Representation-Case Procedures, 80138-80189 [2011-32642]

Agencies

• National Labor Relations Board

[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Rules and Regulations]
[Pages 80138-80189]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32642]



[[Page 80137]]

Vol. 76

Thursday,

No. 246

December 22, 2011

Part IV





National Labor Relations Board





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29 CFR Parts 101 and 102





 Representation--Case Procedures; Final Rule

Federal Register / Vol. 76 , No. 246 / Thursday, December 22, 2011 / 
Rules and Regulations

[[Page 80138]]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101 and 102

RIN 3142-AA08


Representation--Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: On June 22, 2011, the National Labor Relations Board (the 
Board) issued a Notice of Proposed Rulemaking proposing various 
amendments of its rules and regulations governing the filing and 
processing of petitions relating to the representation of employees for 
purposes of collective bargaining with their employer. This document 
explains which of the proposed amendments the Board is adopting at this 
time in the final rule and sets forth the Board's responses to comments 
concerning those proposals.
    The Board believes that the final rule will reduce unnecessary 
litigation in representation cases and thereby enable the Board to 
better fulfill its duty to expeditiously resolve questions concerning 
representation. The final rule will also save time and resources for 
the parties and the agency. The final rule will focus pre-election 
hearings on those issues relevant to determining if there is a question 
concerning representation, provide for pre-election briefing only when 
it will assist the decision makers, reduce piecemeal appeals to the 
Board, consolidate requests for Board review of regional directors' 
pre- and post-election determinations into a single, post-election 
request, make Board review of post-election regional determinations 
discretionary, and eliminate duplicative regulations. The final rule 
will allow the Board to more promptly determine if there is a question 
concerning representation and, if so, to resolve it by conducting a 
secret-ballot election and certifying the results.

DATES: This rule will be effective on April 30, 2012.

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

SUPPLEMENTARY INFORMATION: 

I. Background on the Rulemaking

    The National Labor Relations Board administers the National Labor 
Relations Act, which, among other things, governs the formation of 
collective-bargaining relationships between employers and groups of 
employees in the private sector. Section 7 of the Act, 29 U.S.C. 157, 
gives employees the right ``to bargain collectively through 
representatives of their own choosing * * * and to refrain from * * * 
such activity.''
    When employees and their employer are unable to agree whether the 
employees should be represented for purposes of collective bargaining, 
Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to 
resolve the question of representation.
    The Act itself sets forth only the basic steps for resolving a 
question of representation. First, a petition is filed by an employee, 
a labor organization, or an employer. Second, if there is reasonable 
cause, a hearing is held to determine whether a question of 
representation exists, unless the parties agree that an election should 
be conducted and agree concerning election details. Third, if there is 
such a question, an election by secret ballot is conducted. Fourth, the 
results of the election are certified.
    Aside from these general requirements, however, the statute says 
very little about representation case procedures. Instead, Congress 
left these procedures within the broad discretion of the Board.
    The Board has exercised this discretion through two mechanisms. 
First, the Board has promulgated binding rules of procedure, most of 
which are found in 29 CFR part 102, subpart C. Second, the Board has 
interpreted and occasionally altered or created its representation case 
procedures through adjudication.\1\ In addition, the Board's General 
Counsel has prepared a non-binding Casehandling Manual describing 
representation case procedures in detail. The relevant sections of the 
Casehandling Manual are Sections 11000 through 11886.\2\
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    \1\ See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 770, 
777, 779 (1969).
    \2\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings.
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    Within the framework of the current rules, the Board, the General 
Counsel and the agency's regional directors \3\ have sought to achieve 
efficient, fair, uniform, and timely resolution of representation 
cases. But under the current rules, inefficiency, abuse of the process, 
and delay still hamper resolution of many questions of representation.
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    \3\ Pursuant to Section 3(b) of the Act, the Board has delegated 
to its regional directors the authority to conduct pre-election 
hearings, to determine whether questions of representation exist, to 
direct elections, and to certify election results. 29 U.S.C. 153(b). 
The General Counsel administratively oversees the regions. 29 U.S.C. 
153(d).
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    In this final rule, the Board makes eight amendments to its 
regulations governing representation case procedures. The amendments 
are intended to eliminate unnecessary litigation, delay, and 
duplicative regulations. The final rule follows an extensive 
consultation with the public initiated by the Board's Notice of 
Proposed Rulemaking (NPRM) on June 22, 2011. 76 FR 36812. As explained 
below, the final rule adopts some of the proposed amendments and leaves 
the remainder for further deliberation.

A. Summary of Current Procedures \4\
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    \4\ For a more complete discussion and citations, see the NPRM. 
76 FR 36812.
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    When an employee, union, employer, individual, or organization 
wants the Board to determine whether employees wish to bargain 
collectively through a union, that party must file, in the Board's 
regional office, a petition, which the regional director then serves on 
other interested parties. An employee or union petitioner must also, 
ordinarily, provide evidence that a substantial number of employees 
support the petition. Board agents then conduct an ex parte 
investigation to determine if there is enough interest to justify 
further processing of the petition.
    In further processing, three general types of disputes can arise 
among the parties. First are pre-election disputes. These may concern 
whether the employees at issue may be represented as a group--that is, 
whether they are ``an appropriate unit.'' At this stage, the parties 
may also disagree about the Board's jurisdiction, whether an election 
is barred by the Act or Board law, and the time, place, and other 
details of the election itself.
    Second, disputes can also arise during the election about whether 
particular persons are eligible to vote. These disputes arise through 
``challenges'' to the disputed individuals' ballots. When this occurs, 
the ballots of challenged voters are segregated from the other ballots 
in a manner that will not disclose the voters' identity.
    Third, disputes can arise after the election about whether actions 
of the parties or the Board agents--or some other circumstance--made 
the election unfair. These disputes are brought before the Board by the 
filing of ``objections.''
    In the vast majority of cases, the parties, often with Board agent 
assistance, are able to resolve pre-election disputes without 
litigation. In these cases, either a ``consent''

