Representation Case Procedures, 14908-14913 [2023-04840]

Agencies

• National Labor Relations Board

[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14908-14913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04840]


=======================================================================
-----------------------------------------------------------------------

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA12


Representation Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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

SUMMARY: This final rule rescinds four provisions from the Board's 
Rules and Regulations contained in the final rule published on December 
18, 2019, entitled ``Representation-Case Procedures.'' This action is 
in compliance with a decision of the United States Court of Appeals for 
the District of Columbia Circuit vacating the four provisions.

DATES: This rule is effective March 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 ``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. (85 FR 17500, Mar. 30, 2020.)

[[Page 14909]]

    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 Court 
concluded that each of the five provisions was substantive in nature, 
not procedural, and therefore required notice and comment rulemaking 
prior to promulgation under the Administrative Procedure Act. Id. at 
92.
    On January 17, 2023, the United States Court of Appeals for the 
District of Columbia Circuit issued a decision and order affirming the 
District Court as to three of the five provisions. AFL-CIO v. NLRB, 57 
F.4th 1023, 2023 U.S. App. LEXIS 990 (D.C. Cir. Jan. 17, 2023). The 
three provisions that remain vacated are: (1) amendments to 29 CFR 
102.62(d) and 102.67(l) giving employers up to 5 business days to 
furnish the voter list following the direction of election; \1\ (2) an 
amendment to 29 CFR 102.69(a)(5) limiting a party's selection of 
election observers to individuals who are current members of the voting 
unit whenever possible; \2\ and (3) an amendment to 29 CFR 102.69(b), 
(c), and (h) precluding Regional Directors from issuing certifications 
following elections if a request for review is pending or before the 
time has passed during which a request for review could be filed.\3\
---------------------------------------------------------------------------

    \1\ 84 FR at 69590, 69596-69597.
    \2\ 84 FR at 69597.
    \3\ 84 FR at 69597-69599.
---------------------------------------------------------------------------

    The Court of Appeals also found that a fourth amendment, located at 
29 CFR 102.67(c), (h), and (i)(3),\4\ imposing an automatic impoundment 
of ballots under certain circumstances when a petition for review was 
pending with the Board, was contrary to Section 3(b) of the National 
Labor Relations Act. 57 F.4th 1023, 2023 U.S. App. LEXIS 990, at *59-
*64. It accordingly vacated that portion of the Final Rule. Id. at 
*65.\5\
---------------------------------------------------------------------------

    \4\ 84 FR at 69595-96.
    \5\ After careful consideration, the Board has decided not to 
seek rehearing or further review of the decision of the Court of 
Appeals. We note that the decision does not present a colorable 
conflict with the decision of another Circuit or with Supreme Court 
precedent. Nor do we believe that pursuing further litigation would 
represent the best use of the Board's resources or serve any 
overriding purpose of the National Labor Relations Act.
---------------------------------------------------------------------------

    The Board is promulgating this rule to remove references in the 
regulations to the four provisions set aside and vacated by the Court 
of Appeals' decision and to revert the language of the regulations 
amended by the 2019 Final Rule to that which existed prior to the Final 
Rule as necessary to comply with the Court's decision. This rule is not 
subject to the requirement to provide notice and an opportunity for 
public comments because it falls under the good cause exception at 5 
U.S.C. 553(b)(B). The good cause exception is satisfied when notice and 
comment is ``impracticable, unnecessary, or contrary to the public 
interest.'' Id. The four provisions of the 2019 Final Rule identified 
above have already been vacated by a court of law and no party has 
sought further review. This rule is simply an administrative step that 
reverts the language of the relevant regulations to their pre-2019 
versions, to reflect the court order vacating those four provisions of 
the 2019 Final Rule.\6\
---------------------------------------------------------------------------

