circumstances. 11. Revise § 102.65 to read as follows: emcdonald on DSK2BSOYB1PROD with PROPOSALS2 § 102.65 Motions; interventions. (a) All motions, including motions for intervention pursuant to paragraphs (b) and (e) of this section, shall be in writing or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. An original and two copies of written motions shall be filed and a copy thereof immediately shall be served on the other parties to the proceeding. Motions made prior to the transfer of the record to the Board shall be filed with the regional director, except that motions made during the hearing shall be filed with the hearing officer. After the transfer of the record to the Board, all motions shall be filed with the Board. Such motions shall be printed or otherwise legibly duplicated. Eight copies of such motions shall be filed with the Board. The regional director may rule upon all motions filed with him, causing a copy of said ruling to be served on the parties, or he may refer the motion to the hearing officer: Provided, That if the regional director prior to the close of the hearing grants VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 a motion to dismiss the petition, the petitioner may obtain a review of such ruling in the manner prescribed in § 102.71. The hearing officer shall rule, either orally on the record or in writing, upon all motions filed at the hearing or referred to him as hereinabove provided, except that all motions to dismiss petitions shall be referred for appropriate action at such time as the entire record is considered by the regional director or the Board, as the case may be. (b) Any person desiring to intervene in any proceeding shall make a motion for intervention, stating the grounds upon which such person claims to have an interest in the proceeding. The regional director or the hearing officer, as the case may be, may by order permit intervention in person or by counsel or other representative to such extent and upon such terms as he may deem proper, and such intervenor shall thereupon become a party to the proceeding. Any person desiring to intervene in any such proceeding shall also complete a Statement of Position form. (c) All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpoenas shall become a part of the record only upon the request of the party aggrieved thereby as provided in § 102.66(g). Unless expressly authorized by the Rules and Regulations, rulings by the regional director or by the hearing officer shall not be appealed directly to the Board, but shall be considered by the Board on appropriate request for review pursuant to § 102.67 (b), (c), and (d) or § 102.69. Nor shall rulings by the hearing officer be appealed directly to the regional director unless expressly authorized by the Rules and Regulations, except by special permission of the regional director, but shall be considered by the regional director when he reviews the entire record. Requests to the regional director, or to the Board in appropriate cases, for special permission to appeal from a ruling of the hearing officer or the regional director, together with the appeal from such ruling, shall be filed promptly, in writing, and shall briefly state the reasons special permission should be granted, including why the issue will otherwise evade review, and the grounds relied on for the appeal. The moving party shall immediately serve a copy of the request for special permission and of the appeal on the other parties and on the regional director. Any statement in opposition or other response to the request and/or to the appeal shall be filed promptly, in writing, and shall be served PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 immediately on the other parties and on the regional director. Neither the Board nor the regional director will grant a request for special permission to appeal except in extraordinary circumstances where it appears that the issue will otherwise evade review. No party shall be precluded from raising an issue at a later time based on its failure to seek special permission to appeal. If the Board or the regional director, as the case may be, grants the request for special permission to appeal, the Board or the regional director may proceed forthwith to rule on the appeal. Neither the filing nor the grant of such a request shall, unless otherwise ordered by the Board, operate as a stay of an election or any action taken or directed by the regional director. Notwithstanding a pending request for special permission to appeal, the regional director shall not impound ballots cast in an election unless otherwise ordered by the Board. (d) The right to make motions or to make objections to rulings on motions shall not be deemed waived by participation in the proceeding. (e)(1) A party to a proceeding may, because of extraordinary circumstances, move after the close of the hearing for reopening of the record, or move after the decision or report for reconsideration, for rehearing, or to reopen the record, but no such motion shall stay the time for filing a request for review of a decision or exceptions to a report. No motion for reconsideration, for rehearing, or to reopen the record will be entertained by the Board or by any regional director or hearing officer with respect to any matter which could have been but was not raised pursuant to any other section of these rules: Provided, however, That the regional director may treat a request for review of a decision or exceptions to a report as a motion for reconsideration. A motion for reconsideration shall state with particularity the material error claimed and with respect to any finding of material fact shall specify the page of the record relied on for the motion. A motion for rehearing or to reopen the record shall specify briefly the error alleged to require a rehearing or hearing de novo, the prejudice to the movant alleged to result from such error, the additional evidence sought to be adduced, why it was not presented previously, and what result it would require if adduced and credited. Only newly discovered evidence—evidence which has become available only since the close of the hearing—or evidence which the regional director or the Board believes should have been taken at the hearing will be taken at any further hearing. E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules (2) Any motion for reconsideration or for rehearing pursuant to this paragraph (e) shall be filed within 14 days, or such further period as may be allowed, after the service of the decision or report. Any request for an extension of time to file such a motion shall be served promptly on the other parties. A motion to reopen the record shall be filed promptly on discovery of the evidence sought to be adduced. (3) The filing and pendency of a motion under this provision shall not unless so ordered operate to stay the effectiveness of any action taken or directed to be taken nor will a regional director or the Board delay any decision or action during the period specified in paragraph (e)(2) of this section, except that, if a motion for reconsideration based on changed circumstances or to reopen the record based on newly discovered evidence states with particularity that the granting thereof will affect the eligibility to vote of specific employees, the Board agent shall have discretion to allow such employees to vote subject to challenge even if they are specifically excluded in the direction of election and to permit the moving party to challenge the ballots of such employees even if they are specifically included in the direction of election in any election conducted while such motion is pending. A motion for reconsideration, for rehearing, or to reopen the record need not be filed to exhaust administrative remedies. 12. Revise § 102.66 to read as follows: emcdonald on DSK2BSOYB1PROD with PROPOSALS2 § 102.66 Introduction of evidence: Rights of parties at hearing; subpoenas. (a) Rights of parties at hearing. Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party and the hearing officer shall have power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence relevant to any genuine dispute as to a material fact. The hearing officer shall identify such disputes as follows: (1) Joinder in RC cases. In a case arising under § 102.61(a), after the employer completes its Statement of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statement. