Rule2023-18129
Representation-Case Procedures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 25, 2023
Effective
December 26, 2023
Issuing agencies
National Labor Relations Board
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 164 (Friday, August 25, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>.
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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,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>; NLRB Performance and Accountability Report, FY 2019,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>.
\18\ NLRB Performance and Accountability Report, FY 2021,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>. 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,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>; NLRB Performance and Accountability Report, FY 2019,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>.
\41\ NLRB Performance and Accountability Report, FY 2021,
<a href="https://www.nlrb.gov/reports/agency-performance/performance-and-accountability">https://www.nlrb.gov/reports/agency-performance/performance-and-accountability</a>. 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.
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\52\ 29 CFR 102.63(a)(1) (Dec. 18, 2019).
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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.
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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.
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\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.
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\68\ 29 CFR 102.63(b) (Dec. 15, 2014).
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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\
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\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.
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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.
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\74\ 84 FR at 69535.
\75\ Id.
\76\ See supra fn.61.
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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\
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\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.
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\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.
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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.
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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.
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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\
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\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.'').
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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\
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\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.
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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.
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\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.
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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.
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\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.
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\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).
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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\
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\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.
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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\
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\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.), <a href="https://www.npr.org/2021/01/22/959273022/theres-no-end-in-sight-mail-delivery-delays-continue-across-the-country">https://www.npr.org/2021/01/22/959273022/theres-no-end-in-sight-mail-delivery-delays-continue-across-the-country</a>.
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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.
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\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.
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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\
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\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.
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\175\ The 2019 Rule used business days instead of calendar days
to reduce confusion and promote uniformity and transparency.
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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.
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\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.
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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.
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\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.
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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:
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\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
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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.
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\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.
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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\
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\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.
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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.
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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\
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\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.
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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.
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\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.''
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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 ca
[…truncated; see source link]Indexed from Federal Register on August 25, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.