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agreement or a ``stipulation'' agreement is entered into. Both kinds of 
agreements fully resolve pre-election disputes, but in a consent 
agreement the parties also waive the right to Board review of the 
regional director's disposition of any challenges or objections, while 
in a stipulation agreement the parties provide for Board disposition of 
such disputes.\5\
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    \5\ In the alternative, a third type of agreement, called a 
``full consent'' agreement, may also be entered into. This occurs 
when the parties disagree about pre-election issues but are willing 
to permit the regional director to resolve them as well as any post-
election disputes with finality. Full consent agreements are rare.
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    If no agreement on pre-election issues can be reached, a hearing 
must be held. The hearing officer, the Board agent in charge of the 
hearing, takes evidence relevant to the issues in dispute, and the 
parties often file briefs. The regional director then issues a 
decision, either dismissing the petition or directing an election. The 
regional director does not have to resolve all voter eligibility 
questions before the election, but can defer those questions by 
permitting employees whose eligibility is disputed to vote subject to 
challenge.
    If an election is directed, the regional director typically 
schedules it no sooner than 25 days after the decision, so that the 
Board can rule on any interlocutory request for review that might be 
filed. Such interlocutory requests are rarely granted, still more 
rarely result in the regional director's decision being reversed, and 
virtually never result in elections being stayed. If the Board does not 
rule on the request before the election date, the election is held, and 
the ballots are impounded pending a Board ruling.
    After the regional director's decision directing an election, the 
employer must provide the regional office a list of eligible voters and 
their home addresses. The regional office gives the list to the 
parties. The parties use the list for two purposes: To communicate with 
eligible voters about the election, and to determine whether to 
challenge a particular voter.
    Elections are decided by a majority of the valid votes cast. As 
mentioned, during the election, the parties may challenge ballots cast 
by voters. A tally of ballots generally takes place shortly after the 
polls close. If the challenged ballots are too few in number to change 
the outcome of the election, the challenges will not be litigated or 
resolved.
    Within one week after the tally, parties may file objections with 
the regional director. Within one additional week, the objecting party 
must furnish evidence in support of its objections.
    The regional director has discretion to investigate any potentially 
determinative challenges or objections or to immediately direct a 
hearing. If the director conducts an investigation, he will set a 
hearing only if the challenges or objections raise substantial and 
material questions of fact. If no hearing is held, the regional 
director will issue a supplemental decision or a report disposing of 
the challenges or objections.
    If a post-election hearing is held, the parties have the 
opportunity to present evidence to a hearing officer. The hearing 
officer will issue a report resolving any credibility issues and 
containing findings of fact and recommendations.
    In cases involving consent elections, the regional director's 
rulings on challenges and objections are final. In cases involving 
stipulated elections or elections directed by a regional director, the 
parties generally have the right to obtain review by the Board, by 
filing exceptions to the report disposing of the objections and/or 
challenges. If a regional director directs an election and subsequently 
determines that the challenges or objections warrant a hearing, the 
regional director may direct that the hearing officer's recommendation 
be made directly to the Board, in which case a party has the right to 
Board review. On the other hand, if the regional director orders that 
the hearing officer's recommendations be made directly to him or her, 
parties can file exceptions to the hearing officer's report to the 
regional director, but thereafter can seek Board review of the regional 
director's determination only through the discretionary request-for-
review procedure. Similarly, if the regional director decides to 
resolve the challenges and objections without directing a hearing, he 
or she can choose to issue a report, in which case parties have a right 
to Board review, or the regional director can choose to issue a 
supplemental decision, in which case parties may only request Board 
review. By contrast, if the parties enter into a stipulated election 
agreement, the parties are entitled to Board review of the regional 
director's or hearing officer's disposition of the post-election 
matters.

B. Problems Identified and Amendments Proposed

    The Board published an NPRM on June 22, 2011, 76 FR 36812, 
proposing a number of changes to these procedures. These proposals are 
set forth at length in the NPRM. The purpose of this brief summary is 
to introduce the more complete discussion of the final rule. The 
proposed amendments are presented in the chronological order of a 
typical representation case.
    First, under current procedures, the petitioner must file the 
petition in hard copy. The Board proposed to also permit electronic 
filing of the petition.
    Second, under current procedures, the petition is filed by the 
petitioner and then served by the regional office on the other 
interested parties. The Board proposed that the petitioner would 
directly serve a copy of the petition.
    Third, under current procedures, the petitioner may wait 48 hours 
before providing evidence that the employees support the petition (the 
``showing of interest''). The Board proposed that the petitioner be 
required to file the petition and the showing of interest 
simultaneously. The Board also asked for comments concerning whether 
electronic signatures should be accepted in support of the showing of 
interest.
    Fourth, under current procedures, after a petition is filed, the 
regional director asks the employer to voluntarily post a generic 
notice of employee rights. The Board proposed that the notice describe 
the type of petition that has been filed, the name of the petitioner, 
the petitioned-for unit, and the procedures that will follow, and that 
the employer be required to post the notice.
    Fifth, under current procedures, some regional offices routinely 
schedule pre-election hearings to commence seven days after the 
petition is filed, while other regions wait longer. The Board proposed 
that the regional director set the hearing to commence seven days after 
the filing of the petition absent ``special circumstances.'' The Board 
also proposed that the hearing be continued from day to day absent 
extraordinary circumstances.
    Sixth, under current procedures, prior to or at the opening of the 
pre-election hearing, regional personnel typically ask the parties what 
position they will take on the common subjects of pre-election 
disputes, such as jurisdiction, the appropriateness of the proposed 
unit, and any bars to an election. The Board proposed that non-
petitioning parties be required to file, no later than the opening of 
the hearing, a statement of position setting forth their position on 
these issues. The Board also proposed that the employer's statement 
include a list of employees in the petitioned-for unit.
    Seventh, under current procedures, the hearing officer may ask the 
parties to clarify their positions on issues

