Representation Case Procedures, 14913-14916 [2023-04839]
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Federal Register / Vol. 88, No. 47 / Friday, March 10, 2023 / Rules and Regulations
objections and challenges without a
hearing. If timely objections are filed to
the conduct of an election or to conduct
affecting the results of the election, and
the Regional Director determines that
the evidence described in the
accompanying offer of proof would not
constitute grounds for setting aside the
election if introduced at a hearing, and
the Regional Director determines that
any determinative challenges do not
raise substantial and material factual
issues, the Regional Director shall issue
a decision disposing of the objections
and determinative challenges, and a
certification of the results of the
election, including certification of
representative where appropriate.
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(iii) Hearings; Hearing Officer reports;
exceptions to Regional Director. The
hearing on objections and challenges
shall continue from day to day until
completed unless the Regional Director
concludes that extraordinary
circumstances warrant otherwise. 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. Any party
shall have the right to appear at the
hearing in person, by counsel, or by
other representative, to call, examine,
and cross-examine witnesses, and to
introduce into the record evidence of
the significant facts that support the
party’s contentions and are relevant to
the objections and determinative
challenges that are the subject of the
hearing. The Hearing Officer may rule
on offers of proof. Any party desiring to
submit a brief to the Hearing Officer
shall be entitled to do so within 5
business days after the close of the
hearing. Prior to the close of the hearing
and for good cause the Hearing Officer
may grant an extension of time to file a
brief not to exceed an additional 10
business days. 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 10 business 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 5 business
days from the last date on which
exceptions and any supporting brief
may be filed, or such further time as the
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Regional Director may allow, a party
opposing the exceptions may file an
answering brief with the Regional
Director. An original and one copy shall
be submitted. A copy of such answering
brief shall immediately be served on the
other parties and a statement of service
filed with the Regional Director. Extra
copies of electronically-filed papers
need not be filed. The Regional Director
shall thereupon decide the matter upon
the record or make other disposition of
the case. If no exceptions are filed to
such report, the Regional Director, upon
the expiration of the period for filing
such exceptions, may decide the matter
forthwith upon the record or may make
other disposition of the case.
(2) Regional Director decisions and
Board review. The decision of the
Regional Director disposing of
challenges and/or objections may
include a certification of the results of
the election, including certification of
representative where appropriate, and
shall be final unless a request for review
is granted. If a consent election has been
held pursuant to §§ 102.62(a) or (c), the
decision of the Regional Director is not
subject to Board review. If the election
has been conducted pursuant to
§ 102.62(b), or by a direction of election
issued following any proceeding under
§ 102.67, the parties shall have the right
to Board review set forth in § 102.67,
except that in any proceeding wherein
a representation case has been
consolidated with an unfair labor
practice proceeding for purposes of
hearing and the election was conducted
pursuant to §§ 102.62(b) or 102.67, 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,
and a request for review of the Regional
Director’s decision and direction of
election shall be due at the same time
as the exceptions to the Administrative
Law Judge’s decision are due.
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(h) Final Disposition. For the
purposes of filing a request for review
pursuant to § 102.67(c) or to paragraph
(c)(2) of this section, a case is
considered to have reached final
disposition when the Regional Director
dismisses the petition or issues a
certification of results (including, where
appropriate, a certification of
representative).
Dated: March 6, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023–04840 Filed 3–9–23; 8:45 am]
BILLING CODE 7545–01–P
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14913
NATIONAL LABOR RELATIONS
BOARD
29 CFR Part 102
RIN 3142–AA12
Representation Case Procedures
AGENCY:
National Labor Relations
Board.
ACTION:
Final rule; stay.
The National Labor Relations
Board (Board) is staying two provisions
of its 2019 final rule (‘‘Final Rule’’)
amending its representation case
procedures to account for new court
decisions. The two provisions, which
have never been in effect, are stayed
until September 10, 2023. This stay is
necessary to accommodate pending
litigation over remaining challenges to
the Final Rule and because the Board is
currently considering whether to revise
or repeal the Final Rule, including
potential revisions to the two
provisions.
SUMMARY:
As of March 10, 2023, the
amendments to 29 CFR 102.64(a) and 29
CFR 102.67(b) in the final rule that
published at 84 FR 69524, on December
18, 2019, and delayed at 85 FR 17500,
March 30, 2020, are stayed from May 31,
2020, until September 10, 2023.
FOR FURTHER INFORMATION CONTACT:
Roxanne L. Rothschild, Executive
Secretary, National Labor Relations
Board, 1015 Half St. SE, Washington,
DC 20570–0001, (202) 273–2940 (this is
not a toll-free number), 1–866–315–6572
(TTY/TDD).