    \6\ Member Kaplan dissents from this final rule because he would 
issue a notice of proposed rulemaking for the three provisions that 
the Court of Appeals concluded were improperly promulgated without 
notice and comment, rather than rescind them. In our opinion, 
however, the Board's first priority should be to rescind the vacated 
rules so that the Board's rules and regulations accurately state 
agency practices in light of the Court's decision, regardless of 
whether the rules should be proposed again with notice and comment. 
Doing so promotes clarity for the benefit of parties before the 
Board who have to follow the rules as they existed prior to 2020, 
which the Court's decision implicitly reinstates and which we 
explicitly reinstate now.
    In dissenting from our repeal of the fourth vacated provision, 
the impoundment rule, Member Kaplan does not suggest that the 
Court's opinion that the impoundment rule is inconsistent with Sec. 
3(b) of the Act is appropriate for Supreme Court review, and he 
acknowledges that the Board could not reissue it under the Court's 
decision.
---------------------------------------------------------------------------

    Additionally, because this rule implements a court order, the Board 
has good cause to waive the 30-day effective date under 5 U.S.C. 
553(d). It would be contrary to the public interest to fail to keep the 
public informed of the accurate state of the Board's rules and 
regulations, especially now that these provisions have been ruled upon 
by the D.C. Circuit. See Action on Smoking & Health v. Civil 
Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (judgment of court 
vacating rule ``had the effect of reinstating the rules previously in 
force''); Mobil Oil Corp. v. EPA, 35 F.3d 579, 584 (D.C. Cir. 1994) 
(same); see also Administrative Conference of the United States, 
Improving Notice of Regulatory Changes, https://www.acus.gov/recommendation/improving-notice-regulatory-changes (June 16, 2022); 5 
U.S.C. 552(a)(1)(D), (E) (reading-room requirements under FOIA). In 
addition, it is unnecessary to take public comment on provisions that 
the D.C. Circuit has vacated.

Dissenting Opinion of Member Kaplan

    In 2019, the Board issued a final rule \7\ amending certain 
provisions of its representation-case rules, which had been extensively 
modified in a final rule enacted in 2014.\8\ It did so without first 
issuing a notice of proposed rulemaking because it deemed the 
amendments rules of agency procedure exempt from notice-and-comment 
requirements under 5 U.S.C. 553(b)(3)(A). The AFL-CIO challenged the 
2019 Rule in Federal 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.\9\ Recently, a divided Court of Appeals for the District of 
Columbia Circuit (``D.C. Circuit'') reversed in part, holding that two 
of the five are procedural but three are not.\10\ ``Those three 
provisions,'' said the court, ``must remain vacated unless and until 
the Board repromulgates them with notice and comment.'' \11\ 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.'' \12\
---------------------------------------------------------------------------

    \7\ ``Representation-Case Procedures,'' 84 FR 69524 (Dec. 18, 
2019) (the ``2019 Rule'').
    \8\ ``Representation-Case Procedures,'' 79 FR 74307 (Dec. 15, 
2014) (the ``2014 Rule'').
    \9\ AFL-CIO v. NLRB, 466 F. Supp. 3d 68 (D.D.C. 2020).
    \10\ AFL-CIO v. NLRB, 57 F.4th 1023, 2023 U.S. App. LEXIS 990, 
at *22-*56 (D.C. Cir. Jan. 17, 2023).
    \11\ Id. at *64-*65.
    \12\ Id. at *65-*66 (Rao, J., concurring in the judgment in part 
and dissenting in part).
---------------------------------------------------------------------------

    My colleagues have decided not to ask the Solicitor General to file 
a petition for certiorari with the Supreme Court. I dissented from 
their decision. The court's decision turned on its interpretation of 
what the controlling legal test should be for determining when 
rulemaking is procedural and therefore exempt from notice-and-comment 
requirements under the Administrative Procedure Act. Given that the 
D.C. Circuit is often the venue for cases involving federal rulemaking, 
all federal agencies that engage in rulemaking would be well served to 
have the Supreme Court decide whether the standard applied by the court 
in this matter was the appropriate test. Accordingly, unlike my 
colleagues, I consider this to be ``an important question of federal 
law that has not been, but should be, settled by'' the Supreme 
Court.\13\
---------------------------------------------------------------------------

