Representation-Case Procedures, 58076-58102 [2023-18129]

Agencies

• National Labor Relations Board

[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Rules and Regulations]
[Pages 58076-58102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18129]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA18


Representation-Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Direct final rule.

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SUMMARY: The National Labor Relations Board has decided to issue this 
final rule for the purpose of carrying out the National Labor Relations 
Act, which protects the exercise by workers of full freedom of 
association, self-organization, and designation of representatives of 
their own choosing for the purpose of negotiating the terms and 
conditions of their employment or other mutual aid or protection. While 
retaining the essentials of existing representation case procedures, 
this rule substantially rescinds the amendments made by a rule the 
Board promulgated in 2019 (which has been the subject of ongoing 
litigation) and thereby substantially returns representation case 
procedures to those that existed following the Board's promulgation of 
a rule concerning representation case procedures in 2014 (which was 
uniformly upheld by the federal courts). By doing so, this rule 
effectuates what the Board deems to be appropriate policy choices that 
enhance the fair, efficient, and expeditious resolution of 
representation cases.

DATES: This rule is effective December 26, 2023.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half Street SE, 
Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Background on the Rulemaking

    The National Labor Relations Board (the Board) administers the 
National Labor Relations Act (the Act) which, among other things, 
governs the formation of collective-bargaining relationships between 
employers and groups of employees in the private sector. Section 7 of 
the Act, 29 U.S.C. 157, gives employees the right to bargain 
collectively through representatives of their own choosing and to 
refrain from such activity.
    When employees and employers are unable to agree whether employees 
should be represented for purposes of collective bargaining, Section 9 
of the Act, 29 U.S.C. 159, gives the Board the authority to resolve the 
question of representation. The Supreme Court has recognized that 
``Congress has entrusted the Board with a wide degree of discretion in 
establishing the procedure and safeguards necessary to insure the fair 
and free choice of bargaining representatives by employees.'' NLRB v. 
A.J. Tower Co., 329 U.S. 324, 330 (1946). ``The control of the election 
proceeding, and the determination of the steps necessary to conduct 
that election fairly were matters which Congress entrusted to the Board 
alone.'' NLRB v. Waterman Steamship Corp., 309 U.S. 206, 226 (1940); 
see Southern Steamship Co. v. NLRB, 316 U.S. 31, 37 (1942).

[[Page 58077]]

    Representation case procedures are set forth in the Act, Board 
regulations, and Board case law.\1\ The Board's General Counsel has 
also prepared a non-binding Casehandling Manual describing 
representation case procedures in detail.\2\
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    \1\ The Board's binding rules of procedure are found primarily 
in 29 CFR part 102, subpart D. Additional rules created by 
adjudication are found throughout the corpus of Board decisional 
law.
    \2\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings (Sept. 2020).
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    Section 9 of the Act, 29 U.S.C. 159, itself sets forth the basic 
steps for resolving a question of representation. They are as follows. 
First, a petition is filed by an employee, a labor organization, or an 
employer. Second, the Board investigates the petition and, if there is 
reasonable cause, an appropriate hearing is held to determine whether a 
question of representation exists, unless the parties agree that an 
election should be conducted and agree concerning election details. 
Hearing officers are authorized to conduct pre-election hearings but 
may not make recommendations as to the result. Third, if there is a 
question of representation, an election by secret ballot is conducted 
in an appropriate unit. Fourth, the results of the election are 
certified.
    The Act also permits the Board to delegate its authority to the 
regional directors who lead the Board's regional offices across the 
country and provides that, upon request, the Board may review any 
action of a regional director but that such requests do not stay 
regional proceedings unless specifically ordered by the Board. 29 
U.S.C. 153(b).
    Underlying these basic provisions is the essential animating 
principle that representation cases should be resolved quickly and 
fairly. As the Supreme Court has recognized, the Act secures a 
``democratic framework'' in which ``the Board must adopt policies and 
promulgate rules and regulations in order that employees' votes may be 
recorded accurately, efficiently and speedily.'' A.J. Tower Co., 329 
U.S. at 331. Thus, the Board, the regional directors, and the General 
Counsel \3\ have sought to achieve timely, efficient, fair, accurate, 
uniform, and transparent resolution of representation cases.
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    \3\ The General Counsel administratively oversees the regional 
directors. 29 U.S.C. 153(d).
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    To further these goals, in 2014 the Board issued a final rule that, 
while retaining the essentials of then-existing representation case 
procedures, implemented amendments that removed unnecessary barriers to 
the fair and expeditious resolution of representation cases.\4\ The 
2014 rule codified best practices, simplified representation case 
procedures, made those procedures more transparent and uniform across 
regions, and modernized those procedures in view of changing 
technology.\5\
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    \4\ See Representation--Case Procedures, 79 FR 74308 (Dec. 15, 
2014).
    \5\ Id. at 74308, 74315.
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    In short, the 2014 rule was intended, in significant part, to help 
the Board better achieve its statutory duty to accurately, efficiently, 
and speedily resolve questions of representation.\6\ The evidence is 
that the 2014 rule achieved its goals. The 2014 rule reduced the median 
time from petition to election by more than three weeks in cases 
involving a pre-election hearing and by two weeks in cases involving an 
election agreement.\7\ The Board also achieved an improvement in the 
percentages of representation cases that it closed within 100 days of a 
petition's filing.\8\ Those improvements in processing representation 
cases were obtained at the same time that: parties were permitted to 
electronically file and serve petitions and other documents, thereby 
saving time and money, and affording non-filing parties the earliest 
possible notice; Board procedures were made more transparent and more 
meaningful information was guaranteed to be disseminated at earlier 
stages of proceedings; employees' Section 7 rights were afforded more 
equal treatment through the establishment of uniform time frames across 
regional offices, hearing dates became more predictable, and litigation 
was made more uniform; parties and the Board were more often spared the 
expense and inefficiency of litigating and deciding issues that are 
unnecessary to determine whether a question of representation exists 
and which may be mooted by election results; nonemployer parties were 
able to communicate about election issues with voters using modern 
means of communication such as email, texts, and cell phones, and were 
less likely to challenge voters out of ignorance; notices of election 
were made more informative and more often electronically disseminated; 
and employees voting subject to challenge were more easily identified, 
and the chances were lessened of their ballots being commingled.
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    \6\ Id. at 74316-74318.
    \7\ Information produced from searches in the Board's NxGen case 
processing software shows that in fiscal years 2012, 2013, and 
2014--the last three years before the 2014 rule was in effect--the 
median number of days between the petition and the election in 
contested cases was 66, 59, and 59, respectively, whereas in fiscal 
years 2016, 2017, and 2018--the first three years after the 2014 
rule was in effect--the median number of days between the petition 
and the election in contested cases was 35, 36, and 41, 
respectively. In fiscal years 2012, 2013, and 2014--the last three 
years before the 2014 rule was in effect--the median number of days 
between the petition and the election in cases with an election 
agreement was 37, 37, and 37, respectively, whereas in fiscal years 
2016, 2017, and 2018--the first three years after the 2014 rule was 
in effect--the median number of days between the petition and the 
election in cases with an election agreement was 23, 22, and 23, 
respectively.
    \8\ In the four full fiscal years that the 2014 rule was fully 
in effect, the percentage of representation cases fully resolved 
within 100 days of a petition's filing was 87.6%, 89.9%, 88.8%, and 
90.7%. In the four full fiscal years that preceded the 2014 rule 
taking effect, the percentage of representation cases fully resolved 
within 100 days of a petition's filing was 88.1%, 87.4%, 84.5%, and 
84.7%. See NLRB Performance and Accountability Reports, FYs 2013-
2014, 2016-2019, https://www.nlrb.gov/reports/agency-performance/performance-and-accountability.
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    The 2014 rule thus did a successful job of furthering the Board's 
statutory mandate. And it resulted from a careful and comprehensive 
notice and comment process. Specifically, the Board, over the course of 
three-and-a-half years, considered tens of thousands of public comments 
generated over two separate comment periods totaling 141 days, 
including four days of hearings with live questioning by Board 
Members.\9\ By means of that canvassing and consideration of the views 
and perspectives of all stakeholders, the Board was able to make 
important improvements to its representation case procedures.
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    \9\ See 79 FR at 74311.
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    The 2014 rule was also subjected to legal challenges, which 
included arguments that it went beyond the Board's statutory authority 
and was inconsistent with the Act, the Constitution, and/or the 
Administrative Procedure Act (APA). The courts uniformly rejected these 
claims and upheld the 2014 rule. See Associated Builders & Contractors 
of Texas, Inc. v. NLRB, 826 F.3d 215, 218 (5th Cir. 2016) (The ``rule, 
on its face, does not violate the National Labor Relations Act or the 
Administrative Procedure Act[.]''); Chamber of Commerce of the United 
States of America v. NLRB, 118 F. Supp. 3d 171, 220 (D.D.C. 2015) 
(rejecting claims that the 2014 rule contravenes either the Act or the 
Constitution or is arbitrary and capricious or an abuse of the Board's 
discretion); see also RadNet Mgmt. v. NLRB, 992 F.3d 1114, 1121-1123 
(D.C. Cir. 2021) (rejecting a challenge to various 2014 rule provisions 
implicating, among other things, the scope of the pre-election hearing, 
the alleged restriction of opportunities for employer and employee pre-
election speech, and the alleged arbitrary and capricious

[[Page 58078]]

consideration of irrelevant factors--including speed--by the Board in 
implementing the 2014 rule); UPS Ground Freight v. NLRB, 921 F.3d 251, 
255-257 (D.C. Cir. 2019) (rejecting a challenge to the application of 
various 2014 rule provisions including scheduling of the pre-election 
hearing, the timing of the employer's statement of position, and the 
pre-election deferral of the voting eligibility of two employees in 
disputed classifications). In sum, the 2014 rule furthered the Board's 
statutory mission and withstood legal challenge.
    In 2017, about two-and-a-half years after the effective date of the 
2014 rule, a newly composed Board majority issued a Request for 
Information (RFI) to evaluate whether the 2014 rule should be retained, 
retained with modifications, or rescinded.\10\ In issuing the RFI, the 
new Board majority noted only that the 2014 rule had ``been in effect 
for more than 2 years,'' that the Board's composition had changed, and 
that various applications of the rule had been litigated in Board 
cases.\11\ The new Board majority did not refer to any facts, data, 
expertise, or experience suggesting a problem with the 2014 rule's 
implementation or functioning.
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    \10\ Representation-Case Procedures, 82 FR 58783, 58784 (Dec. 
14, 2017).
    \11\ Id.
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    In 2019, the Board issued a final rule that substantially 
frustrated the 2014 rule's amendments that were responsible for the 
improvements in the Board's ability to fairly and expeditiously resolve 
questions of representation.\12\ It did so without relying on any 
information received from the public in response to the 2017 RFI; 
indeed, the 2019 Board expressly disclaimed reliance on any of those 
responses.\13\ It also did so without notice and comment. In that 2019 
rule, the Board consciously chose to add additional time to the 
representation case process.\14\ The 2019 rule imposed delay between 
the filing of the petition and the pre-election hearing, between the 
opening of the pre-election hearing and issuance of a decision and 
direction of election, between the issuance of the decision and 
direction of election and the election, and between the election and 
certification of the results.\15\ Those choices were made despite the 
Supreme Court's observation that the Board is required to adopt and 
enforce rules to process representation cases ``efficiently and 
speedily.'' A.J. Tower Co., 329 U.S. at 331. Although the 2019 Board 
repeatedly stated that the 2019 rule would promote fairness, accuracy, 
transparency, uniformity, certainty, and finality,\16\ the 2019 Board 
did not cite data or any other tangible evidence demonstrating that the 
2014 rule impaired those interests or that the 2019 rule would promote 
them. The 2019 rule was, in short, premised on a series of abstract 
policy justifications.
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    \12\ See generally Representation-Case Procedures, 84 FR 69524 
(Dec. 18, 2019).
    \13\ Id. at 69528 fn.12 (``None of the procedural changes . . . 
are premised on the responses to the Request for Information; 
indeed, we would make each of these changes irrespective of the 
existence of the Request for Information.'').
    \14\ The Board at the time acknowledged as much. See, e.g., id. 
at 69528 (``For contested cases, several provisions of the final 
rule will, both individually and taken together, result in a 
lengthening of the median time from the filing of a petition to the 
conduct of an election.''). Moreover, when the United States Court 
of Appeals for the District of Columbia Circuit reviewed the 2019 
rule, see infra fns.23-26 and corresponding text, that court 
recognized the same conscious decision to add delay that we have 
recognized: ``In the extensive preamble to the 2019 Rule . . . the 
Board repeatedly acknowledges that its changes will result in longer 
waits before elections relative to the 2014 Rule.'' AFL-CIO v. NLRB, 
57 F.4th 1023, 1047 (D.C. Cir. 2023).
    \15\ As noted below, some of the 2019 amendments imposing delay 
were enjoined in subsequent litigation.
    \16\ See, e.g., 84 FR at 69530 (``In sum, the final rules will 
likely result in some lengthening of the pre-election period, but 
the sacrifice of some speed will advance fairness, accuracy, 
transparency, uniformity, efficiency, and finality. This is, in our 
considered judgment, a more than worthwhile tradeoff.'').
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    After a notable decline in representation case processing times 
that followed the enactment of the 2014 rule, there has been an 
increase in case processing times following the enactment of the 2019 
rule. In fiscal years 2018 and 2019--the last full two years that the 
2014 rule was in effect--88.8% and 90.7%, respectively, of 
representation cases were resolved within 100 days.\17\ In fiscal years 
2021 and 2022--the first full two years that the 2019 rule was in 
effect--82.3% and 85.4%, respectively, of representation cases were 
resolved within 100 days.\18\ Some of that recent delay is likely 
attributable to the effects of the COVID-19 pandemic, which, for 
instance, necessitated increased reliance on mail ballot, as opposed to 
in-person, voting. Even so, given the 2019 Board's admission that its 
rule would lengthen the representation case process, we are confident 
that any pandemic-related delay in the processing of representation 
cases has been compounded by the effects of the 2019 rule. Moreover, 
the delay would have been even greater had certain of its provisions 
not been enjoined.
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    \17\ NLRB Performance and Accountability Report, FY 2018, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability; NLRB Performance and Accountability Report, FY 2019, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability.
    \18\ NLRB Performance and Accountability Report, FY 2021, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability. Information produced from searches in the Board's 
NxGen case processing software shows 85.4% of representation cases 
were resolved within 100 days in fiscal year 2022.
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    The 2019 rule was challenged in court. The district court vacated 
five of its provisions before they could take effect. Those provisions 
had (1) extended the time for an employer to furnish the voter list 
following issuance of a decision and direction of an election or the 
approval of an election agreement; \19\ (2) expanded the scope of the 
pre-election hearing and provided that disputes concerning individuals' 
eligibility to vote or inclusion in an appropriate unit normally will 
be litigated at the pre-election hearing and resolved by the Regional 
Director before the election; (3) delayed certification of election 
results until any request for review has been decided by the Board or 
until the deadline for filing such a request has passed; (4) imposed 
restrictions regarding whom parties can choose as their election 
observers; and (5) imposed a mandatory delay of at least 20 business 
days between the issuance of a direction of election and the election 
itself. The district court found that promulgation of those specific 
provisions violated the APA because the Board issued them without 
notice and comment.\20\ The district court rejected the challenger's 
claim that the 2019 rule was arbitrary and capricious when considered 
as a whole.\21\ The district court also rejected the challenger's 
claims that a provision of the 2019 rule that imposed an automatic 
impoundment of ballots under certain circumstances when a request for 
review is pending with the

[[Page 58079]]

Board was arbitrary and capricious and contrary to law.\22\
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    \19\ Following issuance of a decision and direction of election 
or approval of an election agreement, the employer is required to 
furnish 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 available home and personal 
cellular telephone numbers) of all eligible voters, and, in separate 
sections of that list, the same information for those individuals 
who will be permitted to vote subject to challenge. The 2014 rule 
granted the employer 2 business days to file and serve the list; the 
2019 rule extended the period to 5 business days. Compare 29 CFR 
102.62(d), 102.67(l) (Dec. 15, 2014), with 29 CFR 102.62(d), 
102.67(l) (Dec. 18, 2019).
    \20\ AFL-CIO v. NLRB, 466 F. Supp. 3d 68, 87-100 (D.D.C. June 7, 
2020) (severing, deeming invalid, and vacating the five provisions); 
see AFL-CIO v. NLRB, 471 F. Supp. 3d 228, 237-246 (D.D.C. July 1, 
2020) (rejecting additional challenges to the 2019 rule).
    \21\ 471 F. Supp. 3d at 240-242.
    \22\ Id. at 242-245.
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    The United States Court of Appeals for the District of Columbia 
Circuit affirmed the district court's ruling in part and reversed it in 
part. Specifically, it affirmed the district court's vacatur of the 
provisions regarding the extended time for furnishing the voter list, 
the delayed certification of election results, and the restrictions on 
choice of election observers.\23\ It also affirmed the district court's 
conclusion that the 2019 rule was not arbitrary and capricious when 
considered as a whole.\24\ But it reversed the district court's 
invalidation of the provisions regarding the expansion of pre-election 
litigation and the imposition of a mandatory delay between the 
direction of election and the election itself.\25\ In addition, it 
reversed the district court and vacated the impoundment provision on 
the ground that automatic impoundment is contrary to Section 3(b) of 
the Act.\26\
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    \23\ AFL-CIO, 57 F.4th at 1027, 1035-1043.
    \24\ Id. at 1046-1048.
    \25\ Id. at 1035, 1043-1046.
    \26\ Id. at 1048-1050.
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    In a final rule issued on March 10, 2023, the Board, in compliance 
with the D.C. Circuit's decision, rescinded the four provisions of the 
2019 rule that the court had vacated.\27\ In another final rule issued 
on March 10, 2023, the Board extended to September 10, 2023 the 
effective date for the two provisions as to which the D.C. Circuit 
reversed the district court's vacatur.\28\ The Board did so in view of 
the D.C. Circuit's remand of certain remaining challenges to those 
provisions to the district court and also to facilitate its 
reconsideration of those provisions.\29\
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    \27\ Representation Case Procedures, 88 FR 14908, 14908-14909 
(Mar. 10, 2023).
    \28\ Representation Case Procedures, 88 FR 14913, 14913-14914 
(Mar. 10, 2023).
    \29\ Id. at 14914.
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    Having now carefully reconsidered the two provisions yet to take 
effect as well as the other provisions in effect from the 2019 rule, 
the Board has decided to substantially rescind those provisions in 
order to return the Board's representation case procedures 
substantially to those in effect following the implementation of the 
2014 rule.\30\ The Board has determined that it can do so by direct 
final rule because the provisions that we address concern agency 
procedure and therefore are exempt from notice and comment.\31\ 
Moreover, although notice and comment is often preferable to direct 
rulemaking even when it is not strictly required, in this instance we 
are merely rescinding provisions from one direct rulemaking (the 2019 
rule) to return to provisions that resulted from notice and comment 
(the 2014 rule). Further, this rule, unlike the 2019 rule, is grounded 
in analysis of the Board's own data concerning representation case 
procedures.\32\ This rule, by substantially returning the Board's 
representation case procedures to those resulting from the 2014 rule, 
will enable the Board to better fulfill its duty to protect employees' 
rights by fairly, efficiently, and expeditiously resolving questions of 
representation.
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    \30\ To avoid the possible waste of administrative resources and 
public uncertainty if the two provisions that have yet to take 
effect were to go into effect for only a short period of time before 
their repeal, in a separate final rule issued in this issue of the 
Federal Register, the Board has stayed the effective date of those 
two provisions from September 10, 2023 to December 26, 2023, the 
date on which the instant rule is effective.
    \31\ See 5 U.S.C. 553(b)(A).
    \32\ Much of the statistical analysis is based on data produced 
from searches in the Board's NxGen case processing database. For 
provisions of the 2019 rule that took effect, the analysis often 
involves a comparison of the last two full fiscal years of data 
before the 2019 rule's implementation with the first two fiscal 
years of data after the 2019 rule's implementation (i.e., a 
comparison of data from fiscal years 2018 and 2019 with data from 
fiscal years 2021 and 2022). This is so because the 2019 rule was 
implemented in the middle of fiscal year 2020, making it difficult 
to untangle pre-2019 rule data from post-2019 rule data for that 
year and so we have opted not to assess data from that year. 
Additionally, because there are only two full fiscal years of data 
following implementation of the 2019 rule, we deemed it most 
rational to compare the data from those two years to the data from 
the two fiscal years immediately preceding implementation of the 
2019 rule.
     For provisions of the 2019 rule that have not yet taken effect 
because of the district court's order and the Board's subsequent 
decision to extend the effective date, there is obviously no 
relevant data following implementation of the 2019 rule. 
Accordingly, to assess the likely impact that letting those 
provisions take effect would have, the most relevant data for the 
analysis is that from the period preceding implementation of the 
2014 rule as compared to the data from the period following 
implementation of the 2014 rule. That is because allowing those 
provisions from the 2019 to take effect would return the Board's 
procedures essentially to the pre-2014 status quo. And because the 
Board's NxGen case processing database does not include full fiscal 
year data for years more distant than 2013, the pre-2014 rule data 
is mostly limited to fiscal years 2013 and 2014. As there is only 
complete data for those two years prior to the implementation of the 
2014 rule, we deemed it most rational to compare the data from those 
two years to the data from the two fiscal years (2016 and 2017) 
immediately following implementation of the 2014 rule. Also, because 
the 2014 rule was implemented in the middle of fiscal year 2015, 
making it difficult to untangle pre-2014 rule data from post-2014 
rule data for that year, we have not included data from that year in 
the analysis.
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II. List of Amendments

