Representation-Case Procedures, 10747-10750 [2014-04127]

Agencies

• National Labor Relations Board

[Federal Register Volume 79, Number 38 (Wednesday, February 26, 2014)]
[Proposed Rules]
[Pages 10747-10750]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04127]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102, 103

RIN 3142-AA08


Representation-Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Proposed rule; notice of meeting.

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SUMMARY: The National Labor Relations Board (NLRB or Board) invites 
interested persons to attend a public meeting of the Board on April 10 
and 11. The Board meeting will start at 9:30 a.m. on each day. The 
meeting will be held in the Margaret A. Browning Hearing Room (Room 
11000), National Labor Relations Board, 1099 14th Street NW., 
Washington, DC 20570. During the meeting, persons who have previously 
requested to speak may share their views on the proposed amendments to 
the Board's rules governing representation case procedures, published 
at 79 FR 7318, and make other proposals for improving representation 
case procedures.

DATES: The meeting will be held on April 10 and 11, 2014, starting at 
9:30 a.m. on each day. Additional days of meeting may be scheduled for 
April 8 and/or 9. Those who wish to speak at the meeting must submit a 
Request to Speak, in the form described in the instructions below, 
which must be received by the Board no later than March 10, 2014. In 
addition, due to seating considerations, persons desiring to attend the 
meeting must submit a Request to Attend, which must be received by the 
Board no later than March 31, 2014. Those who Request to Speak need not 
also submit a Request to Attend.

ADDRESSES: The public meeting will be held in the Margaret A. Browning 
Hearing Room (Room 11000), National Labor Relations Board, 1099 14th 
Street NW., Washington, DC 20570. Requests to Speak and Requests to 
Attend must be addressed to Gary Shinners, Executive Secretary, 1099 
14th Street NW., Suite 11600, Washington, DC 20570. Alternatively, 
written requests

[[Page 10748]]

may be submitted electronically to publicmeeting@nlrb.gov. All requests 
must include the following words on the Subject Line--``Request to 
Attend Public Meeting RIN 3142-AA08,'' or ``Request to Speak at Public 
Meeting RIN 3142-AA08.''

FOR FURTHER INFORMATION CONTACT:  Gary Shinners, Executive Secretary, 
National Labor Relations Board, 1099 14th Street NW., Suite 11600, 
Washington, DC 20570, (202) 273-3737 (this is not a toll-free number), 
1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The National Labor Relations Board will hold 
an open public meeting on April 10 and 11, 2014 starting at 9:30 a.m. 
on each day. Additional days of meeting may be scheduled for April 8 
and/or 9. Pursuant to 5 U.S.C. 553(c), the purpose of the meeting will 
be to allow interested persons to participate in the rulemaking through 
oral presentation on the proposed amendments to the Board's rules 
governing representation-case procedures and to make any other 
proposals for improving representation case procedures.
    The Board intends to give members of the public a fair opportunity 
to address the issues listed below, subject to the Board's discretion 
to both ask questions of speakers and to avoid repetitious or 
cumulative subject matter. The hearing may be organized by topic(s) 
into multiple sessions, as noted below. This may result in some oral 
presentations being split into multiple parts, possibly requiring 
participation in more than one session. Depending on Requests to Speak 
received by the Board (see below), some requests to address several 
issues at the same time may be granted. For any single session, it is 
anticipated that the initial time allotted to a particular presenter 
will be at least four minutes. Speakers who are to address several 
issues at the same session may be initially allotted substantially more 
time for their overall presentation, at the Board's discretion. (As 
noted above, in some cases such a presentation may be split into 
multiple parts, possibly requiring an appearance in more than one 
session.) Determinations to grant or deny Requests to Speak, and of the 
allotment of time for oral presentations shall be subject to the 
discretion of the Board.
    On February 6, 2014, the NLRB published a Notice of Proposed 
Rulemaking, proposing 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. As 
stated in the NPRM, the NLRB is providing an opportunity for interested 
persons to request to provide their views to the Board on this 
important matter at a public meeting.
    Persons desiring to attend the meeting must submit a Request to 
Attend, in writing, at the above-listed address or email address, which 
must be received by the deadline posted in the DATES section above. In 
this request, potential attendees must specify (1) their full name, (2) 
their organizational affiliation (if any), and (3) contact information. 
Due to the potential space limitations in the meeting room, the NLRB 
will notify persons whether they will be able to attend prior to the 
meeting. Attendees are reminded to bring a photo identification card 
with them to the public meeting in order to gain admittance to the 
building.
    Persons desiring to speak at the meeting must submit a Request to 
Speak, in writing, at the above-listed address or email address, which 
must be received by the deadline posted in the DATES section above. In 
addition to the information required of attendees, those who wish to 
speak must also follow the more detailed instructions below.
    The primary source of input to be considered by the Board will be 
the extensive written comments submitted in response to the 2011 
proposed rule regarding representation-case procedures, and the written 
comments submitted in response to the NPRM published in the Federal 
Register on February 6, 2014. Written comments submitted in response to 
the 2011 proposed rule, or in response to the more recent NPRM, will 
receive the same consideration without regard to whether the commenters 
make oral presentations during the public meetings described in this 
notice. Similarly, decisions regarding the allotment of time for 
particular oral presentations do not mean the Board will give greater 
or lesser consideration to particular speakers or commenters. The 
Board's intention is to structure the public meetings in a manner that 
will reflect multiple perspectives on relevant issues with a mix of 
shorter and longer presentations depending on the range of issues and 
views summarized in Requests to Speak received by the Board.