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the employer fails to take a position regarding the appropriateness of the petitioned-for unit, the petitioner shall explain why the proposed unit is appropriate and may support its VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) or through examination of witnesses and introduction of documentary or other evidence. (2) Joinder in RM cases. In a case arising under § 102.61(b), after the individual or labor organization completes its Statement of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statement. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the individual or labor organization fails to take a position regarding the appropriateness of the petitioned-for unit, the petitioner shall explain why the proposed unit is appropriate and may support its explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) or through examination of witnesses and introduction of documentary or other evidence. (3) Joinder in RD cases. In a case arising under § 102.61(c), after the employer and the certified or recognized representative of employees complete their respective Statements of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statements. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the employer and/or the certified or recognized representative fails to take a position regarding whether the petitioned-for unit is coextensive with the unit for which a representative is certified or recognized, the petitioner shall explain why the proposed unit is appropriate and may support its explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) or through examination of witnesses and introduction of documentary or other evidence. (b) Offers of proof; discussion of election procedure. After identifying the issues in dispute pursuant to paragraph (a) of this section, the hearing officer shall solicit offers of proof from the parties or their counsel as to all such issues. The offers of proof shall take the form of a written statement or an oral statement on the record identifying each witness the party would call to testify concerning the issue and summarizing the witness’ testimony. The hearing officer shall examine the offers of proof related to each issue in dispute and PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 36841 shall proceed to hear testimony and accept other evidence relevant to the issue only if the offers of proof raise a genuine dispute as to any material fact. Prior to the close of the hearing, the hearing officer will: (1) Solicit the parties’ positions on the type, dates, times, and locations of the election and the eligibility period, but shall not permit litigation of those issues; (2) Inform the parties that the regional director will issue a decision, direction of election or both as soon as practicable and that the director will immediately transmit the document(s) to the parties’ designated representatives by e-mail, facsimile, or by overnight mail (if neither an e-mail address nor facsimile number was provided); and (3) Inform the parties what their obligations will be under these rules if the director directs an election and of the time for complying with such obligations. (c) Preclusion. A party shall be precluded from raising any issue, presenting any evidence relating to any issue, cross-examining any witness concerning any issue, and presenting argument concerning any issue that the party failed to raise in its timely Statement of Position or to place in dispute in response to another party’s Statement: Provided, however, that no party shall be precluded from contesting or presenting evidence relevant to the Board’s statutory jurisdiction to process the petition; Provided, further, that no party shall be precluded, on the grounds that a voter’s eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of any voter during the election. If a party contends that the petitioned-for unit is not appropriate in its Statement of Position but fails to state the most similar unit that it concedes is appropriate, the party shall also be precluded from raising any issue as to the appropriateness of the unit, presenting any evidence relating to the appropriateness of the unit, crossexamining any witness concerning the appropriateness of the unit, and presenting argument concerning the appropriateness of the unit. (d) Disputes concerning less than 20 percent of the unit. If at any time during the hearing, the hearing officer determines that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer shall close the hearing. (e) Witness examination and evidence. Witnesses shall be examined E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 36842 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules orally under oath. The rules of evidence prevailing in courts of law or equity shall not be controlling. Stipulations of fact may be introduced in evidence with respect to any issue. (f) Objections. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing, accompanied by a short statement of the grounds of such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing. (g) Subpoenas. The Board, or any Member thereof, shall, on the written application of any party, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence, or documents, in their possession or under their control. The Executive Secretary shall have the authority to sign and issue any such subpoenas on behalf of the Board or any Member thereof. Any party may file applications for subpoenas in writing with the regional director if made prior to hearing, or with the hearing officer if made at the hearing. Applications for subpoenas may be made ex parte. The regional director or the hearing officer, as the case may be, shall forthwith grant the subpoenas requested. Any person served with a subpoena, whether ad testificandum or duces tecum, if he or she does not intend to comply with the subpoena, shall, within 5 days after the date of service of the subpoena or by such earlier time as the hearing officer or regional director shall determine, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke shall be the date the subpoena is received. Such petition shall be filed with the regional director who may either rule upon it or refer it for ruling to the hearing officer: Provided, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer or, with the permission of the hearing officer, presented orally. Notice of the filing of petitions to revoke shall be promptly given by the regional director or hearing officer, as the case may be, to the party at whose request the subpoena was issued. The regional director or the hearing officer, as the case may be, shall revoke the subpoena if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The regional director or the hearing officer, as the case may be, shall make a simple statement of procedural or other grounds for his ruling. The petition to revoke, any answer filed thereto, and any ruling thereon shall not become part of the record except upon the request of the party aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them. (h) Oral argument and briefs. Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Briefs shall be filed only upon special permission of the hearing officer and within the time the hearing officer permits. (i) Hearing officer analysis. The hearing officer may submit an analysis of the record to the regional director but he shall make no recommendations. (j) Witness fees. Witness fees and mileage shall be paid by the party at whose instance the witness appears. 