    This list provides a concise statement of the ways in which this 
final rule changes or codifies current practice and the general 
reasoning in support of those steps. It is not ``an elaborate analysis 
of [the] rules or of the detailed considerations upon which they are 
based''; rather, it ``is designed to enable the public to obtain a 
general idea of the purpose of, and a statement of the basic 
justification for, the rules.'' \33\ As this list shows, the amendments 
provide targeted solutions to discrete problems. All of the matters 
addressed by each of the amendments listed are discussed in greater 
detail below. Moreover, in accordance with the discrete character of 
these matters, the Board hereby concludes that it would adopt each of 
these amendments individually, or in any combination, regardless of 
whether any of the other amendments were made. For this reason, the 
amendments are severable.
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    \33\ Administrative Procedure Act, Legislative History, 79th 
Congress, 1944-46, Sen. Doc. No. 248, S. Rep. No. 752, at 225 
(1945).
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    1. The pre-election hearing will generally be scheduled to open 8 
calendar days from service of the Notice of Hearing. Under the 2019 
rule, the pre-election hearing would generally be scheduled to open 14 
business days from service of the Notice of Hearing. Restoring the 8 
calendar days timeline established by the 2014 rule (which represented 
an effort to codify and make uniform preexisting best practices) will 
help the Board to more expeditiously resolve questions of 
representation while still allowing adequate time for a nonpetitioning 
party to prepare a Statement of Position and otherwise prepare and make 
arrangements before the pre-election hearing.
    2. Regional directors have discretion to postpone a pre-election 
hearing for up to 2 business days upon request of a party showing 
special circumstances and for more than 2 business days upon request of 
a party showing extraordinary circumstances. Under the 2019 rule, 
regional directors could postpone a pre-election hearing for an 
unlimited amount of time upon request of a party showing good cause. 
Restoring the extension provisions established by the 2014 rule ensures 
that the pre-election hearing will not be unnecessarily delayed.
    3. A nonpetitioning party's Statement of Position responding to the 
petition generally will be due to be filed by noon the business day 
before the opening of the pre-election hearing. Because the pre-
election hearing will normally open 8 calendar days after service of 
the Notice of Hearing, the Statement of Position is normally due 7 
calendar days after service of the Notice of Hearing. Under the 2019 
rule, a nonpetitioning party's Statement of Position was due to be 
filed 8 business days (or 10 calendar days) after service

[[Page 58080]]

of the Notice of Hearing. Restoring the timeline for production of the 
Statement of Position to the timeline established by the 2014 rule is 
consistent with the restored shorter timeline between service of the 
Notice of Hearing and opening of the pre-election hearing, and 
preserves adequate time for a nonpetitioning party to prepare a 
Statement of Position.
    4. Regional directors have discretion to postpone the due date for 
the filing of a Statement of Position for up to 2 business days upon 
request of a party showing special circumstances and for more than 2 
business days upon request of a party showing extraordinary 
circumstances. Under the 2019 rule, regional directors could postpone 
the due date for an unlimited amount of time upon request of a party 
showing good cause. Restoring the extension provisions established by 
the 2014 rule ensures that the Statement of Position (and the pre-
election hearing) will not be unnecessarily delayed.
    5. A petitioner shall respond orally to the nonpetitioning party's 
Statement of Position at the start of the pre-election hearing. Under 
the 2019 rule, a petitioner was required to file and serve a responsive 
written Statement of Position 3 business days prior to the pre-election 
hearing. Restoring the 2014 rule's requirement that the petitioner 
respond orally at the hearing--rather than in writing 3 business days 
in advance of the hearing--to the nonpetitioning party's Statement of 
Position eliminates an unnecessary barrier to the fair and expeditious 
resolution of representation cases and preserves for the petitioner an 
adequate opportunity to respond to the nonpetitioning party's Statement 
of Position, thus continuing to facilitate orderly litigation.
    6. An employer has 2 business days after service of the Notice of 
Hearing to post the Notice of Petition for Election in conspicuous 
places in the workplace and to electronically distribute it to 
employees if the employer customarily communicates with its employees 
electronically. Under the 2019 rule, an employer had 5 business days 
for the requisite posting and electronic distribution. The restored 
shorter time frame ensures that the important information contained in 
the notice will be disseminated earlier to employees and employers 
alike, while preserving adequate time for employers to achieve posting 
and distribution.
    7. The purpose of the pre-election hearing is to determine whether 
a question of representation exists. Accordingly, disputes concerning 
individuals' eligibility to vote or inclusion in an appropriate unit 
ordinarily do not need to be litigated or resolved prior to an 
election, and regional directors have authority to exclude evidence 
that is not relevant to determining whether there is a question of 
representation and thereby avoid unnecessary litigation on collateral 
issues that can result in substantial waste of resources. Under the 
2019 rule, individual eligibility and inclusion issues were 
``normally'' to be litigated at the pre-election hearing and resolved 
by the regional director prior to the election. Restoring the 2014 rule 
language more efficiently avoids litigating and resolving issues that 
are often mooted by the election results or amicably resolved following 
an election and permits fairer and more expeditious resolution of 
representation cases.
    8. Parties may file post-hearing briefs with the regional director 
only with the regional director's special permission (following pre-
election hearings) or hearing officer only with the officer's special 
permission (following post-election hearings) and within the time and 
addressing only the subjects permitted by the regional director or 
hearing officer, respectively. Under the 2019 rule, parties were 
entitled to file briefs up to 5 business days following the close of a 
pre- or post-election hearing, with an extension of an additional 10 
business days available upon a showing of good cause. Restoring only 
permissive post-hearing briefing permits regional directors and hearing 
officers adequate flexibility to request briefing in the rare complex 
case and eliminates redundant and repetitive briefing, and consequent 
delay, in the more commonplace straightforward cases.
    9. Regional directors ordinarily should specify the election 
details--(the type, date(s), time(s), and location(s) of the election 
and the eligibility period)--in the decision and direction of election 
and should ordinarily simultaneously transmit the Notice of Election 
with the decision and direction of election. The parties will have 
already taken positions with respect to the election details in writing 
prior to the hearing and on the record at the hearing. Under the 2019 
rule, regional directors were allowed to convey election details in the 
decision and direction of election (and to simultaneously transmit the 
Notice of Election with the decision and direction of election), but 
emphasis was placed on their discretion to convey them in a later-
issued Notice of Election. By leaving no doubt that the ordinary course 
is to convey election details in the decision and direction of election 
and to simultaneously transmit the Notice of Election, the restored 
standard eliminates redundant and wasteful post-decision consultation 
regarding election details and, in turn, furthers the expeditious 
resolution of representation cases, while leaving regional directors 
free to engage in additional consultation where necessary.
    10. Regional directors shall schedule elections for ``the earliest 
date practicable'' after issuance of a decision and direction of 
election. While the 2019 rule contained the same language, it also 
imposed a 20-business day waiting period between the decision and 
direction of election and the election that the 2014 rule had 
eliminated. The elimination of the mandatory waiting period language 
will reduce delay and eliminate an unnecessary barrier to the fair and 
expeditious resolution of questions of representation.

III. General Matters

    Before explaining the specific provisions of the final rule, we 
address the general issues of the Board's rulemaking authority; the 
shortcomings of the 2019 rule; and the desirability of this final rule 
to substantially rescind the 2019 rule and reinstitute the 2014 rule.

A. The Board's Authority To Promulgate Representation Case Procedures

    Congress delegated both general and specific rulemaking authority 
to the Board. Generally, Section 6 of the Act, 29 U.S.C. 156, provides 
that the Board ``shall have authority from time to time to make, amend, 
and rescind, in the manner prescribed by the Administrative Procedure 
Act . . . such rules and regulations as may be necessary to carry out 
the provisions of this Act.'' Specifically, Section 9(c), 29 U.S.C. 
159(c)(1), contemplates rules concerning representation case 
procedures, stating that elections will be held ``in accordance with 
such regulations as may be prescribed by the Board.''
    The Supreme Court unanimously held in American Hospital Association 
v. NLRB, 499 U.S. 606, 609-610 (1991), that the Act authorizes the 
Board to adopt rules governing representation case proceedings. The 
Board's rules are entitled to judicial deference. A.J. Tower, 329 U.S. 
at 330. Representation case procedures are uniquely within the Board's 
expertise and discretion, and Congress has made clear that the Board's 
control of those procedures is exclusive and complete. See NLRB v. Bell 
Aerospace Co., 416 U.S. 267, 290 fn.21 (1974); AFL v. NLRB, 308 U.S. 
401, 409 (1940). ``The control of the election

[[Page 58081]]

proceeding, and the determination of the steps necessary to conduct 
that election fairly were matters which Congress entrusted to the Board 
alone.'' Waterman Steamship Corp., 309 U.S. at 226; see also Magnesium 
Casting Co. v. NLRB, 401 U.S. 137, 142 (1971).
    In A.J. Tower, 329 U.S. at 330, the Supreme Court recognized that 
``Congress has entrusted the Board with a wide degree of discretion in 
establishing the procedure and safeguards necessary to insure the fair 
and free choice of bargaining representatives by employees.'' The Act 
enshrines a democratic framework for employee choice and, within that 
framework, charges the Board to ``promulgate rules and regulations in 
order that employees' votes may be recorded accurately, efficiently and 
speedily.'' Id. at 331. As the Eleventh Circuit stated:

    We draw two lessons from A.J. Tower: (1) The Board, as an 
administrative agency, has general administrative concerns that 
transcend those of the litigants in a specific proceeding; and, (2) 
the Board can, indeed must, weigh these other interests in 
formulating its election standards designed to effectuate majority 
rule. In A.J. Tower, the Court recognized ballot secrecy, certainty 
and finality of election results, and minimizing dilatory claims as 
three such competing interests.

    Certainteed Corp. v. NLRB, 714 F.2d 1042, 1053 (11th Cir. 1983). As 
explained above and below, the final rule is based upon just such 
concerns. The Act delegated to the Board the authority to craft its 
procedures in a manner that, in the Board's expert judgment, will best 
serve the purposes of the Act. Here, the Board is acting pursuant to 
its clear regulatory authority to change its own representation case 
procedures in a manner that will better serve the purposes of the Act.

B. The 2019 Rule and the Desirability of This Final Rule

    The 2019 rule was promulgated without notice and comment, in 
contrast to the 2014 rule. We believe that the process that culminated 
in the 2014 rule was superior, even if, aside from the provisions 
vacated by the D.C. Circuit, notice and comment was not legally 
required. In any case, in our policy judgment, the 2014 rule was 
superior to the 2019 rule. The shortcomings that mark the 2019 rule and 
the improvements made by reverting to the 2014 rule are largely 
addressed in the provision-specific discussion below but are previewed 
here.
1. The 2019 Board's Process
    As explained, the Board's 2014 rule, to which we return in this 
rulemaking, was the product of extensive notice and comment. The 2019 
rule, which significantly altered the 2014 rule, was not. Even if 
notice and comment was not required by the APA for most provisions 
addressed in the 2014 and 2019 rules, it provided useful guidance in 
crafting of the 2014 rule. In our view, because the 2019 Board was 
contemplating substantially altering important representation case 
procedures that were the product of notice and comment, it may have 
been preferable if the Board had sought and relied on the input of 
relevant stakeholders, including workers, unions, employers, and legal 
practitioners, as the Board did in 2014.
    The 2019 Board seemed to recognize the value of gathering the 
perspectives of stakeholders in at least some instances. Indeed, the 
same majority invited notice and comment in four other rulemaking 
proceedings.\34\ And with respect to the 2014 rule specifically, in 
2017--immediately after the Board's composition had changed--the Board 
issued its RFI seeking public input as to whether it should retain, 
rescind, or change the 2014 rule. In issuing the RFI, the Board 
seemingly recognized the merit of inviting public input from the 
stakeholders whose perspectives were considered in the process that 
yielded the 2014 rule.\35\ But when the responses to the RFI did not 
provide data, reliable evidence, or sound policy rationales to justify 
departure from the 2014 rule, the 2019 Board decided to expressly 
disclaim reliance on the responses to the RFI and proceed with 
implementing its own rule ``without notice and comment.'' \36\
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    \34\ See Representation-Case Procedures: Voter List Contact 
Information; Absentee Ballots for Employees on Military Leave, 85 FR 
45553 (July 29, 2020); Students Working in Connection With Their 
Studies, 84 FR 49691 (Nov. 22, 2019); Representation-Case 
Procedures: Election Bars; Proof of Majority Support in Construction 
Industry Collective-Bargaining Relationships, 84 FR 39930 (Oct. 11, 
2019); The Standard for Determining Joint-Employer Status, 83 FR 
46681 (Sept. 14, 2018).
    \35\ However, the RFI was not the equivalent of notice and 
comment rulemaking.
    \36\ 84 FR at 69528 (caps removed); see also 84 FR at 69528 
fn.12 (``[W]e are not treating the responses to the 2017 Request For 
Information as notice-and-comment rulemaking.'').
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    The 2019 Board also did not assess empirical data that the agency 
maintains. The 2019 Board conducted no analysis of more than four years 
of available agency data and records that provide insight into the 
impact of the 2014 rule, and it did not invoke its own experience 
administering the 2014 rule. Instead, the 2019 Board simply asserted 
that it was making changes to promote ``fairness, accuracy, 
transparency, uniformity, efficiency, certainty, and finality'' even 
though there was no data--empirical, anecdotal, experiential, or 
otherwise--substantiating its conclusion that the 2014 rule impaired 
those interests or that its rule would promote them.
2. The 2019 Rule's Impact and the Desirability of This Final Rule
    Section 9 of the Act is animated by the principle that 
representation cases should be resolved quickly and fairly. As the 
Supreme Court has recognized, the Board ``must'' adopt policies and 
promulgate rules and regulations in order that ``employees' votes may 
be recorded accurately, efficiently and speedily.'' \37\ The Supreme 
Court noted, in discussing Section 9(d), that the policy in favor of 
speedy representation procedures ``was reaffirmed in 1947, at the time 
that the Taft-Hartley amendments were under consideration,'' and that 
Senator Taft stated that the Act should not ``permit dilatory tactics 
in representation proceedings.'' \38\ In addition, the purpose of 
Congress in 1959 in permitting delegation of representation case 
proceedings to regional directors under Section 3(b) was to `` `speed 
the work of the Board.' '' \39\
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    \37\ A.J. Tower, 329 U.S. at 331.
    \38\ Boire v. Greyhound Corp., 376 U.S. 473, 479 (1964). Because 
of the ``exceptional need for expedition,'' Congress exempted 
representation cases from the requirements of the APA. See Senate 
Committee on the Judiciary, comparative print on revision of S. 7, 
79th Cong., 1st Sess. 7 (1945); see also 5 U.S.C. 554(a)(6).
    \39\ Magnesium Casting Co., 401 U.S. at 141-142 (quoting 
legislative history).
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    There is no precedent for the deliberate decision of the 2019 Board 
to lengthen, rather than shorten, the representation case process. Even 
with certain of the 2019 rule's delay-causing provisions enjoined by 
court order, the data tends to show that it still has caused 
substantial delay. For instance, in the last two full years that the 
2014 rule was fully in effect, 88.8% and 90.7% of representation cases 
were resolved within 100 days,\40\ whereas in the first two full years 
that the 2019 rule was in effect, only 82.3% and 85.4% of 
representation cases were resolved within 100 days.\41\ Similarly,

[[Page 58082]]

information produced from searches in the Board's NxGen case processing 
software show that in each of the last two full years that the 2014 
rule was fully in effect there was a median of 23 days from the filing 
of the petition to the holding of the election; whereas in the first 
two full years that the 2019 rule was in effect, there was a median of 
34 and 37 days from the filing of the petition to the holding of the 
election. Even if some increased delay was caused by the COVID-19 
pandemic, we are confident that the 2019 rule's delay-causing 
provisions--which the 2019 Board acknowledged would cause delay--
contributed to the increased delay.
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    \40\ NLRB Performance and Accountability Report, FY 2018, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability; NLRB Performance and Accountability Report, FY 2019, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability.
    \41\ NLRB Performance and Accountability Report, FY 2021, 
https://www.nlrb.gov/reports/agency-performance/performance-and-accountability. Information produced from searches in the Board's 
NxGen case processing software shows 85.4% of representation cases 
were resolved within 100 days in fiscal year 2022.
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    The 2019 Board was willing to accept the delay that it knew its 
amendments would cause because it said those amendments would ``advance 
fairness, accuracy, transparency, uniformity, efficiency, and 
finality,'' which it characterized as a ``worthwhile tradeoff.'' \42\ 
But, as explained, the Board did not cite any evidence for its claims; 
instead, it just speculated that its amendments would advance those 
interests. Nor does there seem to be evidence that increased delay 
apparently attributable to the 2019 rule has been offset by meaningful 
improvements in furthering the interests cited by the Board. Rather, 
the evidence would seem to be to the contrary. For instance, if the 
representation case process were meaningfully more certain, final, 
fair, accurate, transparent, and uniform, then arguably a substantially 
smaller portion of representation cases should involve Board reversals 
of regional director decisions, post-election objections and 
challenges, and rerun elections. But that is not what has happened 
since the 2019 rule took effect. The portion of representation cases 
involving Board reversals of regional directors' decisions and 
directions of elections,\43\ post-election objections and determinative 
challenges,\44\ and rerun elections \45\ has remained largely stable. 
Those outcomes would seem to support the conclusion that representation 
cases are, at best, no more fair, accurate, transparent, uniform, 
certain, and final than they were under the 2014 rule.
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    \42\ 84 FR at 69530.
    \43\ Information produced from searches in the Board's NxGen 
case processing software shows that in fiscal years 2018 and 2019, 
which are the last two full years the 2014 rule was in effect, there 
were 2 reversals of regional directors' decisions and directions of 
elections as compared to 2,574 total elections, amounting to a 
reversal in 0.07% of all elections. In fiscal years 2021 and 2022, 
which are the first two full years the 2019 rule was in effect, 
there were 5 reversals of regional directors' decisions and 
directions of election as compared to 2,838 total elections, 
amounting to a reversal in 0.18% of all elections. Accordingly, 
under both the 2014 rule and the 2019 rule, a regional director's 
decision and direction of election was reversed in about 0.1% to 
0.2% of cases that have an election.
    \44\ Information produced from searches in the Board's NxGen 
case processing software shows that in fiscal years 2018 and 2019, 
which are the last two full years the 2014 rule was in effect, there 
were 172 cases involving election objections or determinative 
challenges as compared to 2,574 total elections, amounting to 
election objections or determinative challenges in 6.68% of all 
elections. In fiscal years 2021 and 2022, which are the first two 
full years the 2019 rule was in effect, there were 177 cases 
involving election objections or determinative challenges as 
compared to 2,838 total elections, amounting to election objections 
or determinative challenges in 6.24% of all elections. Accordingly, 
under both the 2014 rule and the 2019 rule, objections or 
determinative challenges were filed in about 6.5% of cases that have 
an election.
    \45\ Information produced from searches in the Board's NxGen 
case processing software shows that in fiscal years 2018 and 2019, 
which are the last two full years the 2014 rule was in effect, there 
were 59 cases with a rerun election, as compared to 2,574 total 
elections, amounting to rerun elections in 2.29% of all elections. 
In fiscal years 2021 and 2022, which are the first two full years 
the 2019 rule was in effect, there were 49 cases with a rerun 
election as compared to 2,838 total elections, amounting to rerun 
elections in 1.73% of all elections. Accordingly, under both the 
2014 rule and the 2019 rule, there was a rerun election in about 2% 
of cases that have an election.
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    The 2019 rule, by design, contemplated a slower representation case 
process, notwithstanding the Board's statutory mission to speedily and 
efficiently process representation cases. In the absence of any 
evidence that the 2019 rule has had, or might reasonably be expected to 
have, countervailing policy benefits that outweighed the clear 
potential for increased delay, and based on our determination that the 
policies of the Act are better served by the 2014 rule, the Board has 
decided to promulgate the instant rule that substantially rescinds the 
2019 rule and reinstates the 2014 rule. Doing so will enhance the speed 
and efficiency with which the Board processes representation cases 
with, as noted in the previous paragraph, no discernible diminishment 
of fairness, accuracy, transparency, uniformity, and finality. The 
Board makes this change, ``conscious'' of its ``change of course,'' 
because ``there are good reasons'' for returning to the 2014 rule, and 
based on those reasons, we believe that that rule does a better job of 
advancing the purposes of the Act than the 2019 rule. See FCC v. Fox 
Television Stations, Inc., 556 U.S. 502, 515 (2009).
    The provisions of the Board's representation case procedures that 
we address in this rule are all procedural as defined in 5 U.S.C. 
553(b)(A) and so this rule is exempt from notice and comment.\46\ 
Moreover, the benefit of notice and comment is reduced under these 
circumstances because the Board is returning its representation case 
procedures essentially to those that applied immediately prior to the 
2019 rule, and those pre-2019 final rule procedures were themselves the 
product of notice and comment rulemaking. The substantial delay, cost, 
and inefficiency that would result from another round of notice and 
comment is not sensible given that this rulemaking is grounded in the 
same fundamental perspectives and viewpoints gathered and considered in 
formulation of the 2014 rule to which the Board now substantially 
returns. Moreover, this rule, unlike the 2019 rule, is further grounded 
in analysis of the Board's own representation case processing data and 
experience that support a return in substantial part to the 2014 
rule.\47\ We see no compelling reason to take the 2019 rule--issued 
without notice and comment--as the starting point for a new notice and 
comment process instead of proceeding as we do here: returning to the 
2014 rule.
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    \46\ See also AFL-CIO, 57 F.4th at 1034-1046.
    \47\ This rule does not rescind a small number of technical 
amendments made by the 2019 rule that are not inconsistent with the 
policy objectives of this rule. Those amendments included 
standardized formatting requirements for requests for review; 
explicit authorization for oppositions in response to requests for 
review; explicit authorization for replies in support of requests 
for review only upon special leave of the Board; prohibition of 
piecemeal requests for review; clarification of final disposition 
for the purposes of filing a request for review; incidental changes 
in terminology; and updates to internal cross-references in the 
Board's regulations. Those amendments also included conversion of 
all time periods in subpart D to business days; this rule largely 
retains that conversion, with the exception of the 8 calendar day 
timeline from the filing of the petition to the pre-election hearing 
discussed immediately below.
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IV. Explanation of Changes to Particular Sections

Part 102, Subpart D--Procedure Under Section 9(c) of the Act for the 
Determination of Questions Concerning Representation of Employees and 
for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act

102.63 Investigation of Petition by Regional Director; Notice of 
Hearing; Service of Notice; Notice of Petition for Election; Statement 
of Position; Withdrawal of Notice of Hearing
A. Scheduling of Pre-Election Hearing
    Unless the parties enter into an election agreement, the Board may 
not conduct an election without first holding a pre-election hearing to