Instructions for Submitting a Request To Speak

    1. A Request to Speak may be submitted on behalf of an individual 
or an organization. More than one person may submit a Request to Speak 
on behalf of the same organization. Each such request must be submitted 
separately.
    2. You must designate which of the issues listed below (``Issues'') 
you wish to address. Be as specific as possible in making your 
designation. Reference the letter, and, where applicable, the 
number(s), and sub-part(s) of the issues listed. If you designate issue 
H (``Other Issues''), you must identify the issue with a sentence or 
phrase.
    3. If you designate more than one issue, please list your 
designations in order of priority. Begin by listing the issue you most 
wish to speak about, and continue in order of decreasing priority.
    4. Immediately following the designation(s) of issue(s), please 
summarize for each issue what you wish to say. For your reference, a 
Sample Request to Speak is also included below.
    5. For each issue, your summary is limited to 250 words. You are 
also limited to a cumulative total of 1,250 words in the document 
making your request. No motions to exceed this limit will be 
entertained. Requests to Speak must conform to these requirements to be 
considered. Note: written comments remain the primary means for 
expressing your views, and there is no word limit on written comments.
    In the event that there are more Requests to Speak than there are 
available time slots, the Board will allocate the available time slots 
in an effort to insure that individuals and organizations are heard 
whose remarks appear most likely to be useful to the Board in its 
deliberations. This determination will be based on the summaries 
provided in the Requests to Speak. It is likely that not every 
requester will have the opportunity to speak on every issue requested. 
It is also anticipated that some issues will generate many 
substantially similar requests. For this reason, it is suggested that 
you focus your request on matters on which you possess relevant 
experience and expertise and about which you may have something unique 
to say. It is also possible, however, that the Board may ask for your 
views on matters that you do not designate in your request.
    All speakers should be prepared to answer questions from members of 
the Board. Before the hearing, the Board may also choose to submit 
questions for discussion related to any of specific issues noted below.
    The Board will notify you prior to the meeting whether you will be 
speaking, the issue(s) you will be called upon to address, the date(s) 
and time(s) of the session(s) at which you are to speak, and the amount 
of your initial allotment

[[Page 10749]]

of speaking time for each session. As noted above, it is anticipated at 
this time that initial allotments will be at least four minutes.

