Representation-Case Procedures

NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101, 102, and 103

RIN 3142-AA08

Representation—Case Procedures

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

The National Labor Relations Board (the Board) has decided to issue this final rule for the purpose of carrying out the provisions of the National Labor Relations Act which “protect[ ] 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, these amendments remove unnecessary barriers to the fair and expeditious resolution of representation cases. They simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions. Duplicative and unnecessary litigation is eliminated. Unnecessary delay is reduced. Procedures for Board review are simplified. Rules about documents and communications are modernized in light of changing technology. In various ways, these amendments provide targeted solutions to discrete, specifically identified problems to enable the Board to better fulfill its duty to protect employees' rights by fairly, efficiently, and expeditiously resolving questions of representation.

DATES:

This rule will be effective on April 14, 2015.

FOR FURTHER INFORMATION CONTACT:

Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570, (202) 273-3737 (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 administers the National Labor Relations 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 their employer are unable to agree whether the employees should be represented for purposes of collective bargaining, Section 9 of the Act, 29 U.S.C. 159, gives the Board authority to resolve the question of representation. As explained in the NPRM, the Supreme Court has repeatedly 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 Co.,

309 U.S. 206, 226 (1940); see also

Southern Steamship Co.

v.

NLRB,

316 U.S. 31, 37 (1942).

Representation case procedures are set forth in the statute, in Board regulations, and in Board caselaw.

1

In addition, the Board's General Counsel has prepared a non-binding Casehandling Manual describing representation case procedures in detail.

2

1

The Board's binding rules of procedure are found primarily in 29 CFR part 102, subpart C. Additional rules created by adjudication are found throughout the corpus of Board decisional law. See,

NLRB

v.

Wyman-Gordon Co.,

394 U.S. 759, 764, 770, 777, 779 (1969).

2

NLRB Casehandling Manual (Part Two) Representation Proceedings. The relevant sections of the Casehandling Manual are Sections 11000 through 11886. Unless otherwise noted, all references to the Casehandling Manual are to the August 2007 edition, which predated the NPRMs.

The Act itself sets forth only the basic steps for resolving a question of representation.

3

These are as follows. First, a petition is filed by an employee, a labor organization, or an employer. Second, 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 statute also permits the Board to delegate its authority to NLRB regional directors. The statute provides that, upon request, the Board may review any action of the regional director; however, such requests do not stay regional proceedings unless specifically ordered by the Board.

3

A question of representation is often referred to as a “question concerning representation.” See,

e.g.,

Casehandling Manual Section 11084.

Underlying these basic provisions is the essential principle that representation cases should be resolved quickly and fairly. “[T]he 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. Within the framework of the current rules—as discussed at length in the NPRM—the Board, the General Counsel

4

and the agency's regional directors have sought to achieve efficient, fair, uniform, and timely resolution of representation cases. In part, the final rule codifies best practices developed over the years. This ensures greater uniformity and transparency.

4

The General Counsel administratively oversees the regional directors. 29 U.S.C. 153(d).

But the Board's experience has also revealed problems—particularly in fully litigated cases—which cannot be solved without changing current practices and rules. For example, pre-election litigation has at times been disordered, hampered by surprise and frivolous disputes, and side-tracked by testimony about matters that need not be decided at that time. Additionally, the process for Board review of regional director actions has resulted in unnecessary delays. Moreover, some rules have become outdated as a result of changes in communications technology and practice. The final rule addresses these and other problems as discussed below.

II. List of Amendments

This list provides a concise statement of the various ways the final rule changes or codifies current practice, and the general reasoning in support. 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.”

5

As this list shows, the amendments provide targeted solutions to discrete, specifically identified problems.

6

All of these matters are

discussed in greater detail below, along with responses to the comments.

5

S. Rep. No. 752, at 225 (1945).

6

In accordance with the discrete character of the matters addressed by each of the amendments listed, 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, except as expressly noted in the more detailed discussion of the particular sections below. For this reason, the amendments are severable.

1. Representation petitions may be filed with the Board electronically. The prior rules required hard-copy or facsimile filing, which should not be necessary under contemporary litigation practice and technological advancements.

2. Representation petitions (and related documents) must be served by the petitioner, which will afford the other parties the earliest possible notice of the petition. The Board's prior rules did not require the petitioner to serve a copy of its petition on the other parties.

3. At the same time the petition is filed with the Board, the petitioner must also provide evidence that employees support the petition (the “showing of interest”). Petitioner must also provide the name and contact information of its representative. The prior rules gave the petitioner 48 hours after the petition to file the showing of interest. This delay is unnecessary.

4. When a petition is filed, the employer must post and distribute to employees a Board notice about the petition and the potential for an election to follow. Under prior practice, such notice was voluntary (and less detailed). The employees will benefit from a uniform notice practice, which provides them, equally and at an earlier date, with meaningful information about the petition, the Board's election procedures and their rights, and employers will benefit from more detailed Board guidance about compliance.