SUPPLEMENTARY INFORMATION: On
December 18, 2019, the National Labor
Relations Board published a final rule
amending various aspects of its
representation-case procedures. (84 FR
69524, Dec. 18, 2019.) The Board
published the Final Rule as ‘‘a
procedural rule which is exempt from
notice and public comment, pursuant to
5 U.S.C. 553(b)(3)(A), as a rule of
‘agency organization, procedure, or
practice.’ ’’ 84 FR at 69587. On March
30, 2020, the Board delayed the effective
date of the final rule to May 31, 2020,
upon request of the United States
District Court for the District of
Columbia and to ‘‘facilitate the
resolution of the legal challenges that
have been filed with respect to the
rule.’’ (85 FR 17500, Mar. 30, 2020.)
On May 30, 2020, the United States
District Court for the District of
Columbia issued an order in AFL–CIO v.
NLRB, Civ. No. 20–cv–0675, vacating
five provisions of the Final Rule and
enjoining their implementation. 466 F.
Supp. 3d 68 (D.D.C. 2020). The District
DATES:
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Court concluded that each of the five
provisions was substantive in nature,
not procedural, and that the Board
therefore violated the Administrative
Procedure Act by failing to use notice
and comment rulemaking. Id. at 92.
On January 17, 2023, the United
States Court of Appeals for the District
of Columbia Circuit issued a decision
and order reversing the District Court as
to two of the five provisions, agreeing
with the Board that those provisions
were procedural in nature and not
subject to notice and comment
rulemaking. AFL–CIO v. NLRB, 57 F.4th
1023, (D.C. Cir., 2023). The two
provisions are: (1) an amendment to 29
CFR 102.64(a) allowing the parties to
litigate disputes over unit scope and
voter eligibility prior to the election; 1
and (2) an amendment to 29 CFR
102.67(b) instructing Regional Directors
not to schedule elections before the 20th
business day after the date of the
direction of election.2 The D.C. Circuit
remanded the case to the District Court
to consider two counts in the complaint
that challenge these two provisions and
that remain viable in light of its
decision.
Due to the District Court’s injunction,
these two provisions have never taken
effect. The time for filing a petition for
rehearing with the D.C. Circuit under
Federal Rule of Appellate Procedure 40
has passed, and, once the District of
Columbia Circuit’s mandate issues on or
about March 10, 2023, the District
Court’s injunction will be lifted. At that
point, the two previously enjoined
provisions will go into effect pursuant
to the original May 31, 2020 effective
date. The District Court will also begin
its consideration of the challenges to the
two provisions remaining for decision.
The Board has decided to stay the
effective date of the two provisions to
September 10, 2023, six months from
the expected issuance of the District of
Columbia Circuit’s mandate. The Board
has determined that staying those
provisions until September 10, 2023
would accommodate the pending legal
challenges before the District Court. 5
U.S.C. 705. Moreover, a stay is
necessary and appropriate because the
Board is currently considering whether
to revise or repeal the Final Rule,
including potential revisions to these
two provisions. Delayed
implementation of these provisions will
permit further consideration by the
Board of the merits of the Final Rule
and will avoid the possible waste of
administrative resources and public
uncertainty if the provisions were to go
1 84
2 84
FR at 69593.
FR at 69595.
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into effect only for a short period of time
before being impacted by forthcoming
revisions. The stay of the two
provisions’ effective date merely
extends the status quo.
We disagree with the dissenting
position of Member Kaplan, who argues
a stay in the effective date of the two
provisions is unwarranted. His position
is based on his view of the policy merits
of the provisions and the legal merits of
the pending challenge to them in the
District Court. At this juncture,
however, consideration of the
provisions’ merits by the Board is
premature. Resolution of the legal
challenge to the provisions, in turn, is
a matter for the District Court. As
explained, a stay of the effective date of
the provisions facilitates both processes,
by preserving the status quo.
This stay is published as a final rule.
The Board considers this rule to be a
procedural rule that is exempt from
notice and public comment, pursuant to
5 U.S.C. 553(b)(3)(A), because it
concerns a rule of ‘‘agency organization,
procedure, or practice.’’ AFL–CIO v.
NLRB, 57 F.4th at 1035.
Dissenting Opinion of Member Kaplan
In 2019, the Board issued a final rule 1
amending certain provisions of its
representation-case rules, which had
been extensively modified in a final rule
enacted in 2014.2 It did so without first
issuing a notice of proposed rulemaking
because it viewed the amendments as
pertaining to ‘‘rules of agency . . .
procedure,’’ and such ‘‘procedural
rules’’ are exempt from notice-andcomment requirements under 5 U.S.C.
553(b)(3)(A). The AFL–CIO challenged
the 2019 Rule in the United States
District Court for the District of
Columbia on several grounds, including
that five provisions of the 2019 Rule
were not procedural and therefore not
exempt from notice-and-comment
rulemaking. The district court agreed
with the AFL–CIO and vacated all five.3
Recently, a divided Court of Appeals for
the District of Columbia Circuit (‘‘D.C.
Circuit’’ or ‘‘court of appeals’’) reversed
in part, holding that two of the five are
procedural but three are not.4 ‘‘Those
three provisions,’’ said the court, ‘‘must
remain vacated unless and until the
Board repromulgates them with notice
and comment.’’ 5 In dissent, Judge Rao
1 ‘‘Representation-Case Procedures,’’ 84 FR 69524
(Dec. 18, 2019) (the ‘‘2019 Rule’’).