Issues

    A. Petitions and Pre-Hearing Issues. Whether or how procedures 
should be revised concerning the petition, electronic filing and 
service, the showing of interest, and employee notices.
    1. Whether the petition may be filed electronically.
    2. Whether the petitioner should be responsible for service of the 
petition.
    3. Whether the petitioner should be responsible for serving an NLRB 
form explaining party rights and obligations together with the 
petition.
    4. Whether the petitioner should be required to designate an 
individual representative for purposes of service.
    5. Whether the petitioner should be required to file the showing of 
interest with the Board at the same time as the petition.
    6. Whether electronic signatures should be permitted to satisfy the 
showing of interest.
    7. Whether, upon service of the petition, the employer should be 
required to post an initial Board notice to the employees describing 
the petition and procedures.
    8. Whether or how the rules should amend the final notice to 
employees regarding the election.
    a. Whether the notice should issue simultaneously with the 
direction of election.
    b. Whether the notice should be distributed electronically, either 
by the region or by the employer.
    c. Whether the time period for posting the final notice should be 
at least two full working days before the election, three full working 
days as is the current practice, or some other length of time.
    9. Whether the Board should electronically transmit documents to 
the parties.
    B. Pre-Election Hearings. Whether or how pre-election litigation 
procedures should be revised.
    1. When the pre-election hearing should be held.
    2. Whether, when, or how written statements should be filed raising 
issues and providing initial disclosures of relevant information. 
Whether, when, or how written statements may be supplemented, 
corrected, or changed after they are filed or whether parties should be 
prohibited from changing the positions taken in their written 
statements. Whether issues not raised in the written statements should 
be considered waived.
    3. Whether or how the rules should define the types of issues which 
should be litigated at the pre-election hearing.
    a. Existence of a question of representation.
    b. The appropriateness of the petitioned-for unit.
    c. Eligibility issues impacting large groups of employees (the 
proposed ``20% rule'').
    d. Eligibility issues impacting individuals or small groups of 
employees.
    e. Issues which raise special concerns (guard status, professional 
status, jurisdiction, etc.).
    4. Whether or how the rules should describe the procedure for the 
hearing officer and regional director to follow in admitting and 
excluding evidence at the hearing.
    5. What deadline should be set for filing subpoenas and motions to 
quash.
    6. Whether or how the rules should specify the standard, form, and 
timing for presenting concluding statements and arguments, and post-
hearing briefs.
    7. Whether the rules should permit the direction of election to be 
issued before a pre-election decision is issued, with a decision to 
follow.
    C. Voter Eligibility Lists. Whether or how the rules should address 
voter lists.
    1. Whether the Board's holding in Excelsior Underwear, Inc., 156 
NLRB 1236 (1966) and the cases that interpret it should be codified in 
the rules.
    2. Service of voter lists.
    a. What deadline should be set for an employer to submit voter 
lists.
    b. Whether and how voter lists should be directly served on the 
parties by the employer.
    3. What information the voter lists should contain, whether 
Excelsior should be updated with modern forms of contact information, 
and how to strike the correct balance of NLRA, privacy, and other 
interests.
    a. Which types of contact information involve greater or lesser 
privacy concerns.
    b. Whether or how restrictions on use of information should be 
imposed to address privacy concerns.
    c. Whether specific alternatives to voter lists might better serve 
the interests of the Act, including:
    i. Whether employees might be able to opt-out/opt-in to the 
inclusion of certain information on voter lists.
    ii. Whether other means of communication might be created, such as 
government-hosted electronic forums or emails.
    D. Requests for Review. Whether or how to amend the process for 
Board review of the decision and direction of election.
    1. When the parties should be required to file a request for Board 
review of the direction of election.
    2. Whether or how the rules should describe the standard the Board 
will apply in deciding whether to grant a stay of proceedings, and/or 
interlocutory Board review of the direction of election.
    3. Whether a request for review which is not interlocutory should 
be consolidated with any request for review of post-election decisions 
by the regional director.
    4. Whether the Board should eliminate the authority of regional 
directors to sua sponte transfer cases to the Board for issuance of an 
initial decision and direction of election.
    E. Timing of Elections. Whether or how the rules should address the 
scheduling of the election.
    1. Whether the election should be scheduled ``as soon as 
practicable.''
    a. If not, whether the rules should include a minimum or maximum 
time between the filing of the petition and the election, and if so, 
how long.
    2. Whether the waiting period set forth in current Section 
101.21(d) should be eliminated.
    3. Whether the proposed rules adequately protect free speech 
interests.
    a. If not, state specifically how the rules should be amended to 
accommodate those interests or which provisions of the proposed rule 
should be adopted or rejected.
    4. Whether or how the rules should address ``blocking charge'' 
policy and the procedures used for placing a representation case in 
abeyance pending the outcome of unfair labor practice charges.
    a. Whether current practice should be codified.
    b. Whether procedures should be expanded to require an offer of 
proof and/or witnesses to be provided to the region when requesting an 
abeyance, and whether the regional director should continue processing 
the case if the offer is inadequate.
    c. What process should be followed while the regional director is 
investigating a request to hold a representation case in abeyance.
    d. Whether the standard should be amended to require the regional 
director to find probable cause to believe that an unfair labor 
practice was committed before placing a case in abeyance, or whether 
some other standard should apply. Whether the standard should be the 
same for different kinds of unfair labor practice allegations, such as 
those the Board currently describes Type I and Type II blocking 
charges.