[[Page 58083]]

determine whether a question of representation exists. See 29 U.S.C. 
159(c)(1), (4). Thus, the timing of the pre-election hearing affects 
the timing of the election. The longer it takes to open the pre-
election hearing, the longer it takes to determine whether a question 
of representation exists, and, ultimately, the longer it takes to 
conduct the election.
    The 2014 rule provided that a pre-election hearing would commence 8 
calendar days from the date of the service of the Notice of Hearing, 
except in cases presenting unusually complex issues.\48\ That timeline 
was consistent with Croft Metals, Inc., 337 NLRB 688 (2002), where the 
Board had concluded that 5 business days' notice of pre-election 
hearings was sufficient.\49\ It also codified best practices in some 
regions, where hearings were routinely scheduled to open in 7 days to 
10 days.\50\ The 2014 rule's hearing timeline helped to expeditiously 
resolve questions of representation, while allowing adequate time for a 
nonpetitioning party to prepare for the hearing and to file a Statement 
of Position.\51\
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    \48\ 29 CFR 102.63(a)(1) (Dec. 15, 2014). Prior to the 2014 
rule, the Board's regulations did not specify when pre-election 
hearings would open. Instead, the regulations merely indicated that 
hearings would open at a time and place designated by the regional 
director. See 29 CFR 102.63(a) (2011).
    \49\ 79 FR at 74309, 74370-74379, 74424 (explaining why hearing 
time frame provides due notice). Although our dissenting colleague 
casts aspersions on Croft Metals as persuasive precedent, he 
ultimately relies on it himself--as he must in the absence of a 
subsequent decision overruling it--in concluding that ``the 2019 
Rule is consistent with Croft Metals.'' We agree. But so is this 
rule in returning to the default 8-day timeline for noticing pre-
election hearings.
    \50\ Our dissenting colleague takes issue with our reference to 
``best practices.'' His criticisms are misguided. As explained in 
the 2014 rule, a ``1997 Report of the Best Practices Committee 
provided that hearings should open between 10 to 14 days of the 
petition's filing.'' 79 FR at 74373. If, in 1997, it took several 
days for the Notice of Hearing to be served after the petition's 
filing, then scheduling a pre-election hearing for 8 calendar days 
after the service of the Notice of Hearing would render the 
contemporary timing roughly equivalent to the timing described by 
the Best Practices Committee's 1997 Report. Moreover, a ``model 
opening letter in 1999''--and a model letter is an attempt to convey 
best practices--``indicated that the hearing should open no later 
than 7 days after service of the notice.'' Id.
    \51\ 79 FR at 74309, 74370-74376, 74424. Reviewing courts 
rejected every challenge to the hearing scheduling provisions 
contained in the 2014 rule. See UPS, 921 F.3d at 256 (``[A]n eight-
day notice accords with both the Due Process Clause and [the 
employer's] statutory right to an `appropriate' hearing[.]''); ABC 
of Texas, 826 F.3d at 220, 222-223 (``[T]he rule changes to the pre-
election hearing did not exceed the bounds of the Board's statutory 
authority[.]''); Chamber, 118 F. Supp. 3d at 177, 205-206 (rejecting 
due process challenge to hearing scheduling provision).
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    The 2019 rule, however, more than doubled the applicable time 
frame, delaying the opening of the pre-election hearing from 8 calendar 
days to 14 business days from service of the Notice of Hearing.\52\ In 
our considered judgment, the reasons offered by the 2019 Board do not 
justify delaying the opening of the pre-election hearing, which 
necessarily delays resolution of the question of representation.
---------------------------------------------------------------------------

    \52\ 29 CFR 102.63(a)(1) (Dec. 18, 2019).
---------------------------------------------------------------------------

    The 2019 Board provided no empirical basis for concluding that the 
2014 rule time frame for the opening of the pre-election hearing needed 
changing. Rather, the 2019 Board principally asserted that revision of 
the timeline was ``essentially dictated'' by the other changes that the 
2019 Board had voluntarily decided to make to the Statement of Position 
provisions of the 2014 rule.\53\ But because those changes to the 
Statement of Position provisions are rescinded for the reasons 
explained in detail elsewhere,\54\ the principal rationale for the 
extended hearing timeline no longer exists. Accordingly, this final 
rule reverts to the 8-calendar day time frame for the opening of the 
pre-election hearing to further expedite the resolution of questions 
concerning representation.\55\
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    \53\ 84 FR at 69533; see also id. at 69534 (acknowledging that 
``modifications'' to the Statement of Position requirements 
``account for the 14-business-day timeline between the notice of 
hearing and the start of the pre-election hearing'').
    \54\ See infra C. Due Date for Nonpetitioning Party's Statement 
of Position; E. Responsive Statement of Position.
    \55\ Our dissenting colleague admits that it is ``obvious'' that 
reverting to the 8-calendar day time frame would expedite the 
representation case process, but he then says that relying on that 
factor instead of ``weighing carefully the other important interests 
at stake[ ]is hardly a reasoned basis'' for the reversion. That 
contention ignores the relative importance of the statutory interest 
in the quick resolution of representation cases. See A.J. Tower Co., 
329 U.S. at 331 (``[T]he Board must adopt policies and promulgate 
rules and regulations in order that employees' votes may be recorded 
accurately, efficiently and speedily.''). It further ignores the 
balance of our discussion, which carefully considers and discounts 
the various other non-statutory interests identified by the 2019 
Board in setting a lengthier time period for opening the pre-
election hearing.
---------------------------------------------------------------------------

    The 2019 Board's secondary rationales for extending the timeline 
are not compelling. The assertion that a longer timeline would allow 
parties to better deal with ``preliminary arrangements,'' like 
retaining counsel, identifying and preparing witnesses, gathering 
information, and arranging any travel, and other ``procedural 
obligations,'' \56\ was not grounded in evidence that parties were 
having trouble addressing these issues within 8 calendar days' notice 
of the opening of the pre-election hearing. Part of the reason the 2019 
Board could not point to evidence of an actual problem is likely 
because employers have the necessary information to prepare for pre-
election hearings before notices of hearings ever issue \57\ and are 
regularly aware of union organizing campaigns even before the filing of 
petitions.\58\ So the 8-calendar day timeline is adequate for parties 
to retain counsel and make arrangements and prepare for hearings. Even 
assuming the 8-calendar day time frame causes some inconvenience, we 
believe that the statutory interest in expeditiously resolving 
questions of representation outweighs the non-statutory interest in 
facilitating parties' hearing preparation.\59\
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    \56\ 84 FR at 69533.
    \57\ See 79 FR at 74372, 74378-74379.
    \58\ See id. at 74320-74321, 74372, 74378-74379.
    \59\ Further, the timeline enables the regional director to 
grant postponements in appropriate cases. See id. at 74371, 74424; 
29 CFR 102.63(a)(1) (Dec. 15, 2014).
    We reject our dissenting colleague's contention that our 
assessment of policy priorities in setting the time frame for 
opening of the pre-election hearing amounts to a denial of due 
process. He quotes one generalized statement of due process 
requirements but then does not explain why the time frame we set 
does not satisfy those requirements. He also fails to meaningfully 
engage with the relevant legal discussion on this issue in the 2014 
rule. See 79 FR at 74371-74373. Moreover, as noted in fn.51, the 
courts have uniformly rejected due process challenges to the 2014 
hearing scheduling provisions.
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    The 2019 Board also speculated that additional time would give 
parties ``better opportunity to reach election agreements.'' \60\ The 
Board cited no evidence for this view, and since the 2019 rule took 
effect there is no evidence that parties are more frequently reaching 
election agreements than under the 2014 rule. Prior to 2014, when 
hearings were scheduled to open in more than 8 calendar days in some 
regions, parties consistently entered into election agreements in about 
90% of representation cases. When the 2014 rule's 8-calendar day 
timeline was in effect, parties still consistently entered into 
election agreements in about 90% of representation cases. In the two 
full fiscal years since the 2019 rule's 14-business day timeline has 
taken effect, however, parties entered into election agreements in only 
80.7% and 83.7% of representation cases.\61\ It may be that the current 
downward trend is partly

[[Page 58084]]

attributable to issues arising from the COVID-19 pandemic; if so, the 
increased timeline that purported to give parties a ``better 
opportunity to reach election agreements'' clearly has not functioned 
as intended in that context and we accordingly cannot be confident that 
the extended timeline does, in fact, better encourage election 
agreements. Regardless, the available data show a decline, rather than 
an increase, in the rate at which parties reach election agreements 
since the 2019 rule took effect.
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    \60\ 84 FR at 69533.
    \61\ Information reported in the Agency's NxGen case processing 
software shows: election agreement rates of 91.1% in each of fiscal 
years 2013 and 2014, the full fiscal years immediately preceding the 
implementation of the 2014 rule; election agreement rates of 91.7%, 
91.7%, 90.6%, and 91.3% in fiscal years 2016, 2017, 2018, and 2019, 
the full fiscal years immediately following the implementation of 
the 2014 rule; and election agreement rates of 80.7% and 83.7% in 
fiscal years 2021 and 2022, the full fiscal years immediately 
following the implementation of the 2019 rule.
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    The 2019 Board also asserted that a 14-business day timeline 
``may'' ease ``logistical burdens'' on the agency's regional 
personnel.\62\ Though we are sensitive to the demands on regional 
personnel, we make the policy judgment that the regions are better 
served shifting their resources to accomplish the statutory goal of 
more expeditiously resolving questions of representation. In any event, 
the significant drop in election agreement rates following the 
implementation of the 2019 rule--regardless of the specific reason for 
the drop--itself represents a significant drain on regional resources 
by adding many more representation cases to the regions' hearing 
dockets. If a return to the 2014 rule allows election agreement rates 
to rebound, this should more effectively ease the logistical burdens on 
regional personnel from processing representation cases.
---------------------------------------------------------------------------

    \62\ 84 FR at 69533.
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    The 2019 Board's final justification--that a 14-business day 
timeline brings the pre-election hearing schedule ``into closer 
alignment'' with the post-election hearing schedule \63\--is also not 
compelling. We do not discern a good reason to make the pre-election 
hearing timeline correspond to the post-election hearing timeline just 
to achieve symmetry. Instead, making pre-election hearing scheduling 
more uniform with post-election hearing scheduling simply imposes 
unnecessary delay in conducting pre-election hearings.
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    \63\ Id. at 69533 & fn.45.
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B. Postponement of Pre-Election Hearing
    To further expedite the resolution of representation cases and 
promote uniformity and transparency, this final rule also reinstates 
the 2014 rule's standard for postponement of a pre-election hearing. 
Accordingly, a regional director can postpone a pre-election hearing 
for up to 2 business days upon request of a party showing special 
circumstances and for more than 2 business days upon request of a party 
showing extraordinary circumstances.\64\ Reimposing a higher standard 
of postponement than the comparatively unbounded good cause standard 
that the 2019 rule imposed makes clear to the parties that the 
statutory mission of the expeditious processing of representation cases 
will not give way unless the parties have truly special or 
extraordinary circumstances that make postponement appropriate.\65\ The 
2019 Board justified its imposition of a more permissive good cause 
standard by referring to regional director discretion.\66\ But the 
regional directors--the career officials who do an admirable job 
administering representation cases--already had adequate discretion in 
this regard. Specifically, the 8-calendar day time frame is 
inapplicable when, in the regional director's discretion, the case 
presents unusually complex issues because in those cases, the regional 
director may set the hearing to open in a longer time frame.\67\ Thus, 
requests to extend the opening of pre-election hearings beyond 8 days 
are unnecessary in cases presenting sufficient complexity and, in all 
other cases, delay is reasonably only warranted when a party has a 
truly special or extraordinary circumstance. Moreover, by concretely 
defining the standard postponement as up to 2 business days where the 
``special circumstances'' criterion is satisfied, the representation 
case process in this respect becomes more transparent, as the parties 
are aware ahead of time what sort of postponement they might encounter. 
The process also becomes more uniform, as similarly situated parties in 
diverse regions of the country will likely have postponements of 
similar length.
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    \64\ 79 FR at 74371; 29 CFR 102.63(a)(1) (Dec. 15, 2014).
    \65\ 29 CFR 102.63(a)(1) (Dec. 18, 2019).
    \66\ 84 FR at 69534.
    \67\ 79 FR at 74371.
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C. Due Date for Nonpetitioning Party's Statement of Position
    The final rule also reinstitutes the 2014 rule's requirement that 
the nonpetitioning party's Statement of Position is due to be filed by 
noon the business day before the opening of the pre-election 
hearing.\68\ Thus, because the pre-election hearing will normally open 
8 calendar days after service of the Notice of Hearing, the Statement 
of Position will be due about 7 calendar days after service of the 
Notice of Hearing.
---------------------------------------------------------------------------

    \68\ 29 CFR 102.63(b) (Dec. 15, 2014).
---------------------------------------------------------------------------

    This 7-day time frame is sufficient for completion of the Statement 
of Position.\69\ The 2019 Board labeled the Statement of Position 
``complicated,'' but it is not. It requires the nonpetitioning party to 
briefly specify its positions on the appropriateness of the petitioned-
for unit, jurisdiction, the existence of any bar to an election, and 
the type, dates, times, and locations of the election.\70\ 
Specifically, an employer simply needs to disclose little more than: 
whether an election involving its own employees has been held in the 
preceding 12 months, and whether the petitioned-for employees are 
covered by a contract (election bar issues); whether the employer is 
engaged in interstate commerce (jurisdiction); and whether employees in 
the petitioned-for unit share similar working conditions (unit 
appropriateness). This is the sort of information that a typical 
employer knows before a petition is ever filed,\71\ and, even if it did 
not, it is the sort of information an employer would usually determine 
when it becomes aware of a union organizing drive, which is typically 
before the filing of a petition.\72\ Giving the nonpetitioning party 7 
additional days to compile the information after service of the Notice 
of Hearing is enough. To the extent that a small minority of employers 
may feel rushed when compiling the relevant information, that tradeoff 
is again consistent with our mission: the statutory interest in 
expeditiously resolving questions of representation outweighs the non-
statutory interest in maximizing employer convenience.\73\
---------------------------------------------------------------------------

    \69\ 79 FR at 74371-74379.
    \70\ 29 CFR 102.63(b)(1)(i)(A).
    \71\ See supra fn.57.
    \72\ See supra fn.58.
    \73\ Moreover, the rule provides for extensions where 
appropriate. 29 CFR 102.63(b) (Dec. 15, 2014). We further note that 
the courts rejected every challenge to the 2014 rule's 7-day time 
frame for completion of the statement of position. See Chamber, 118 
F. Supp. 3d at 205 & fn.24 (rejecting plaintiff's argument that 
``the burdensome requirement of the Statement of Position violates 
[its] due process rights by not providing it sufficient time to 
respond''); UPS, 921 F.3d at 255-257 (rejecting a challenge to the 
application of various 2014 rule provisions including the timing of 
the employer's Statement of Position).
    Our dissenting colleague is no more persuasive in contending 
that ``due process demands'' more than 7 calendar days for a 
nonpetitioning party to prepare a Statement of Position. He fails to 
engage with due process case law or to explain how the 3-day 
difference between our 7-day provision of preparation time and his 
preferred 10-day standard crosses over to a standard that falls 
short of constitutional guarantees.
---------------------------------------------------------------------------

    The 2019 Board did not rely on empirical evidence or other data to 
extend the due date for the nonpetitioning party's Statement of 
Position to 8 business days after service of the Notice of Hearing. The 
2019 Board speculated that giving parties

[[Page 58085]]

more time may help the parties ``better balance'' their other pre-
hearing tasks, ``including retaining counsel, researching the facts and 
relevant law, identifying and preparing potential witnesses, making 
travel arrangements, coordinating with regional personnel, and 
exploring the possibility of an election agreement.'' \74\ Even 
assuming that the 2019 Board had cited data suggesting that these tasks 
are particularly time-consuming in the context of a pre-election 
hearing (which it did not), they are tasks that are in synergy with the 
requirement of the Statement of Position. Specifically, researching the 
facts and relevant law, identifying and preparing potential witnesses, 
and exploring the possibility of an election agreement are all tasks 
that will reveal the information that is required to be compiled and 
disclosed in the Statement of Position. In other words, gathering the 
information required by the Statement of Position is not an additional 
task that will add time to a nonpetitioning party's pre-hearing work; 
instead, it is a task that a nonpetitioning party will already be 
performing. Acknowledging this reality undercuts another of the 2019 
Board's assertions--that giving more time for preparation of the 
Statement of Position would promote more election agreements.\75\ It is 
the compiling of the relevant information--again, something that an 
employer will already be doing in the run up to a pre-election 
hearing--that facilitates entry into election agreements, and the 
instant rule, by preserving approximately one business day after the 
filing and service of the Statement of Position before the hearing 
opens, just as readily facilitates agreements. Indeed, since the 2019 
rule's 8-business day time frame has taken effect, there has been no 
increase in election agreements.\76\ Even assuming the 7-calendar day 
time frame for completion of the Statement of Position causes some 
inconvenience, we believe that the statutory interest in expeditiously 
resolving questions of representation outweighs the non-statutory 
interest in maximizing the convenience of the nonpetitioning parties. 
Accordingly, to further expedite the resolution of representation 
cases, the nonpetitioning party's Statement of Position ordinarily will 
now be due 7 calendar days after service of the Notice of Hearing, just 
as it was under the 2014 rule.
---------------------------------------------------------------------------

    \74\ 84 FR at 69535.
    \75\ Id.
    \76\ See supra fn.61.
---------------------------------------------------------------------------

D. Postponement of the Statement of Position
    To further expedite the resolution of representation cases and 
promote uniformity and transparency, this rule also reinstitutes the 
2014 rule's standard for an extension of time for the filing of a 
Statement of Position. Accordingly, a regional director may postpone 
the due date for the filing of a Statement of Position up to 2 business 
days upon request of a party showing special circumstances and for more 
than 2 business days upon request of a party showing extraordinary 
circumstances.\77\ This amendment is justified for substantially the 
same reasons as the amendment to the standard for postponement of the 
opening of the pre-election hearing--namely, this standard makes clear 
to the parties that the statutory mission of the expeditious processing 
of representation cases will not give way unless the parties have truly 
special or extraordinary circumstances justifying the delay and 
provides a more concrete guidepost in the interests of uniformity and 
transparency.\78\
---------------------------------------------------------------------------

    \77\ 79 FR at 74371, 74374; 29 CFR 102.63(b) (Dec. 15, 2014).
    \78\ See supra B. Postponement of Pre-Election Hearing. Of 
course, any extension of time granted for the filing of the 
Statement of Position will typically result in a corresponding delay 
in the hearing date and the petitioner's oral response to the 
Statement of Position.
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E. Responsive Statement of Position
    This rule also rescinds the 2019 rule's requirement that a 
petitioner file a written responsive Statement of Position by noon 3 
business days after the nonpetitioning party's filing of its Statement 
of Position and 3 business days before the opening of the pre-election 
hearing.\79\ In its place, this rule reinstates the 2014 rule's 
requirement that, if the parties are unable to enter into an election 
agreement, the petitioner shall respond orally on the record at the 
pre-election hearing to the issues raised in the nonpetitioning party's 
Statement of Position.\80\ Like many of the other amendments made by 
this rule, this particular amendment will further the agency's 
statutory mandate to more expeditiously resolve questions of 
representation.
---------------------------------------------------------------------------

    \79\ 84 FR at 69536; 29 CFR 102.63(b)(1)(ii) (Dec. 18, 2019).
    \80\ 79 FR at 74309, 74393; 29 CFR 102.66(b) (Dec. 15, 2014).
---------------------------------------------------------------------------

    The gains in terms of expedition are substantial. By eliminating 
the 3 business days that a petitioning party has to formulate a written 
response to a nonpetitioning party's Statement of Position and further 
eliminating the additional 3 business days of mandated waiting that 
follows, the Board has eliminated 6 business days from the 
representation case process. This delay--and the responsive Statement 
of Position that the 2019 Board used to justify it--was unnecessary.
    As the 2019 Board itself admitted, the petitioner already takes a 
written position on certain key issues to be resolved at the pre-
election hearing in its petition.\81\ Requiring a responsive Statement 
of Position is largely redundant and does not ``serve the purpose of 
uniformity'' by ensuring that each side makes a written filing prior to 
the pre-election hearing,\82\ as each side already puts its positions 
in writing. As to the other issues that the nonpetitioning party's 
Statement of Position addresses for the first time--like jurisdiction 
(which turns on the employer's dealings in interstate commerce) and the 
names and job titles of the employer's own employees--that depends on 
information that is usually under the exclusive control of the 
nonpetitioning employer and, if necessary, can be responded to by the 
petitioner orally at the hearing without a written response. The 2019 
Board was of the view that a responsive Statement of Position would 
help ``clarify'' positions and provide ``notice'' of the issues that 
remain in dispute to be worked out at the hearing.\83\ But the 2019 
Board pointed to no evidence that a petitioner's oral statement on the 
record at the opening of the pre-election hearing did not already 
provide the needed clarification and notice that would guide the 
resolution of outstanding issues throughout the remainder of the 
hearing.
---------------------------------------------------------------------------

    \81\ 84 FR at 69536.
    \82\ Id.
    \83\ Id.
---------------------------------------------------------------------------

    The 2019 Board also asserted that the ``[m]ost important[]'' 
feature of requiring a written responsive Statement of Position was 
``greater efficiency.'' \84\ But requiring the petitioning party to 
prepare and file a statement that is largely redundant to its already-
filed written petition and that deals with a few additional issues that 
can be readily addressed orally at the pre-election hearing adds 
inefficiency to the representation case process. And by giving the 
petitioning party 3 business days to prepare its responsive Statement 
of Position and then adding 3 additional business days after its filing 
before the pre-election hearing can open, the 2019 rule's requirement 
further guaranteed that 6 additional business days are added to every 
representation case that

[[Page 58086]]

goes to a pre-election hearing. Requiring an additional and unnecessary 
written filing and then stopping the representation case process for 6 
days is inefficient. The 2019 Board also said that the additional 
written filing and mandated delay might ``facilitate better preparation 
for the hearing'' by the parties and agency personnel \85\ and 
``additional opportunity and incentive for parties to reach election 
agreements.'' \86\ As to the former rationale, there is no evidence 
that the conduct of hearings has demonstrably improved as a result of 
this device (or that the 2014 rule's requirement had impaired hearing 
efficiency). As to the 2019 Board's latter rationale of promoting 
election agreements, there is no indication that the speculation has 
come to pass. The evidence is that stipulation rates have not improved 
since the 2019 rule took effect, but have in fact decreased.\87\
---------------------------------------------------------------------------