2 ‘‘Representation-Case Procedures,’’ 79 FR 74307
(Dec. 15, 2014) (the ‘‘2014 Rule’’).
3 AFL–CIO v. NLRB, 466 F. Supp. 3d 68 (D.D.C.
2020).
4 AFL–CIO v. NLRB, 57 F.4th 1023, 1034–1046
(D.C. Cir. 2023).
5 Id. at 1049.
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said that the majority had applied an
‘‘obsolete legal standard’’ and that
‘‘[u]nder the correct standard,’’ all five
‘‘are classic procedural rules.’’ 6
In a separate final rule issued today,
my colleagues rescind the three
provisions of the 2019 Rule that the D.C.
Circuit held to be not procedural. As I
explain in my dissent to that rule, I
would have asked the Solicitor General
to file a petition for certiorari from the
D.C. Circuit’s decision because the
controlling legal test for determining
when rulemaking is procedural and
therefore exempt from notice-andcomment requirements under the
Administrative Procedure Act presents
‘‘an important question of federal law
that has not been, but should be, settled
by’’ the Supreme Court.7 But since my
colleagues did not join me in that
regard, I would pursue the option the
D.C. Circuit suggested and repromulgate
the three provisions the court held not
procedural for notice-and-comment
rulemaking.8 I would do so because I
believe, subject to comments, that those
three provisions are superior to the rules
that my colleagues have snapped back
into place.
In the instant final rule, the majority
addresses the two provisions of the 2019
Rule that the D.C. Circuit held to be
procedural and therefore properly
implemented without notice and
comment. The AFL–CIO’s challenge to
those two provisions was not limited to
its claim that they are not procedural,
but the district court, having vacated
them (erroneously) as not procedural,
did not address the AFL–CIO’s
remaining contentions. Accordingly, the
D.C. Circuit remanded the two
provisions to the district court to
address those contentions. Meanwhile,
because the D.C. Circuit has held that
those two provisions are procedural and
therefore were properly enacted without
notice and comment, they will take
effect when the court of appeals issues
its mandate. To prevent that from
happening, my colleagues issue this rule
to stay the effective date of the two
provisions to September 10, 2023.
6 Id. at 1050 (Rao, J., concurring in the judgment
in part and dissenting in part).
7 Supreme Court Rule 10(c).
8 The D.C. Circuit also vacated a fourth provision
of the 2019 Rule, which mandated impoundment of
ballots if a request for review of a regional director’s
decision and direction of election is filed within 10
days of issuance of the decision and direction, and
the Board has either granted or not ruled on the
request for review before the conclusion of the
election. The court held this provision unlawful as
contrary to Sec. 3(b) of the Act. Interpreting Sec.
3(b) differently than the majority, Judge Rao would
have upheld this provision as well. Although I
agree with Judge Rao’s interpretation, I recognize
that repromulgating the ballot-impoundment
provision for notice and comment is not an option.
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I disagree with their decision to do so.
My colleagues state two reasons for
issuing this stay: to give the district
court time to consider the AFL–CIO’s
remaining arguments on remand, and to
give themselves time to decide whether
to revise or repeal the 2019 Rule,
including the two provisions that have
been sent back to the district court. I
will not take this occasion to mount a
comprehensive defense of the 2019
Rule. There is not time for me to do so;
the court of appeals will issue its
mandate on March 10, and my
colleagues are determined to issue this
rule before that happens. I will,
however, explain why the two
provisions of the 2019 Rule at issue here
should be allowed to take effect when
the court issues its mandate.
The two provisions are these: (1) a
rule providing that unit scope and voter
eligibility (including supervisory status)
normally will be litigated and resolved
by the regional director before he or she
directs the election (the ‘‘unit-scopeand-eligibility rule’’), and (2) a rule
providing that normally, the regional
director will not schedule an election
before the 20th business day after the
date of the direction of election (the
‘‘20-days rule’’). As the Board said in
the 2019 Rule, these two provisions go
hand in hand: the regional director will
resolve disputes over unit scope and
voter eligibility before directing the
election, and the 20-days rule will give
the Board time to act on a request for
review of the regional director’s
decision if one is filed. They should be
allowed to take effect when mandate
issues for two reasons. They promote
important interests that the 2014 Rule
subordinated to speed. And there is no
good reason to wait for the district court
to rule on the AFL–CIO’s remaining
arguments for vacating these provisions
because those arguments are meritless.
The rules at issue promote important
interests.
Under the 2014 Rule, regional
directors were instructed to schedule
elections on ‘‘the earliest date
practicable,’’ and litigation of disputes
over unit scope and voter eligibility,
including supervisory status, were
largely postponed until after the
election. Speed—i.e., shortening the
time between the filing of the
representation petition and the
election—was prioritized over other
interests. In the 2019 Rule, the Board
acknowledged that speed is an
important interest and that some of the
changes it was making to the Board’s
representation-case procedures would
unavoidably result in some delay
between the filing of the petition and
the election. But the Board made clear
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that none of the changes had a purpose
of delay but were being made to serve
other important interests.