    \13\ Supreme Court Rule 10(c).
---------------------------------------------------------------------------

    That leaves the other possibility the court pointed out: 
repromulgating the three vacated provisions of the 2019 Rule in a 
notice of proposed rulemaking. But from my colleagues' rule rescinding 
those provisions,\14\ you

[[Page 14910]]

would not know that this is even an option. ``This rule,'' my 
colleagues say, ``is simply an administrative step that reverts the 
language of the relevant regulations to reflect the court order 
vacating'' them, adding that their rulemaking is ``necessary to comply 
with the Court's decision.'' It is clear, however, that rescinding the 
three provisions is not ``necessary to comply with the Court's 
decision.'' As the D.C. Circuit made clear, there is another option: 
repromulgating the three provisions in a notice of proposed rulemaking 
and inviting public comment. The Board should pursue that option. 
Accordingly, I dissent.
---------------------------------------------------------------------------

    \14\ The D.C. Circuit majority 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. 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.
---------------------------------------------------------------------------

    The three provisions at issue are these: (1) a rule providing that 
the employer must file and serve a list of eligible voters within 5 
business days of the regional director's approval of an election 
agreement or issuance of a decision and direction of election (the 
``voter-list rule''); (2) a rule providing that, in their choice of 
individuals to serve as election observers, the parties shall select, 
whenever possible, current members of the voting unit, and when this is 
not possible, a party should select a current nonsupervisory employee 
(the ``election-observers rule''); and (3) a rule providing that the 
regional director will only issue a certification of the results of an 
election--including, where appropriate, a certification of 
representative--after the deadline for filing a request for review of a 
decision and direction of election has passed without such a request 
being filed, and if a request for review is timely filed, the 
certification will issue only after the Board has ruled on that request 
(the ``certification-timing rule'').
    The voter-list rule and the certification-timing rule amended 
corresponding provisions of the 2014 Rule, and the Board set forth 
persuasive reasons for doing so. The election-observers rule did not 
amend a provision of the 2014 Rule but rather was promulgated to bring 
transparency and uniformity to an area of Board law that was ``riddled 
with inconsistencies.'' 84 FR 69552. I believe, subject to comments, 
that each of these provisions in the 2019 Rule should be preserved. In 
my view, therefore, the Board should propose readopting them in a 
notice of proposed rulemaking and invite public comment.\15\
---------------------------------------------------------------------------

    \15\ The following remarks summarize more detailed discussions 
of these three provisions in the 2019 Rule itself. For the voter-
list rule, see 84 FR 69531-69532. For the election-observers rule, 
see 84 FR 69551-69553. For the certification-timing rule, see 84 FR 
69554-69556.
---------------------------------------------------------------------------