    \84\ Id. at 69537.
    \85\ Id.
    \86\ Id.
    \87\ See supra fn.61.
---------------------------------------------------------------------------

    In sum, the 2019 rule's requirement of a written responsive 
Statement of Position plus delay of 6 additional business days has 
hindered the expeditious resolution of representation cases. 
Accordingly, this rule--to further the agency's statutory mission of 
expeditious and efficient resolution of representation cases--
eliminates the responsive Statement of Position requirement and its 
attendant 6-business day delay.
F. Posting and Distribution of Notice of Petition for Election
    The posting and electronic distribution of the Notice of Petition 
for Election serves the important purpose of quickly and clearly 
communicating to employees and employers alike important information 
about the representation case process. This effective mechanism for 
accurate information sharing--which the 2019 Board admitted serves a 
``laudatory purpose'' \88\--is essential to strengthening workplace 
democracy. The Notice specifies that a petition has been filed, the 
type of petition, the proposed unit, the name of the petitioner, 
briefly describes the procedures that will follow, lists employee 
rights and sets forth in understandable terms the central rules 
governing organizational campaign conduct, and provides the Board's 
website address, where more information about the representation case 
process is available.\89\
---------------------------------------------------------------------------

    \88\ 84 FR at 69538.
    \89\ 79 FR at 74309, 74379.
---------------------------------------------------------------------------

    Given the straightforward but essentially important information 
conveyed by this Notice of Petition for Election, the 2014 rule 
provided for the employer to post it within 2 business days after 
service of the Notice of Hearing in conspicuous places in the workplace 
and to electronically distribute it to employees if the employer 
customarily communicates with its employees electronically. That 
timeline is warranted.\90\ An employer is provided with the Notice of 
Petition for Election by the regional director at the same time it 
receives the Notice of Hearing; it is not a document for which the 
employer needs to compile any information or draft itself.\91\ The 
employer's task involves no more than printing copies of the Notice it 
is provided, affixing them to the wall of the workplace, and sending 
digital copies of the document to employees in an email or some similar 
electronic service. Given that an employer can promptly complete this 
task, the provision of 2 business days to complete it is sufficient, 
particularly when weighed against the vital information that the Notice 
disseminates.
---------------------------------------------------------------------------

    \90\ 79 FR at 74379-74380; 29 CFR 102.63(a)(2) (Dec. 15, 2014).
    \91\ The employer is also provided with instructions on how to 
post and distribute it. See 79 FR 74463; 29 CFR 102.63(a)(1), (2) 
(Dec. 15, 2014).
---------------------------------------------------------------------------

    Accordingly, this rule rescinds and replaces the 5-business day 
time frame that the 2019 rule gave employers to post the Notice of 
Petition for Election after service of the Notice of Hearing.\92\ 
Instead, we replace it with the 2-business day timeline set forth in 
the 2014 rule, because in our view the 2019 Board provided no good 
reason for providing the additional time. The 2019 Board speculated 
that employers, particularly ``large multi-location employers,'' 
``may'' face ``logistical difficulties'' in complying with the 2-
business day timeline.\93\ However, the 2019 Board cited no evidence 
for this rationale. That is because large multi-location employers, 
with large centralized human resource departments and sophisticated 
electronic infrastructure, are particularly able to execute this task 
quickly. Smaller employers can also complete this task within 2 
business days given the simplicity of the posting requirement and the 
relatively smaller audience to whom a small employer must distribute 
the Notice.\94\
---------------------------------------------------------------------------

    \92\ 84 FR at 69538; 29 CFR 102.63(a)(2) (Dec. 18, 2019).
    \93\ 84 FR at 69538.
    \94\ Our dissenting colleague does little more than repeat the 
2019 speculation that both large and small employers will have 
difficulty complying with notice-posting within 2 business days. 
Yet, he cites no evidence that any such issues proved problematic in 
the five years that the 2014 rule's standard was in effect.
---------------------------------------------------------------------------

    The 2019 Board's other rationale for a 5-business day time frame 
was that quick dissemination of the Notice was ``less urgent'' because 
of the delay its rule had imposed in the opening of the pre-election 
hearing.\95\ That rationale shows the 2019 Board's misunderstanding of 
key aspects of the representation case process and the reality of 
organizational campaigns. The purpose of the Notice is not to inform 
employees of the pre-election hearing; rather, as noted, it serves the 
important purpose of informing employees and the employer alike about 
the filing of the petition, the process that will follow, employee 
rights, and the rules governing campaign conduct. Accordingly, by 
requiring posting within 2 business days, we promote greater 
transparency concerning the representation case process. Additionally, 
because, for the reasons explained elsewhere, we have reinstated the 
2014 rule's 8-calendar day timeline for the opening of the pre-election 
hearing, even if it made sense to link the posting of the Notice and 
the opening of that hearing, shortening the time frame for posting of 
the Notice from 5 to 2 business days approximates the equivalent 
reduction in the time it will take for the pre-election hearing to 
open.
---------------------------------------------------------------------------

    \95\ 84 FR at 69538.
---------------------------------------------------------------------------

102.64 Conduct of Hearing
    Section 9(c)(1) of the Act establishes the purpose of a pre-
election hearing: to determine whether a question of representation 
exists.\96\ Even so, prior to the 2014 rule, the Board's rules and 
regulations entitled parties to litigate, at the pre-election hearing, 
issues like individual eligibility to vote or inclusion in an 
appropriate unit (including supervisory status questions) that were not 
necessary to determine whether a question of representation exists. The 
2014 rule expressly stated the purpose of the pre-election hearing--to 
determine whether a question of representation exists--and established 
that individual eligibility and inclusion issues ``ordinarily need not 
be litigated or resolved before an election is conducted'' and ensured 
that

[[Page 58087]]

regional directors could limit the evidence offered at the pre-election 
hearing to that which is necessary for a determination of whether a 
question of representation exists. The 2019 rule provided that 
individual eligibility and inclusion issues should ``normally'' be 
resolved at the pre-election hearing. This rule reinstitutes the 2014 
amendments and rescinds the 2019 amendments.\97\
---------------------------------------------------------------------------

    \96\ Section 9(c)(1) of the Act provides, in relevant part: 
``Whenever a petition shall have been filed . . . the Board shall 
investigate such petition and if it has reasonable cause to believe 
that a question of representation affecting commerce exists shall 
provide for an appropriate hearing upon due notice. . . . If the 
Board finds upon the record of such hearing that such a question of 
representation exists, it shall direct an election by secret ballot 
and shall certify the results thereof.''
    \97\ 79 FR at 74380-74393. These 2014 rule provisions were 
uniformly upheld by the courts. Indeed, every court to have 
considered the matter has rejected the claim that the statute 
entitles parties to litigate at the pre-election hearing (and 
requires the regional director or the Board to decide prior to the 
election) all individual eligibility or unit inclusion issues. See 
RadNet, 992 F.3d at 1122; UPS, 921 F.3d at 257; ABC of Texas, 826 
F.3d at 222-223; Chamber, 118 F. Supp. 3d at 195-203.
---------------------------------------------------------------------------

    It is inefficient to encourage parties to litigate individual 
eligibility and inclusion issues at the pre-election hearing. By not 
addressing these individual eligibility and inclusion issues in the 
ordinary course at the pre-election hearing, unnecessary litigation is 
eliminated. Specifically, if a majority of employees votes against 
representation in the election, even assuming all the disputed votes 
were cast in favor of representation, then the disputed eligibility and 
inclusion questions become moot and therefore never have to be 
litigated or decided. If, on the other hand, a majority of employees 
chooses to be represented, even assuming all the disputed votes were 
cast against representation, then the Board's experience suggests that 
the parties are often able to resolve the resulting unit placement 
questions in the course of bargaining once they are free of the 
tactical considerations that exist pre-election.\98\ Thus, here too the 
disputed eligibility or inclusion issues never need to be litigated or 
decided by the Board. Even if the parties cannot work out the remaining 
individual issues in bargaining, there is no need for another election 
to resolve the matter; rather, the unit placement of a small number of 
employees can be resolved through a unit clarification procedure.\99\
---------------------------------------------------------------------------

    \98\ 79 FR at 74391; see New York Law Publishing Co., 336 NLRB 
No. 93, slip op. at 1 (2001) (``The parties may agree through the 
course of collective bargaining on whether the classification should 
be included or excluded.'').
    \99\ 79 FR at 74391.
---------------------------------------------------------------------------

    The gains in efficiency and expedition are not just accrued in the 
minority of representation cases that require a pre-election hearing. 
Bargaining between the parties always takes place in the shadow of the 
law--that is, against the backdrop of what would happen if the parties 
failed to enter into an election agreement and proceeded to a pre-
election hearing. Accordingly, if there is leeway to regularly litigate 
individual eligibility or inclusion issues at the pre-election hearing, 
then, even if there are no disputes as to facts relevant to the 
existence of a question of representation, parties may have an 
incentive to insist on raising individual issues and proposing to 
present evidence related to those issues to trigger the threat of the 
delay occasioned by the hearing process and the time it will take the 
regional director to review the transcript and write a decision in 
order to extract concessions from the opposing side.\100\
---------------------------------------------------------------------------

    \100\ Id. at 74386-74387.
---------------------------------------------------------------------------

    The 2019 rule's directive that individual eligibility and inclusion 
issues ordinarily should be litigated at the pre-election hearing and 
decided prior to the election has never taken effect because of the 
district court's order enjoining it,\101\ and, following the D.C. 
Circuit's reversal of the district court's ruling in that regard,\102\ 
the Board's order extending its effective date.\103\ The relevant 
evidence since enactment of the 2014 amendments show the gains in 
efficiency referenced above. After the 2014 rule took effect, with the 
pre-election hearing focused on the existence of a question of 
representation rather than on extraneous issues that can be resolved, 
if necessary, later in the representation case process, there was a 
significant reduction in the time it took regional directors to issue 
their decisions and directions of elections.\104\
---------------------------------------------------------------------------

    \101\ AFL-CIO, 466 F. Supp. 3d at 100.
    \102\ AFL-CIO, 57 F.4th at 1043-1045.
    \103\ 88 FR at 14913, 14914.
    \104\ E.g., February 15, 2018 Letter from NLRB Chairman Kaplan 
and General Counsel Robb to Senator Murray and Representatives 
Scott, Sablan, and Norcross (Summary Table) (reporting a 24-day 
median for regional directors to issue a decision and direction of 
election following the close of the pre-election hearing in the year 
immediately preceding the 2014 rule's effective date as compared to 
a 12-day median in the year immediately following the 2014 rule's 
effective date).
---------------------------------------------------------------------------

    Further, the 2019 Board ignored the 2014 Board's explanation of why 
permitting regional directors to deny litigating a small number of 
individual eligibility or inclusion issues was unlikely to increase the 
number of determinative challenge cases requiring post-election 
litigation of those issues.\105\ As the Fifth Circuit explained in 
upholding the provision, ``[t]he Board considered evidence that more 
than 70% of elections in 2013 were decided by a margin greater than 20% 
of all unit employees, `suggesting that deferral of up to 20% of 
potential voters . . . would not have compromised the Board's ability 
to immediately determine election results in the vast majority of 
cases.' '' ABC of Texas, 826 F.3d at 228.\106\
---------------------------------------------------------------------------

    \105\ See 79 FR at 74387-74388.
    \106\ While the 2014 Board set forth its view that ``regional 
directors' discretion would be exercised wisely if regional 
directors typically chose not to expend resources on pre-election 
[litigation and resolution of] eligibility and inclusion issues 
amounting to less than 20 percent of the proposed unit,'' and if 
regional directors typically chose to approve parties' stipulated 
election agreements in which up to 20% of the unit is to be voted 
under challenge, 79 FR at 74388 fn.373, the 2014 Board also stated, 
as the Fifth Circuit noted, that it `` `expect[ed] regional 
directors to permit litigation of, and to resolve, such [individual 
eligibility or inclusion] questions when they might significantly 
change the size or character of the unit.' '' See ABC of Texas, 826 
F.3d at 222; 79 FR at 74390.
---------------------------------------------------------------------------

    Significantly, the Board's experience since the 2014 rule 
provisions went into effect confirms the validity of the 2014 Board's 
judgment in this regard and undermines the 2019 Board's conclusion that 
the 2014 rule's benefits of avoiding unnecessary litigation that also 
delays elections comes at the expense of certainty, finality, and 
efficiency. After the 2014 rule went into effect, the number of 
elections resulting in determinative challenges remained stable, 
despite a significant increase in regional directors approving election 
agreements in which certain individuals vote subject to challenge.\107\ 
That fact supports the conclusion that when regional directors deny 
pre-election litigation of a small number of individual eligibility and 
inclusion issues, they avoid unnecessary litigation that is often 
ultimately mooted by the results of the election. The statistics also 
show that there was stability in the

[[Page 58088]]

number of unit clarification petitions,\108\ demonstrating that the 
increased pre-election deferral of individual eligibility decisions did 
not cause a spike in parties coming back before the Board to resolve 
individuals' placement inside or outside the relevant bargaining units. 
In short, the 2014 amendments that we reinstate have not shifted 
litigation from before the election to after the election. Rather, the 
amendments have eliminated pre-election litigation that was 
unnecessary, as proven by the absence of a corresponding increase in 
post-election litigation. Thus, by continuing to encourage the deferral 
of individual eligibility decisions, the rule we adopt demonstrates a 
substantial gain in agency efficiency.
---------------------------------------------------------------------------

    \107\ For the 2-year period immediately following the 
implementation of the 2014 rule there were 191 election agreements 
that permitted individuals to vote subject to challenge. See 
February 15, 2018 Letter from NLRB Chairman Kaplan and General 
Counsel Robb to Senator Murray and Representatives Scott, Sablan, 
and Norcross at p.5. For the 2-year period prior to the 
implementation of the 2014 rule there were only 47 election 
agreements that permitted individuals to vote subject to challenge. 
See February 15, 2018 Letter from NLRB Chairman Kaplan and General 
Counsel Robb to Senator Murray and Representatives Scott, Sablan, 
and Norcross at p.5. Accordingly, the 2014 rule caused an uptick in 
agreements to defer litigation. Nevertheless, information produced 
from searches in the Board's NxGen case processing software shows 
that in fiscal years 2016 and 2017, the first two full fiscal years 
after implementation of the 2014 rule, there were only 56 cases 
requiring a post-election regional director decision on 
determinative challenges across 3,203 cases with an election (1.75% 
of cases with an election), and in fiscal years 2013 and 2014, the 
last two full fiscal years before implementation of the 2014 rule, 
there were 53 such cases across 3,240 cases with an election (1.64% 
of cases with an election). Accordingly, even with the uptick in the 
proportion of cases involving agreements to defer, the proportion of 
cases requiring a post-election decision to resolve those challenges 
remained stable at about 1.7%.
    \108\ Comparing information reported on the agency's website 
concerning total representation elections won by unions with 
information reported in the NLRB Performance and Accountability 
Reports concerning total unit clarification petitions filed in the 
following fiscal year (to take into account time for bargaining to 
resolve any deferred unit placement issues) shows that in fiscal 
years 2016 and 2017, which again were the first two full fiscal 
years after the implementation of the 2014 rule, unit clarification 
petitions constituted 8.2% and 7.2% of all representation elections 
won by unions in the previous fiscal year, and in fiscal years 2013 
and 2014, which again were the last two full fiscal years prior to 
the implementation of the 2014 rule, the corresponding figures were 
7.3% and 8.7%.
---------------------------------------------------------------------------

    The 2019 Board provided several justifications for its expansion of 
litigation at the pre-election hearing but none of them is compelling. 
Its justification articulated in terms of enhanced finality and 
certainty \109\ is not supported by the data, cited above, showing the 
stabilizing effect of the 2014 rule on both post-election litigation 
concerning determinative challenges and the need for unit clarification 
petitions. Elections thus remain just as final and certain under the 
2014 amendments as they were under the pre-2014 status quo to which the 
2019 rule would largely return.
---------------------------------------------------------------------------

    \109\ 84 FR at 69539-69540.
---------------------------------------------------------------------------

    The 2019 Board's concern that individual questions of supervisory 
status, if not decided pre-election, would prevent employers from 
knowing who they can use to campaign against a union in the pre-
election campaign and would increase the possibility of post-election 
objections based on conduct attributable to an individual whose 
eligibility and/or supervisory status was not resolved prior to an 
election is similarly unpersuasive.\110\ Supervisory status issues 
exist only at the margin because in most cases where there is 
uncertainty concerning the supervisory status of one or more 
individuals, the employer nevertheless has in its employ managers and 
supervisors whose status is not in dispute.\111\ The importance of 
expedition in the election process simply outweighs employers' interest 
in certainty that a particular individual or individuals may or may not 
be utilized in a pre-election campaign against a union. The employer is 
not hindered in its efforts to mount its pre-election campaign if it 
chooses to avoid utilizing individuals on its behalf whose statutory 
supervisory status is uncertain, a determination that employers are 
best situated to determine.\112\ On the other hand, the 2019 rule's 
requirement that the marginal supervisor's status be resolved before 
the election creates the possibility, if not the probability, of 
extensive and detail-oriented litigation of the supervisory status of 
one or more individuals, which would, in turn, inevitably slow down the 
election process. In other words, it creates incentives that are the 
exact opposite of the goals of a speedy and efficient election process. 
Moreover, even if supervisory status issues had to be litigated and 
resolved pre-election, the issues would still remain unresolved between 
the time the petition was filed and the holding of a hearing and the 
subsequent rendering of the regional director's decision. Thus, there 
would always inevitably be a period of time during a campaign when 
supervisory status issues, to the extent they exist, are 
unresolved.\113\ Then, even if the regional director resolved the 
issues before an election, that resolution would still remain subject 
to review by the Board, and any Board decision, in turn, would 
potentially be subject to review in a court of appeals. Moreover, 
because we separately rescind the 2019 rule's mandatory 20-business day 
waiting period before an election can be held following issuance of a 
decision and direction of election,\114\ there is a shorter window 
between any decision and direction of election and the election itself. 
That, in turn, reduces any benefit of having a regional director 
decide, for the employer's campaign purposes, who the supervisors are 
in the decision and direction of election. Thus the 2019 Board's 
approach sacrificed efficiency and expeditiousness with a negligible 
countervailing benefit in terms of finality and certainty.
---------------------------------------------------------------------------

    \110\ Contrary to the unfounded speculation of the 2019 Board 
majority, see 84 FR at 69525, 69529, 69530, 69540, as well as the 
predictions of the 2014 dissenting Board Members, see 79 FR at 74438 
fn.581, 74445, the relevant data indicate no increase in post-
election objections litigation arising after the deferral of 
supervisory status questions under the 2014 rule. Comparing the 
periods before and after implementation of the 2014 rule (which 
approximates the change that would result from the 2019 rule's 
litigation changes going into effect), there was stability in the 
number of cases necessitating post-election decisions on objections 
by regional personnel and in the number of rerun elections ordered 
by regional directors.
    Information produced from searches in the Board's NxGen case 
processing software shows that in fiscal years 2016 and 2017, which 
were the first two full fiscal years after the implementation of the 
2014 rule, there were 114 cases requiring a regional decision on 
objections following an election and 61 cases in which regional 
directors directed rerun elections, as compared to 3,203 total 
elections, amounting to objections in 3.56% of all elections and 
reruns in 1.9% of all elections. For fiscal years 2013 and 2014, 
which were the last two full fiscal years prior to the 
implementation of the 2014 rule, there were 118 objections cases and 
59 reruns as compared to 3,240 total elections, amounting to 
objections in 3.64% of all elections and reruns in 1.82% of all 
elections. Thus, the implementation of the 2014 rule did not cause a 
spike in either post-election objections or in elections needing to 
be rerun.
    \111\ 79 FR at 74389.
    \112\ Our dissenting colleague contends that ``this issue is not 
simply about an employer disseminating its message to employees, it 
is about `post-election complications where the putative supervisors 
engage in conduct during the critical period that is objectionable 
when engaged in by a supervisor, but is unobjectionable when engaged 
in by nonparty employees.' '' But, as noted in fn.110, supra, the 
relevant data show no overall increase in election objections that 
would have resulted from more objectionable conduct by individuals 
later determined to be supervisors following implementation of the 
2014 rule. And our dissenting colleague makes no attempt to support 
his abstract prediction with cases or data showing otherwise. This 
is especially notable since the 2014 rule to which we return and 
which made it so that individual eligibility and inclusion issues 
were ordinarily not litigated at the pre-election hearing was in 
effect for five years, surely sufficient time for ``complications'' 
to have arisen, if in fact they were real.
    \113\ This would also include a substantial part of the 
``critical period'' between the filing of the petition and the 
election. 79 FR at 74389.
    \114\ See infra B. Elimination of the 20-Business Day Waiting 
Period Between Issuance of the Decision and Direction of Election 
and the Election.
---------------------------------------------------------------------------

    The 2019 Board's justification grounded in fair and accurate voting 
and transparency--namely, that resolving individual eligibility or 
inclusion issues before the election would permit employees to know the 
``precise contours'' of the unit in which they are voting \115\--also 
is unconvincing. As noted above, even if individual eligibility and 
inclusion issues were decided before an election, there is always some 
uncertainty such that the ``precise contours'' of the unit are rarely 
defined prior to an election. For another, as the D.C. Circuit has 
explained, permitting employees ``to vote under challenge'' does not 
``imperil the bargaining unit's right to make an informed choice, so 
long as the notice of election . . . alert[s] employees to the 
possibility of change to the definition of the bargaining unit,'' \116\ 
as occurs under

[[Page 58089]]

the rules. The 2019 Board's view that this notice would confuse 
employees and so ``runs the risk of being a disincentive for some 
employees to vote'' \117\ was based on no evidence of reduced voter 
turnout.\118\
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    \115\ 84 FR at 69540-69541.
    \116\ UPS, 921 F.3d at 257 (internal quotation marks omitted).
    \117\ 84 FR at 69541.
    \118\ As the 2014 rule noted, there was no evidence that voter 
turnout was depressed prior to the 2014 rule, when employees were 
likewise permitted to vote subject to challenge. 79 FR at 74390.
---------------------------------------------------------------------------