Specifically as to the provisions of the
2019 Rule at issue here, I cannot
improve on the concise explanation the
Board furnished there of the interests
those rules serve. The italics are mine.
By permitting the parties—where they
cannot otherwise agree on resolving or
deferring such matters—to litigate issues of
unit scope and employee eligibility at the
pre-election hearing, by expecting the
Regional Director to resolve these issues
before proceeding to an election, and by
providing time for the Board to entertain a
timely-filed request for review of the regional
director’s resolution prior to the election, the
final rule promotes fair and accurate voting
by ensuring that the employees, at the time
they cast their votes, know the contours of
the unit in which they are voting. Further, by
permitting litigation of these issues prior to
the election, instead of deferring them until
after the election, the final rule removes the
pendency of such issues as a barrier to
reaching certainty and finality of election
results. Under the 2014 amendments, such
issues could linger on after the election for
weeks, months, or even years before being
resolved. This state of affairs plainly did not
promote certainty and finality.
Relaxing the timelines instituted by the
2014 amendments also promotes
transparency. . . . Providing employees
with more detailed knowledge of the
contours of the voting unit, as well as
resolving eligibility issues, self-evidently
promotes transparency; leaving issues of unit
scope and employee eligibility unresolved
until after an election (absent agreement of
the parties to do so) clearly does a disservice
to transparency. Relatedly, resolving issues
such as supervisory status before the election
ensures that the parties know who speaks for
management and whose actions during the
election campaign could give rise to
allegations of objectionable conduct or unfair
labor practice charges.
84 FR at 69529. I agree that the unitscope-and-eligibility rule and the 20days rule serve these important
interests, and I believe these interests
outweigh the interest in speed. Since I
can think of no other reason my
colleagues might have for repealing
these rules than once again promoting
speed at the expense of certainty,
finality, and transparency, I would not
delay their effective date to provide time
to consider taking that step.
The AFL–CIO’s remaining arguments
are meritless.
The other reason the majority gives
for staying of the unit-scope-andeligibility rule and the 20-days rule is to
provide time for the district court to rule
on remand concerning the AFL–CIO’s
remaining grounds of attack on those
rules. The AFL–CIO contends that both
provisions must be vacated as arbitrary
and capricious, and that the 20-days
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14915
rule must additionally be vacated as
contrary to Section 3(b) of the Act.
There is no good reason to wait for the
district court to dispose of these
contentions because they will not
succeed.
Regarding the AFL–CIO’s arbitraryand-capricious attack, one need look no
further than the D.C. Circuit’s decision
to see that it will fail. The AFL–CIO had
also argued before the district court that
the 2019 Rule as a whole was arbitrary
and capricious. Affirming the district
court’s dismissal of that argument, the
court of appeals wrote as follows:
The Board gives a rational account of how
the 2019 Rule advances interests apart from
speed. For example, the Board adequately
explains that the election-scheduling
provision—which supplements the ‘‘earliest
date practicable’’ language with a default
minimum period of twenty business days—
promotes transparency and uniformity by
making the timing of elections more
predictable for parties. See [84 FR] at 69,546.
It also explains that the provision regarding
pre-election litigation of voter eligibility, unit
scope, and supervisory status could provide
employee-voters with more complete
information about ‘‘who they are voting to
join in collective bargaining.’’ Id. at 69,541.9
In other words, in explaining why the
district court correctly rejected the
AFL–CIO’s contention that the 2019
Rule as a whole was arbitrary and
capricious, the D.C. Circuit singled out
the very provisions that are now back
before the district court to determine
whether they are arbitrary and
capricious. The court of appeals could
not have sent a clearer signal to the
lower court that any other resolution
besides dismissal is out of the question.
The AFL–CIO’s claim that the 20-days
rule is also unlawful as contrary to
Section 3(b) of the Act also fails. Section
3(b) relevantly provides:
[U]pon 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.
29 U.S.C. 159(b). The clear language of
this provision indicates that it is
triggered only ‘‘upon the filing of a
request [for review of a regional
director’s action] . . . with the Board.’’
Even assuming that the 20-days rule
‘‘operate[s] as a stay’’ of an action taken
by the regional director—namely,
tallying the ballots—this alleged ‘‘stay’’
is not triggered by the filing of any
request for review with the Board.
Rather, it results from the 20-days rule
9 AFL–CIO
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itself. Section 3(b) does not speak to that
delay.10
In sum, my colleagues have failed to
provide a persuasive reason for staying
the effective date of the unit-scope-andeligibility and 20-days rules. I favor
allowing these rules to take effect just as
soon as the D.C. Circuit issues mandate.
Accordingly, from the majority’s final
rule, I dissent.