    The voter-list rule: Prior to the 2014 Rule, an employer's duty to 
furnish a list of eligible voters was governed by Excelsior Underwear, 
Inc., 156 NLRB 1236 (1966). Under that precedent, an employer was 
required to file with the regional director a list of the names and 
addresses of employees eligible to vote in an upcoming representation 
election within 7 calendar days after the regional director approved an 
election agreement or issued a decision and direction of election. Id. 
at 1239-1240. The 2014 Rule shrank 7 calendar days to 2 business days 
and added a number of other requirements, including by requiring the 
employer to furnish employees' personal email addresses and home and 
cellphone numbers. The 2019 Rule left most of those additional 
requirements intact, but it increased the amount of time the employer 
has to furnish the voter list from 2 business days to 5 business days.
    The Board's explanation of its reasons for making this change was 
thorough and persuasive.
    First, the main reason the 2014 Rule cut the time to 2 business 
days--namely, to speed the election--was no longer a relevant 
consideration. Under another provision of the 2019 Rule--one the D.C. 
Circuit agreed was procedural and therefore did not require notice and 
comment--regional directors will not normally schedule an election 
before the 20th business day following issuance of the decision and 
direction of election. Accordingly, directed elections will not take 
place any sooner with the 2-day deadline imposed by the 2014 Rule than 
with a 5-day deadline. And while this rationale is only pertinent to 
directed elections, applying the same 5-day deadline for all elections, 
including those conducted pursuant to stipulated election agreements, 
promotes uniformity.
    Second, the Board's 2019 Rule stated several reasons why allowing 
employers 5 business days to furnish the voter list is superior as a 
matter of policy to allotting just 2 business days. To begin with, 
although technological changes since Excelsior Underwear make it easier 
for some employers to compile the necessary information rapidly, this 
is not the case for all employers. The information may not be 
computerized, or it may be kept in multiple locations. Assembling the 
voter list can be challenging for large or decentralized employers, and 
it may pose special problems for employers in the construction 
industry, where the Board's voter-eligibility formula is based on the 
fact that employment in that industry is often sporadic.\16\ Moreover, 
one of the reasons stated in the 2014 Rule for the 2-day deadline 
raised questions of transparency and fairness. There, the Board 
justified the 2-day limit partly on the basis that employers may begin 
assembling the voter list before the regional director approves the 
election agreement or issues the decision and direction of election. 
The Board criticized this rationale in the 2019 Rule, and justly so. No 
duty to assemble the voter list attaches until the election agreement 
is approved or the decision and direction issues. ``It is anything but 
transparent,'' the Board observed, ``to state that a procedural 
requirement attaches at a certain point yet defend a truncated timeline 
for meeting that requirement by opining that employers have ample time 
to comply with the requirement before it has even attached to begin 
with.'' 84 FR 69532. I agree.
---------------------------------------------------------------------------

    \16\ Under the Steiny-Daniel eligibility formula applicable to 
employers in the construction industry, employees eligible to vote 
in a representation election include (a) those employed by the 
employer during the payroll period immediately preceding the date of 
the decision and direction of election, and (b) those employed by 
the employer for a total of 30 working days in the preceding 12 
months or 45 working days in the preceding 24 months. See Steiny & 
Co., 308 NLRB 1323 (1992), and Daniel Construction Co., 133 NLRB 264 
(1961), modified at 167 NLRB 1078 (1967). It is self-evident why a 
construction-industry employer may be hard pressed to compile a list 
of eligible voters under the Steiny/Daniel formula in just 2 days.
---------------------------------------------------------------------------

    Finally, giving employers three more days to compile the voter list 
reduces the potential for inaccurate lists. And because an unacceptably 
incomplete list is grounds to set aside the results of an election, 
reducing the potential for inaccuracy also reduces litigation and 
resulting costs for the parties and the Agency.
    For these reasons and those set forth more fully in the 2019 Rule, 
the Board should repromulgate the voter-list rule in a notice of 
proposed rulemaking.
    The election-observers rule: The Board should do likewise with the 
election-observers rule.
    Beginning in 1946, the Board's Rules and Regulations broadly 
provided that ``[a]ny party may be represented by observers of [its] 
own selection, subject to such limitations as the Regional Director may 
prescribe.'' 11 FR 177A-602-612 (Sept. 11, 1946). Thereafter, however, 
the Board imposed certain limitations decisionally. Employers may

[[Page 14911]]

not use individuals closely identified with management.\17\ Unions may 
not use supervisors,\18\ and they may not use nonemployee union 
officials in decertification elections.\19\ The Board encouraged the 
use of nonsupervisory employees,\20\ and a past edition of its 
Casehandling Manual even mandated this practice, declaring that absent 
written agreement, the parties must use nonsupervisory employees of the 
employer as election observers.\21\ Moreover, even though the standard 
wording of stipulated election agreements provides for the parties to 
station equal numbers of ``nonsupervisory-employee observers'' at the 
polls, Board precedent since 1993 had held that it was not a material 
breach of the agreement for the union to use a nonemployee.\22\
---------------------------------------------------------------------------