    In sum, by rescinding the 2019 amendments and restoring the 2014 
rule language, we reduce unnecessary litigation and eliminate an 
unnecessary barrier to the fair and expeditious resolution of questions 
concerning representation.\119\
---------------------------------------------------------------------------

    \119\ In arguing that the Board should maintain the 2019 rule's 
directive that individual eligibility and inclusion issues should 
ordinarily be resolved prior to the election, our dissenting 
colleague attempts to rely on the Supreme Court's decision in A.J. 
Tower. He misconstrues that case. In A.J. Tower, the Supreme Court, 
in addition to directing that ``the Board must adopt policies and 
promulgate rules and regulations in order that employees' votes may 
be recorded accurately, efficiently and speedily,'' 329 U.S. at 331, 
upheld the Board's decision in that case to prohibit the employer's 
post-election challenge to the eligibility of one of the voters in 
the election, id. at 332-333. The employer had attempted to 
challenge the eligibility of one of the voters 4 days after the 
election took place. Id. at 327-328. In upholding the Board's 
decision not to consider that untimely challenge, the Court agreed 
that ``challenges to the eligibility of voters'' must ``be made 
prior to the actual casting of ballots, so that all uncontested 
votes are given absolute finality.'' Id. at 331. The case thus 
stands for the proposition that challenges to voters' eligibility in 
union elections must be made prior to the election--not that all 
such challenges need to be resolved prior to the election. Indeed, 
post-election resolution of challenged ballots has been a feature of 
the Board's election procedures since the earliest days of the Act 
(and has continued under both the 2014 and 2019 rules). See, e.g., 
79 FR at 74386 and fn.364, 74391 (citing Bituma Corp. v. NLRB, 23 
F.3d 1432, 1436 (8th Cir. 1994) (``The NLRB's practice of deferring 
the eligibility decision saves agency resources for those cases in 
which eligibility actually becomes an issue.'')); 84 FR at 69540 
fn.66, 69541 (``[W]e are not imposing a requirement that, absent 
agreement of the parties to the contrary, all eligibility issues 
must be resolved prior to an election. Section 102.64(a) as modified 
by the final rule states only that disputes concerning unit scope, 
voter eligibility, and supervisor status will `normally' be 
litigated and resolved by the regional director.'').
---------------------------------------------------------------------------

102.66 Introduction of Evidence: Rights of Parties at Hearing; 
Preclusion; Subpoenas; Oral Argument and Briefs
A. Introduction of Evidence; Offers of Proof
    Consistent with the modifications to Section 102.64 explained 
immediately above and for the reasons discussed there, this reinstated 
rule reverts Section 102.66(a) to the version that resulted from the 
2014 rule to clarify that the evidence admissible at a pre-election 
hearing is normally limited to the existence of a question of 
representation and is not admissible as to other issues. Further 
consistent with that and for the same reasons, this rule modifies 
Section 102.66(c) to eliminate the introduction of evidence that is not 
consistent with the offer of proof procedure for the receipt of 
evidence concerning the existence of a question of representation.
B. Briefing Following Pre-Election Hearing
    Generally, in formal agency adjudication, parties are entitled to 
briefing.\120\ But Congress expressly excluded adjudications involving 
``the certification of worker representatives'' from that 
requirement.\121\ It did so because ``these determinations rest so 
largely upon an election or the availability of an election'' \122\ and 
``because of the simplicity of the issues, the great number of cases, 
and the exceptional need for expedition.'' \123\ The 2019 Board 
acknowledged this.\124\ Even so, the 2019 Board decided to grant 
parties an absolute right to file briefs up to 5 business days 
following the close of the pre-election hearing, with an extension of 
an additional 10 business days available upon a showing of good cause. 
This rule rescinds that decision and reverts to the 2014 rule's 
standard that parties are entitled to present oral argument at the 
close of the pre-election hearing, but they may file post-hearing 
briefs only upon special permission of the regional director and within 
the time and addressing only the subjects permitted by the regional 
director.\125\
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    \120\ 5 U.S.C. 557(c).
    \121\ 5 U.S.C. 554(a)(6); see also 79 FR at 74402.
    \122\ S. Rep. No. 752, at 202 (1945); see also 79 FR at 74402.
    \123\ Senate Committee on the Judiciary Comparative Print on 
Revision of S. 7, 79th Cong., 1st Sess. 7 (1945); see also 79 FR at 
74402.
    \124\ See 84 FR at 69542 (``[W]e do not take issue with the 
proposition that the Board is not required to permit post-hearing 
briefs after pre-election hearings[.]'').
    \125\ 79 FR at 74401-74403, 74426-74427; 29 CFR 102.66(h) (Dec. 
15, 2014). We agree with the 2014 Board's conclusion that given the 
often recurring and uncomplicated legal and factual issues arising 
in pre-election hearings, briefs are not necessary in every case to 
permit the parties to fully and fairly present their positions or to 
facilitate prompt and accurate decisions.
---------------------------------------------------------------------------

    Rescission of the blanket entitlement to post-hearing briefing is 
warranted given the recurring and uncomplicated legal and factual 
issues arising in pre-election hearings. There is a relatively 
contained body of law applicable in the repeated factual contexts that 
present issues at pre-election hearings, and, accordingly, in the vast 
majority of cases, regional directors can properly resolve the issues 
without briefing.\126\ Moreover, regional directors retain the 
discretion to order briefing when they are confronted with the rare 
case that poses a truly complex issue.\127\
---------------------------------------------------------------------------

    \126\ Id.
    \127\ Our dissenting colleague points to cases involving 
independent contractor status as exemplars of situations in which 
briefing would assist regional directors with the application of 
multi-factor legal tests. However, under the 2014 rule, regional 
directors exercised their discretion to permit briefing in many 
independent contractor cases. See 84 FR at 69578 fn.230 (then-Member 
McFerran, dissenting) (listing independent contractor cases in which 
regional directors allowed briefing under the 2014 rule). We also 
find it significant that in some independent contractor cases, 
parties waived filing briefs in lieu of presenting oral argument, 
thereby evidencing that parties themselves recognize that post-
hearing briefing to regional directors is not necessary in all cases 
involving independent contractors. Id.
    We also note that, just as was the case under the 2014 rule, 
parties remain entitled to file a brief with the Board in support of 
any request for review of the regional director's decision and 
direction of election. 79 FR at 74402.
---------------------------------------------------------------------------

    The Board thus has no reason to believe that the quality of 
regional director decisions will decline. Regional directors 
infrequently make incorrect decisions in the pre-election context. 
Since the 2019 rule took effect, there has been no decline in the 
proportion of cases in which the Board grants review or reverses 
regional director pre-election decisions, which tends to show that the 
default entitlement to post-hearing briefing has not helped regional 
directors reach the right results or avoid prejudicial errors to an 
even greater degree.\128\ Eliminating the default entitlement to post-
hearing briefing thus comes with no clearly discernible cost, and the 
primary benefit is enhancing the Board's ability to expeditiously 
process representation cases.\129\ By eliminating a

[[Page 58090]]

mandated 5-business day briefing period (with the possibility of 10 
additional business days upon an extension), the issuance of a decision 
and direction of election and any subsequent election can occur sooner. 
Moreover, giving no entitlement to post-hearing briefing following a 
pre-election hearing and permitting it only if deemed helpful by the 
decisionmaker is a uniform and transparent standard and, by eliminating 
a redundant round of briefing, the rule promotes finality.
---------------------------------------------------------------------------

    \128\ Information produced from searches in the Board's NxGen 
case processing software shows that in fiscal years 2018 and 2019--
the last two full years the 2014 rule was in effect--the Board 
granted review in 9 of the 82 cases in which a party filed a request 
for review and reversed the regional director's decision in 2 of 
those cases. Accordingly, across those years, a request for review 
was granted in 10.98% of cases with an election in which a request 
for review was filed, and a request for review caused a reversal in 
2.44% of cases with an election in which a request for review was 
filed. In fiscal years 2021 and 2022--the first two full years the 
2019 rule was in effect--the Board granted review in 19 of the 119 
cases in which a party filed a request for review and reversed the 
regional director's decision in 5 of those cases. Accordingly, 
across those years, a request for review was granted in 15.97% of 
cases with an election in which a request for review was filed, and 
a request for review caused a reversal in 4.2% of cases with an 
election in which a request for review was filed. Accordingly, the 
data do not tend to show that regional director decision making has 
improved with the benefit of default briefing under the 2019 rule. 
This is consistent with prior data showing that regional director 
decision making did not suffer following the implementation of the 
2014 rule. See 84 FR at 69578 fn.231 (then-Member McFerran, 
dissenting).
    \129\ Our dissenting colleague contends that permitting briefing 
in all cases would ``promot[e] more efficient case processing 
without unduly delaying resolution of the case.'' (Emphasis in 
original.) We have provided reasons and analyzed data to show why 
briefing as a matter of right is, among other things, inefficient.
---------------------------------------------------------------------------

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
A. Specification of Election Details in Decision and Direction of 
Election; Notice of Election
    An election cannot be conducted until the details of the election 
are set and the Notice of Election advises the employees of when, 
where, and how they may vote. Prior to the 2014 rule, these details 
were resolved after the decision and direction of election issued in 
sometimes lengthy telephone consultations and negotiations with the 
various parties.\130\ To eliminate one of the ``choke points'' in 
getting to the election, the 2014 rule required that the parties state 
their preferences on the election details in their petitions and 
Statement of Position, and further provided that the hearing officer 
would solicit the parties' positions on the election details again, 
prior to the close of the hearing.\131\ Because the parties will 
already have twice stated their positions on the election details, this 
rule directs that election directions will ordinarily specify the type, 
date(s), time(s), and location(s) of the election and the eligibility 
period and that the regional director will ordinarily transmit the 
Notice of Election simultaneously with the direction of election. By 
consolidating the decision and direction of election with the 
specification of the election details in the ordinary course, the Board 
eliminates the need for wasteful post-decision consultation and, in 
turn, can more expeditiously resolve questions of representation. 
Additionally, providing this information with the direction of election 
promotes greater transparency and certainty than if dissemination of 
this important information is delayed. If necessary, regional directors 
remain free to consult with the parties again about election details 
after directing an election.
---------------------------------------------------------------------------

    \130\ 79 FR at 74404.
    \131\ Id.; see also 29 CFR 102.61(a)(12), (b)(9), (c)(11); 
102.63(b)(1)(i), (2)(i), (iii), (3)(i); 102.66(g) (Dec. 15, 2014).
---------------------------------------------------------------------------

    This amendment thus reverts to the standard of the 2014 rule \132\ 
and rescinds the 2019 rule's amendment that merely provided that the 
regional director ``may'' specify the election details in the decision 
and direction of election and effected a ``shift in emphasis'' by 
providing that the regional director ``retains discretion to continue 
investigating these details after directing an election and to specify 
them in a subsequently-issued Notice of Election.'' \133\ The Board 
does not doubt the discretion of the regional director to work out 
election details, if necessary, after directing an election, but there 
is no compelling reason to ``shift'' the ordinary course from how the 
2014 rule established it. The 2019 Board admitted that ``the regional 
director should ordinarily be able to provide election details in the 
direction of election.'' \134\ Determining election details as an 
entirely separate process after directing the election is, ordinarily, 
a step that adds unnecessary delay and inefficiency to the 
representation case process. Accordingly, like other aspects of this 
rule, this is another instance where we amend the rule to make it 
responsive to the ordinary course scenario, with a safety valve 
responsive to the exception. Doing so causes no discernible detriment 
and furthers the goals of expeditiously and efficiently processing 
representation cases and promoting transparency and certainty.
---------------------------------------------------------------------------

    \132\ 79 FR at 74404-74405.
    \133\ 84 FR at 69544; 29 CFR 102.67(b) (Dec. 18, 2019).
    \134\ 84 FR at 69544.
---------------------------------------------------------------------------

B. Elimination of the 20-Business Day Waiting Period Between Issuance 
of the Decision and Direction of Election and the Election
    Both the 2014 rule and the 2019 rule provided that regional 
directors shall schedule elections for the earliest date 
practicable.\135\ However, the 2019 rule imposed a 20-business day (or 
28-calendar day) waiting period before an election can be held 
following issuance of a decision and direction of election to permit 
the Board to rule on any request for review that may be filed.\136\ The 
instant rule rescinds this amendment that, by definition, substantially 
delays the election that is designed to answer the question of 
representation.
---------------------------------------------------------------------------

    \135\ See 29 CFR 102.67(b) (Dec. 15, 2014); 29 CFR 102.67(b) 
(Dec. 18, 2019).
    \136\ 84 FR at 69544-69547; 29 CFR 102.67(b) (Dec. 18, 2019).
---------------------------------------------------------------------------

    The scheduling of an election for the earliest date practicable 
furthers the Board's statutory mission to expeditiously process 
representation cases. A mandated waiting period--which effectively 
stays the election in every contested case for a set period of time--
is, as a threshold statutory matter, in tension with Congress's 
instruction in Section 3(b) of the Act that the grant of review of a 
regional director's action ``shall not, unless specifically ordered by 
the Board, operate as a stay of any action taken by the regional 
director.'' \137\ Moreover, as a policy matter, a waiting period 
necessarily delays the election, which is designed to answer the 
question of representation. Thus, by eliminating it, the Board 
eliminates an unnecessary barrier to the fair and expeditious 
resolution of questions concerning representation and thereby furthers 
a statutory goal. And because, as the Board has noted elsewhere, 
bargaining takes place in the shadow of the law such that some parties 
use the threat of a pre-election hearing and the result of a waiting 
period to extract concessions concerning election details, the impact 
of the earliest date practicable standard is also felt in the more 
common context of a stipulated election.
---------------------------------------------------------------------------

    \137\ 29 U.S.C. 153(b).
---------------------------------------------------------------------------

    Rescinding the mandatory waiting period--which, on its terms, 
exists solely to permit the Board to rule on any request for review 
that may be filed with 10 business days of a direction of election 
\138\--is also responsive to the fact that requests for review of a 
decision and direction of election are filed in only a small percentage 
of cases, are granted in only a small percentage of the cases in which 
they are filed, and result in orders staying elections in hardly any 
cases at all.\139\ And, as a result of another amendment from the

[[Page 58091]]

2014 rule that the 2019 rule did not change, parties are free to file 
requests for review even after completion of an election. Accordingly, 
even if a waiting period could, in some instances, enable the Board to 
resolve requests for review prior to elections taking place, there is 
no meaningful benefit to doing so and certainly no benefit large enough 
to outweigh the cost of added delay in every other case. And a standard 
that directs a regional director to schedule an election on the 
earliest date practicable gives sufficient flexibility to allow for an 
extended delay between the direction and conduct of election in the 
rare case when such delay is necessary.
---------------------------------------------------------------------------

    \138\ 84 FR at 69544-69547.
    \139\ For instance, information produced from searches in the 
Board's NxGen case processing software shows that in fiscal year 
2019--the last full year that all provisions of the 2014 rule were 
in effect--there were 1,179 total elections and 128 cases with a 
decision and direction of election but only 47 with a request for 
review. So a request for review was filed in only 36.72% of cases 
with a directed election and in only 3.99% of cases with an 
election. Among those 47 cases with a request for review, only 2 
requests for review were granted and neither resulted in an order 
staying an election, so a request for review was granted in only 
0.17% of cases with an election and in only 1.56% of directed 
election cases. Neither of the cases granting the request for review 
resulted in an order staying an election, so there was a stay of the 
election in 0% of elections (directed or otherwise).
---------------------------------------------------------------------------

    The 2019 Board admitted that its mandated waiting period would run 
counter to the statutory goal of expeditious resolution of 
representation cases.\140\ Yet it imposed the change anyway, again 
speculating that imposing this substantial delay would promote other 
interests. There is no evidence that it would have done so, and even if 
such evidence existed, we make a different judgment of policy 
priorities. After enactment of the 2014 rule, which eliminated a 
similar 25-calendar day waiting period that had been mandated 
previously,\141\ the data show that elections have been no less final, 
certain, fair, accurate, transparent, or uniform.\142\ The 2014 rule's 
elimination of the waiting period between issuance of the direction of 
the election and the election was upheld by the courts \143\ and 
enabled the Board to hold elections more quickly after the decision and 
direction of election issued than it was prior to the 2014 rule.\144\ 
Thus, eliminating the mandated waiting period expedites the processing 
of representation cases with no meaningful drawback in any other 
important policy interest.
---------------------------------------------------------------------------

    \140\ 84 FR at 69546 (``We acknowledge here that the 20-
business-day period will detract from how promptly elections were--
or at least could be--conducted under the 2014 amendments.'').
    \141\ 79 FR at 74410.
    \142\ See 84 FR at 69582 & fns.244-247 (then-Member McFerran, 
dissenting) (citing data showing stability in relevant indicia of 
finality, certainty, fairness, accuracy, transparency, and 
uniformity).
    \143\ See, e.g., ABC of Texas, 826 F.3d at 226-227 (noting that 
the Act does not mandate a specified waiting period prior to the 
election).
    \144\ Information produced from searches in the Board's NxGen 
case processing software shows post-2014 rule medians of 11 to 12 
calendar days from issuance of a decision and direction of election 
to the election itself in FYs 2016-2017. This shows that elimination 
of the waiting period enabled the Board to conduct elections more 
quickly because the waiting period would have prevented the Board 
from conducting elections so soon after issuance of the decision and 
direction of election.
---------------------------------------------------------------------------

    We further note that the 2019 Board conceded that ``[i]n many 
respects,'' its waiting period amendment ``goes hand-in-hand with [its] 
amendment permitting litigation of eligibility and inclusion issues at 
the pre-election hearing and serves the same policy interests.'' \145\ 
Thus, the 2019 Board argued that ``providing a period before the 
election during which parties can file and the Board can rule on 
requests for review permits [those eligibility and inclusion] issues to 
be definitively resolved prior to the election (or at least prior to 
the counting of the votes), thereby promoting finality and certainty.'' 
\146\ But this rule rescinds the 2019 amendment that provided that 
individual eligibility or inclusion issues normally will be litigated 
at the pre-election hearing and resolved by the regional director prior 
to the election, making the corresponding waiting period superfluous.
---------------------------------------------------------------------------

    \145\ 84 FR at 69545.
    \146\ Id.
---------------------------------------------------------------------------

    The 2019 Board's speculations that a mandated month-long waiting 
period would promote finality, certainty, uniformity, transparency, and 
fairness and accuracy are unavailing for additional reasons. First, in 
the vast majority of representation cases, the parties are able to 
reach an election agreement that necessarily precludes the possibility 
of a pre-election request for review. In the majority of the 
comparatively small percentage of contested cases, parties choose not 
to file a request for review.\147\ In all those cases, the mandated 
month-long waiting period serves no purpose other than to add needless 
delay to the process.\148\ And even in the minority of cases where a 
party files a request for review prior to the election, there is no 
guarantee that the Board, given resource constraints and other 
responsibilities, will be able to rule on the request within the 
waiting period, which, again, means that a waiting period may cause 
needless delay. And then, even assuming the Board can resolve the pre-
election request within the waiting period, historical practice shows 
that the Board rarely reverses a regional director's pre-election 
decisions,\149\ and so, once again, the mandated delay will have served 
little beneficial purpose.
---------------------------------------------------------------------------

    \147\ For instance, information produced from searches in the 
Board's NxGen case processing software shows that in fiscal year 
2019--the last full year the 2014 rule was in effect--there were 
1,179 total elections and 128 cases with a decision and direction of 
election but only 47 with a request for review. So a request for 
review was filed in only 36.72% of cases with a directed election 
and in only 3.99% of cases with an election.
    \148\ Moreover, as noted above, although the waiting period, on 
its terms, applies only to directed elections, the threat of a 
directed election and the attendant waiting period may also be used 
to extract concessions concerning election details in an election 
agreement.
    \149\ For instance, information produced from searches in the 
Board's NxGen case processing software shows that in fiscal year 
2019--the last full year that all provisions of the 2014 rule were 
in effect--among the 47 cases with a request for review, only 2 
requests for review were granted and neither resulted in a reversal, 
so a request for review was granted in only 1.56% of directed 
election cases and warranted reversal in 0% of directed election 
cases.
---------------------------------------------------------------------------

    In sum, there is a very small number of cases where: (1) a party 
files a request for review before the election; (2) the Board rules on 
the request for review prior to the election; and (3) the Board's 
ruling reverses the regional director's decision. That means that the 
2019 rule's waiting period would cause delay in every contested case 
(and every stipulated election case--comprising the vast majority of 
the Board's representation case docket--whose terms are impacted by 
parties' estimations of how much time would transpire before the 
election if the nonpetitioning party insisted on a pre-election 
hearing) in order to claim a nebulous and unproven enhancement of 
finality, certainty, uniformity, transparency, and fairness and 
accuracy in the tiny number of cases that meet these three uncommon 
conditions. We do not judge that tradeoff to be worthwhile. Delay for 
no benefit in the vast majority of cases would not be offset by 
improved finality, certainty, uniformity, transparency, and fairness 
and accuracy in a tiny number of cases.
    Accordingly, to eliminate an unnecessary barrier to the fair and 
expeditious resolution of questions of representation, with the 
necessary flexibility for regional director adjustment to the 
circumstances of any particular case, this rule rescinds the month-long 
waiting period and directs regional directors to schedule an election 
for as soon as practicable after the direction of an election.\150\
---------------------------------------------------------------------------

    \150\ Rather than defend the 2019 Board's contemporaneous 
justifications for its waiting period provision, our dissenting 
colleague espouses a new rationale: that the 20-business day waiting 
period is ``critical'' to provide an adequate ``period of time 
during which employees can become `fully informed' voters.'' The 
2019 Board did not offer this ``fully informed voters'' 
justification for imposing a 20-business day waiting period and 
instead explained that ``this period is designed `to permit the 
Board to rule on any request for review which may be filed[.]' '' 
See 84 FR at 69545. In any event, the 2014 Board comprehensively 
explained why all of the changes made in that rule to which we 
return, including preventing the 20-business day waiting period from 
taking effect, do not prevent employees from becoming fully informed 
about their decision whether to unionize. See infra Part V 
(summarizing the 2014 rule's explanation, 79 FR at 74318-74326, 
74423-74424, that the changes in the aggregate would continue to 
provide a meaningful opportunity for campaign speech before the 
election).