Dated: March 6, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023–04839 Filed 3–9–23; 8:45 am]
BILLING CODE 7545–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2023–0163]
RIN 1625–AA00
Safety Zone; Missouri River Mile
Markers 175.5–176.5, Jefferson City,
MO
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
all navigable waters in the Missouri
River at Mile Marker (MM) 175.5 to
176.5. The safety zone is needed to
protect personnel, vessels, and the
marine environment from all potential
hazards associated with electrical line
work. Entry of vessels or persons into
this zone is prohibited unless
specifically authorized by the Captain of
the Port Sector Upper Mississippi River
(COTP) or a designated representative.
DATES: This rule is effective from March
13, 2023, until March 24, 2023.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2023–
0163 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
SUMMARY:
If
you have questions on this rule, call or
email MSTC Nathaniel Dibley, Sector
Upper Mississippi River Waterways
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FOR FURTHER INFORMATION CONTACT:
10 As stated above, the court of appeals found that
the ballot-impoundment provision in the 2019 Rule
is contrary to Sec. 3(b). That provision, however, is
expressly triggered only when a party files a request
for review within ten business days of the issuance
of the direction of election and when certain other
conditions are met.
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Management Division, U.S. Coast
Guard; telephone 314–269–2550, email
Nathaniel.D.Dibley@uscg.mil.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of The Port Sector Upper
Mississippi River
DHS Department of Homeland Security
FR Federal Register
MM Mile marker
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable. We must establish this
temporary safety zone immediately to
protect personnel, vessels, and the
marine environment from potential
hazards created by the electrical work
and lack sufficient time to provide a
reasonable comment period and then
consider those comments before issuing
the rule.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying this rule would be
contrary to the public interest because
immediate action is needed to respond
to the potential safety hazards
associated with the ongoing
construction work.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70034
(previously 33 U.S.C. 1231). The
Captain of the Port Sector Upper
Mississippi River (COTP) has
determined that potential hazards
associated with electrical line work will
be a safety concern for anyone operating
or transiting within the Missouri River
from MM 175.5–176.5. This rule is
needed to protect personnel, vessels,
and the marine environment in the
navigable waters within the safety zone
while electrical line work is being
conducted.
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IV. Discussion of the Rule
Electrical line work will be occurring
near MM 175.5–176.5 beginning March
13, 2023. The safety zone is designed to
protect waterway users until work is
complete.
No vessel or person will be permitted
to enter the safety zone without
obtaining permission from the COTP or
a designated representative. A
designated representative is a
commissioned, warrant, or petty officer
of the U.S. Coast Guard (USCG) assigned
to units under the operational control of
USCG Sector Upper Mississippi River.
To seek permission to enter, contact the
COTP or a designated representative via
VHF–FM channel 16, or through USCG
Sector Upper Mississippi River at 314–
269–2332. Persons and vessels
permitted to enter the safety zone must
comply with all lawful orders or
directions issued by the COTP or
designated representative. The COTP or
a designated representative will inform
the public of the effective period for the
safety zone as well as any changes in the
dates and times of enforcement, as well
as reductions in the size of the safety
zone as conditions improve, through
Local Notice to Mariners (LNMs),
Broadcast Notices to Mariners (BNMs),
and/or Safety Marine Information
Broadcast (SMIB), as appropriate.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly,
this rule has not been reviewed by the
Office of Management and Budget
(OMB).
This regulatory action determination
is based on a safety zone located on the
Missouri River at MM 175.5–176.5, near
Jefferson City, MO. The Safety Zone is
expected to be active only during the
hours of 9 a.m. through 4 p.m., or only
when work is being conducted, every
day until March 24, 2023.
B. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
E:\FR\FM\10MRR1.SGM
10MRR1
]]>Agencies
[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14913-14916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04839]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
RIN 3142-AA12
Representation Case Procedures
AGENCY: National Labor Relations Board.
ACTION: Final rule; stay.
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SUMMARY: The National Labor Relations Board (Board) is staying two
provisions of its 2019 final rule (``Final Rule'') amending its
representation case procedures to account for new court decisions. The
two provisions, which have never been in effect, are stayed until
September 10, 2023. This stay is necessary to accommodate pending
litigation over remaining challenges to the Final Rule and because the
Board is currently considering whether to revise or repeal the Final
Rule, including potential revisions to the two provisions.
DATES: As of March 10, 2023, the amendments to 29 CFR 102.64(a) and 29
CFR 102.67(b) in the final rule that published at 84 FR 69524, on
December 18, 2019, and delayed at 85 FR 17500, March 30, 2020, are
stayed from May 31, 2020, until September 10, 2023.
FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive
Secretary, National Labor Relations Board, 1015 Half St. SE,
Washington, DC 20570-0001, (202) 273-2940 (this is not a toll-free
number), 1-866-315-6572 (TTY/TDD).