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potentially in dispute. Although the hearing officer can prohibit a 
party from introducing evidence when it refuses to take a position on 
an issue, hearing officers' practice is not uniform. The Board proposed 
that the hearing process be made uniform through use of the following 
procedures at the commencement of the pre-election hearing. First, the 
petitioner would have to respond to (or ``join'') the issues raised by 
the other parties in their statements of position. Second, if there is 
a dispute between the parties, each would describe what evidence they 
would introduce in support of their position. The hearing officer would 
not permit a party to present evidence related to an issue concerning 
which the party had failed to take a position or concerning which there 
was no genuine dispute of material fact. However, parties could contest 
individual employees' eligibility or inclusion for the first time 
through a challenge during the election. In addition, the petitioner 
would be permitted to present evidence relevant to the appropriateness 
of the unit even if the non-petitioning parties declined to take a 
position on that issue. Finally, any party could contest the Board's 
jurisdiction at any time.
    Eighth, under current procedures, the hearing officer takes 
evidence at the pre-election hearing on any individual eligibility 
issue raised, even though these issues need not be decided pre-
election, and the regional director and Board commonly defer resolution 
of the issues until after the election via the challenge procedure. The 
Board proposed that the hearing officer exclude evidence relevant only 
to individual employees' voting eligibility or inclusion in the unit, 
subject to an exception where the dispute involves a total of more than 
20 percent of the unit employees.
    Ninth, under the current procedures, the parties have a right in 
most kinds of cases to file post-hearing briefs at any time up to seven 
days after the close of the hearing. The Board proposed to vest the 
hearing officer with discretion concerning whether to permit post-
hearing briefs and, if permitted, over their contents and timing.
    Tenth, under current procedures, after the pre-election hearing the 
regional director can choose to transfer the case to the Board without 
deciding it. The Board proposed to eliminate the transfer procedure.
    Eleventh, under current procedures, if the regional director 
directs an election, the parties are required to request Board review 
within 14 days or they waive the right to later raise any issues that 
could have been raised at that time. The Board proposed to eliminate 
the requirement to request review before the election, instead 
permitting the request to be filed after the election and consolidated 
with any request for review of the regional director's disposition of 
post-election challenges and objections.
    Twelfth, under current procedures, parties can request special 
permission to appeal both from a ruling of the hearing officer to the 
regional director and from a ruling of the hearing officer or the 
regional director to the Board, but the regulations establish no 
standard for the grant of such requests. The Board proposed a strict 
standard for the grant of such requests.
    Thirteenth, under current procedures, the regional director is 
instructed not to schedule an election sooner than 25 days after his or 
her decision, so that the Board can rule on any interlocutory request 
for review that might be filed. The Board proposed to eliminate the 25-
day waiting period.
    Fourteenth, under current procedures, the employer must give the 
region a list of eligible voters within seven days of the regional 
director's decision, and the region then gives the list to the other 
parties. The Board proposed to codify this requirement, to shorten the 
time to two days, and to provide for direct service by the employer on 
the other parties.
    Fifteenth, under current procedures, the eligibility list contains 
only names and home addresses. The Board proposed that the list should 
also include available telephone numbers and email addresses, as well 
as the work location, shift, and classification for each employee.
    Sixteenth, under current procedures, when a charge is filed 
alleging the commission of unfair labor practices that could compromise 
the fairness of the election, the regional director has discretion to 
delay (or ``block'') the election until the issue can be resolved. In 
the NPRM, the Board asked for comments on whether the Board should 
change its blocking charge policy.
    Seventeenth, under current procedures, after the tally of ballots 
from the election, the parties have seven days to file a pleading with 
the regional director specifying any objections. Objecting parties then 
have an additional seven days to describe the evidence supporting their 
objections. The Board proposed that the offer of proof be filed 
simultaneously with the objections.
    Eighteenth, under current procedures, regional directors have 
discretion over the scheduling of a hearing concerning challenges or 
objections. The Board proposed that the hearing be held fourteen days 
after the tally of ballots, or as soon as practicable thereafter.
    Nineteenth, under current procedures, in most instances, parties 
have a right to appeal a regional director's or hearing officer's 
disposition of challenges or objections to the Board. The Board 
proposed to make Board review of post-election regional dispositions 
discretionary, as is the case with pre-election rulings.
    Twentieth, the current regulations are redundant in a number of 
places and located in various parts of Title 29 of the Code of Federal 
Regulations. The Board proposed to eliminate redundant regulations and 
consolidate and reorganize the regulations so that they may be more 
easily understood.

C. The Final Rule and a Concise, General Statement of Its Basis and 
Purpose

    As explained in the NPRM, the Board proposed various revisions to 
its rules and regulations to further ``the Act's policy of 
expeditiously resolving questions concerning representation'' \6\ and 
to better ensure ``that employees' votes may be recorded accurately, 
efficiently and speedily.'' \7\ Over 65,000 public comments were filed 
in response to the NPRM. Many of the comments focused primarily on a 
few of the proposed amendments, most notably the proposed changes 
concerning the scheduling of the pre-election hearing, the requirement 
of a statement of position, and the content and timing of eligibility 
lists. In light of this commentary, further Board deliberation 
concerning those proposals (and some others) is necessary at this time. 
However, a number of the proposals were less controversial. The Board 
has had the opportunity to fully consider all the comments and to 
deliberate concerning the proposed amendments and believes it is 
appropriate to adopt some of the proposals in this final rule and leave 
the others for further consideration. The Board considers the 
amendments adopted in this final rule to be severable from the 
remainder of the proposals, and from each other.\8\
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    \6\ Northeastern University, 261 NLRB 1001, 1002 (1982), 
enforced, 707 F.2d 15 (1st Cir. 1983).
    \7\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946).
    \8\ Each of the major changes adopted in this final rule is 
independently justified, and thus the Board has decided to adopt 
each of them, while also deciding to deliberate further on the 
remaining proposals. Although, at a very high level of generality, 
the various proposals in the NPRM shared a common purpose to improve 
``efficiency,'' in fact, each of the proposals addressed discrete 
sources of inefficiency in the rules, and it is clear that the 
amendments will serve their functions whether adopted in whole or in 
part, together or one at a time. For this reason as well, each of 
the amendments in this final rule would be adopted by the Board 
independently of the others.