5. 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 routinely scheduled to open in 7 days to 10 days. However, practice was not uniform among regions, with some scheduling hearings for 10 to 12 days, and actually opening hearings in 13 to 15 days, or even longer. The rule brings all regions in line with best practices.

6. The pre-election hearing will continue from day to day until completed, absent extraordinary circumstances. Prior practice did not address the standard for granting lengthy continuances, and sometimes continuances unnecessarily delayed the hearing.

7. Non-petitioning parties are required to state a position responding to the petition in writing 1 day before the pre-election hearing is set to open. The statement must identify the issues they wish to litigate before the election; litigation inconsistent with the statement will not be permitted. Timely amendments to the statement may be made on a showing of good cause. The employer must also provide a list of the names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, and any other employees that it seeks to add to the unit. The statement must also identify the party's representative for purposes of the proceeding. Prior practice requested parties to state positions and provide a list of employees and job classifications before the hearing, but did not require production of such information prior to the hearing. Prior best practices required parties to take positions on the issues orally at the hearing. But practice was not uniform, and in some cases hearing officers have permitted parties to remain silent on their position or to take shifting positions during the hearing, unnecessarily impeding the litigation. Finally, our experience has demonstrated that clear communication about the specific employees involved generally facilitates election agreements or results in more orderly litigation.

8. At the start of the hearing, the petitioner is required to respond on the record to the issues raised by the other parties in their statements of position. Litigation inconsistent with the response will not be permitted. If there is a dispute between the parties, the hearing officer has discretion to ask each party to describe what evidence it has in support of its position,

i.e.,

make an offer of proof. This codifies current best practices, ensuring greater uniformity and orderly litigation.

9. The purpose of the pre-election hearing, to determine whether there is a “question of representation,” 29 U.S.C. 159, is clearly identified. Prior rules did not expressly state the purpose of the hearing and, as discussed in item ten below, sometimes litigation on collateral issues resulted in substantial waste of resources.

10. Once the issues are presented, the regional director will decide which, if any, voter eligibility questions should be litigated before an election is held. These decisions will be made bearing in mind the purpose of the hearing. Generally, only evidence that is relevant to a question that will be decided may be introduced at the pre-election hearing. Prior rules required,

e.g.,

litigation of any voter eligibility issues that any party wished to litigate, even if the regional director was not going to be deciding that question, and even if the particular voter eligibility question was not necessary to resolving the existence of a question of representation. This practice has resulted in unnecessary litigation. Once it is clear that an issue need not be decided, and will not be decided, no evidence need be introduced on the matter.

11. The hearing will conclude with oral argument, and no written briefing will be permitted unless the regional director grants permission to file such a brief. Prior rules permitted parties to file briefs which were often unnecessary and delayed the regional director's decision in many cases.

12. The regional director must decide the matter, and may not

sua sponte

transfer it to the Board. The prior transfer procedure was little used, ill advised, and a source of delay; Board decisions are generally improved by obtaining the initial decision of the regional director.

13. Absent waiver, a party may request Board review of action of a regional director delegated under Section 3(b) of the Act. Requests will only be granted for compelling reasons. Requests may be filed any time during the proceeding, or within 14 days after a final disposition of the case by the regional director. The prior rules included a variety of means for asking for Board review, including a “request for review” which only applied to the direction of election; a complex set of interlocking mechanisms for post-election review which varied depending upon the type of procedure chosen by the regional director or the form of election agreement; and a catchall “special permission to appeal.” Review of the direction of the election had to be sought before the election, even though the vote itself might moot the appeal. The final rule improves the process for Board review by giving parties an option to wait and see whether election results will moot a request for review that prior rules required to be filed before the election, and recognizes that Board review is not necessary in most cases. This will best serve Congress's purpose of ensuring that the regional director can promptly resolve disputes unless there is reason to interrupt proceedings in a particular case.

14. A request for review will not operate as a stay unless specifically ordered by the Board. Stays and/or requests for expedited consideration will only be granted when necessary. The prior rules included an automatic stay of the count of ballots (“impounding the ballots”) in any case where a request was either granted or pending before the Board at the time of the election. A stay should not be routine, but should be an extraordinary form of relief.

15. Elections will no longer be automatically stayed in anticipation of requests for review. The prior rules generally required the election which

followed a Decision and Direction of Election to be held between 25 and 30 days after the direction of election. The stated purpose of this requirement was to permit requests for review to be ruled on by the Board in the interim. This delay served little purpose, as few requests were filed, and only a very small fraction of these requests were granted. Even where a request was granted, the 25-30 day waiting period in the prior rules did nothing to prevent unnecessary elections as the vote was generally held as scheduled notwithstanding the grant of the request.

16. The regional director will ordinarily specify in the direction of election the election details, such as the date, time, place, and type of election and the payroll period for eligibility. Parties will take positions on these matters in writing in the statement of position and on the record before the close of the hearing. Under prior practice, election details were typically addressed after the direction of election was issued, which required further consultation about matters that could easily have been resolved earlier.