13. Revise § 102.67 to read as follows: § 102.67 Proceedings before the regional director; further hearing; action by the regional director; review of action by the regional director; statement in opposition; final notice of election; voter list. (a) Proceedings before regional director. The regional director may proceed, either forthwith upon the record or after oral argument, the submission of briefs, or further hearing, as he may deem proper, to determine whether a question concerning representation exists in a unit appropriate for purposes of collective bargaining, and to direct an election, dismiss the petition, or make other disposition of the matter. If the hearing officer has determined during the hearing or the regional director determines after the hearing that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the regional director shall direct that those individuals be permitted to vote subject to challenge. In the event that the regional director permits individuals whose eligibility or inclusion remains in dispute to vote subject to challenge, the Final Notice to Employees of Election shall advise employees that said individuals are neither included in, nor PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 excluded from, the bargaining unit, inasmuch as the regional director has permitted them to vote subject to challenge. The election notice shall further advise employees that the eligibility or inclusion of said individuals will be resolved, if necessary, following the election. (b) Directions of elections; dismissals; requests for review. A decision by the regional director upon the record shall set forth his findings, conclusions, and order or direction: Provided, however, that the regional director may direct an election with findings and a statement of reasons to follow prior to the tally of ballots. In the event that the regional director directs an election, said direction shall specify the type, date, time, and place of the election and the eligibility period. The regional director shall schedule the election for the earliest date practicable consistent with these rules. The regional director shall transmit the direction of election to the parties’ designated representatives by email, facsimile, or by overnight mail (if neither an e-mail address nor facsimile number was provided). Along with the direction of election, the regional director shall also transmit the Board’s Final Notice to Employees of Election by e-mail, facsimile, or by overnight mail (if neither an e-mail address nor facsimile number was provided). The regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The decision of the regional director shall be final: Provided, however, That within 14 days after service of a decision dismissing a petition any party may file a request for review of such a dismissal with the Board in Washington, DC: Provided, further, That any party may, after the election, file a request for review of a regional director’s decision to direct an election within the time periods specified and as described in § 102.69. (c) Grounds for review. The Board will grant a request for review only where compelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds: (1) That a substantial question of law or policy is raised because of: (i) The absence of, or (ii) A departure from, officially reported Board precedent. (2) That the regional director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party. (3) That the conduct of the hearing or any ruling made in connection with the E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules proceeding has resulted in prejudicial error. (4) That there are compelling reasons for reconsideration of an important Board rule or policy. (d) Contents of request. Any request for review must be a self-contained document enabling the Board to rule on the basis of its contents without the necessity or recourse to the record; however, the Board may, in its discretion, examine the record in evaluating the request. With respect to the ground listed in paragraph (c)(2) of this section, and other grounds where appropriate, said request must contain a summary of all evidence or rulings bearing on the issues together with page citations from the transcript and a summary of argument. But such request may not raise any issue or allege any facts not timely presented to the regional director. (e) Opposition to request. Any party may, within 7 days after the last day on which the request for review must be filed, file with the Board a statement in opposition thereto, which shall be served in accordance with the requirements of paragraph (h) of this section. A statement of such service of opposition shall be filed simultaneously with the Board. The Board may deny the request for review without awaiting a statement in opposition thereto. (f) Waiver; denial of request. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. (g) Grant of review; briefs. The granting of a request for review shall not stay the regional director’s decision unless otherwise ordered by the Board. Except where the Board rules upon the issues on review in the order granting review, the appellants and other parties may, within 14 days after issuance of an order granting review, file briefs with the Board. Such briefs may be reproductions of those previously filed with the regional director and/or other briefs which shall be limited to the issues raised in the request for review. Where review has been granted, the Board will consider the entire record in the light of the grounds relied on for review. Any request for review may be withdrawn with the permission of the VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 Board at any time prior to the issuance of the decision of the Board thereon. (h)(1) Format of request. All documents filed with the Board under the provisions of this section shall be filed in seven copies, double spaced, on 81⁄2 by 11-inch paper, and shall be printed or otherwise legibly duplicated. Requests for review, including briefs in support thereof; statements in opposition thereto; and briefs on review shall not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the Board by motion, setting forth the reasons therefor, filed not less than 5 days, including Saturdays, Sundays, and holidays, prior to the date the document is due. Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page authorities cited. (2) Service of copies of request. The party filing with the Board a request for review, a statement in opposition to a request for review, or a brief on review shall serve a copy thereof on the other parties and shall file a copy with the regional director. A statement of such service shall be filed with the Board together with the document. (3) Extensions. Requests for extensions of time to file requests for review, statements in opposition to a request for review, or briefs, as permitted by this section, shall be filed with the Board or the regional director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the regional director. A statement of such service shall be filed with the document. (i) Final notice to employees of election. The employer shall post copies of the Board’s Final Notice to Employees of Election in conspicuous places at least 2 full working days prior to 12:01 a.m. of the day of the election and shall also distribute the Final Notice to Employees of Election electronically if the employer customarily communicates with employees in the unit electronically. In elections involving mail ballots, the election shall be deemed to have commenced the day the ballots are deposited by the regional office in the mail. In all cases, the notices shall remain posted until the end of the election. The term working day shall mean an entire 24-hour period excluding Saturdays, Sundays, and holidays. A party shall be estopped from objecting to nonposting of notices if it is responsible for the nonposting. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 36843 Failure properly to post and distribute the election notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). (j) Voter lists. Absent extraordinary circumstances specified in the direction of election, the employer shall, within 2 days after such direction, provide to the regional director and the parties named in such direction a list of the full names, home addresses, available telephone numbers, available e-mail addresses, work locations, shifts, and job classifications of all eligible voters. In order to be timely filed, the list must be received by the regional director and the parties named in the direction within 2 days of the direction of election unless a longer time is specified therein. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes of the representation proceeding and related Board proceedings. 14. Revise § 102.68 to read as follows: § 102.68 Record; what constitutes; transmission to Board. The record in a proceeding conducted pursuant to the foregoing section, or conducted pursuant to § 102.69, shall consist of: The petition, notice of hearing with affidavit of service thereof, Statements of Position, motions, rulings, orders, the stenographic report of the hearing and of any oral argument before the regional director, stipulations, exhibits, affidavits of service, and any briefs or other legal memoranda submitted by the parties to the regional director or to the Board, and the decision of the regional director, if any. Immediately upon issuance of an order granting a request for review by the Board, the regional director shall transmit the record to the Board. 