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    For the reasons explained below, the Board has decided to adopt the 
following eight proposals at this time.
    First, the Board has decided to amend Sec.  102.64 in order to 
expressly construe Section 9(c) of the Act and to state that the 
statutory purpose of a pre-election hearing is to determine if a 
question of representation exists. Second, the Board has decided to 
amend Sec.  102.66(a) and eliminate Sec.  101.20(c) (along with all of 
Part 101, Subpart C) in order to ensure that hearing officers presiding 
over pre-election hearings have the authority to limit the presentation 
of evidence to that which supports a party's contentions and which is 
relevant to the existence of a question concerning representation. 
Third, the Board has decided to amend Sec.  102.66(d) to afford hearing 
officers presiding over pre-election hearings discretion over the 
filing of post-hearing briefs, including over the subjects to be 
addressed and the time for filing. Fourth, the Board has decided to 
amend Sec. Sec.  102.67 and 102.69 to eliminate the parties' right to 
file a pre-election request for review of a regional director's 
decision and direction of election, and instead to defer all requests 
for Board review until after the election, when any such request can be 
consolidated with a request for review of any post-election rulings. 
Fifth, the Board has decided to eliminate the recommendation in Sec.  
101.21(d) (as stated, along with all of Part 101, Subpart C) that the 
regional director should ordinarily not schedule an election sooner 
than 25 days after the decision and direction of election in order to 
give the Board an opportunity to rule on a pre-election request for 
review. Sixth, the Board has decided to amend Sec.  102.65 to make 
explicit and narrow the circumstances under which a request for special 
permission to appeal to the Board will be granted. Seventh, the Board 
has decided to amend Sec. Sec.  102.62(b) and 102.69 to create a 
uniform procedure for resolving election objections and potentially 
outcome-determinative challenges in stipulated and directed election 
cases and to provide that Board review of regional directors' 
resolution of such disputes is discretionary. Eighth, as mentioned, the 
Board has decided to eliminate part 101, subpart C of its regulations, 
which is redundant. The remainder of the amendments merely conform 
other sections of the Board's Rules and Regulations to the eight 
amendments described above. The Board has concluded, after careful 
review of all public comments and after deliberation, that adopting 
those eight proposals in a final rule will eliminate wholly unnecessary 
litigation and delay in the processing of petitions filed under Section 
9 of the Act and thus in the resolution of questions of 
representation.\9\
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    \9\ The Board has not, in each instance, adopted the precise 
rule language proposed in the NPRM. To the extent alternative 
language has been adopted in the final rule, the Board sets forth 
its rationale in Part IV below.
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    The current rules have been interpreted to give parties a right to 
present evidence at a pre-election hearing relating to matters that 
need not be addressed in order for the hearing to fulfill its statutory 
function of creating a record based on which the regional director can 
determine if there is a question of representation that should be 
answered via an election. Furthermore, the current rules have been 
understood to give parties a right to present evidence at a pre-
election hearing concerning such matters even though neither the 
regional director nor the Board must address those matters prior to the 
election, and a decision on such matters is commonly deferred until 
after the election. In other words, such litigation is wholly 
unnecessary prior to an election. Moreover, the issues in dispute in 
such litigation are often rendered moot by the election results or 
resolved by the parties post-election, thus eliminating the need for 
litigation of the issues. Therefore, the Board has determined that 
amending Sec.  102.64(a) to expressly construe the statutory purpose of 
the hearing and amending Sec.  102.66(a) to vest hearing officers with 
authority to limit the presentation of evidence to that supporting a 
party's contentions and relevant to the existence of a question 
concerning representation will eliminate unnecessary litigation and 
delay.
    After the pre-election hearing, the filing of post-hearing briefs 
often delays issuance of the regional director's decision and direction 
of election, thereby delaying resolution of the question of 
representation even when the issue or issues in dispute can be 
accurately and fairly resolved without briefing. Given the recurring 
and often familiar and uncomplicated legal and factual issues arising 
in pre-election hearings, the filing of briefs, which also imposes 
financial costs on the parties, is not necessary in every case to 
permit the parties to fully and fairly present their positions or to 
facilitate prompt and accurate decisions. Therefore, the Board has 
decided to amend Sec.  102.66(d) to vest hearing officers presiding 
over pre-election hearings with authority to provide for the filing of 
post-hearing briefs only in those instances when they would be of 
assistance to the decision-maker and to control the subjects addressed 
in, and the time for filing of, any such briefs. The Board has 
determined that amending the rules to give the hearing officer 
discretion to permit the filing of post-hearing briefs will eliminate 
unnecessary expense and delay.
    The Board's current rules require parties to file a request for 
review of the regional director's decision and direction of election 
before the election is held in order to preserve their right to raise 
disputed issues in post-election proceedings, even though the issues in 
dispute are often rendered moot by the election results or resolved by 
the parties post-election thus eliminating the need for litigation of 
the issues at any time. The pre-election request for review procedure 
is inconsistent with judicial procedures, which limit interlocutory 
appeals in order to avoid unnecessary litigation and delay. In 
addition, Sec.  101.21(d) of the Board's current Statements of 
Procedure provides that elections ``normally'' are delayed for a period 
of at least 25 days after the regional director directs that an 
election should be conducted, ``to permit the Board to rule on any 
request for review which may be filed.'' This provision effectively 
stays the conduct of all elections for at least 25 days despite 
Congress's instruction in Section 3(b) of the Act that even the grant 
of review by the Board ``shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
director.'' Furthermore, even in the cases in which a request for 
review is filed, review is granted only rarely and the Board almost 
never stays the conduct of the election either before or after granting 
review, instead permitting employees to vote and then impounding the 
ballots. For these reasons, the waiting period unnecessarily delays the 
resolution of questions of representation in all cases, and the delay 
is not justified by the only purpose articulated in the Board's 
Statements of Procedure. Therefore, the Board has determined that 
amending the rules to defer the right to file requests for review of 
the direction of the election until after the election and to eliminate 
the mandatory waiting period will eliminate unnecessary litigation and 
delay.
    Consistent with the effort to avoid piecemeal appeals to the Board, 
the Board has also decided to amend Sec.  102.65 to provide that a 
request for special permission to appeal to the Board will only be 
granted under

[[Page 80142]]

extraordinary circumstances, when it appears that the issue will 
otherwise evade review. To further discourage piecemeal appeals, the 
amendments provide that a party need not seek special permission to 
appeal in order to preserve an issue for review post-election. 
Consistent with current practice, the amendments provide that neither 
the filing of a request for special permission to appeal nor the grant 
of such a request will stay an election or any other action or require 
impounding of ballots unless specifically ordered by the Board. The 
Board has determined that narrowing the circumstances under which a 
request for special permission to appeal will be granted will eliminate 
unnecessary litigation and delay.
    Under the current rules, the nature of Board review of a regional 
director's disposition of pre- and post-election disputes varies, but 
for no articulated reason. Pre-election review is discretionary, while 
post-election review is ordinarily mandatory. This is the case even 
though many post-election disputes raise no question of policy and 
often turn on the application of well-established principles of law to 
particular facts. In addition, the procedures for post-election review 
vary from case to case even though the nature of the issues is the 
same. Therefore, the Board has decided to amend Sec. Sec.  102.62(b) 
and 102.69 to create a uniform procedure in both stipulated and 
directed election cases, whereby parties may file exceptions to any 
hearing officer's report with the regional director, and file a request 
for review of the regional director's disposition of the post-election 
matters with the Board. That request may be consolidated with a request 
for review of the regional director's decision and direction of 
election, if any. Permitting the Board to deny review when a party's 
request raises no compelling grounds for review will eliminate the most 
significant source of administrative delay in achieving finality of 
election results. The Board has determined that amending the rules to 
create this uniform procedure for handling pre- and post-election 
disputes will eliminate unnecessary litigation and delay.
    Finally, the Board currently has two sets of regulations describing 
its procedures in representation cases, one in Part 102, Subpart C of 
its Rules and Regulations and the other in Part 101, Subpart C of its 
Statements of Procedure. 29 CFR Part 102, Subpart C; 29 CFR Part 101, 
Subpart C. The two sets of regulations are almost entirely redundant. 
This redundancy is a potential source of confusion. The Board has 
determined that eliminating Part 101, Subpart C will reduce such 
confusion.