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[[Page 58092]]

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. Briefing Following Post-Election Hearing
    To further enhance the expeditious resolution of questions 
concerning representation without any countervailing decline in other 
policy interests, this rule also rescinds the 2019 rule's blanket 
entitlement for parties to file post-hearing briefs with the hearing 
officer in all cases.\151\ Accordingly, this rule reverts to what the 
2019 Board conceded was the Board's ``historical[ ]'' practice of 
permitting briefing only at the discretion of the hearing officer.\152\
---------------------------------------------------------------------------

    \151\ 29 CFR 102.69(c)(1)(iii) (Dec. 18, 2019).
    \152\ 84 FR at 69556.
---------------------------------------------------------------------------

    Certification of the results of a Board-conducted election cannot 
issue until any determinative challenges or election objections are 
resolved. Thus, by giving parties an entitlement of 5 business days--
and up to an additional 10 business days upon a showing of good cause--
to file briefs following the close of the post-election hearing, the 
2019 rule built in another layer of delay. Rescinding this blanket 
entitlement for briefing thus further reduces delay and thereby 
promotes finality and, by avoiding another round of briefing, saves the 
Board and the parties resources expended on repetitive argument. The 
parties will already have had a chance to present argument on the 
challenges and objections at the hearing itself. Many of these 
challenges and objections issues are straightforward and frequently 
reoccurring. Hearing officers thus gain expertise in resolving them and 
only rarely need to resort to briefing to do so. When such briefing 
would be helpful, they can allow it.\153\ Additionally, under the 2014 
rule provisions which we reinstate, parties still have a right to file 
briefs with the regional director when they file exceptions to the 
hearing officer's recommended disposition of post-election objections 
and determinative challenges, and parties also have a right to file 
briefs with the Board in support of any request for review of the 
regional director decision on objections and determinative challenges. 
Accordingly, another round of briefing following the close of the post-
election hearing is not necessary.
---------------------------------------------------------------------------

    \153\ Our dissenting colleague contends that we ``minimize the 
complexity of representation cases'' by eliminating briefing as of 
right. He overlooks that in complex cases, in both the pre- and 
post-election hearing context, the regional director or hearing 
officer has discretion to allow briefing.
---------------------------------------------------------------------------

V. Response to the Dissent

    Our dissenting colleague makes a number of provision-specific 
arguments that we have rebutted in the discussion above. Generally, 
these arguments assert that our reinstatement of some aspect of the 
2014 rule will have various negative consequences. But those arguments 
suffer from the same defect as the rationale for the 2019 rule itself: 
They lack factual support, notwithstanding that the 2014 rule was in 
effect for five years. If there were negative consequences arising from 
it, our dissenting colleague should be able to demonstrate as much.
    The balance of the dissent makes two broader arguments, each 
claiming that we have failed to engage in reasoned decision making. 
Thus, our colleague argues (1) that we have improperly prioritized 
expedition in the representation case process at the supposed expense 
of employees being fully informed and (2) that we have improperly 
considered representation case data that was likely impacted by the 
COVID-19 pandemic. As we explain below, each of these arguments misses 
the mark.
    The Board has a statutory duty to ensure that representation cases 
are resolved expeditiously. As we have noted, Congress has described 
``the exceptional need for expedition'' in representation cases,\154\ 
and the Supreme Court has said that we ``must adopt policies and 
promulgate rules and regulations in order that employees' votes may be 
recorded accurately, efficiently and speedily.'' \155\ By effectively 
returning the Board's representation case procedures to those that were 
in effect for five years under the 2014 rule, we enhance the speed with 
which representation cases will be resolved and, in doing so, we act 
consistent with the policy of Congress, as recognized by the Supreme 
Court.
---------------------------------------------------------------------------

    \154\ Senate Committee on the Judiciary, comparative print on 
revision of S. 7, 79th Cong., 1st Sess. 7 (1945).
    \155\ A.J. Tower, 329 U.S. at 331.
---------------------------------------------------------------------------

    In fulfilling that statutory duty, we have not sacrificed 
employees' ability to become fully informed voters. As extensively 
explained in the 2014 rule's preamble, the changes to the Board's 
election procedures will continue to provide a meaningful opportunity 
for campaign speech before the election, and thus a sufficient 
opportunity for employees to become fully informed voters.\156\ Several 
factors mitigate any arguable problems introduced by a shortened 
campaign period flowing from the 2014 rule's expedited case processing. 
First, union organizing campaigns typically start well before the 
representation case process is ever triggered by the filing of a 
petition with the Board, so employees typically start becoming informed 
about their decision whether to be represented by a union well before 
the representation case process is triggered. Moreover, as recognized 
by the Supreme Court, union organizing campaigns rarely catch employers 
by surprise and so employers too can begin informing employees about 
their union views before a petition is filed.\157\ ``[E]ven in the 
absence of an active organizing campaign, employers in nonunionized 
workplaces may and often do communicate their general views about 
unionization to both new hires and existing employees'' through 
materials like handbooks and orientation videos.\158\ In addition, 
employers are able to rapidly disseminate their campaign message post-
petition.\159\ And, as recognized by reviewing courts turning back 
challenges to the 2014 rule, regional directors will take into account 
parties' ``opportunity for meaningful speech about the election'' in 
setting an election date.\160\ Our dissenting colleague disregards this 
because he has a different policy preference, which, as explained, we 
reject.\161\
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    \156\ See 79 FR at 74318-74326, 74423-74424.
    \157\ See id. at 74320 (quoting NLRB v. Gissel Packing Co., 395 
U.S. 575, 603 (1969)).
    \158\ See id. at 74321-74322.
    \159\ See id. at 74322-74323.
    \160\ See RadNet, 992 F.3d at 1122 (quoting 79 FR at 74318); ABC 
of Texas, 826 F.3d at 227 (same).
    \161\ Notably, our dissenting colleague fails to present any 
evidence of an election in which employees did not have adequate 
time to become informed about the decision they were making. Put 
simply, under the procedures to which we return, representation 
cases will clearly be resolved more expeditiously and there is no 
evidence that employees will be inadequately informed.
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    The dissent's other argument--questioning the data we have 
considered--is equally unfounded. Even putting aside the data which 
support our policy choice here, we would still choose to substantially 
rescind the 2019 rule and reinstate the 2014 rule. As we have explained 
above, the 2019 Board necessarily acknowledged it was adding time to 
the representation case process \162\ and justified this change

[[Page 58093]]

with speculation that that cost of this added time would be offset by 
policy benefits like increased fairness, accuracy, transparency, 
uniformity, and finality. We make a different policy calculation, 
concluding that the cost of the added delay in the 2019 rule is not 
offset by benefits related to other values. There was no evidence, pre-
COVID-19, supporting the claimed benefits of the 2019 rule, and that 
absence of evidence supports our decision to substantially rescind the 
2019 rule and return to the 2014 rule. Our dissenting colleague's 
charge that the data from the period of the COVID-19 pandemic is 
tainted is entirely irrelevant to this aspect of our analysis.
---------------------------------------------------------------------------

    \162\ See, e.g., 84 FR at 69528 (``For contested cases, several 
provisions of the final rule will, both individually and taken 
together, result in a lengthening of the median time from the filing 
of a petition to the conduct of an election.''); AFL-CIO, 57 F.4th 
at 1047 (``In the extensive preamble to the 2019 Rule . . . the 
Board repeatedly acknowledges that its changes will result in longer 
waits before elections relative to the 2014 Rule.'').
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    Our dissenting colleague's argument also disregards the fact that, 
in addition to the more recent data we cite, our policy choice is 
supported by a substantial amount of data from both the period 
immediately prior to the effective date of the 2014 rule and the period 
when the 2014 rule was in effect.\163\ None of this data was impacted 
by the effects of the pandemic, and it supports the view that the 2014 
rule, to which we substantially return, allows for the expeditious 
processing of representation cases while ensuring fairness, accuracy, 
transparency, uniformity, and finality.
---------------------------------------------------------------------------

    \163\ See, e.g., supra fn.7, fn.8, fn.17, fn.43, fn.44, fn.45, 
fn.61, fn.104, fn.107, fn.108, fn.110, fn.128, fn.139, fn.144, 
fn.147, fn.149.
    Indeed, we note that, because some of the 2019 rule provisions--
regarding the scope of the pre-election hearing and the waiting 
period between issuance of the decision and direction of election 
and the election itself--did not go into effect and because the 2019 
rule stated that those provisions largely restored the pre-2014 rule 
status quo (84 FR at 69525, 69539-69542, 69544-69545), the relevant 
comparison with respect to those provisions is not between the pre-
2019 rule and the post-2019 rule COVID-19 periods, but between the 
periods before and after the implementation of the 2014 rule.
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    As for the more recent data from fiscal years during the COVID-19 
pandemic, that data only provides further confirmatory support for our 
policy judgment. We have fully acknowledged that some of the recent 
delay in representation cases is likely attributable to the effects of 
the COVID-19 pandemic, but, as we have explained, we believe that some 
of the delay, as borne out in the data, is also due to the 2019 rule, 
given the 2019 Board's concession that its rule would lengthen the 
representation case process. Moreover, as we have demonstrated above, 
the recent data also provides confirmatory support for the conclusion 
that the 2019 rule has not demonstrably improved fairness, accuracy, 
transparency, uniformity, and finality. As we have explained, the 2019 
Board never provided any evidence that there was a problem related to 
these policy values under the 2014 rule. Nor, examining pre-COVID-19 
data, have we found such evidence. That the recent data is consistent 
with those prior conclusions simply confirms that our policy judgment 
is more than amply supported.\164\
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    \164\ Notably, the 2019 Board promulgated its rule without 
relying on any data at all. See 84 FR at 69557 (``[O]ur reasons for 
revising or rescinding some of the 2014 amendments are [ ] based on 
non-statistical policy choices.''). If those choices (endorsed by 
our dissenting colleague then and now) were not arbitrary and 
capricious, then our reasoned decision to give some weight to recent 
data cannot be infirm. See AFL-CIO, 57 F.4th at 1046-1048 (rejecting 
challenge that the 2019 rule was arbitrary and capricious as a whole 
due to the Board's ignoring data and not even citing anecdotal 
evidence of problems with the 2014 rule).
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VI. Dissenting View of Member Kaplan

    Member Marvin E. Kaplan, dissenting.

A. Introduction

    My colleagues reinstate the Representation--Case Procedures Rule 
that the Board promulgated in 2014 \165\ and revoke the remaining 
aspects of the Representation-Case Procedures Rule promulgated by the 
Board in 2019.\166\ In doing so, my colleagues echo the rationale in 
the 2014 Rule with significant emphasis on an ``observation'' made by 
the Supreme Court in NLRB v. A.J. Tower Co., 329 U.S. 324 (1946), that 
``the Board must adopt policies and promulgate rules and regulations in 
order that employees' votes may be recorded accurately, efficiently, 
and speedily.'' My colleagues' emphasis, however, is based on a 
fundamentally flawed premise--that speed is more important than any 
other consideration in determining whether the Board is fulfilling its 
duty to protect one of the fundamental rights protected by the Act: the 
right of employees to choose whether or not to be represented by a 
union. Further, nothing in the A.J. Tower decision suggests that the 
Court was urging the Board to place expediency over all other 
considerations in determining whether the Board's rules met the 
statutory goal of Section 9(b).
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    \165\ Hereinafter, the ``2014 Rule.''
    \166\ Hereinafter, the ``2019 Rule.'' For ease of reference, I 
will refer to the revocation of the 2019 Rule, even though my 
colleagues are only revoking those provisions that remain in effect 
following the decision in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 
2023).
---------------------------------------------------------------------------

    As just one example, the Board has expressly recognized that 
``ensuring that all employees are fully informed about the arguments 
concerning representation and can freely and fully exercise their 
Section 7 rights'' is an important statutory right. Mod Interiors, 324 
NLRB 164, 164 (1997) (emphasis added); accord Excelsior Underwear, 
Inc., 156 NLRB 1236, 1240 (1966) (finding that ``an employee who has 
had an effective opportunity to hear the arguments concerning choice is 
in a better position to make a more fully informed and reasonable 
choice''). Yet, my colleagues' reinstatement of the 2014 Rule 
unquestionably values quick elections over fully informed voters. For 
example, by delaying the determination of questions of eligibility, 
supervisory status, and unit scope until after the election, the 2014 
Rule deprives employees of the ability to understand which coworkers 
would be included in the unit they are voting on, and which would 
not.\167\ Similarly, by revoking the 2019 Rule's reinstatement of the 
20-business day waiting period between the issuance of the decision and 
direction of election and the election and replacing it with the 
mandate in the 2014 Rule that regional directors must schedule 
elections for ``the earliest date practicable,'' the majority has 
drastically limited the period of time during which employees can 
become ``fully informed'' voters.\168\ By placing an inordinate 
emphasis on speedy elections, my colleagues have failed to consider the 
extent to which these rules will have a negative effect on the very 
individuals the Act was meant to protect in representation elections--
the voters. One is left to wonder how much the voters will actually 
benefit from the requirements that elections be held as quickly as 
possible when they find themselves exercising this right without fully 
understanding the arguments concerning representation and the ways in 
which their vote may affect them.
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    \167\ As will be discussed infra, the Supreme Court has already 
recognized that pre-election determination of these issues supports 
the Act's interest in efficient and timely elections, in part 
because parties that are unhappy with the results of elections will 
not have the opportunity to delay the finalization of results by 
litigating these issues later.
    \168\ The majority characterizes the 2019 Rule as ``impos[ing]'' 
a 20-business day waiting period. If that is so, then the Board had 
been ``imposing'' a 20-business day waiting period on parties to 
elections for a long time prior to the 2014 Rule, which for the 
first time prohibited regional directors from establishing any 
waiting period whatsoever.
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    Further, my colleagues are revoking the 2019 Rule before there has 
been any opportunity to obtain relevant data pertaining to the effects 
of that rule. In State Farm \169\ the Supreme Court held that, in order 
for a rulemaking to survive the ``arbitrary and capricious'' standard,

[[Page 58094]]

an agency must ``examine the relevant data and articulate a 
satisfactory explanation for its action . . . .'' Id. at 43 (emphasis 
added). Given the extraordinary effects of the COVID-19 pandemic on the 
Board's election processes for the short period of time in which the 
2019 Rule has been in effect, however, relevant data--i.e., data based 
on elections not conducted under extraordinary circumstances--is not 
available. Therefore, no one is in a position as of yet to make any 
data-driven conclusions regarding the efficacy of the Rule. Simply put, 
any attempt to challenge the 2019 Rule based on data is premature. 
Because my colleagues cannot identify any relevant data that would 
enable the effects of the 2019 to be compared with data from the years 
following the 2014 Rule, I do not believe that my colleagues' re-
promulgation of the 2014 Rule can survive the ``arbitrary and 
capricious'' standard.\170\
---------------------------------------------------------------------------

    \169\ Motor Vehicles Mfrs. Assn. of United States, Inc. v. State 
Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983).
    \170\ My colleagues contend that their ``reasoned decision to 
give some weight to recent data cannot be infirm'' because ``the 
2019 Board promulgated its rule without relying on any data at 
all.'' The 2019 Rule relied on a reasoned balancing of competing 
statutory and policy interests--interests not adequately considered 
by the 2014 Rule. To state the obvious, relying on flawed data as 
justification for overturning the 2019 Rule is not the same thing.
---------------------------------------------------------------------------

B. The Majority's Decision To Revoke the 2019 Rule and Repromulgate 
Corresponding Sections From the 2014 Rule Is Arbitrary and Capricious 
in Violation of the Administrative Procedure Act Because the Decision 
Is Not Based on Representative Data

    My colleagues repeatedly state that the Board's internal data 
regarding the processing of representation petitions after the 
implementation of the 2019 Rule demonstrate that the rule lengthened 
election times without any appreciable improvement in the other 
interests upon which the Board relied in promulgating that rule. In 
doing so, my colleagues chiefly rely on data taken from the first two 
years that the 2019 Rule was effective. However, the COVID-19 pandemic 
began shortly after the Board implemented the 2019 Rule. It cannot 
reasonably be disputed that the pandemic caused the Board to conduct 
elections in a manner so different from the norm that any data derived 
therefrom, especially with regard to the time that it took to hold 
elections, is not representative data. Accordingly, because that data 
does not exist, my colleagues fail to establish that their decision to 
revoke the 2019 Rule is based on any relevant data, as required by the 
Supreme Court.
    ``Due to the extraordinary circumstances related to the pandemic,'' 
the Board was forced to temporarily suspend elections in March 2020 in 
order to ``ensure the health and safety of Board employees as well as 
members of the public involved in the election process.'' Aspirus 
Keweenaw, 370 NLRB No. 45, slip op. at 3 (2020) (internal quotations 
omitted). When elections resumed, the Board flipped existing election 
standards on their head. Longstanding Board law favors conducting 
manual Board elections, and that preference is reflected in the 
percentage of mail ballot elections conducted during the years 
immediately following the 2014 Rule.\171\ During those years, mail-
ballot elections represented less than 13% of all elections. In the 
fiscal years following the 2019 Rule, however, mail-ballot elections 
represented an unprecedented percentage of Board elections: in fiscal 
year 2020, 45% of elections were held by mail ballot; in 2021, the 
percentage was a staggering 83.9%; and in 2022, 77.6% of elections were 
conducted by mail-ballot election. My colleagues attempt to downplay 
the dramatic effect that this had on the time frames within which 
elections took place under the 2019 Rule, but they are ignoring 
undisputed facts. Not only do mail-ballot elections take longer than 
manual elections as a general rule, but the regional offices also had 
to factor additional mailing time into the election deadlines due to 
the reliability issues plaguing the United States Postal Service.\172\
---------------------------------------------------------------------------

    \171\ In fiscal years 2015 through 2019, the percentage of mail-
ballot elections ranged from 10.3% to 12.8%.
    \172\ See, e.g., Quinn Klinefelter, U.S. Postal Service 
Struggles To Deliver Mail After Holidays Amid Pandemic, NPR (Jan. 
22, 2021, 7:01 p.m.), https://www.npr.org/2021/01/22/959273022/theres-no-end-in-sight-mail-delivery-delays-continue-across-the-country.
---------------------------------------------------------------------------

    Despite the truly unprecedented circumstances faced by the Board in 
conducting elections after the implementation of the 2019 Rule, my 
colleagues attempt to rely on data from that period, acknowledging only 
that the effects of the COVID-19 pandemic may have affected the 
results. For example, the majority notes that 88.8% and 90.7% of 
representation cases were resolved within 100 days during the last 2 
full years, respectively, of the 2014 Rule while only 82.3% and 85.4% 
were resolved within that time period during the first 2 years of the 
2019 Rule. Again, any increase in processing times is easily, and 
indeed logically, attributable to the effects of the pandemic on the 
Board's election processes.\173\ They further observe, among other 
things, that the reversal of regional director decisions and directions 
of elections, the number of election objections and determinative 
challenges, and the number of rerun elections all remained relatively 
unchanged under the 2019 Rule. Even assuming that this data could be 
considered representative data, the fact that the effects of the 2019 
Rule were consistent with the effects of the 2014 Rule does not 
establish a reasonable justification for revoking the 2019 Rule.
---------------------------------------------------------------------------

    \173\ Remarkably, my colleagues assert that even though some 
delay is ``likely attributable to the effects of the COVID-19,'' 
they ``are confident that any pandemic-related delay in the 
processing of representation cases has been compounded by the 
effects of the 2019 Rule.'' They further assert that ``the delay 
would have been even greater had certain of its provisions not been 
enjoined.'' With due respect to my colleagues, pure speculation of 
what the data might have been had the pandemic not drastically 
changed the landscape in which elections were held does not 
constitute a reasoned basis for revoking the 2019 Rule.
---------------------------------------------------------------------------

    Because no representative data yet exists with regard to the effect 
on the 2019 Rule on election processes, there is no data to support my 
colleagues' conclusion that the 2019 Rule is a ``failure.'' Nor is 
there evidence to suggest that the ``increased delay apparently 
attributable to the 2019 [R]ule has [not] been offset by meaningful 
improvements in furthering the interests cited by the Board.'' 
Accordingly, my colleagues have failed to establish that data justifies 
their decision to revoke the 2019 Rule.