15. Revise § 102.69 to read as follows: E:\FR\FM\22JNP2.SGM 22JNP2 36844 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules emcdonald on DSK2BSOYB1PROD with PROPOSALS2 § 102.69 Election procedure; tally of ballots; objections; requests for review of directions of elections, hearings; hearing officer reports on objections and challenges; exceptions to hearing officer reports; requests for review of regional director reports or decisions in stipulated or directed elections. (a) Election procedure; tally; objections. Unless otherwise directed by the Board, all elections shall be conducted under the supervision of the regional director in whose Region the proceeding is pending. All elections shall be by secret ballot. Whenever two or more labor organizations are included as choices in an election, either participant may, upon its prompt request to and approval thereof by the regional director, whose decision shall be final, have its name removed from the ballot: Provided, however, That in a proceeding involving an employer-filed petition or a petition for decertification the labor organization certified, currently recognized, or found to be seeking recognition may not have its name removed from the ballot without giving timely notice in writing to all parties and the regional director, disclaiming any representation interest among the employees in the unit. A preelection conference may be held at which the parties may check the list of voters and attempt to resolve any questions of eligibility or inclusions in the unit. When the election is conducted manually, any party may be represented by observers of its own selection, subject to such limitations as the regional director may prescribe. Any party and Board agents may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded. Upon the conclusion of the election the ballots will be counted and a tally of ballots prepared and immediately made available to the parties. Within 7 days after the tally of ballots has been prepared, any party may file with the regional director an original and five copies of objections to the conduct of the election or to conduct affecting the results of the election with a certificate of service on all parties, which shall contain a short statement of the reasons therefore and a written offer of proof in the form described in § 102.66(b) insofar as applicable, but the written offer of proof shall not be served on any other party. Such filing must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. A person filing objections by facsimile or electronically pursuant to § 102.114(f) or (i) shall also file an original for the Agency’s records, VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 but failure to do so shall not affect the validity of the filing if otherwise proper. In addition, extra copies need not be filed if the filing is by facsimile or electronically pursuant to § 102.114(f) or (i). (b) Requests for review of directions of elections. If the election has been conducted pursuant to § 102.67, any party may file a request for review of the decision and direction of election with the Board in Washington, DC. In the absence of election objections or potentially determinative challenges, the request for review of the decision and direction of election shall be filed within 14 days after the tally of ballots has been prepared. In a case involving election objections or potentially determinative challenges, the request for review shall be filed within 14 days after the regional director’s report or supplemental decision on challenged ballots, on objections, or on both, and may be combined with a request for review of that decision as provided in paragraph (d)(3) of this section. The procedures for such request for review shall be the same as set forth in § 102.67(c) through (h) insofar as applicable. If no request for review is filed, the decision and direction of election is final and shall have the same effect as if issued by the Board. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. (c) Certification in the absence of objections, determinative challenges and requests for review. If no objections are filed within the time set forth in paragraph (a) of this section, if the challenged ballots are insufficient in number to affect the results of the election, if no runoff election is to be held pursuant to § 102.70, and if no request for review is filed pursuant to paragraph (b) of this section, the regional director shall forthwith issue to the parties a certification of the results of the election, including certification of representative where appropriate, with the same force and effect as if issued by the Board, and the proceeding will thereupon be closed. (d)(1)(i) Reports. If timely objections are filed to the conduct of an election or to conduct affecting the results of the PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 election, and the regional director determines that the evidence described in the accompanying offer of proof would not constitute grounds for overturning the election if introduced at a hearing, the regional director shall issue a report or supplemental decision disposing of objections and a certification of the results of the election, including certification of representative where appropriate, unless there are potentially determinative challenges. (ii) Notices of hearing. If timely objections are filed to the conduct of the election or to conduct affecting the results of the election, and the regional director determines that the evidence described in the accompanying offer of proof could be grounds for overturning the election if introduced at a hearing, or if the challenged ballots are sufficient in number to affect the results of the election, the regional director shall transmit to the parties’ designated representatives by e-mail, facsimile, or by overnight mail (if neither an e-mail address nor facsimile number was provided) a notice of hearing before a hearing officer at a place and time fixed therein no later than 14 days after the preparation of the tally of ballots or as soon as practicable thereafter: Provided, however, that the regional director may consolidate the hearing concerning objections and determinative challenges with an unfair labor practice proceeding before an administrative law judge. (iii) Hearings; hearing officer reports; exceptions to regional director. Any hearing pursuant to this section shall be conducted in accordance with the provisions of §§ 102.64, 102.65, and 102.66, insofar as applicable, except that, upon the close of such hearing, the hearing officer shall prepare and cause to be served on the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the issues. Any party may, within 14 days from the date of issuance of such report, file with the regional director an original and one copy of exceptions to such report, with supporting brief if desired. A copy of such exceptions, together with a copy of any brief filed, shall immediately be served on the other parties and a statement of service filed with the regional director. Within 7 days from the last date on which exceptions and any supporting brief may be filed, or such further time as the regional director may allow, a party opposing the exceptions may file an answering brief with the regional director. An original and one copy shall be submitted. A copy of such answering brief shall immediately be served on the E:\FR\FM\22JNP2.SGM 22JNP2 emcdonald on DSK2BSOYB1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules other parties and a statement of service filed with the regional director. If no exceptions are filed to such report, the regional director, upon the expiration of the period for filing such exceptions, may decide the matter forthwith upon the record or may make other disposition of the case. (2) Regional director reports or decisions in consent or full consent elections. If the election has been held pursuant to § 102.62(a) or (c), the report or decision of the regional director shall be final and shall include a certification of the results of the election, including certification of representative where appropriate. (3) Requests for review of regional director reports or decisions in stipulated or directed elections. If the election has been held pursuant to §§ 102.62(b) or 102.67, within 14 days from the date of issuance of the regional director’s report or decision on challenged ballots or on objections, or on both, any party may file with the Board in Washington, DC, a request for review of such report or decision which may be combined with a request for review of the regional director’s decision to direct an election as provided in § 102.67(b). The procedures for post-election requests for review shall be the same as set forth in § 102.67(c) through (h) insofar as applicable. If no request for review is filed, the report or decision is final and shall have the same effect as if issued by the Board. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. Provided, however, that in any proceeding wherein a representation case has been consolidated with an unfair labor practice proceeding for purposes of hearing the provisions of § 102.46 shall govern with respect to the filing of exceptions or an answering brief to the exceptions to the administrative law judge’s decision. (e)(1)(i) Record in case with hearing. In a proceeding pursuant to this section in which a hearing is held, the record in the case shall consist of the notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exhibits, together with the objections to the conduct of the election VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 or to conduct affecting the results of the election, offers of proof, any briefs or other legal memoranda submitted by the parties, any report on such objections and/or on challenged ballots, exceptions, the decision of the regional director, any requests for review, and the record previously made as defined in § 102.68. Materials other than those set out above shall not be a part of the record. (ii) Record in case with no hearing. In a proceeding pursuant to this section in which no hearing is held, the record shall consist of the objections to the conduct of the election or to conduct affecting the results of the election, any report or decision on objections or on challenged ballots and any request for review of such a report or decision, any documentary evidence, excluding statements of witnesses, relied upon by the regional director in his decision or report, any briefs or other legal memoranda submitted by the parties, and any other motions, rulings or orders of the regional director. Materials other than those set out above shall not be a part of the record, except as provided in paragraph (e)(3) of this section. (2) Immediately upon issuance of an order granting a request for review by the Board, the regional director shall transmit to the Board the record of the proceeding as defined in paragraph (e)(1) of this section. (3) In a proceeding pursuant to this section in which no hearing is held, a party filing a request for review of a regional director’s report or decision on objections, or any opposition thereto, may support its submission to the Board by appending thereto copies of any offer of proof, including copies of any affidavits or other documentary evidence, it has timely submitted to the regional director and which were not included in the report or decision. Documentary evidence so appended shall thereupon become part of the record in the proceeding. Failure to append that evidence to its submission to the Board in the representation proceeding as provided above, shall preclude a party from relying on such evidence in any subsequent unfair labor proceeding. (f) Revised tally of ballots. In any case under this section in which the regional director, upon a ruling on challenged ballots, has directed that such ballots be opened and counted and a revised tally of ballots issued, and no objection to such revised tally is filed by any party within 7 days after the revised tally of ballots has been made available, the regional director shall forthwith issue to the parties certification of the results of the election, including certifications of PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 36845 representative where appropriate, with the same force and effect as if issued by the Board. The proceeding shall thereupon be closed. (g) Format of filings with regional director. All documents filed with the regional director under the provisions of this section shall be filed double spaced, on 81⁄2 by 11-inch paper, and shall be printed or otherwise legibly duplicated. Briefs in support of exceptions or answering briefs shall not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the regional director by motion, setting forth the reasons therefor, filed not less than 5 days, including Saturdays, Sundays, and holidays, prior to the date the brief is due. Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page references and an alphabetical table of cases and other authorities cited. (h) Extensions of time. Requests for extensions of time to file exceptions, requests for review, supporting briefs, or answering briefs, as permitted by this section, shall be filed with the Board or the regional director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the regional director. A statement of such service shall be filed with the document. 16. Revise § 102.71(c) to read as follows: § 102.71 Dismissal of petition; refusal to proceed with petition; requests for review by the Board of action of the regional director. * * * * * (c) A request for review must be filed with the Board in Washington, DC, and a copy filed with the regional director and copies served on all the other parties within 14 days of service of the notice of dismissal or notification that the petition is to be held in abeyance. The request shall be submitted in eight copies and shall contain a complete statement setting forth facts and reasons upon which the request is based. Such request shall be printed or otherwise legibly duplicated. Requests for an extension of time within which to file the request for review shall be filed with the Board in Washington, DC, and a statement of service shall accompany such request. Subpart D—Procedure for Unfair Labor Practice and Representation Cases Under Sections 8(b)(7) and 9(c) of the Act 17. Revise § 102.76 to read as follows: E:\FR\FM\22JNP2.SGM 22JNP2 36846 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules § 102.76 Petition; who may file; where to file; contents. When picketing of an employer has been conducted for an object proscribed by Section 8(b)(7) of the Act, a petition for the determination of a question concerning representation of the employees of such employer may be filed in accordance with the provisions of §§ 102.60 and 102.61, insofar as applicable: Provided, however, That if a charge under § 102.73 has been filed against the labor organization on whose behalf picketing has been conducted, the petition shall not be required to contain a statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act; or that the union represents a substantial number of employees; or that the labor organization is currently recognized but desires certification under the act; or that the individuals or labor organizations who have been certified or are currently recognized by the employer are no longer the representative; or, if the petitioner is an employer, that one or more individuals or labor organizations have presented to the petitioner a claim to be recognized as the exclusive representative of the employees in the unit claimed to be appropriate. 18. Revise § 102.77(b) to read as follows: § 102.77 Investigation of petition by regional director; directed election. emcdonald on DSK2BSOYB1PROD with PROPOSALS2 * * * * * (b) If after the investigation of such petition or any petition filed under subpart C of this part, and after the investigation of the charge filed pursuant to § 102.73, it appears to the regional director that an expedited election under section 8(b)(7)(C) of the Act is warranted, and that the policies of the Act would be effectuated thereby, he shall forthwith proceed to conduct an election by secret ballot of the employees in an appropriate unit, or make other disposition of the matter: Provided, however, That in any case in which it appears to the regional director that the proceeding raises questions which cannot be decided without a hearing, he may issue and cause to be served on the parties, individuals, and labor organizations involved a notice of hearing before a hearing officer at a time and place fixed therein. In this event, the method of conducting the hearing and the procedure following, shall be governed insofar as applicable by §§ 102.63 to 102.69 inclusive. Provided further, however, That if a petition has been filed which does not meet the requirements for processing under the VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 expedited