II. The Rulemaking Process

A. A Brief History of Board Rulemaking

    As the NPRM explains, the Board has amended its representation case 
procedures repeatedly over the years as part of a continuing effort to 
improve the process and eliminate unnecessary delays. Indeed, the Board 
has amended its representation case procedures more than three dozen 
times since they were published in the very first volume of the Federal 
Register, 1 FR 207 (April 18, 1936), and has only rarely utilized the 
Administrative Procedures Act's notice-and-comment rulemaking 
procedures; most often the Board simply implemented the changes without 
prior notice or request for public comment.
    In fact, the Board has seldom acted through notice-and-comment 
rulemaking on any subject. The Board typically makes substantive policy 
determinations in the course of adjudication rather than through 
rulemaking, a practice that has occasionally drawn the ire of academic 
commentators and the courts.\10\
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    \10\ See R. Alexander Acosta, Rebuilding the Board: An Argument 
for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU 
L. Rev. 347, 351-52 (2010); Merton C. Bernstein, The NLRB's 
Adjudication-Rule Making Dilemma Under the Administrative Procedure 
Act, 79 Yale L.J. 571 (1970); Samuel Estreicher, Policy Oscillation 
at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 
(1985); Jeffrey S. Lubbers, The Potential of Rulemaking by the NLRB, 
5 FIU L. Rev. 411, 414-17, 435 (Spring 2010); Kenneth Kahn, The NLRB 
and Higher Education: The Failure of Policymaking Through 
Adjudication, 21 UCLA L. Rev. 63 (1973); Charles J. Morris, The NLRB 
in the Dog House--Can an Old Board Learn New Tricks?, 24 San Diego 
L. Rev. 9 (1987); Cornelius Peck, The Atrophied Rulemaking Powers of 
the National Labor Relations Board, 70 Yale L.J. 729 (1961); 
Cornelius J. Peck, A Critique of the National Labor Relations 
Board's Performance in Policy Formulation: Adjudication and Rule-
Making, 117 U. Pa. L. Rev. 254 (1968); David L. Shapiro, The Choice 
of Rulemaking or Adjudication in the Development of Administrative 
Policy, 78 Harv. L. Rev. 921 (1965); Carl S. Silverman, The Case for 
the National Labor Relations Board's Use of Rulemaking in Asserting 
Jurisdiction, 25 Lab. L.J. 607 (1974); and Berton B. Subrin, 
Conserving Energy at the Labor Board: The Case for Making Rules on 
Collective Bargaining Units, 32 Lab. L.J. 105 (1981); see also NLRB 
v. Bell Aerospace Co., 416 U.S. 267, 295 (1974); NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 764, 770, 777, 779, 783 n.2 (1969). The 
Portland Cement Association (PCA) contends, as it did in another 
recent Board rulemaking, that the Board should place these and other 
law review articles discussed in the NPRM online for the public to 
read for free on regulations.gov. Just as the Board replied in that 
prior rulemaking, 76 FR 54014, the Board has placed these articles 
in the hard copy docket, but has not uploaded these articles to the 
electronic docket because such an action could violate copyright 
laws. It should also be noted that these materials are generally 
available in libraries.
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    The Board has thus asked for public comments on few proposed rules 
of any kind. A review of prior Board rulemaking procedures reveals that 
the Board has not held a public hearing attended by all Board Members 
for at least half a century. In the rulemaking proceedings that 
resulted in adoption of rules defining appropriate units in acute care 
hospitals, the Board directed an administrative law judge to hold a 
series of public hearings to take evidence concerning the proposed 
rules, but no Board Members participated in the hearings. In fact, even 
in the course of adjudication, the Board has not held oral argument 
since 2007 and has held only two oral arguments in the last decade. The 
last open meeting of the Board, prior to the open meeting on November 
30, 2011, to discuss and vote on whether to adopt any of the proposed 
amendments in a final rule in this proceeding, was held in 1989 and 
also concerned the acute care hospital bargaining-unit rule.

B. The Process of This Rulemaking

    On June 22, 2011, the Board issued a Notice of Proposed Rulemaking. 
The Notice provided 60 days for comments and 14 additional days for 
reply comments, and announced a public hearing to be held on July 18 
and 19, 2011. The Board issued press releases about the proposals and 
hearings, and placed summaries, answers to frequently asked questions, 
and other more detailed information on its Web site (www.nlrb.gov).
    The Board Members also held two days of hearings in Washington, DC, 
on July 18 and 19, 2011, where 66 individuals representing diverse 
organizations and groups gave oral statements and answered questions 
asked by the Board Members. The purpose of all of these procedures was 
to give the Board the benefit of the views of the public. In this the 
Board was quite successful, receiving 65,958 written comments and 
taking 438 transcript pages of oral testimony.
    Nonetheless, a number of comments criticize the Board's process: 
Some claim there should have been some pre-notice-and-comment notice 
and opportunity to comment; some criticize the length of the hearing (2 
full days), the location of the hearing (Washington, DC), or the timing 
of the hearing (halfway through the comment period); some criticize the 
length of the comment periods (60 days plus 14 days).
1. The Pre-NPRM Process
    The comment of the Chamber of Commerce of the United States of

[[Page 80143]]