C. The Decision To Revoke the 2019 Rule and Repromulgate Corresponding 
Sections From the 2014 Rule Is Arbitrary and Capricious in Violation of 
the Administrative Procedure Act Because the Majority Fails To Provide 
a Reasoned Basis for Its Amendments

    As a participant in the promulgation of the 2019 Rule, I have 
already explained, at length, why the revocation of the 2014 Rule was 
necessary and why the 2019 better effectuated the purposes of the Act. 
See 84 FR at 69526-69587. My additional comments in this dissent are 
not meant to replace those explanations but rather to supplement 
them.\174\
---------------------------------------------------------------------------

    \174\ Accordingly, my colleagues' assertion that I am not 
``defend[ing] the 2019 Board's contemporaneous justifications for 
its waiting period provision'' is simply false. I am choosing not to 
repeat all the analytical justifications set forth in the 2019 Rule 
because, in my view, doing so here serves no purpose other than 
redundancy.
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1. Scheduling of Pre-Election Hearing
    My colleagues reinstate the 2014 Rule's significant contraction of 
the time period between the filing of a petition

[[Page 58095]]

to the pre-election hearing. Specifically, the pre-election hearing 
will now generally be scheduled to open eight calendar days--which, as 
my colleagues note, could result in a period of only five business days 
should a holiday fall within that period--from service of the notice of 
hearing compared to the fourteen business days \175\ provided for in 
the 2019 Rule. I have already addressed the rationale for replacing the 
eight-calendar day period with the fourteen-day period in the 2019 
Rule, so I will not repeat those reasons here. However, I note that my 
colleagues have utterly failed to establish a reasoned basis for 
revoking the 2019 Rule and reinstating the somewhat draconian time 
limitations put in place by the 2014 Rule.
---------------------------------------------------------------------------

    \175\ The 2019 Rule used business days instead of calendar days 
to reduce confusion and promote uniformity and transparency.
---------------------------------------------------------------------------

    Their explanation for reimposing such a strict limitation on the 
time available to parties to prepare for the hearing and file a 
statement of position \176\ is limited to three rationales. First, they 
state that the eight-day period is necessary because a longer time 
period would result in elections taking longer. In addition to being 
obvious, relying on that factor alone--as opposed to weighing carefully 
the other important interests at stake--is hardly a reasoned basis for 
revoking the 2019 Rule. As mentioned above, conducting elections as 
soon as possible is neither mandated by the Act nor by the Supreme 
Court. Second, my colleagues cite Croft Metals, Inc., 337 NLRB 688 
(2002) as a reasoned basis for reinstating the 2014 Rule. In that case, 
after finding that the three days of notice provided prior to the 
Employer was insufficient, the Board opined that ``a minimum of five 
[business] days notice was sufficient.'' Id. at 688. What my colleagues 
fail to note, however, is that Croft Metals, a case that issued more 
than twenty years ago, has never been cited in another Board case. In 
my view, a single Board case hardly provides a reasoned basis for 
establishing five business days as the mandatory--not minimum--period 
of notice. For that matter, that case does not provide a reasoned basis 
for revoking the 2019 Rule because the 2019 Rule is consistent with 
Croft Metals. Finally, my colleagues adopt the rationale set forth in 
the 2014 Rule--that the eight-day period ``codified best practices in 
some regions.'' (Emphasis added.) In addition to being misleading, this 
rationale does not provide sufficient justification for limiting the 
notice provided to parties before the hearing to eight days.
---------------------------------------------------------------------------

    \176\ As discussed later, these time limitations could result in 
an employer being required to undertake all the work necessary to 
file a Statement of Position in three and a half business days.
---------------------------------------------------------------------------

    Throughout the 2014 Rule, the Board justifies its significant 
overhaul of the Board's representation rules by saying that the 
amendments reflect ``best practices.'' In fact, the 2014 Rule uses this 
phrase at least ten times without providing any basis whatsoever for 
concluding that the amendments being proposed have been found to be 
``best practices'' by anyone other than the Board in writing its rules. 
See, e.g., 79 FR at 74308, 74309, 74315, 74353, 72363, 74367. After all 
these mentions, the 2014 Rule finally introduces a source for 
determining ``best practices''--a ``1997 Report of Best Practices 
Committee.'' \177\ Id. at 74373.
---------------------------------------------------------------------------

    \177\ The 2014 Rule later refers to a ``1997 Report of Best 
Practices Committee--Representation Cases.'' See, e.g., 79 FR at 
74427 n.528. I am assuming that the references are to the same 
report.
---------------------------------------------------------------------------

    Thereafter, the 2014 Rule cites to that Report frequently as 
evidence that aspects of the rule are consistent with what was 
considered a ``best practice.'' See id. at 74401 n.434; 74415 n.470; 
74416; 74427 n.528. Unlike other aspects of the 2014 Rule, however, the 
Board did not adopt the ``best practice'' set forth in the Report in 
establishing the deadline for scheduling the pre-election hearing. The 
1997 Report indicated that, as a best practice, hearings should open 
between ten and fourteen days after the filing of the petitions.\178\ 
79 FR at 44373. The Board, however, arbitrarily came up with its own 
``best practice.'' Specifically, the Board stated:
---------------------------------------------------------------------------

    \178\ In asserting that the 2014 Rule's failure to adopt the 
Report's ``best practice'' in this area was not arbitrary, my 
colleagues rely on post-hoc speculation. The 2014 Rule, however, did 
not rely upon my colleagues' explanation for its decision to depart 
from the ``best practice'' set forth in the Report. Accordingly, 
such post-hoc speculation hardly establishes that the 2014 Rule's 
selection of eight days from notice of the hearing--which was not 
the ``best practice'' cited in the Report--was not arbitrary.

    The pre-election hearing will generally be scheduled to open 8 
days from notice of the hearing. This largely codifies best 
practices in some regions, where hearings were regularly scheduled 
to open in 7 days to 10 days. However, practice was not uniform 
among regions, with some scheduling hearings for 10 to 12 days, and 
actually opening hearings in 13 to 15 days, or even longer. The rule 
---------------------------------------------------------------------------
brings all regions in line with best practices.

    79 FR at 74309 (emphasis added).\179\ There are many problems with 
this reasoning, including the obvious question why the selection of 
``eight days'' as a maximum, when the alleged ``best practices'' range 
was between seven and ten, was not arbitrary. But there is an even more 
fundamental problem. The 2014 Rule does not explain why it was a ``best 
practice'' to open hearings at eight days rather than seven days, ten 
days, twelve days, or ``even longer.'' In justifying the eight-day 
period, my colleagues fare little better. In finding it a ``best 
practice,'' they beg the question: they assume that shorter time 
periods between the filing of the petition and the opening of the 
hearing are ``best practices'' for no other reason than that they are 
shorter. Unfortunately, reasoned decision-making requires more analysis 
than ``we think shorter is better,'' and justifying a specific outcome 
by declaring that examples consistent with that outcome were ``best 
practices,'' while examples inconsistent with that outcome were not, 
does not come close to constituting reasoned analysis.
---------------------------------------------------------------------------

    \179\ Quoting the 2014 Rule, my colleagues also observe that a 
`` `model opening letter in 1999'--and a model letter is an attempt 
to convey best practices--'indicated that the hearing should open no 
later than seven days after service of the notice.' '' Again, this 
does not answer the question of why the 2014 Rule determined that 
eight days after the notice of the hearing was the proper limit.
---------------------------------------------------------------------------

    It is also worth noting that my colleagues fail to give significant 
weight to the negative effects that their rules will have on employers 
in general, and small businesses in particular. My colleagues attempt 
to minimize these effects, accusing the 2019 Rule of unnecessarily 
sacrificing ``the statutory interest in expeditiously resolving 
questions of representation'' to, among other things, the ``non-
statutory interest in maximizing employer convenience.'' Among these 
``non-statutory interests'' that the 2019 Rule sought to protect are 
the ``convenience'' of retaining legal counsel, the ``convenience'' of 
adequately gathering the facts, the ``convenience'' of fully 
researching the applicable law, the ``convenience'' of securing 
witnesses; the ``convenience'' of adequately coordinating with regional 
personnel; and the ``convenience'' of having sufficient time to secure 
an election agreement with the other parties. What my colleagues 
characterize as ``conveniences,'' I characterize as basic fairness and 
due process.\180\ They guarantee that ``parties

[[Page 58096]]

[have] the opportunity to present evidence and advance arguments 
concerning'' issues fundamental to resolving questions concerning 
representation. Bennett Industries, 313 NLRB 1363, 1363 (1994). Such 
protections are critical to ensuring that employees in the prospective 
unit have the opportunity to make a fully informed decision about their 
representational status in the absence of objectionable conduct.\181\
---------------------------------------------------------------------------

    \180\ Contrary to the majority's representation, only one court 
has considered the issue of whether the notice provided to employers 
before the pre-hearing election satisfied due process. UPS Ground 
Freight v. NLRB, 921 F.3d 251 (D.C. Cir. 2019) (finding that 
employer's due process rights were not violated by receiving 11 days 
notice before the pre-election hearing). The other two cases cited 
by the majority involved facial challenges to the 2014 Rule. In both 
of those cases, the courts found that they could not strike down the 
2014 Rule on due process grounds because there was no showing ``that 
an employer will necessarily be deprived of its due process rights 
in every set of circumstances.'' Chamber of Commerce of the United 
States of America v. NLRB, 118 F. Supp. 3d 171, 206 (D.D.C. 2015); 
see also Associated Builders & Contractors of Texas, Inc. v. NLRB, 
826 F.3d 215 (5th Cir. 2016). Finding that the 2014 Rule does not 
necessarily preclude due process in all instances is entirely 
different from finding that the 2014 Rule satisfies due process in 
all instances.
    \181\ My colleagues contend that I ``fail[ ] to meaningfully 
engage with the relevant legal discussion on [the due process] issue 
in the 2014 [R]ule.'' Yet, the 2014 Rule's analysis is little more 
than a recapitulation of its earlier findings. For instance, on one 
side of the due process scale, the 2014 Rule found that the shorter 
timeframes ``pose little risk of error'' because issues resolved in 
representation cases are ``typically . . . not all that complex to 
litigate.'' 79 FR at 74372. On the other, it found that the tighter 
timeframes ``serve very important public interests'' because ``each 
delay in resolving the question concerning representation causes 
public harm.'' Id. Based on this relative weighting, the 2014 Rule 
concluded that its many changes did not deprive parties of their due 
process rights. It was this flawed analysis that the Board 
thoroughly and appropriately rejected in the 2019 Rule, in which I 
participated. Once again, I do not believe it is necessary to 
redundantly explain the reasons for that rejection in this dissent.
---------------------------------------------------------------------------

2. Conduct of Hearing
    As mentioned above, my colleagues place significant emphasis on an 
``observation'' made by the Supreme Court in NLRB v. A.J. Tower Co., 
329 U.S. 324 (1946), that ``the Board must adopt policies and 
promulgate rules and regulations in order that employees' votes may be 
recorded accurately, efficiently, and speedily.'' 329 U.S. at 331. And 
further, as discussed above, this statement by the Court did not 
require the Board to promulgate rules so that employees' votes would be 
recorded as speedily as possible. Rather, the Court indicated that any 
such rules must ``insure the fair and free choice of bargaining 
representatives by employees.'' Id. at 330.
    But more importantly, my colleagues completely disregard the actual 
holding in A.J. Tower. The issue before the Court was whether the Board 
had erred in denying the employer's post-election challenge to the 
eligibility of one of the voters. The employer asserted that, at the 
time of the election, it had not realized that the employee had 
abandoned her position prior to the election. The U.S. Court of Appeals 
for the Fifth Circuit had found that the Board erred by denying this 
challenge, reasoning that for jurisdictional reasons the Board could 
not certify a unit where less than a majority of employees who voted 
had voted for unionization. In overruling the Fifth Circuit's decision, 
the Court expressly disapproved of the employer's attempt to challenge 
the employee's eligibility post-election:

    The principle of majority rule, however, does not foreclose 
practical adjustments designed to protect the election machinery 
from the ever-present dangers of abuse and fraud. Indeed, unless 
such adjustments are made, the democratic process may be perverted, 
and the election may fail to reflect the will of the majority of the 
electorate. One of the commonest protective devices is to require 
that challenges to the eligibility of voters be made prior to the 
actual casting of ballots, so that all uncontested votes are given 
absolute finality. In political elections, this device often 
involves registration lists which are closed some time prior to 
election day; all challenges as to registrants must be made during 
the intervening period or at the polls. Thereafter it is too late. 
The fact that cutting off the right to challenge conceivably may 
result in the counting of some ineligible votes is thought to be far 
outweighed by the dangers attendant upon the allowance of 
indiscriminate challenges after the election. To permit such [post-
election] challenges, . . . would invade the secrecy of the ballot, 
destroy the finality of the election result, invite unwarranted and 
dilatory claims by defeated candidates and ``keep perpetually before 
the courts the same excitements, strifes, and animosities which 
characterize the hustings, and which ought, for the peace of the 
community, and the safety and stability of our institutions, to 
terminate with the close of the polls.'' Cooley, Constitutional 
Limitations (8th ed., 1927), p. 1416.
    Long experience has demonstrated the fairness and 
efficaciousness of the general rule that once a ballot has been cast 
without challenge and its identity has been lost; its validity 
cannot later be challenged. This rule is universally recognized as 
consistent with the democratic process. And it is generally followed 
in corporate elections. The Board's adoption of the rule in 
elections under the National Labor Relations Act is therefore in 
accord with the principles which Congress indicated should be used 
in securing the fair and free choice of collective bargaining 
representatives.
    Moreover, the rule in question is one that is peculiarly 
appropriate to the situations confronting the Board in these 
elections. In an atmosphere that may be charged with animosity, 
post-election challenges would tempt a losing union or an employer 
to make undue attacks on the eligibility of voters so as to delay 
the finality and statutory effect of the election results. Such 
challenges would also extend an opportunity for the inclusion of 
ineligible pro-union or anti-union men on the pay-roll list in the 
hope that they might escape challenge before voting, thereafter, 
giving rise to a charge that the election was void because of their 
ineligibility and the possibility that they had voted with the 
majority and were a decisive factor. The privacy of the voting 
process, which is of great importance in the industrial world, would 
frequently be destroyed by post-election challenges. And voters 
would often incur union or employer disfavor through their reaction 
to the inquiries.

Id. at 327-329 (emphasis added).

    Accordingly, my colleagues ignore the inconvenient fact that the 
Supreme Court found--in the very same case where it observed the need 
to record employee votes accurately, efficiently, and speedily--that 
resolving issues of employee eligibility to vote before the election 
not only satisfies that goal but is ``peculiarly appropriate'' in Board 
elections and ``is in accord with the principles which Congress 
indicated should be used in securing the fair and free choice of 
collective bargaining representatives.'' Accordingly, any assertion 
that the Court's decision in A.J. Tower supports a revocation of 
Section 102.64(a) of the 2019 Rule, which states that ``[d]isputes 
concerning unit scope, voter eligibility and supervisory status will 
normally be litigated and resolved by the Regional Director before an 
election is directed,'' is without merit.\182\
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    \182\ My colleagues argue that A.J. Tower ``stands for the 
proposition that challenges to voters' eligibility in union 
elections must be made prior to the election--not that all such 
challenges need to be resolved prior to the election.'' However, the 
reasoning behind the Court's decision is undeniable. The Court 
concluded that resolving questions of voter eligibility promotes the 
bedrock democratic ideal of the fully informed voter and the 
substantial interest in election finality. Certainly, the 2019 
Rule's preference for resolving such questions prior to the election 
better advances these interests than did the 2014 Rule to which my 
colleagues return.
    Because my colleagues would limit the scope of the pre-election 
hearing consistent with the 2014 Rule, they would also rescind the 
2019 Rule's provisions pertaining to the parties' right to introduce 
relevant facts into the record and call, examine, and cross-examine 
witnesses at the pre-election hearing. For the reasons summarized 
above and more fully stated in the 2019 Rule, I would retain these 
additional provisions as well. 84 FR at 69542.
---------------------------------------------------------------------------

    Finally, my colleagues argue that ``[s]upervisory status issues 
exist only at the margin because in most cases where there is 
uncertainty concerning the supervisory status of one or more 
individuals, the employer nevertheless has in its employ managers and 
supervisors whose status is not in dispute . . . . [and who] may . . . 
be utilized in a pre-election campaign against a union.'' As the 2019 
Rule observed, however, this issue is not simply about an employer 
disseminating its message to employees, it is about ``post-election 
complications where the putative supervisors engage in conduct during 
the critical period

[[Page 58097]]

that is objectionable when engaged in by a supervisor, but is 
unobjectionable when engaged in by nonparty employees.'' 84 FR at 
69540.\183\
---------------------------------------------------------------------------

    \183\ The majority contends that, if this were indeed a ``real'' 
problem, the relevant data should show an increase in election 
objections. Of course, that argument ignores the much more likely 
outcome of this ambiguity--that a putative supervisor will not voice 
any opinion about unionization because they do not want to risk 
engaging in objectionable conduct.
---------------------------------------------------------------------------

3. Due Date for Non-Petitioning Party's Statement of Position

    As discussed above, my colleagues have failed to establish that the 
2014 Rule met the requirement under the Administrative Procedures Act 
by providing a non-arbitrary, reasoned basis for requiring regional 
directors to schedule pre-election hearings no more than eight calendar 
days from the service of the Notice of Hearing.\184\ The arbitrary 
nature of this unreasonably short time frame results in an even more 
problematic result insofar as the 2014 Rule requires that the Statement 
of Position is due by noon the day before the opening of the pre-
election hearing. Based on the scheduling of the pre-election hearing, 
this will normally be due about seven calendar days after service of 
the notice of hearing.
---------------------------------------------------------------------------

    \184\ My colleagues reinstate the same standards set forth in 
the 2014 Rule for postponement of the hearing: a party must 
establish either ``special circumstances'' or ``extraordinary 
circumstances'' to obtain a postponement of the hearing. (They also 
set these standards for obtaining an extension for the Statement of 
Position, but given that the Statement of Position is due the day 
before the hearing at noon, it is hard to imagine that a party would 
be able to obtain a meaningful extension unless the hearing is 
postponed.) For the reasons set forth in the 2019 Rule, I do not 
believe that there is a compelling reason for jettisoning the 
Board's standard ``good cause'' standard for providing postponements 
and extensions, which was reinstated by the 2019 Rule. Most parties, 
as well as Regional Directors and courts, have no difficulty 
interpreting what is required to establish good cause. I do not 
believe that the same can be said for determining what is required 
to establish ``special circumstances'' or ``extraordinary 
circumstances.''
---------------------------------------------------------------------------

    As explained in the 2019 Rule, I disagree with this provision of 
the 2014 Rule. See 84 FR at 69534-69538. The 2019 Board determined that 
the statement of position is an effective tool in narrowing the issues 
to be litigated and even in facilitating election agreements. However, 
the statement of position can only be effective if the parties have 
adequate time to prepare it. Parties must craft a statement of position 
while simultaneously retaining counsel, researching facts and law, 
identifying potential witness, and possibly negotiating election 
agreements. But even if my colleagues are, in effect, deciding that it 
is not important that parties have sufficient time to prepare 
statements of position, it is then arbitrary and capricious for them 
also to preclude parties from later raising an argument that did not 
appear in its statement of position. Either statements of position play 
an important role in representation case procedures or they do not. If 
the latter is true, then I'm not sure why my colleagues continue to 
require parties to file them at all. If the former is true, then due 
process demands that parties have an adequate time to consider all 
possible concerns that they might wish to raise with regard to the 
election, given that those concerns will be deemed waived if they are 
not set forth in the Statement of Position.\185\
---------------------------------------------------------------------------

    \185\ In UPS Ground Freight, the D.C. Circuit concluded that the 
``Statement of Position is not binding'' because, under the 2014 
Rule, the regional director has the discretion to ``permit the 
employer to amend its Statement of Position in a timely manner for 
good cause.'' 921 F.3d at 256. With due respect to the court, I am 
not sure how that follows. The Statement of Position is binding; the 
employer is limited to the issues raised in that document. The fact 
that the regional director has the discretion to amend the Statement 
of Position does not mean that the employer has the right to amend 
the Statement of Position. If the regional director opts not to 
permit an amendment, then the Statement of Position, which employers 
must file as little as three and a half days following service of 
the Notice of Hearing, is binding.
---------------------------------------------------------------------------

4. Responsive Statement of Position
    My colleagues also rescind the 2019 Rule provision requiring the 
petitioner to file a written responsive statement of position, instead 
requiring the petitioner to respond orally at the pre-election hearing, 
as was done under the 2014 Rule. For the reasons stated in the 2019 
Rule, retention of the right to file a written responsive statement of 
position better supports the interests of timeliness, efficiency, 
transparency, and uniformity in elections. 84 FR at 69536-69538
5. Notice of Petition for Election
    My colleagues rescind the 2019 Rule's requirement that employers 
post and distribute the notice of petition for election within five 
business days after service of the notice of hearing and return to the 
2014 Rule, which required the posting and distribution of the notice to 
be done within two business days. The majority argues that because the 
information contained in the notice is ``straightforward,'' an employer 
should have no problem promptly completing this task.
    Although the majority views the posting and distribution as a 
simple task, this ignores the realities of the modern workplace. As 
more fully explained in the 2019 Rule, employers can easily encounter 
logistical difficulties in posting and distributing the notice. 84 FR 
at 69538. Large employers, especially large multi-location employers, 
need time to determine all of the places where the notice will need to 
be posted and all of the employees to whom it must be electronically 
distributed. Such information cannot always be easily ascertained by a 
few keystrokes at some far-off centralized human resources department, 
as my colleagues so readily believe. Smaller employers, who may not be 
well versed in the intricacies of the Board's election rules, too will 
need time to consult with legal counsel to fully understand their 
obligations to post and distribute the notice in addition to securing 
the information necessary to satisfy that obligation. Getting these 
decisions right is critical because failure to properly post and 
distribute the notice of petition for election in a timely manner may 
result in setting aside the election. Moreover, with the expanded 
timeframe under the 2019 Rule, the notice will be posted for longer 
than under the 2014 Rule, thereby better informing employees of their 
rights and the election procedures. As a result, the few extra days to 
comply with this important requirement better serves the purposes of 
the Act.
6. Elimination of the 20-Day Waiting Period
    Prior to the 2014 Rule, the Board's statements of procedure 
provided that the regional director would not normally schedule an 
election until a date between the 25th and 30th day after the date of 
the decision and direction of election, which allowed the Board time to 
act on any requests for review. The 2019 Rule slightly modified this 
traditional timeline, requiring regional directors to schedule 
elections no sooner than twenty business days after issuance of the 
decision and direction. As mentioned above, this period following the 
issuance of the decision and direction of election is critical to 
protect employees' rights under the Act to freely choose whether or not 
to be represented by a union. Again, the Board has expressly recognized 
that ``ensuring that all employees are fully informed about the 
arguments concerning representation and can freely and fully exercise 
their Section 7 rights'' is an important statutory right. Mod 
Interiors, 324 NLRB 164, 164 (1997) (emphasis added); accord Excelsior 
Underwear, Inc., 156 NLRB 1236, 1240 (1966) (finding that ``an employee 
who has had an effective opportunity to hear the arguments concerning 
choice is in a better position to make a more fully informed and

[[Page 58098]]

reasonable choice''). Yet, it is not clear how the majority reconciles 
this critical statutory right with its revocation of the 2019 Rule's 
reinstatement of the 20-business day waiting period and its restoration 
of the 2014 Rule's mandate that regional directors must schedule 
elections for ``the earliest date practicable.'' It is clear to me that 
this revision in the Board's rules drastically limits the period of 
time during which employees can become ``fully informed'' voters.\186\
---------------------------------------------------------------------------

    \186\ The majority characterizes the 2019 Rule as ``impos[ing]'' 
a 20-business day waiting period. If that is so, then the Board had 
been ``imposing'' a 20-business day waiting period on parties to 
elections for a long time prior to the 2014 Rule, which for the 
first time prohibited regional directors from establishing any 
waiting period whatsoever.
---------------------------------------------------------------------------