SUPPLEMENTARY INFORMATION: On December 18, 2019, the National Labor
Relations Board published a final rule amending various aspects of its
representation-case procedures. (84 FR 69524, Dec. 18, 2019.) The Board
published the Final Rule as ``a procedural rule which is exempt from
notice and public comment, pursuant to 5 U.S.C. 553(b)(3)(A), as a rule
of `agency organization, procedure, or practice.' '' 84 FR at 69587. On
March 30, 2020, the Board delayed the effective date of the final rule
to May 31, 2020, upon request of the United States District Court for
the District of Columbia and to ``facilitate the resolution of the
legal challenges that have been filed with respect to the rule.'' (85
FR 17500, Mar. 30, 2020.)
On May 30, 2020, the United States District Court for the District
of Columbia issued an order in AFL-CIO v. NLRB, Civ. No. 20-cv-0675,
vacating five provisions of the Final Rule and enjoining their
implementation. 466 F. Supp. 3d 68 (D.D.C. 2020). The District
[[Page 14914]]
Court concluded that each of the five provisions was substantive in
nature, not procedural, and that the Board therefore violated the
Administrative Procedure Act by failing to use notice and comment
rulemaking. Id. at 92.
On January 17, 2023, the United States Court of Appeals for the
District of Columbia Circuit issued a decision and order reversing the
District Court as to two of the five provisions, agreeing with the
Board that those provisions were procedural in nature and not subject
to notice and comment rulemaking. AFL-CIO v. NLRB, 57 F.4th 1023, (D.C.
Cir., 2023). The two provisions are: (1) an amendment to 29 CFR
102.64(a) allowing the parties to litigate disputes over unit scope and
voter eligibility prior to the election; \1\ and (2) an amendment to 29
CFR 102.67(b) instructing Regional Directors not to schedule elections
before the 20th business day after the date of the direction of
election.\2\ The D.C. Circuit remanded the case to the District Court
to consider two counts in the complaint that challenge these two
provisions and that remain viable in light of its decision.
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\1\ 84 FR at 69593.
\2\ 84 FR at 69595.
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Due to the District Court's injunction, these two provisions have
never taken effect. The time for filing a petition for rehearing with
the D.C. Circuit under Federal Rule of Appellate Procedure 40 has
passed, and, once the District of Columbia Circuit's mandate issues on
or about March 10, 2023, the District Court's injunction will be
lifted. At that point, the two previously enjoined provisions will go
into effect pursuant to the original May 31, 2020 effective date. The
District Court will also begin its consideration of the challenges to
the two provisions remaining for decision.
The Board has decided to stay the effective date of the two
provisions to September 10, 2023, six months from the expected issuance
of the District of Columbia Circuit's mandate. The Board has determined
that staying those provisions until September 10, 2023 would
accommodate the pending legal challenges before the District Court. 5
U.S.C. 705. Moreover, a stay is necessary and appropriate because the
Board is currently considering whether to revise or repeal the Final
Rule, including potential revisions to these two provisions. Delayed
implementation of these provisions will permit further consideration by
the Board of the merits of the Final Rule and will avoid the possible
waste of administrative resources and public uncertainty if the
provisions were to go into effect only for a short period of time
before being impacted by forthcoming revisions. The stay of the two
provisions' effective date merely extends the status quo.
We disagree with the dissenting position of Member Kaplan, who
argues a stay in the effective date of the two provisions is
unwarranted. His position is based on his view of the policy merits of
the provisions and the legal merits of the pending challenge to them in
the District Court. At this juncture, however, consideration of the
provisions' merits by the Board is premature. Resolution of the legal
challenge to the provisions, in turn, is a matter for the District
Court. As explained, a stay of the effective date of the provisions
facilitates both processes, by preserving the status quo.
This stay is published as a final rule. The Board considers this
rule to be a procedural rule that is exempt from notice and public
comment, pursuant to 5 U.S.C. 553(b)(3)(A), because it concerns a rule
of ``agency organization, procedure, or practice.'' AFL-CIO v. NLRB, 57
F.4th at 1035.
Dissenting Opinion of Member Kaplan
In 2019, the Board issued a final rule \1\ amending certain
provisions of its representation-case rules, which had been extensively
modified in a final rule enacted in 2014.\2\ It did so without first
issuing a notice of proposed rulemaking because it viewed the
amendments as pertaining to ``rules of agency . . . procedure,'' and
such ``procedural rules'' are exempt from notice-and-comment
requirements under 5 U.S.C. 553(b)(3)(A). The AFL-CIO challenged the
2019 Rule in the United States District Court for the District of
Columbia on several grounds, including that five provisions of the 2019
Rule were not procedural and therefore not exempt from notice-and-
comment rulemaking. The district court agreed with the AFL-CIO and
vacated all five.\3\ Recently, a divided Court of Appeals for the
District of Columbia Circuit (``D.C. Circuit'' or ``court of appeals'')
reversed in part, holding that two of the five are procedural but three
are not.\4\ ``Those three provisions,'' said the court, ``must remain
vacated unless and until the Board repromulgates them with notice and
comment.'' \5\ In dissent, Judge Rao said that the majority had applied
an ``obsolete legal standard'' and that ``[u]nder the correct
standard,'' all five ``are classic procedural rules.'' \6\
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\1\ ``Representation-Case Procedures,'' 84 FR 69524 (Dec. 18,
2019) (the ``2019 Rule'').