procedures, the regional director may process it under the procedures set forth in subpart C of this part. Subpart E—Procedure for Referendum Under Section 9(e) of the Act 19. Revise § 102.83 to read as follows: § 102.83 Petition for referendum under section 9(e)(1) of the Act; who may file; where to file; withdrawal. A petition to rescind the authority of a labor organization to make an agreement requiring as a condition of employment membership in such labor organization may be filed by an employee or group of employees on behalf of 30 percent or more of the employees in a bargaining unit covered by such an agreement. The petition shall be in writing and signed, and either shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief. One original of the petition shall be filed with the regional director wherein the bargaining unit exists or, if the unit exists in two or more Regions, with the regional director for any of such Regions. A person filing a petition by facsimile or electronically pursuant to § 102.114(f) or (i) shall also file an original for the Agency’s records, but failure to do so shall not affect the validity of the filing by facsimile, if otherwise proper. The petition may be withdrawn only with the approval of the regional director with whom such petition was filed. Upon approval of the withdrawal of any petition the case shall be closed. 20. Amend § 102.84 by revising paragraph (i), redesignating paragraph (j) as paragraph (k), and adding new paragraphs (j), (l) and (m) to read as follows: § 102.84 Contents of petition to rescind authority. * * * * * (i) The name and address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the proceeding. (j) A statement that 30 percent or more of the bargaining unit employees covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3) of the Act, PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 desire that the authority to make such an agreement be rescinded. * * * * * (l) Evidence supporting the statement that 30 percent or more of the bargaining unit employees desire to rescind the authority of their employer and labor organization to enter into an agreement made pursuant to section 8(a)(3) of the Act. Such evidence shall be filed together with the petition, but shall not be served on any other party. (m) Evidence filed pursuant to paragraph (l) of this section together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the regional director no later than two days after the facsimile or electronic filing. 21. Revise § 102.85 to read as follows: § 102.85 Investigation of petition by regional director; consent referendum; directed referendum. Where a petition has been filed pursuant to § 102.83 and it appears to the regional director that the petitioner has made an appropriate showing, in such form as the regional director may determine, that 30 percent or more of the employees within a unit covered by an agreement between their employer and a labor organization requiring membership in such labor organization desire to rescind the authority of such labor organization to make such an agreement, he shall proceed to conduct a secret ballot of the employees involved on the question whether they desire to rescind the authority of the labor organization to make such an agreement with their employer: Provided, however, That in any case in which it appears to the regional director that the proceeding raises questions which cannot be decided without a hearing, he may issue and cause to be served on the parties a notice of hearing before a hearing officer at a time and place fixed therein. The regional director shall fix the time and place of the election, eligibility requirements for voting, and other arrangements of the balloting, but the parties may enter into an agreement, subject to the approval of the regional director, fixing such arrangements. In any such consent agreements, provision may be made for final determination of all questions arising with respect to the balloting by the regional director or, upon grant of a request for review, by the Board. 22. Revise § 102.86 to read as follows: E:\FR\FM\22JNP2.SGM 22JNP2 Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / Proposed Rules § 102.86 Hearing; posthearing procedure. The method of conducting the hearing and the procedure following the hearing shall be governed, insofar as applicable, by §§ 102.63 to 102.69 inclusive. Subpart I—Service and Filing of Papers 23. Revise § 102.112 to read as follows: § 102.112 Date of service; date of filing. The date of service shall be the day when the matter served is deposited in the United States mail, or is deposited with a private delivery service that will provide a record showing the date the document was tendered to the delivery service, or is delivered in person, as the case may be. Where service is made by electronic mail, the date of service shall be the date on which the message is sent. Where service is made by facsimile transmission, the date of service shall be the date on which transmission is received. The date of filing shall be the day when the matter is required to be received by the Board as provided by § 102.111. 24. Revise § 102.113(d) to read as follows: § 102.113 Methods of service of process and papers by the Agency; proof of service. * * * * (d) Service of other documents. Other documents may be served by the Agency by any of the foregoing methods as well as regular mail, electronic mail or private delivery service. Such other documents may be served by facsimile transmission with the permission of the person receiving the document. * * * * * emcdonald on DSK2BSOYB1PROD with PROPOSALS2 * VerDate Mar<15>2010 17:43 Jun 21, 2011 Jkt 223001 25. Revise § 102.114(a), (d), and (g) to read as follows: § 102.114 Filing and service of papers by parties; form of papers; manner and proof of filing or service; electronic filings. (a) Service of documents by a party on other parties may be made personally, or by registered mail, certified mail, regular mail, electronic mail (if the document was filed electronically or if specifically provided for in these rules), or private delivery service. Service of documents by a party on other parties by any other means, including facsimile transmission, is permitted only with the consent of the party being served. Unless otherwise specified elsewhere in these rules, service on all parties shall be made in the same manner as that utilized in filing the document with the Board, or in a more expeditious manner; however, when filing with the Board is done by hand, the other parties shall be promptly notified of such action by telephone, followed by service of a copy in a manner designed to insure receipt by them by the close of the next business day. The provisions of this section apply to the General Counsel after a complaint has issued, just as they do to any other party, except to the extent that the provisions of § 102.113(a) or (c) provide otherwise. * * * * * (d) Papers filed with the Board, General Counsel, Regional Director, Administrative Law Judge, or Hearing Officer shall be typewritten or otherwise legibly duplicated on 81⁄2 by 11-inch plain white paper, shall have margins no less than one inch on each side, shall be in a typeface no smaller than 12 characters-per-inch (elite or the PO 00000 Frm 00037 Fmt 4701 Sfmt 9990 36847 equivalent), and shall be double spaced (except that quotations and footnotes may be single spaced). Nonconforming papers may, at the Agency’s discretion, be rejected. * * * * * (g) Facsimile transmissions of the following documents will not be accepted for filing: Answers to Complaints; Exceptions or CrossExceptions; Briefs; Requests for Review of Regional Director Decisions; Administrative Appeals from Dismissal of Petitions or Unfair Labor Practice Charges; Objections to Settlements; EAJA Applications; Motions for Default Judgment; Motions for Summary Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to Transfer, Consolidate or Sever; or Petitions for Advisory Opinions. Facsimile transmissions in contravention of this rule will not be filed. * * * * * PART 103—OTHER RULES 26. The authority citation for part 103 continues to read as follows: Authority: 29 U.S.C. 156, in accordance with the procedure set forth in 5 U.S.C. 553. Subpart B—[Removed and Reserved] 27. Remove and reserve subpart B, consisting of § 103.20. Signed in Washington, DC, on June 15, 2011. Wilma B. Liebman, Chairman. [FR Doc. 2011–15307 Filed 6–21–11; 8:45 am] BILLING CODE 7545–01–P E:\FR\FM\22JNP2.SGM 22JNP2