America (the Chamber) provides a representative example of criticism of 
the pre-NPRM process. The Chamber believes that the Board missed ``an 
opportunity to explore whether a consensus could have been reached'' on 
the rule among stakeholder groups through forums such as the American 
Bar Association's Labor and Employment Law Section. The Chamber 
concedes that stakeholders ``have widely divergent views,'' but argues 
that a consensus on at least some changes might have been reached. The 
Chamber suggests that the Board should withdraw the NPRM and publish a 
more open-ended Advanced Notice of Proposed Rulemaking.
    The Chamber cites Executive Order 13563 Section 2(c) (``Improving 
Regulation and Regulatory Review''), 76 FR 51735, as support. Section 
2(c) of the Executive Order states that ``[b]efore issuing a proposed 
regulation, each agency, where feasible and appropriate, shall seek the 
views of those who are likely to be affected * * *.'' Id. In the NPRM, 
the Board explained the decision to issue a set of specific proposals, 
rather than a more open-ended Advanced NPRM, by stating that ``public 
participation would be more orderly and meaningful if it was based on * 
* * specific proposals.'' 76 FR 36829. The Chamber incorrectly suggests 
the Board conceded that it violated the Executive Order, and questions 
whether the comment process actually was more orderly or meaningful. 
Some other comments suggest that the Board should have engaged in 
negotiated rulemaking, or that the pre-NPRM process was insufficiently 
transparent.\11\
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    \11\ See, e.g., joint comment of HR Policy Association and 
Society for Human Resource Management (collectively, SHRM); Greater 
Easley Chamber of Commerce; Georgia Association of Manufacturers 
(GAM).
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    The Board continues to believe that it has followed a lawful, fair, 
and open process that succeeded in eliciting broad and informed public 
participation to a greater extent than ever before in connection with 
the Board's representation (or unfair labor practice) case procedures.
    An agency generally has discretion over its pre-NPRM procedures, 
including whether to use advanced NPRMs, negotiated rulemaking, or 
other pre-NPRM consultation. See Vermont Yankee Nuclear Power Corp. v. 
Natural Resources Defense Council, 435 U.S. 519, 543-44 (1978). 
Moreover, as recognized by the American Hospital Association (AHA), the 
Board is not directly subject to E.O. 13563, nor is its language 
pertaining to pre-NPRM procedures mandatory in any event. As explained 
in the NPRM, in this instance, the Board concluded that beginning the 
process of public comment by issuing a NPRM would be the most effective 
method of proceeding.
    The course of proceedings since issuance of the NPRM has confirmed 
the Board's initial judgment. The notice of the two-day public hearing 
published in the Federal Register on June 27, 2011, specifically 
invited interested members of the public to appear and comment on the 
proposals set forth in the NPRM and to ``make other proposals for 
improving representation case procedures.'' 76 FR 37291. Yet at the 
public hearing, while the Board heard a considerable amount of valuable 
testimony concerning the specific proposals in the NPRM, it received 
almost no suggestions unrelated to those proposals. Similarly, in the 
NPRM, while the Board proposed specific rule language related to most 
of the problems it identified, in several areas the Board identified a 
problem or question and invited comment without proposing specific rule 
language. For example, the Board specifically invited comments on 
whether the Board should take any action related to the use of 
electronic signatures in relation to the showing of interest supporting 
certain forms of petitions. 76 FR 36812, 36819. The Board also 
specifically invited comments ``on whether any final amendments should 
include changes in the current blocking charge policy.'' 76 FR 36812, 
36827. The NPRM specifically invited comments on whether the Board 
should change that policy in several respects or leave the policy 
unchanged. Id. While the Board received many meaningful comments on the 
specific proposals in the NPRM, it received very few comments in 
response to the more open-ended inquiries, and the comments that were 
received were less specific and less helpful in analyzing the 
procedural questions at stake.
    The Board also is doubtful about the Chamber's suggestion that a 
broad consensus might have been reached through a different process. As 
the Chamber concedes, the labor-management bar is polarized on many of 
the relevant issues. Given the degree of polarization reflected both at 
the public hearing and in the comments, the Board continues to believe 
that following the notice-and-comment procedures set forth in the APA--
and thereby giving formal notice of specific proposals to all members 
of the public at the same time in the Federal Register and permitting 
all members of the public to comment on those proposals through the 
same procedures and during the same time periods--was the fairest and 
soundest method of proceeding.
    In sum, the Board's pre-NPRM process was lawful and appropriate.
2. The Length, Timing, and Location of the Hearing
    The Board Members held a two-day public hearing in Washington, DC, 
approximately halfway through the initial comment period, i.e., about 
one month after publication of the NPRM and one month before the 
initial comment period closed. All Board Members heard five-minute 
statements from 66 individuals, representing diverse organizations and 
groups, and then actively questioned the speakers for an additional 
period of time.\12\ This hearing was not legally required.
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    \12\ After the public hearing, the transcript of each speaker's 
testimony along with any Board questioning of the speaker was made 
part of the record of the rulemaking as a separate comment. Any such 
testimony discussed in this final rule is cited as follows: 
``Testimony of [name of speaker].''
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    Some comments compare this proceeding to the hospital unit 
rulemaking and essentially argue that the Board should have held 14 
days of hearings around the country over the course of years.\13\ For 
example, the National Association of Manufacturers (NAM)--and many 
nearly identical form comments by member companies--claim that the 
``relative rush'' of these hearings ``is a departure from past Board 
practice that will result in both an inadequate opportunity for 
stakeholders to address the merits of the rules and inadequate 
information and data for the Board to make a prudential judgment 
regarding the rules.''
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    \13\ See, e.g., Coalition for a Democratic Workplace (CDW); 
Council on Labor Law Equality (COLLE); SHRM. By contrast, scholars 
have described the Board's procedures in the earlier rulemaking as 
``procedural overkill.'' See Mark H. Grunewald, The NLRB's First 
Rulemaking: An Exercise in Pragmatism, 41 Duke L. J. 274, 319 
(1991).
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    Agencies are not bound to use the same procedures in every 
rulemaking proceeding. Otherwise, agencies could neither learn from 
experience, e.g., what rulemaking procedures are helpful and what 
procedures are simply wasteful, nor adopt procedures suited to the 
precise question at stake. The procedures the Board has employed in 
order to obtain public input on proposed rules have, in fact, varied 
considerably, and the Board has substantial discretion to use 
procedures suited to the matter under consideration. Indeed, the Board 
has adopted amendments to its representation case procedures without 
any notice or opportunity for comment or with opportunities 
considerably more