    \17\ See, e.g., Peabody Engineering Co., 95 NLRB 952, 953 
(1951).
    \18\ See Family Service Agency, 331 NLRB 850 (2000).
    \19\ See Butera Finer Foods, Inc., 334 NLRB 43 (2001).
    \20\ See id.; Jat Transportation Corp., 131 NRLB 122, 126 
(1961).
    \21\ CHM Sec. 11310 (1989).
    \22\ See Embassy Suites Hotel, 313 NLRB 302 (1993); cf. E-Z 
Davies Chevrolet, 161 NLRB 1380, 1382-1383 (1966) (rejecting 
employer's contention that the presence of a union agent not 
employed by the employer as an election observer constituted 
objectionable conduct), enfd. 395 F.2d 191 (9th Cir. 1968).
---------------------------------------------------------------------------

    Because Board law concerning the selection of observers was 
``riddled with inconsistencies,'' 84 FR 69552, the Board included a new 
election-observers provision in the 2019 Rule. The rule provided that 
any party may be represented by observers of its own selection; that 
whenever possible, a party ``shall'' select a current member of the 
voting unit; and that, when no such individual is available, a party 
``should'' select a current nonsupervisory employee. To effectively 
overrule precedent permitting unions to use their agents (who are 
employees of the union) as observers, the Board also clarified that (a) 
the ``nonsupervisory-employee'' wording of the standard election 
agreement refers to nonsupervisory employees of the employer that is 
party to the election, and (b) any use of an observer not employed by 
that employer is a material breach of the election agreement.
    The Board justified the election-observers rule on several grounds. 
It promotes transparency by codifying the historical preference for 
using nonsupervisory employees as observers. It further promotes 
transparency by making clear that this preference applies to any party, 
not just to employers as certain decisions had suggested. It promotes 
uniformity by setting forth a clear framework under which all parties 
select their observers. And it promotes efficiency by eliminating 
wasteful litigation over the identity of election observers.
    These are sound justifications for a sound rule. Rather than 
rescind it as my colleagues have done, the better course would be for 
the Board to repromulgate it in a notice of proposed rulemaking and 
invite public comment.
    The certification-timing rule: Before the 2014 Rule issued, 
regional directors issued certifications of election results--
including, where appropriate, certifications of representative--only in 
limited circumstances. Under the 2014 Rule, they were effectively 
required to do so in almost all cases. Moreover, they were required to 
do so regardless of whether a request for review of the decision and 
direction of election remained pending or the time within which to file 
a request for review had not yet elapsed. As a result, a union would be 
certified as the representative of a bargaining unit, even though a 
pending or yet-to-be-filed request for review could result in the 
certification being vacated. This could have untoward consequences, 
especially for employers, since the duty to bargain attaches when the 
union is certified. Thus, under the 2014 Rule, an employer could be 
found to have violated Section 8(a)(5) by refusing to bargain, at a 
time when its pending or to-be-filed request for review could yet 
result in the union's representative status being undone.\23\
---------------------------------------------------------------------------

    \23\ It was even possible that an unfair labor practice charge 
and the underlying representation case on which the charge was based 
could end up pending before the Board at the same time. This would 
happen if the employer refused to bargain while its request for 
review remained pending, the certified union filed an unfair labor 
practice charge, and the region issued complaint and moved for 
summary judgment. The Board acknowledged in the 2019 Rule that this 
scenario was ``largely hypothetical,'' given that regional directors 
typically held such charges in abeyance until the Board ruled on the 
request for review. 84 FR 69555. Nevertheless, the 2014 Rule allowed 
for this--and the regional directors' practical solution to the 
problem the 2014 Rule created was problematic in another respect, 
since it meant delaying vindication of the union's rights.
---------------------------------------------------------------------------