Agencies

National Labor Relations Board

[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36812-36847]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15307]

[[Page 36811]]

Vol. 76

Wednesday,

No. 120

June 22, 2011

Part IV

National Labor Relations Board

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29 CFR Parts 101, 102 and 103

Representation--Case Procedures; Proposed Rule

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

[[Page 36812]]

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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102 and 103

RIN 3142-AA08

Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Notice of Proposed Rulemaking.

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

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

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

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

SUPPLEMENTARY INFORMATION:

I. Background

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

[[Page 36813]]

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

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

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

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

As intended by Congress, the implementation of the new procedure
led to a significant decrease in the time it took to conduct
representation

[[Page 36814]]

elections. Immediately following the Board's amendment of its rules in
1961, the median number of days necessary to process election petitions
to a decision and direction of election was roughly cut in half.\16\ By
1975, the Board was conducting elections in a median of 50 days from
the filing of an election petition.\17\
---------------------------------------------------------------------------

\16\ See NLRB Office of the General Counsel, Summaries of
Operations (Fiscal Years 1961-1962) (reporting that the ``median
average'' number of days from petition to a decision and direction
of election was reduced from 82 days in 1960 to 43 days in 1962).
\17\ See U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE,
COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, FACT-
FINDING REPORT, 68, 82 (1994) (``Dunlop Commission Fact Finding'').
---------------------------------------------------------------------------

The Board's next major improvement in the efficiency of its
election procedures came in 1977. After a decade and a half of
experience with the request for review procedure, the Board again
amended its rules to reduce delay in elections after the Board granted
review of a regional director's decision and direction of election or a
preliminary ruling.\18\ Specifically, the Board established a procedure
whereby the regional directors would proceed to conduct elections as
directed, notwithstanding the Board's decision to grant review, unless
the Board ordered otherwise. Under this procedure, the regional
director impounds the ballots at the conclusion of the election, and
delays tallying them until the Board issues its decision. Although this
change did not have a significant effect on the overall median number
of days from petition to election, it substantially decreased the time
it took to conduct elections in the small number of cases in which the
Board granted review.\19\ These procedures remain in place today.
---------------------------------------------------------------------------

\18\ See 42 FR 41117 (Aug. 15, 1977); Chairman's Task Force on
the NLRB for 1976, Volume 1, Board Action on Recommendations of the
Chairman's Task Force Memorandum to the Task Force, 3 (May 25,
1977); Chairman's Task Force, Volume 7, Task Force Report Memorandum
to the Board, 10-15 (January 28, 1977).
\19\ See Dunlop Commission Fact Finding, 82. Comparing the
change in figures from 1975 to 1985 demonstrates that the percentage
of total elections conducted more than 60 days from the filing of a
petition decreased from 20.1 percent to 16.5 percent, and the
percentage of total elections conducted more than 90 days from the
filing of a petition decreased from 11 percent to 4.1 percent.
---------------------------------------------------------------------------

The Board continued to focus on processing representation petitions
expeditiously in the years following implementation of the vote and
impound procedure. As a result, more than 90 percent of elections were
conducted within 56 days of the filing of a petition during the last
decade, with a median time of 37-38 days between petition and
election.\20\
---------------------------------------------------------------------------

\20\ See NLRB Office of the General Counsel, Summary of
Operations (Fiscal Years 2002-2010).
---------------------------------------------------------------------------

Notably, however, the nature of the Board's review of regional
directors' decisions varies, depending on whether the decision was
issued before or after the election.\21\ As described above, the Board
has exercised its authority to delegate to its regional directors the
task of processing petitions through the conduct of an election subject
only to discretionary Board review. In contrast, the current rules
provide that any party, unless it has waived the right in a pre-
election agreement, may in most cases obtain Board review of a regional
director's resolution of any post-election dispute, whether concerning
challenges to the eligibility of a voter or objections to the conduct
of the election or conduct affecting the results of an election. The
right to review of regional directors' post-election decisions has
caused extended delay of final certification of election results in
many instances.\22\
---------------------------------------------------------------------------

\21\ This is the case even when the issue addressed by the
regional director is precisely the same one as, for example, when an
eligibility issue is raised, litigated and decided pre-election and
when the same issue is raised through a challenge and litigated and
decided post-election.
\22\ See, e.g., Manhattan Crowne Plaza, 341 NLRB 619 (2004)
(exceptions concerning alleged threat contained in single, written
memorandum pending before the Board for almost three years).
---------------------------------------------------------------------------

2. Limiting the Pre-Election Hearing to Issues Genuinely in Dispute and
Material to Determining if a Question Concerning Representation Exists
a. Identification and Joinder of Issues
Other than the petition, the parties to a representation proceeding
under section 9 of the Act are not required to file any other form of
pleading. The current regulations do not provide for any form of
responsive pleading, in the nature of an answer, through which non-
petitioning parties are required to give notice of the issues they
intend to raise at a hearing. As a consequence, the petitioner is not
required to join any such issues.
The Board has, nevertheless, developed administrative practices in
an effort to identify and narrow the issues in dispute before or at a
pre-election hearing. The regional director's initial letter to an
employer following the filing of a petition asks the employer to state
its position ``as to the appropriateness of the unit described in the
petition.'' \23\ In some cases, regions will conduct pre-hearing
conferences either face-to-face or by telephone in an effort to
identify and narrow the issues in dispute. Further, section 11217 of
the Casehandling Manual provides, ``Prior to the presentation of
evidence or witnesses, parties to the hearing should succinctly state
on the record their positions as to the issues to be heard.'' However,
none of these practices is mandatory, and they are not uniformly
followed in the regions.
---------------------------------------------------------------------------

\23\ Casehandling Manual section 11009.1(e).
---------------------------------------------------------------------------

In Bennett Industries, Inc., 313 NLRB 1363, 1363 (1994), the Board
observed, ``in order to effectuate the purposes of the Act through
expeditiously providing for a representation election, the Board should
seek to narrow the issues and limit its investigation to areas in
dispute.'' In Bennett, the Board sustained a hearing officer's ruling
preventing an employer from introducing evidence relevant to the
supervisory status of two classes of employees and included employees
in the two classes in the unit without further factual inquiry when the
employer refused to take a position concerning whether the employees
were supervisors. The Board reasoned:

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

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

[[Page 36815]]

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

the Board shall investigate such petition and if it has reasonable
cause to believe that a question of representation affecting
commerce exists, it shall provide for an appropriate hearing upon
due notice. * * * If the Board finds upon the record of such hearing
that such a question of representation exists, it shall direct an
election by secret ballot and shall certify the results thereof.