\2\ ``Representation-Case Procedures,'' 79 FR 74307 (Dec. 15,
2014) (the ``2014 Rule'').
\3\ AFL-CIO v. NLRB, 466 F. Supp. 3d 68 (D.D.C. 2020).
\4\ AFL-CIO v. NLRB, 57 F.4th 1023, 1034-1046 (D.C. Cir. 2023).
\5\ Id. at 1049.
\6\ Id. at 1050 (Rao, J., concurring in the judgment in part and
dissenting in part).
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In a separate final rule issued today, my colleagues rescind the
three provisions of the 2019 Rule that the D.C. Circuit held to be not
procedural. As I explain in my dissent to that rule, I would have asked
the Solicitor General to file a petition for certiorari from the D.C.
Circuit's decision because the controlling legal test for determining
when rulemaking is procedural and therefore exempt from notice-and-
comment requirements under the Administrative Procedure Act presents
``an important question of federal law that has not been, but should
be, settled by'' the Supreme Court.\7\ But since my colleagues did not
join me in that regard, I would pursue the option the D.C. Circuit
suggested and repromulgate the three provisions the court held not
procedural for notice-and-comment rulemaking.\8\ I would do so because
I believe, subject to comments, that those three provisions are
superior to the rules that my colleagues have snapped back into place.
---------------------------------------------------------------------------
\7\ Supreme Court Rule 10(c).
\8\ The D.C. Circuit also vacated a fourth provision of the 2019
Rule, which mandated impoundment of ballots if a request for review
of a regional director's decision and direction of election is filed
within 10 days of issuance of the decision and direction, and the
Board has either granted or not ruled on the request for review
before the conclusion of the election. The court held this provision
unlawful as contrary to Sec. 3(b) of the Act. Interpreting Sec. 3(b)
differently than the majority, Judge Rao would have upheld this
provision as well. Although I agree with Judge Rao's interpretation,
I recognize that repromulgating the ballot-impoundment provision for
notice and comment is not an option.
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In the instant final rule, the majority addresses the two
provisions of the 2019 Rule that the D.C. Circuit held to be procedural
and therefore properly implemented without notice and comment. The AFL-
CIO's challenge to those two provisions was not limited to its claim
that they are not procedural, but the district court, having vacated
them (erroneously) as not procedural, did not address the AFL-CIO's
remaining contentions. Accordingly, the D.C. Circuit remanded the two
provisions to the district court to address those contentions.
Meanwhile, because the D.C. Circuit has held that those two provisions
are procedural and therefore were properly enacted without notice and
comment, they will take effect when the court of appeals issues its
mandate. To prevent that from happening, my colleagues issue this rule
to stay the effective date of the two provisions to September 10, 2023.
[[Page 14915]]
I disagree with their decision to do so. My colleagues state two
reasons for issuing this stay: to give the district court time to
consider the AFL-CIO's remaining arguments on remand, and to give
themselves time to decide whether to revise or repeal the 2019 Rule,
including the two provisions that have been sent back to the district
court. I will not take this occasion to mount a comprehensive defense
of the 2019 Rule. There is not time for me to do so; the court of
appeals will issue its mandate on March 10, and my colleagues are
determined to issue this rule before that happens. I will, however,
explain why the two provisions of the 2019 Rule at issue here should be
allowed to take effect when the court issues its mandate.
The two provisions are these: (1) a rule providing that unit scope
and voter eligibility (including supervisory status) normally will be
litigated and resolved by the regional director before he or she
directs the election (the ``unit-scope-and-eligibility rule''), and (2)
a rule providing that normally, the regional director will not schedule
an election before the 20th business day after the date of the
direction of election (the ``20-days rule''). As the Board said in the
2019 Rule, these two provisions go hand in hand: the regional director
will resolve disputes over unit scope and voter eligibility before
directing the election, and the 20-days rule will give the Board time
to act on a request for review of the regional director's decision if
one is filed. They should be allowed to take effect when mandate issues
for two reasons. They promote important interests that the 2014 Rule
subordinated to speed. And there is no good reason to wait for the
district court to rule on the AFL-CIO's remaining arguments for
vacating these provisions because those arguments are meritless.
The rules at issue promote important interests.
Under the 2014 Rule, regional directors were instructed to schedule
elections on ``the earliest date practicable,'' and litigation of
disputes over unit scope and voter eligibility, including supervisory
status, were largely postponed until after the election. Speed--i.e.,
shortening the time between the filing of the representation petition
and the election--was prioritized over other interests. In the 2019
Rule, the Board acknowledged that speed is an important interest and
that some of the changes it was making to the Board's representation-
case procedures would unavoidably result in some delay between the
filing of the petition and the election. But the Board made clear that
none of the changes had a purpose of delay but were being made to serve
other important interests.