    To fix this state of affairs, the 2019 Rule specified that regional 
directors will only issue certifications after the time for filing a 
request for review has passed without any request being filed, and 
that, if a request for review is filed, certification will issue only 
after the Board rules on the request. The Board provided several 
justifications for this certification-timing rule. It ``advances 
transparency by eliminating confusion and complications occasioned by 
certifications that issue prior to the Board's ruling on a request for 
review.'' 84 FR 69554. It promotes finality, since the duty to bargain 
will attach only after the Board has ruled on a request for review or 
the time for filing one has passed. And since the Board's ruling on a 
request for review may nullify a previously issued certification, 
waiting to issue the certification until after the Board rules ``is a 
far more orderly way of proceeding'' and thus promotes efficiency. 84 
FR 69555.
    For these reasons and all the reasons stated more fully in the 2019 
Rule, the certification-timing rule makes eminent sense--far better 
sense than the 2014-Rule framework it replaced. I would not rescind it 
as my colleagues do, but rather repromulgate it--and with it, the 
voter-list and election-observers rules--for notice-and-comment 
rulemaking.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    For the reasons stated in the preamble, the National Labor 
Relations Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Sec.  102.117a also issued under section 552a(j) 
and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and (k)). 
Sections 102.143 through 102.155 also issued under section 504(c)(1) 
of the Equal Access to Justice Act, as amended (5 U.S.C. 504(c)(1)).


0
2. In Sec.  102.62, revise paragraph (d) to read as follows:


Sec.  102.62  Election agreements; voter list; Notice of Election.

* * * * *
    (d) Voter list. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction of election, within 2 business days after 
the approval of an election agreement pursuant to paragraph (a) or (b) 
of this section, or issuance of a direction of election pursuant to 
paragraph (c) of this section, the employer shall provide to the 
Regional Director and the parties named in the agreement or direction a 
list of the full names, work locations, shifts, job classifications, 
and contact information (including home addresses, available personal 
email addresses, and

[[Page 14912]]

available home and personal cellular ``cell'' telephone numbers) of all 
eligible voters. The employer shall also include in separate sections 
of that list the same information for those individuals who will be 
permitted to vote subject to challenge. In order to be timely filed and 
served, the list must be received by the Regional Director and the 
parties named in the agreement or direction respectively within 2 
business days after the approval of the agreement or issuance of the 
direction unless a longer time is specified in the agreement or 
direction. The list of names shall be alphabetized (overall or by 
department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form. When feasible, the 
list shall be filed electronically with the Regional Director and 
served electronically on the other parties named in the agreement or 
direction. A certificate of service on all parties shall be filed with 
the Regional Director when the voter list is filed. The employer's 
failure to file or serve the list within the specified time or in 
proper format shall be grounds for setting aside the election whenever 
proper and timely objections are filed under the provisions of Sec.  
102.69(a)(8). The employer shall be estopped from objecting to the 
failure to file or serve the list within the specified time or in the 
proper format if it is responsible for the failure. The parties shall 
not use the list for purposes other than the representation proceeding, 
Board proceedings arising from it, and related matters.
* * * * *

0
3. In Sec.  102.67, revise paragraphs (c), (h), (i)(3), and (l) to read 
as follows:


Sec.  102.67  Proceedings before the Regional Director; further 
hearing; action by the Regional Director; appeals from actions of the 
Regional Director; statement in opposition; requests for extraordinary 
relief; Notice of Election; voter list.