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

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

[[Page 36816]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Purposes of the Proposed Amendments

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

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

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

[[Page 36817]]

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

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

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

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

D. Summary of Current Representation Case Procedures

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

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

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

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

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

[[Page 36818]]

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

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

After the hearing's close, the regional director will issue a
decision either dismissing the petition or directing an election in an
appropriate unit. The regional director may defer the resolution of
whether certain employees are eligible to vote until after the
election, and those employees will be permitted to vote under
challenge.
Parties have a right to request Board review of a regional
director's decision and direction of election within 14 days after it
issues. Neither the filing nor grant of a request for review operates
as a stay of the direction of election unless the Board orders
otherwise. If the Board does not rule on the request before the
election, the ballots are impounded pending a Board ruling. Consistent
with the Board's current Statements of Procedures, the regional
director ``will normally not schedule an election until a date between
the 25th and 30th day after the date of the decisions, to permit the
Board to rule on any request for review which may be filed.'' \42\
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\42\ 29 CFR 101.21(d).
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Within seven days after the regional director's decision issues,
the employer must file a list of employees in the bargaining unit and
their home addresses with the regional director. The regional director,
in turn, makes the list available to all other parties in order to
allow all parties to communicate with eligible employees about the
upcoming election and to reduce the necessity for election-day
challenges based solely on the parties' lack of knowledge of voters'
identities. The non-employer parties must have this list at least ten
days before the date of the election unless they waive that right.
The regional director has discretion to set the dates, times, and
location of the election. The regional director typically exercises
that discretion after consultation with the parties and solicitation of
their positions on the election details.
Once the regional director sets the dates, times, and locations of
the election, the regional office prepares a notice of election to
inform eligible voters of those details.\43\ The regional director
serves the notice on the employer, which is responsible for posting the
notice in the workplace for at least three days before the election.
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\43\ Form NLRB-707 or Form NLRB-4910 (in the case of a mail
ballot election).
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If a manual election is held, each party to the election may be
represented at the polling site by an equal number of observers who are
typically employees of the employer. Observers have the right to
challenge the eligibility of any voter for cause, and the Board agent
conducting the election must challenge any voter whose name is not on
the eligibility list. Ballots of challenged voters, including any
voters whose eligibility was disputed at the pre-election hearing but
not resolved by the regional director, are segregated from the other
ballots in a manner that will not disclose the voter's identity.
Representatives of all parties may choose to be present when
ballots are counted. Elections are decided by a majority of votes cast.
Challenges may be resolved by agreement before the tally. If the number
of unresolved challenged ballots is insufficient to affect the results
of an election in which employees voted to be represented, the unit
placement of any individuals whose status was not resolved may be
resolved by the parties in collective bargaining or determined by the
Board if a petition for unit clarification is filed. If the number of
unresolved challenged ballots is insufficient to affect the results of
an election in which employees voted not to be represented, the results
are certified unless objections are filed.
Within one week after the tally of ballots has been prepared,
parties may file with the regional director objections to the conduct
of the election or to conduct affecting the results of the election. A
party filing objections has an additional week to file a summary of the
evidence supporting the objections.
The regional director may initiate an investigation of any such
objections and unresolved, potentially outcome-determinative
challenges, and notice a hearing only if they raise substantial and
material factual issues. If they do not, the regional director will
issue a supplemental decision or a report disposing of the challenges
or objections. If there are material factual issues that must be
resolved, the regional director will notice a post-election hearing
before a hearing officer to give the parties an opportunity to present
evidence concerning the objections or challenges. After the hearing's
close, the hearing officer will issue a report resolving any
credibility issues and containing findings of fact and recommendations.
Depending upon the type of election, a party may file exceptions to the
hearing officer's report either with the regional director or the
Board, whereupon the regional director or the Board will issue a
decision. If the right is not waived in a pre-election agreement, a
party may appeal a regional director's disposition of election
objections or challenges by filing exceptions with the Board.

II. Authority

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

III. Overview of the Amendments

Part 101, Subparts C-E

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

[[Page 36819]]

proceedings in Sec. Sec. 102.60-102.88 and 101.17-101.30 are almost
entirely redundant. Describing the same representation procedures in
two separate parts of the regulations may create confusion.
Section 101.1 states that part 101 is a statement of ``the general
course and method by which the Board's functions are channeled and
determined'' and is issued pursuant to 5 U.S.C. 552(a)(1)(B). The Board
believes that such a description of procedures would better serve the
statutory purpose of informing the public concerning Agency procedures
and practices if it were incorporated into the Board's procedural rules
in part 102. The proposed amendments would thus eliminate those
sections of part 101 related to representation cases, Sec. Sec. 101.17
through 101.30, and incorporate into part 102 the few provisions of
current part 101 that are not redundant or superfluous.
A separate statement of ``the general course and method by which
the Board's functions are channeled and determined'' in representation
proceedings is also set forth in section I(D) above. To the extent any
amendments are adopted by the Board, the preamble of the final rule
will contain a statement of the general course and method by which the
Board's functions will be channeled and determined under the
amendments. Moreover, the Board will continue to publish and update its
detailed Casehandling Manual, Part Two of which describes the Board's
representation case procedures. The Manual is currently available on
the Board's Web site.
Part 102, Subpart C--Procedure Under Section 9(c) of the Act for the
Determination of Questions Concerning Representation of Employees and
for Clarification of Bargaining Units and for Amendment of
Certifications Under Section 9(b) of the Act

Sec. 102.60 Petitions

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

Sec. 102.61 Contents of Petition for Certification; Contents of
Petition for Decertification; Contents of Petition for Clarification of
Bargaining Unit; Contents of Petition for Amendment of Certification

Section 102.61 describes the contents of the various forms of
petitions that may be filed to initiate a representation proceeding
under section 9 of the Act. The Board would continue to make each form
of petition available at the Board's regional offices and on its Web
site. The proposed amendments would add to the contents of the
petitions in two respects. First, the revised petition would contain
the allegation required in section 9. In the case of a petition seeking
representation, for example, the petition would contain a statement
that ``a substantial number of employees * * * wish to be represented
for collective bargaining.'' 29 U.S.C. 159(c)(1)(a)(i). Second, the
petitioner would be required to designate, in the revised petition, the
individual who will serve as the petitioner's representative in the
proceeding, including for purposes of service of papers.
The proposed amendments would also require that the petitioner file
with the petition whatever form of evidence is an administrative
predicate of the Board's processing of the petition rather than
permitting an additional 4

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