    Simply put, no one can say for certain how much time in sufficient 
time to allow an electorate to become fully informed voters. However, I 
think it is fair to say that it is difficult to imagine a rule that 
would more directly infringe on employees' rights in this regard than 
requiring that elections be scheduled ``as soon as practicable.'' For 
the reasons set forth in the 2019 Rule, 84 FR at 69538-69542, 69544-
69547, and summarized in my dissent to the final rule staying the 
implementation of these provisions, 88 FR at 14915, I believe that the 
majority has failed to adequately consider the important statutory 
interest in allowing employees to become ``fully informed'' voters in 
reinstating the unprecedented requirement that regional directors 
schedule elections as soon as possible.\187\
---------------------------------------------------------------------------

    \187\ I also note that my colleagues' complaint about the 2019 
Rule's 20-day waiting period reflects some inconsistency in their 
position. When tasking the Board's Regions with quickly processing 
representation matters, my colleagues characterize these cases as 
mainly presenting ``straightforward and frequently reoccurring'' 
issues governed by a ``contained body of law.'' However, when it 
comes to the Board's processing of the inevitable requests for 
review, my colleagues are quick to plead that ``resource constraints 
and other responsibilities'' prevent expedited action.
    Because my colleagues would limit the scope of the pre-election 
hearing consistent with the 2014 Rule, they would also rescind the 
2019 Rule's provisions pertaining to the parties' right to introduce 
relevant facts into the record and call, examine, and cross-examine 
witnesses at the pre-election hearing. For the reasons summarized 
above and more fully stated in the 2019 Rule, I would retain these 
additional provisions as well. 84 FR at 69542.
    My colleagues simply echo the arguments advanced in the 2014 
Rule to support their conclusion that employees will have the 
opportunity to become fully informed even under their shortened 
timeframe. However, the dissenters to the 2014 Rule ably discussed 
the flawed evidence and analysis on which the 2014 majority relied. 
79 FR at 74439-74440.
---------------------------------------------------------------------------

7. Post-Hearing Briefs
    My colleagues also rescind provisions of the 2019 Rule that 
reinstated the parties' right to file briefs after close of the pre-
election hearings and extended that right to post-election 
hearings.\188\ They return to the 2014 Rule, under which parties were 
entitled to present oral argument at the close of the hearings and 
could only file briefs upon special permission of the regional director 
in the case of pre-election hearings or the hearing officer in the case 
of post-election hearings. In doing so, they minimize the complexity of 
representation cases, as did the 2014 Rule. In 2019, the Board 
recognized that error of the 2014 Rule's approach, observing that many 
of the issues that are litigated in hearings are anything but 
straightforward. 84 FR at 69542-69543, 69556. For instance, issues such 
as supervisory or independent contractor status frequently require 
detailed factual analyses in the context of multi-factor legal tests. 
Permitting parties a few days to file post-hearing briefs allows the 
parties time to review the transcript, to engage in legal research, 
and, thereby, to refine, moderate, or even abandon arguments on these 
difficult questions. Such efforts assist the Board and the parties in 
resolving matters in dispute, thereby promoting more efficient case 
processing without unduly delaying resolution of the case.\189\
---------------------------------------------------------------------------

    \188\ Under the 2019 Rule, parties were entitled to submit post-
hearing briefs within 5 business days after the close of the 
hearing. For good cause, the hearing officer could grant an 
extension of time not to exceed an additional 10 business days.
    \189\ Supervisory status and independent contractor status are 
just two issues that require a detailed factual analysis where 
briefing can be used to best make sense of fact intensive arguments. 
Indeed, some cases may raise many unique issues that together create 
a complex case in which the regional director or hearing officer 
would greatly benefit from briefing.
    My colleagues attempt to downplay the significance of the 
elimination of parties' opportunity to file post-hearing briefs by 
asserting that, the regional directors and hearing officers can 
grant ``special permission'' in the ``rare complex case'' in which 
they deem such briefing is needed. With due respect, it is cold 
comfort to parties to learn that their ability to advocate for their 
position in writing is only available should the regional director 
or hearing officer grant them permission to do so.
---------------------------------------------------------------------------

8. Notice of Election
    Finally, my colleagues rescind the 2019 Rule provision that 
clarified the regional directors' discretion to issue the direction of 
election separately from the notice of election by expressly stating 
that they ``may'' do so and return to the 2014 Rule, which stated that 
regional directors will ``ordinarily'' do so. As the 2019 Rule 
correctly observed, by clarifying the regional directors' discretion to 
issue a direction of election and resolve election details later 
without having to justify a bifurcated action based on the existence of 
``unusual circumstances,'' the 2019 Rule made the process more 
transparent. The 2019 Rule also made the process more efficient because 
it afforded regional directors greater leeway to engage the parties in 
post-hearing discussions about the conduct of the election and, 
thereby, created space with which to achieve agreement. 84 FR at 69544.

D. Conclusion

    My colleagues' efforts are, at best, unnecessary and premature and, 
at worst, arbitrary and capricious. The Final Rule forces regional 
directors to run elections as quickly as possible, without providing 
adequate safeguards to preserve the rights of all parties involved. My 
colleagues have failed to provide a reasoned basis for concluding that 
speedy elections protect employees' right to fully exercise their 
statutory rights under the Act. Nor have my colleagues established any 
representative data to support their view that the 2019 Rule must be 
revoked. For the reasons discussed in this dissent, as well as the 
analyses set forth in the Board's 2019 Rule and the cited portions of 
the dissent to the 2014 Rule, I cannot join my colleagues in 
promulgating the amendments set forth in this Rule.

VII. Other Statutory Requirements

Regulatory Flexibility Act

    The Board is not required to prepare a final regulatory flexibility 
analysis for this final rule under the Regulatory Flexibility Act, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, 5 U.S.C. 601, et seq., because the Agency has not issued a Notice 
of Proposed Rulemaking prior to this action.

Paperwork Reduction Act

    The amended regulations are exempt from the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq. See 44 U.S.C. 3518(c). Accordingly, the 
final rule does not contain information collection requirements 
necessitating the approval of the Office of Management and Budget under 
the Paperwork Reduction Act.

Final Rule

    This rule is published as a final rule. As discussed above in the 
preamble, and consistent with the decision in AFL-CIO v. NLRB, 57 F.4th 
1023 (D.C. Cir. Jan. 17, 2023), this rule has been deemed a procedural 
rule exempt from

[[Page 58099]]

notice and comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of 
``agency organization, procedure, or practice.''

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: 29 U.S.C. 151, 156. Section 102.117 also issued under 
5 U.S.C. 552(a)(4)(A), and Section 102.119 also issued under 5 
U.S.C. 552a(j) and (k). Sections 102.143 through 102.155 also issued 
under 5 U.S.C. 504(c)(1).

Subpart D--Procedure Under Section 9(c) of the Act for the 
Determination of Questions Concerning Representation of Employees 
and for Clarification of Bargaining Units and for Amendment of 
Certifications Under Section 9(b) of the Act

0
2. Revise Sec.  102.63 to read as follows:


Sec.  102.63  Investigation of petition by Regional Director; Notice of 
Hearing; service of notice; Notice of Petition for Election; Statement 
of Position; withdrawal of Notice of Hearing.

    (a) Investigation; Notice of Hearing; notice of petition for 
election. (1) After a petition has been filed under Sec.  102.61(a), 
(b), or (c), if no agreement such as that provided in Sec.  102.62 is 
entered into and if it appears to the Regional Director that there is 
reasonable cause to believe that a question of representation affecting 
commerce exists, that the policies of the Act will be effectuated, and 
that an election will reflect the free choice of employees in an 
appropriate unit, the Regional Director shall prepare and cause to be 
served upon the parties and upon any known individuals or labor 
organizations purporting to act as representatives of any employees 
directly affected by such investigation, a Notice of Hearing before a 
Hearing Officer at a time and place fixed therein. Except in cases 
presenting unusually complex issues, the Regional Director shall set 
the hearing for a date 8 days from the date of service of the notice 
excluding intervening Federal holidays, but if the 8th day is a weekend 
or Federal holiday, the Regional Director shall set the hearing for the 
following business day. The Regional Director may postpone the hearing 
for up to 2 business days upon request of a party showing special 
circumstances. The Regional Director may postpone the opening of the 
hearing for more than 2 business days upon request of a party showing 
extraordinary circumstances. A copy of the petition, a description of 
procedures in representation cases, a Notice of Petition for Election, 
and a Statement of Position form as described in paragraphs (b)(1) 
through (3) of this section, shall be served with such Notice of 
Hearing. Any such Notice of Hearing may be amended or withdrawn before 
the close of the hearing by the Regional Director on the director's own 
motion.
    (2) Within 2 business days after service of the Notice of Hearing, 
the employer shall post the Notice of Petition for Election in 
conspicuous places, including all places where notices to employees are 
customarily posted, and shall also distribute it electronically to 
employees in the petitioned-for unit if the employer customarily 
communicates with its employees electronically. The Notice of Petition 
for Election shall indicate that no final decisions have been made yet 
regarding the appropriateness of the petitioned-for bargaining unit and 
whether an election shall be conducted. The employer shall maintain the 
posting until the petition is dismissed or withdrawn or the Notice of 
Petition for Election is replaced by the Notice of Election. The 
employer's failure properly to post or distribute the Notice of 
Petition for Election may be grounds for setting aside the election 
whenever proper and timely objections are filed under the provisions of 
Sec.  102.69(a)(8). A party shall be estopped from objecting to the 
nonposting of notices if it is responsible for the nonposting, and 
likewise shall be estopped from objecting to the nondistribution of 
notices if it is responsible for the nondistribution.
    (b) Statements of Position--(1) Statement of Position in RC cases. 
If a petition has been filed under Sec.  102.61(a) and the Regional 
Director has issued a Notice of Hearing, the employer shall file with 
the Regional Director and serve on the parties named in the petition 
its Statement of Position such that it is received by the Regional 
Director and the parties named in the petition by the date and time 
specified in the Notice of Hearing, which shall be at noon on the 
business day before the opening of the hearing if the hearing is set to 
open 8 days from service of the notice. The Regional Director may set 
the date and time for filing and serving the Statement of Position 
earlier than at noon on the business day before the hearing in the 
event the hearing is set to open more than 8 days from service of the 
notice. The Regional Director may postpone the time for filing and 
serving the Statement of Position for up to 2 business days upon 
request of a party showing special circumstances. The Regional Director 
may postpone the time for filing and serving the Statement of Position 
for more than 2 business days upon request of a party showing 
extraordinary circumstances. The Regional Director may permit the 
employer to amend its Statement of Position in a timely manner for good 
cause.
    (i) Employer's Statement of Position. (A) The employer's Statement 
of Position shall state whether the employer agrees that the Board has 
jurisdiction over it and provide the requested information concerning 
the employer's relation to interstate commerce; state whether the 
employer agrees that the proposed unit is appropriate, and, if the 
employer does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or 
excluded from the proposed unit to make it an appropriate unit; 
identify any individuals whose eligibility to vote the employer intends 
to contest at the pre-election hearing and the basis of each such 
contention; raise any election bar; state the length of the payroll 
period for employees in the proposed unit and the most recent payroll 
period ending date; state the employer's position concerning the type, 
date(s), time(s), and location(s) of the election and the eligibility 
period; and describe all other issues the employer intends to raise at 
the hearing.
    (B) The Statement of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer and 
accept service of all papers for purposes of the representation 
proceeding and be signed by a representative of the employer.
    (C) The Statement of Position shall include a list of the full 
names, work locations, shifts, and job classifications of all 
individuals in the proposed unit as of the payroll period preceding the 
filing of the petition who remain employed at the time of filing, and 
if the employer contends that the proposed unit is inappropriate, the 
employer shall separately list the full names, work locations, shifts, 
and job classifications of all individuals that the employer contends 
must be added to the proposed unit to make it an appropriate unit. The 
employer shall also indicate those

[[Page 58100]]

individuals, if any, whom it believes must be excluded from the 
proposed unit to make it an appropriate unit. The list(s) 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.
    (2) Statement of Position in RM cases. If a petition has been filed 
under Sec.  102.61(b) and the Regional Director has issued a Notice of 
Hearing, each individual or labor organization named in the petition 
shall file with the Regional Director and serve on the other parties 
named in the petition its Statement of Position such that it is 
received by the Regional Director and the parties named in the petition 
by the date and time specified in the Notice of Hearing, which shall be 
at noon on the business day before the opening of the hearing if the 
hearing is set to open 8 days from service of the notice. The Regional 
Director may set the date and time for filing and serving the Statement 
of Position earlier than at noon on the business day before the hearing 
in the event the hearing is set to open more than 8 days from service 
of the notice. The Regional Director may postpone the time for filing 
and serving the Statement of Position for up to 2 business days upon 
request of a party showing special circumstances. The Regional Director 
may postpone the time for filing and serving the Statement of Position 
for more than 2 business days upon request of a party showing 
extraordinary circumstances. The Regional Director may permit each 
individual or labor organization named in the petition to amend its 
Statement of Position in a timely manner for good cause.
    (i) Individual or labor organization's Statement of Position. Each 
individual or labor organization's Statement of Position shall state 
whether it agrees that the Board has jurisdiction over the employer; 
state whether it agrees that the proposed unit is appropriate, and, if 
it does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or 
excluded from the proposed unit to make it an appropriate unit; 
identify any individuals whose eligibility to vote the individual or 
labor organization intends to contest at the pre-election hearing and 
the basis of each such contention; raise any election bar; state its 
position concerning the type, date(s), time(s), and location(s) of the 
election and the eligibility period; and describe all other issues it 
intends to raise at the hearing.
    (ii) Identification of representative for service of papers. Each 
individual or labor organization's Statement of Position shall also 
state the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as its representative 
and accept service of all papers for purposes of the representation 
proceeding and be signed by the individual or a representative of the 
individual or labor organization.
    (iii) Employer's Statement of Position. Within the time permitted 
for filing the Statement of Position, the employer shall file with the 
Regional Director and serve on the parties named in the petition a list 
of the full names, work locations, shifts, and job classifications of 
all individuals in the proposed unit as of the payroll period preceding 
the filing of the petition who remain employed at the time of filing. 
The list(s) 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. The employer's Statement of Position 
shall also state whether the employer agrees that the Board has 
jurisdiction over it and provide the requested information concerning 
the employer's relation to interstate commerce; identify any 
individuals whose eligibility to vote the employer intends to contest 
at the pre-election hearing and the basis of each such contention; and 
state the length of the payroll period for employees in the proposed 
unit and the most recent payroll period ending date. The Regional 
Director may permit the employer to amend its Statement of Position in 
a timely manner for good cause.
    (3) Statement of Position in RD cases--(i) Employer's and 
Representative's Statements of Position. (A) If a petition has been 
filed under Sec.  102.61(c) and the Regional Director has issued a 
Notice of Hearing, the employer and the certified or recognized 
representative of employees shall file with the Regional Director and 
serve on the parties named in the petition their respective Statements 
of Position such that they are received by the Regional Director and 
the parties named in the petition by the date and time specified in the 
Notice of Hearing, which shall be at noon on the business day before 
the opening of the hearing if the hearing is set to open 8 days from 
service of the notice. The Regional Director may set the date and time 
for filing and serving the Statement of Position earlier than at noon 
on the business day before the hearing in the event the hearing is set 
to open more than 8 days from service of the notice. The Regional 
Director may postpone the time for filing and serving the Statement of 
Position for up to 2 business days upon request of a party showing 
special circumstances. The Regional Director may postpone the time for 
filing and serving the Statement of Position for more than 2 business 
days upon request of a party showing extraordinary circumstances. The 
Regional Director may permit the employer and the certified or 
recognized representative of employees to amend their respective 
Statements of Position in a timely manner for good cause.
    (B) The Statements of Position of the employer and the certified or 
recognized representative shall state each party's position concerning 
the Board's jurisdiction over the employer; state whether each agrees 
that the proposed unit is appropriate, and, if not, state the basis for 
the contention that the proposed unit is inappropriate, and state the 
classifications, locations, or other employee groupings that must be 
added to or excluded from the proposed unit to make it an appropriate 
unit; identify any individuals whose eligibility to vote each party 
intends to contest at the pre-election hearing and the basis of each 
such contention; raise any election bar; and state each party's 
respective positions concerning the type, date(s), time(s), and 
location(s) of the election and the eligibility period; and describe 
all other issues each party intends to raise at the hearing.
    (C) The Statements of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer or the 
certified or recognized representative of the employees and accept 
service of all papers for purposes of the representation proceeding and 
be signed by a representative of the employer or the certified or 
recognized representative, respectively.
    (D) The employer's Statement of Position shall also include a list 
of the full names, work locations, shifts, and job classifications of 
all individuals in the proposed unit as of the payroll period preceding 
the filing of the petition who remain employed at the time of filing, 
and if the employer contends that the proposed unit is inappropriate, 
the employer shall separately list the full names, work locations, 
shifts, and job classifications of all individuals that the employer 
contends must be added to the proposed unit to make it an appropriate 
unit. The

[[Page 58101]]

employer shall also indicate those individuals, if any, whom it 
believes must be excluded from the proposed unit to make it an 
appropriate unit. The list(s) 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. The employer's 
Statement of Position shall also provide the requested information 
concerning the employer's relation to interstate commerce and state the 
length of the payroll period for employees in the proposed unit and the 
most recent payroll period ending date.
    (c) UC or AC cases. After a petition has been filed under Sec.  
102.61(d) or (e), the Regional Director shall conduct an investigation 
and, as appropriate, may issue a decision without a hearing; or prepare 
and cause to be served upon the parties and upon any known individuals 
or labor organizations purporting to act as representatives of any 
employees directly affected by such investigation, a Notice of Hearing 
before a Hearing Officer at a time and place fixed therein; or take 
other appropriate action. If a Notice of Hearing is served, it shall be 
accompanied by a copy of the petition. Any such Notice of Hearing may 
be amended or withdrawn before the close of the hearing by the Regional 
Director on the director's own motion. All hearing and post-hearing 
procedure under this paragraph (c) shall be in conformance with 
Sec. Sec.  102.64 through 102.69 whenever applicable, except where the 
unit or certification involved arises out of an agreement as provided 
in Sec.  102.62(a), the Regional Director's action shall be final, and 
the provisions for review of Regional Director's decisions by the Board 
shall not apply. Dismissals of petitions without a hearing shall not be 
governed by Sec.  102.71. The Regional Director's dismissal shall be by 
decision, and a request for review therefrom may be obtained under 
Sec.  102.67, except where an agreement under Sec.  102.62(a) is 
involved.

0
3. Amend Sec.  102.64 by revising paragraph (a) to read as follows:


Sec.  102.64  Conduct of hearing.

    (a) The purpose of a hearing conducted under Section 9(c) of the 
Act is to determine if a question of representation exists. A question 
of representation exists if a proper petition has been filed concerning 
a unit appropriate for the purpose of collective bargaining or 
concerning a unit in which an individual or labor organization has been 
certified or is being currently recognized by the employer as the 
bargaining representative. Disputes concerning individuals' eligibility 
to vote or inclusion in an appropriate unit ordinarily need not be 
litigated or resolved before an election is conducted. If, upon the 
record of the hearing, the Regional Director finds that a question of 
representation exists, the director shall direct an election to resolve 
the question.
* * * * *

0
4. Amend Sec.  102.66 by revising paragraphs (a), (c), and (h) to read 
as follows:


Sec.  102.66  Introduction of evidence: rights of parties at hearing; 
preclusion; subpoenas; oral argument and briefs.

    (a) Rights of parties at hearing. Any party shall have the right to 
appear at any hearing in person, by counsel, or by other 
representative, 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 existence of a 
question of representation. The Hearing Officer shall also have power 
to call, examine, and cross-examine witnesses and to introduce into the 
record documentary and other evidence. Witnesses shall be examined 
orally under oath. The rules of evidence prevailing in courts of law or 
equity shall not be controlling. Stipulations of fact may be introduced 
in evidence with respect to any issue.
* * * * *
    (c) Offers of proof. The Regional Director shall direct the Hearing 
Officer concerning the issues to be litigated at the hearing. The 
Hearing Officer may solicit offers of proof from the parties or their 
counsel as to any or all such issues. Offers of proof shall take the 
form of a written statement or an oral statement on the record 
identifying each witness the party would call to testify concerning the 
issue and summarizing each witness's testimony. If the Regional 
Director determines that the evidence described in an offer of proof is 
insufficient to sustain the proponent's position, the evidence shall 
not be received.
* * * * *
    (h) Oral argument and briefs. Any party shall be entitled, upon 
request, to a reasonable period at the close of the hearing for oral 
argument, which shall be included in the stenographic report of the 
hearing. Post-hearing briefs shall be filed only upon special 
permission of the Regional Director and within the time and addressing 
the subjects permitted by the Regional Director. Copies of the brief 
shall be served on all other parties to the proceeding and a statement 
of such service shall be filed with the Regional Director together with 
the brief. No reply brief may be filed except upon special permission 
of the Regional Director.
* * * * *

0
5. Amend Sec.  102.67 by revising paragraph (b) 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.

* * * * *
    (b) Directions of elections. If the Regional Director directs an 
election, the direction ordinarily will specify the type, date(s), 
time(s), and location(s) of the election and the eligibility period. 
The Regional Director shall schedule the election for the earliest date 
practicable consistent with these Rules. The Regional Director shall 
transmit the direction of election to the parties and their designated 
representatives by email, facsimile, or by overnight mail (if neither 
an email address nor facsimile number was provided). The Regional 
Director shall also transmit the Board's Notice of Election to the 
parties and their designated representatives by email, facsimile, or by 
overnight mail (if neither an email address nor facsimile number was 
provided), and it will ordinarily be transmitted simultaneously with 
the direction of election. If the direction of election provides for 
individuals to vote subject to challenge because their eligibility has 
not been determined, the Notice of Election shall so state, and shall 
advise employees that the individuals are neither included in, nor 
excluded from, the bargaining unit, inasmuch as they have been 
permitted to vote subject to challenge. The election notice shall 
further advise employees that the eligibility or inclusion of the 
individuals will be resolved, if necessary, following the election.
* * * * *

0
6. Amend Sec.  102.69 by revising paragraph (c)(1)(iii) 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.

* * * * *
    (c) * * * (1) * * *
    (iii) Hearings; Hearing Officer reports; exceptions to Regional 
Director. The

[[Page 58102]]

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. Post-hearing briefs shall 
be filed only upon special permission of the Hearing Officer and within 
the time and addressing the subjects permitted by the Hearing Officer. 
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.
* * * * *

    Dated: August 18, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023-18129 Filed 8-24-23; 8:45 am]
BILLING CODE 7545-01-P