[[Page 80144]]

limited than in the instant matter.\14\ In contrast to the subject 
matter of the acute care hospital unit proceeding, the proposals at 
issue in this proceeding involve a matter uniquely within the Board's 
own expertise: the operation of the Board's own procedural rules.
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    \14\ In its run-off election rulemaking proceedings, for 
example, the Board provided only two weeks for comments, with a 
short hearing on the final day of the comment period. 8 FR 10031-32 
(1943).
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    The Board believes that the hearing not only exceeded the 
requirements of the APA, it was fair, appropriate, and useful. Holding 
the hearing in Washington, DC was appropriate because many of the 
Board's major stakeholders are either headquartered in DC or are 
represented by counsel in the city or who frequently appear in the 
city.\15\
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    \15\ No party informed the Board that it wished to appear at the 
hearing but was unable to send a representative to Washington, DC.
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    The hearing was also properly noticed and appropriately timed 
during the initial comment period. The NPRM was published on June 22, 
2011, and informed the public that the Board intended to hold a public 
hearing on July 18 and 19. A subsequent notice published in the Federal 
Register on June 27, 2011 informed the public of the details of the 
hearing. 76 FR 37291. In fact, the Board accommodated all parties who 
wished to appear at the hearing, even those whose requests to appear 
were made after the deadline.\16\ That the public notice was sufficient 
to permit interested parties to appear is evidenced by the fact that 66 
individuals appeared at the hearing, representing many major management 
and labor organizations as well as many other groups. No individual or 
organization informed the Board that it was unable to participate due 
to the shortness of time between the June 22 and June 27 notices and 
the hearing. The two-day hearing was held about a month after the NPRM 
was published, giving participants adequate time to carefully read the 
proposal, consult with each other and with clients, and develop 
detailed positions. And the five minutes that speakers were given was 
supplemented by substantial time for questioning and the opportunity 
for written comments. Some speakers gave 2,000 words or more of well-
informed testimony during their allotted time. In total, the hearings 
resulted in more than 400 pages of transcript (promptly made available 
to the public on the Board's Web site \17\). The Board found that the 
speakers provided informed, thorough, and thoughtful analysis, and the 
back-and-forth dialogue with the Board Members demonstrated the wide-
ranging familiarity of the speakers with the proposals.
---------------------------------------------------------------------------

    \16\ The Board did, however, limit organizations to presenting 
one speaker at the hearing.
    \17\ The hearing was also streamed live on the Board's Web site.
---------------------------------------------------------------------------

    Some comments suggest that the hearing should have been held after 
the comment period closed so that the speakers could address arguments 
presented in the written comments. But holding the hearing first made 
the subsequent written comments more informed, thoughtful, and 
technically sophisticated, and many commenters, such as the Chamber, 
took the opportunity to cite extensively from the hearing transcripts 
for support and to respond to arguments made at the hearing. The Board 
believes the chosen sequence--the hearing followed by the close of the 
initial comment period and then the reply period--produced more 
meaningful public comments than the proposed alternative because 
written comments are better suited to the technical issues at stake and 
thus appropriately came after the public hearing.
    In sum, the Board believes that the two-day public hearing attended 
by all Board Members was highly valuable, was of an appropriate length, 
and was held at an appropriate time and in an appropriate location.
3. The Length and Timing of the Comment Periods
    The Board provided an initial comment period of 60 days beginning 
June 22, followed by a reply comment period of 14 days that ended on 
September 6, 2011. No late comments were accepted.
    COLLE describes the NLRB's comment period as ``the bare-minimum 60-
day[s],'' but the APA provides no minimum comment period, and many 
agencies, including the Board in some recent rulemaking proceedings, 
have afforded comment periods of only 30 days. The agency has 
discretion to provide still shorter periods, and is simply ``encouraged 
to provide an appropriate explanation for doing so.'' Administrative 
Conference of the United States (ACUS), Recommendation 2011-2 at 3 
(June 16, 2011). Indeed, for procedural rules, such as the final rule 
here, no comment period at all is required.
    Sixty days has become the benchmark period for comments on 
significant substantive rules. Id. Countless NPRMs provide 60 days for 
comments.
    Nevertheless, a number of comments opposing the rule assert that 
the comment period was inadequate. For example, SHRM characterized the 
comment period as ``hurried, abridged and clandestine.'' But the 
Montana Chamber of Commerce--though opposing the rule--states that 
``[t]his 60-day window seems like a very reasonable timeframe to allow 
ample comments and statements from all interested parties, whether they 
are supportive of these sweeping changes or not.''
    In practice, the Montana Chamber of Commerce proved correct on this 
point: 60 days was quite ample. The Board received hundreds of 
detailed, informed, and thoughtful comments. Many were submitted by the 
very same parties that asserted the comment period should have been 
longer, such as the 88-page comment--and hundreds of accompanying 
nearly identical form comments--submitted by SHRM and its members. The 
U.S. Chamber states that it needed more time to ``study Board data'' 
and conduct ``rigorous'' economic analysis. But the Chamber did provide 
detailed discussions of data and many studies in its comment. Although 
the desire for additional time to gather additional support and develop 
arguments is understandable, agencies must set some end to the comment 
period: ``Agencies should set comment periods that consider the 
competing interests of promoting optimal public participation while 
ensuring that the rulemaking is conducted efficiently.'' ACUS 2011-2 at 
3.
    Fourteen days were given for reply comments. The Chamber suggested 
that 14 days was insufficient time to review tens of thousands of 
comments, and noted that some of the comments submitted were not 
available to the public until some time after the close of the initial 
comment period. Neither the APA nor any other law requires an 
opportunity to reply to initial public comments. Moreover, while some 
comments were not available to the public immediately upon the close of 
the initial comment period, the comments that were unavailable were 
largely identical ``postcard comments,'' tens of thousands supporting 
the proposal in general terms, and tens of thousands opposing the 
proposal in general terms.\18\ And the purpose of the reply period was 
not to afford interested

[[Page 80145]]

parties an opportunity to read and reply to all of the comments 
submitted, but to provide an opportunity to read the most significant 
comments and respond to the arguments raised in them.
---------------------------------------------------------------------------