[[Page 10750]]

    e. Whether and under what circumstances the current procedure 
should be replaced with a procedure that does not delay the election, 
such as:
    i. a vote-and-impound procedure, or
    ii. reliance solely on other existing procedures, such as motions 
to dismiss the petition and/or post-election objections.
    F. Post-Election Hearings. Whether or how post-election hearing 
procedures should be amended.
    1. Whether to codify the existing practice of determining if the 
hearing is warranted by examining the offer(s) of proof.
    2. Whether such offer(s) of proof in support of objections should 
be filed at the same time as the objection(s).
    3. When the post-election evidentiary hearing should be held.
    4. Whether the post-election hearing should open with statements of 
party positions, followed by the same joinder and offers of proof 
procedures as proposed for pre-election hearings. (See Issue B.2)
    G. Other Post-Election Procedures. Whether or how post-election 
Board review procedures should be amended.
    1. Whether stipulated elections should be subject to discretionary 
Board review of post-election decisions by the regional director.
    2. Whether, in contested cases, regional directors should be 
required to issue a final decision and certification concerning the 
hearing officer's report and recommendation, or may instead choose to 
transfer the matter to the Board.
    3. Whether the current discretionary standard for Board review of 
the regional director's certification in contested cases should be 
amended.
    H. Other Issues.

(Sample) Request To Appear

In the matter: Representation-Case Procedures Rulemaking
RIN 3142-AA08
    Name: Your Name.
    Date: February 28, 2014.
    Organization (if applicable): Your Name & Associates, P.L.L.C..
    Issues: B.6; A.1 & A.9; and G.1 & G.2 & G.3.

First Issue: B.6.

    Summary: I strongly oppose the Board's proposal to eliminate the 
parties' right to file post hearing briefs to the Regional Director 
after the close of the pre-election hearing. Although the proposal 
grants hearing officers discretion to permit the filing of post-hearing 
briefs, it seems clear that the rule is intended to eliminate the right 
to file briefs in all but the most complicated cases. However, the pre-
election hearing is extremely important in every case because that 
provides the basis for the regional director to decide what the 
appropriate unit is for purposes of conducting the election. When I 
file a brief, I point out the best evidence and cases that support my 
client's position. No matter how dedicated the people in the regional 
offices are, and no matter how ``routine'' the case is, it is entirely 
possible that the regional offices will accidentally miss key testimony 
or fail to locate key cases that support my client's position. This, in 
turn, may lead the regional office to mistakenly reject my client's 
position and direct an election in the wrong unit. If that happens, my 
client will have to go through the hassle and expense of a second 
election. I firmly believe maintaining parties' right to file briefs 
will help eliminate mistakes. The old system worked well, and there is 
no reason to change it.

Second Issue: A.1 & A.9

    Summary: I litigate cases and deal with a variety of agencies on 
behalf of clients. On a regular basis I file and receive documents 
electronically. I have never had a problem with electronic filing or 
service of a document. It makes good sense and saves my clients money. 
I no longer have to pay the cost of having to ``overnight a document'' 
so it can be filed by the deadline; instead, I can just electronically 
file the document with the push of a few buttons. This means I don't 
have to pass on those costs to my client. I also get documents quicker 
this way. It's a win win for all the parties and practitioners as well 
as the government. Accordingly, I strongly support the Board's proposal 
to allow parties and the Board to electronically file and transmit 
representation case documents.

Third Issue: G.1 & G.2 & G.3

    Summary: I agree with the Board's proposal to require the regional 
director in contested cases to issue a final decision. In these cases 
it makes little sense for the Board to hear exceptions directly from 
the hearing officer, when, in my experience, the regional director is 
usually quite familiar with the case and the issues presented. And once 
the regional director has issued a decision, there is no problem with 
the Board having only discretionary review--as expressly stated in 
Section 3(b) of the Act. Stipulated cases, however, present an entirely 
different issue. In these cases, the parties have entered into an 
agreement predicated on their right to have the Board--not the regional 
director--decide post-election matters. If, as proposed, the Board 
eliminates that right, the parties will have less incentive to enter 
into stipulations. For these reasons, I support the Board's proposed 
changes to post-election review of contested cases, but not stipulated 
cases.

     Dated: Washington, DC February 20, 2014.

    By direction of the Board.
William B. Cowen,
Solicitor.
[FR Doc. 2014-04127 Filed 2-25-14; 8:45 am]
BILLING CODE 7545-01-P