* * * * *
    (c) Requests for Board review of Regional Director actions. Upon 
the filing of a request therefor with the Board by any interested 
person, the Board may review any action of a Regional Director 
delegated to him/her under Section 3(b) of the Act except as the 
Board's Rules provide otherwise, but such a review shall not, unless 
specifically ordered by the Board, operate as a stay of any action by 
the Regional Director. The request for review may be filed at any time 
following the action until 10 business days after a final disposition 
of the proceeding by the Regional Director. No party shall be precluded 
from filing a request for review of the direction of election within 
the time provided in this paragraph because it did not file a request 
for review of the direction of election prior to the election.
* * * * *
    (h) Grant of review; briefs. The grant of a request for review 
shall not stay the Regional Director's action unless otherwise ordered 
by the Board. Except where the Board rules upon the issues on review in 
the order granting review, the appellants and other parties may, within 
10 business days after issuance of an order granting review, file 
briefs with the Board. Such briefs may be reproductions of those 
previously filed with the Regional Director and/or other briefs which 
shall be limited to the issues raised in the request for review. No 
reply briefs may be filed except upon special leave of the Board. Where 
review has been granted, the Board may provide for oral argument or 
further hearing. The Board will consider the entire record in the light 
of the grounds relied on for review and shall make such disposition of 
the matter as it deems appropriate. Any request for review may be 
withdrawn with the permission of the Board at any time prior to the 
issuance of the decision of the Board thereon.
    (i) * * *
    (3) Extensions. Requests for extensions of time to file requests 
for review, statements in opposition to a request for review, or 
briefs, as permitted by this section, shall be filed pursuant to Sec.  
102.2(c) with the Board or the Regional Director, as the case may be. 
The party filing the request for an extension of time shall serve a 
copy thereof on the other parties and, if filed with the Board, on the 
Regional Director. A statement of such service shall be filed with the 
document.
* * * * *
    (l) Voter list. Absent extraordinary circumstances specified in the 
direction of election, the employer shall, within 2 business days after 
issuance of the direction, provide to the Regional Director and the 
parties named in such direction a list of the full names, work 
locations, shifts, job classifications, and contact information 
(including home addresses, available personal email addresses, and 
available home and personal cellular ``cell'' telephone numbers) of all 
eligible voters. The employer shall also include in separate sections 
of that list the same information for those individuals who will be 
permitted to vote subject to challenge. In order to be timely filed and 
served, the list must be received by the Regional Director and the 
parties named in the direction respectively within 2 business days 
after issuance of the direction of election unless a longer time is 
specified therein. The list of names shall be alphabetized (overall or 
by department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form. When feasible, the 
list shall be filed electronically with the Regional Director and 
served electronically on the other parties named in the direction. A 
certificate of service on all parties shall be filed with the Regional 
Director when the voter list is filed. The employer's failure to file 
or serve the list within the specified time or in proper format shall 
be grounds for setting aside the election whenever proper and timely 
objections are filed under the provisions of Sec.  102.69(a)(8). The 
employer shall be estopped from objecting to the failure to file or 
serve the list within the specified time or in the proper format if it 
is responsible for the failure. The parties shall not use the list for 
purposes other than the representation proceeding, Board proceedings 
arising from it, and related matters.

0
4. In Sec.  102.69, revise paragraphs (a)(5), (b), (c)(1)(i) and (iii), 
(c)(2), and (h) to read as follows:


Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the Regional Director; hearings; Hearing Officer 
reports on objections and challenges; exceptions to Hearing Officer 
reports; Regional Director decisions on objections and challenges.

    (a) * * *
    (5) When the election is conducted manually, any party may be 
represented by observers of its own selection, subject to such 
limitations as the Regional Director may prescribe.
* * * * *
    (b) Certification in the absence of objections, determinative 
challenges and runoff elections. If no objections are filed within the 
time set forth in paragraph (a)(8) of this section, if the challenged 
ballots are insufficient in number to affect the results of the 
election, and if no runoff election is to be held pursuant to Sec.  
102.70, the Regional Director shall forthwith issue to the parties a 
certification of the results of the election, including certification 
of representative where appropriate, with the same force and effect as 
if issued by the Board.
    (c) Regional director's resolution of objections and challenges--
(1) Regional director's determination to hold a hearing--(i) Decisions 
resolving

[[Page 14913]]

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.
* * * * *
    (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 
Sec. Sec.  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 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 Sec. Sec.  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 Sec.  102.62(b), or by a direction of 
election issued following any proceeding under Sec.  102.67, the 
parties shall have the right to Board review set forth in Sec.  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 Sec. Sec.  102.62(b) 
or 102.67, the provisions of Sec.  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.
* * * * *
    (h) Final Disposition. For the purposes of filing a request for 
review pursuant to Sec.  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