    \18\ By August 24, 2011, the day after the close of the initial 
comment period, 29,236 timely filed initial comments were available 
electronically for review. The Board believes, based on its staff's 
investigation, that initial comments that were not available at that 
time fall into one of three categories: (1) Timely filed form 
letters submitted by the AFL-CIO, (2) timely filed form letters 
submitted by Americans for Prosperity or CDW or mailed by individual 
businesses using a common form, and (3) late-filed comments 
submitted electronically.
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    This the Chamber and others did quite successfully within the 14 
days provided. For example, the Service Employees International Union 
(SEIU) cited and replied to over twenty unique, detailed, and lengthy 
comments submitted by other parties. Others, such as the Association of 
Corporate Counsel (ACC), took the opportunity to focus on elaborating 
one particular issue of special importance. Both approaches were quite 
helpful, and served the purpose for which the Board afforded the reply 
period.
    The over 65,000 comments submitted and the depth of analysis they 
provided are ample testament to the adequacy of the opportunities for 
public participation in the rulemaking process.
4. The Final Rule
    In light of the procedural concerns voiced in some of the comments, 
it seems likely that some stakeholders will believe that the period of 
time between the close of the reply comment period and the issuance of 
the final rule was too short, and that the Board was required to spend 
additional time considering the comments. This concern is suggested by 
NAM in its reply comment, stating that ``failure to give due 
consideration to the public comments would nonetheless render * * * the 
rules * * * arbitrary and capricious * * *. Absent due consideration of 
all the comments, the Board would be unable to certify that it has 
examined and considered all relevant arguments and data.''
    In order to allay this concern, the Board assures all those who 
provided comments that the Board, through its Members personally or 
staff acting at the Members' direction, read every non-duplicative 
comment.\19\ The comments were coded so that all comments addressing 
specific issues could be electronically identified. All specific 
arguments raised in the comments were identified, grouped by subject 
matter, and analyzed. Through this process, the Board has read and 
carefully considered every relevant argument, datum, or suggestion in 
the comments.
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    \19\ Using electronic means, the Board identified all identical 
comments and read only one of each group of identical comments. More 
than 90 percent of the over 65,000 comments were duplicates, near 
duplicates, devoid of analysis, or irrelevant. In this connection, 
see ACUS 2011-1 ] 1(a)(1): While 5 U.S.C. 553 requires agencies to 
consider all comments received, it does not require agencies to 
ensure that a person reads each one of multiple identical or nearly 
identical comments.
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    Finally, the Board has decided to take additional time to 
deliberate concerning the majority of the proposals in the NPRM, 
including many of those that generated the most comments and 
controversy.
    The Board thoroughly considered and deliberated about all 
substantive comments relevant to the final rule.
    Some comments expressed the view that the rulemaking procedure 
suggested a fait accompli, or created an appearance of favoritism.\20\ 
Any sense of a fait accompli could have mistakenly arisen only from the 
detailed specificity of most of the proposed amendments, as compared 
with the open-ended queries concerning several subjects. However, as 
explained above, the comments addressing the proposals accompanied by 
proposed rule text and detailed explanation far exceeded in number and 
quality those addressing the open-ended questions unaccompanied by such 
specifics, bearing out the Board's judgment that a more specific 
proposal would promote more useful public participation in the process. 
And contrary to any suggestion of favoritism, the process was 
completely transparent and provided multiple opportunities for any 
member of the public to participate. The process resulted in 
significant changes to the proposed rule as well as a decision not to 
proceed with all the proposals at this time. In short, the process was 
fair, open, and successful.
---------------------------------------------------------------------------

    \20\ See, e.g., CDW; Indiana Chamber of Commerce.
---------------------------------------------------------------------------

5. Board Membership
    Some comments question whether a divided three-member Board can or 
should issue a final rule, arguing that the Board lacks the authority 
to do so or that such action would be contrary to the Board's 
traditions or otherwise imprudent.\21\ Certain comments contend that a 
Board Member serving a recess appointment may not, or should not, 
participate in any action that represents a change in Board law or 
practice.\22\ After careful consideration, the Board rejects these 
arguments.
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    \21\ See, e.g., Chamber; SHRM; Associated Builders & Contractors 
(ABC).
    \22\ See, e.g., National Grocers Association (NGA); Testimony of 
Harold Weinrich.
---------------------------------------------------------------------------

    Under the National Labor Relations Act, a lawful quorum of the 
Board consists of three Members (out of the five Members provided for 
by the statute). Section 3(b) of the Act expressly provides that:

    A vacancy in the Board shall not impair the right of the 
remaining members to exercise all of the powers of the Board, and 
three members of the Board shall, at all times, constitute a quorum 
of the Board * * *.

29 U.S.C. 153(b). See generally New Process Steel L.P. v. NLRB, ---- 
U.S. ----, 130 S.Ct. 2635, 2639-42 (2010) (analyzing quorum 
requirement). Rulemaking is one of the ``powers of the Board,'' as 
Section 6 of the Act provides. See 29 U.S.C. 156. Adoption of the final 
rule, then, reflects the proper exercise of the Board's powers by the 
majority of a lawful quorum of three Members.
    Nothing in the text of the Act or its legislative history suggests 
that, even if the Board has a lawful quorum, certain Board powers may 
be exercised only if approved by at least three Members. Put somewhat 
differently, there is no statutory basis to argue that a three-Member 
quorum of the Board must act unanimously--as opposed to acting by 
majority vote as is typical--in order properly to exercise the Board's 
powers. During the many periods in which the Board consisted of only 
three Members, including the period since August 27, 2011, it routinely 
has issued non-unanimous decisions in adjudicated cases. See, e.g. 
Arkema, Inc., 357 NLRB No. 103 (Oct. 31, 2011); Allied Mechanical 
Services, Inc., 357 NLRB No. 101 (Oct. 25, 2011).
    The Board does have a tradition of not overruling its own prior 
decisions through adjudication with fewer than three votes to do so. 
See Hacienda Resort Hotel & Casino, 355 NLRB No. 154, slip op. at 2, 2 
n.1 (2010) (concurring opinion of Chairman Liebman and Member Pearce) 
(listing cases dating to 1985). This tradition--which is not unbroken 
\23\--is not based on the Act itself, nor has it been codified in a 
Board rule or statement of procedure.
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    \23\ See Mathews Readymix, Inc., 324 NLRB 1005, 1008 n. 14 
(1997), enforced, 165 F.3d 74 (DC Cir. 1999) (two-member majority 
overrules precedent); Service Employees Local 87 (Cresleigh Mgmt.), 
324 NLRB 774, 775 n.3 (19