Specifically as to the provisions of the 2019 Rule at issue here, I
cannot improve on the concise explanation the Board furnished there of
the interests those rules serve. The italics are mine.
By permitting the parties--where they cannot otherwise agree on
resolving or deferring such matters--to litigate issues of unit
scope and employee eligibility at the pre-election hearing, by
expecting the Regional Director to resolve these issues before
proceeding to an election, and by providing time for the Board to
entertain a timely-filed request for review of the regional
director's resolution prior to the election, the final rule promotes
fair and accurate voting by ensuring that the employees, at the time
they cast their votes, know the contours of the unit in which they
are voting. Further, by permitting litigation of these issues prior
to the election, instead of deferring them until after the election,
the final rule removes the pendency of such issues as a barrier to
reaching certainty and finality of election results. Under the 2014
amendments, such issues could linger on after the election for
weeks, months, or even years before being resolved. This state of
affairs plainly did not promote certainty and finality.
Relaxing the timelines instituted by the 2014 amendments also
promotes transparency. . . . Providing employees with more detailed
knowledge of the contours of the voting unit, as well as resolving
eligibility issues, self-evidently promotes transparency; leaving
issues of unit scope and employee eligibility unresolved until after
an election (absent agreement of the parties to do so) clearly does
a disservice to transparency. Relatedly, resolving issues such as
supervisory status before the election ensures that the parties know
who speaks for management and whose actions during the election
campaign could give rise to allegations of objectionable conduct or
unfair labor practice charges.
84 FR at 69529. I agree that the unit-scope-and-eligibility rule and
the 20-days rule serve these important interests, and I believe these
interests outweigh the interest in speed. Since I can think of no other
reason my colleagues might have for repealing these rules than once
again promoting speed at the expense of certainty, finality, and
transparency, I would not delay their effective date to provide time to
consider taking that step.
The AFL-CIO's remaining arguments are meritless.
The other reason the majority gives for staying of the unit-scope-
and-eligibility rule and the 20-days rule is to provide time for the
district court to rule on remand concerning the AFL-CIO's remaining
grounds of attack on those rules. The AFL-CIO contends that both
provisions must be vacated as arbitrary and capricious, and that the
20-days rule must additionally be vacated as contrary to Section 3(b)
of the Act. There is no good reason to wait for the district court to
dispose of these contentions because they will not succeed.
Regarding the AFL-CIO's arbitrary-and-capricious attack, one need
look no further than the D.C. Circuit's decision to see that it will
fail. The AFL-CIO had also argued before the district court that the
2019 Rule as a whole was arbitrary and capricious. Affirming the
district court's dismissal of that argument, the court of appeals wrote
as follows:
The Board gives a rational account of how the 2019 Rule advances
interests apart from speed. For example, the Board adequately
explains that the election-scheduling provision--which supplements
the ``earliest date practicable'' language with a default minimum
period of twenty business days--promotes transparency and uniformity
by making the timing of elections more predictable for parties. See
[84 FR] at 69,546. It also explains that the provision regarding
pre-election litigation of voter eligibility, unit scope, and
supervisory status could provide employee-voters with more complete
information about ``who they are voting to join in collective
bargaining.'' Id. at 69,541.\9\
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\9\ AFL-CIO v. NLRB, 57 F.4th at 1047.
In other words, in explaining why the district court correctly
rejected the AFL-CIO's contention that the 2019 Rule as a whole was
arbitrary and capricious, the D.C. Circuit singled out the very
provisions that are now back before the district court to determine
whether they are arbitrary and capricious. The court of appeals could
not have sent a clearer signal to the lower court that any other
resolution besides dismissal is out of the question.
The AFL-CIO's claim that the 20-days rule is also unlawful as
contrary to Section 3(b) of the Act also fails. Section 3(b) relevantly
provides:
[U]pon 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.
29 U.S.C. 159(b). The clear language of this provision indicates that
it is triggered only ``upon the filing of a request [for review of a
regional director's action] . . . with the Board.'' Even assuming that
the 20-days rule ``operate[s] as a stay'' of an action taken by the
regional director--namely, tallying the ballots--this alleged ``stay''
is not triggered by the filing of any request for review with the
Board. Rather, it results from the 20-days rule
[[Page 14916]]
itself. Section 3(b) does not speak to that delay.\10\
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\10\ As stated above, the court of appeals found that the
ballot-impoundment provision in the 2019 Rule is contrary to Sec.
3(b). That provision, however, is expressly triggered only when a
party files a request for review within ten business days of the
issuance of the direction of election and when certain other
conditions are met.
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In sum, my colleagues have failed to provide a persuasive reason
for staying the effective date of the unit-scope-and-eligibility and
20-days rules. I favor allowing these rules to take effect just as soon
as the D.C. Circuit issues mandate. Accordingly, from the majority's
final rule, I dissent.
Dated: March 6, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023-04839 Filed 3-9-23; 8:45 am]
BILLING CODE 7545-01-P