17. The long-standing instruction from the Casehandling Manual that the regional director will set the election for the earliest date practicable is codified. The statute was designed by Congress to encourage expeditious elections, and the rules require the regional director to schedule the election in a manner consistent with the statute.

18. The regional director will ordinarily transmit the notice of election at the same time as the direction of election. Both may be transmitted electronically. Previously, the notice was transmitted by mail after the direction of election.

19. If the employer customarily communicates with its employees electronically, it must distribute all election notices to employees electronically, in addition to posting paper notices at the workplace. Prior rules required only paper notices. This change recognizes that modern technology has transformed many workplaces into virtual environments where paper notices are less effective.

20. Within 2 business days of the direction of election, employers must electronically transmit to the other parties and the regional director a list of employees with contact information, including more modern forms of contact information such as personal email addresses and phone numbers if the employer has such contact information in its possession. The list should also include shifts, job classifications, and work locations. The list may only be used for certain purposes. Prior caselaw gave employers 7 days to produce a list of names and home addresses and send it to the Board, which then served the list on the parties. In addition to simplifying and expediting service by cutting out the middle man, the amendments update the rules to leverage the ways in which modern technology has transformed communications, recordkeeping and record transmission. For instance, the changes make information that is routinely maintained in electronic form more quickly available to the parties. Recognizing the potential sensitivity of the information, however, the rules also restrict its use in order to guard against potential abuse.

21. When a charge is filed alleging the commission of unfair labor practices that could compromise the fairness of the election, the regional director has discretion to delay (or “block”) the election until the issue can be resolved. Any party seeking to block the election must simultaneously file an offer of proof and promptly make witnesses available. This rule largely codifies what had been best practice while adding an offer-of-proof requirement that will expedite investigation and help weed out meritless or abusive blocking charges.

22. After the election, parties have 7 days to file both objections and offers of proof in support. Objections, but not offers, must be served by the objector on other parties. Prior rules gave 7 days for objections but 14 days for evidence in support of the objections. The change is made because unsupported objections should not be filed, and 7 days is typically adequate for the parties to marshal their evidence.

23. If necessary, a post-election hearing on challenges and/or objections will be scheduled to open 21 days after the tally of ballots or as soon as practicable thereafter. Prior rules set no timeline for opening the hearing, and this rule will give adequate time for the region to weed out unsupported and frivolous objections while making the process more transparent and uniform.

24. In every case, the regional director will be required to issue a final decision. Where applicable, the regional director's decision will be subject to requests for review under the procedure described in item 13 above. The prior rules were unduly complex, and frequently did not involve a final regional director decision. Regional directors can and should issue final decisions because they are delegated authority to do so pursuant to Section 3(b) and the Board's rules, and are in the best position to initially assess the facts. Where necessary, Board decisions on review are improved by first obtaining the final decision of the regional director.

25. Finally, the rule eliminates a number of redundancies and consolidates and reorganizes the regulations so that they may be more easily understood.

III. The Rulemaking Process

As the NPRM explains, the Board has amended its representation case procedures repeatedly over the years as part of a continuing effort to improve the process and eliminate unnecessary delays. Indeed, the Board has amended its representation case procedures more than three dozen times without prior notice or request for public comment.

In fact, the Board has seldom acted through notice-and-comment rulemaking on any subject. The Board typically makes substantive policy determinations in the course of adjudication rather than through rulemaking, although this practice has occasionally drawn the ire of academic commentators and the courts.

7

7

See R. Alexander Acosta,

Rebuilding the Board: An Argument for Structural Change, over Policy Prescriptions, at the NLRB,

5

FIU L. Rev.

347, 351-52 (2010); Merton C. Bernstein,

The NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act,

79

Yale L.J.

571, 589-90, 593-98 (1970); Samuel Estreicher,

Policy Oscillation at the Labor Board: A Plea for Rulemaking,

37

Admin. L. Rev.

163, 170 (1985); Jeffrey S. Lubbers,

The Potential of Rulemaking by the NLRB,

5

FIU L. Rev.

411, 414-17, 435 (Spring 2010); Kenneth Kahn,

The NLRB and Higher Education: The Failure of Policymaking Through Adjudication,

21

UCLA L. Rev.

63, 84 (1973); Charles J. Morris,

The NLRB in the Dog House—Can an Old Board Learn New Tricks?,

24

San Diego L. Rev.

9, 27-42 (1987); Cornelius Peck,

The Atrophied Rulemaking Powers of the National Labor Relations Board,

70

Yale L.J.

729, 730-34 (1961); Cornelius J. Peck,

A Critique of the National Labor Relations Board's Performance in Policy Formulation: Adjudication and Rule-Making,

117

U. Pa. L. Rev.

254, 260, 269-72 (1968); David L. Shapiro,

The Choice of Rulemaking or Adjudication in the Development of Administrative Policy,

78

Harv. L. Rev.

921, 922 (1965); Carl S. Silverman,

The Case for the National Labor Relations Board's Use of Rulemaking in Asserting Jurisdiction,

25

Lab. L.J.

607 (1974); and Berton B. Subrin,

Conserving Energy at the Labor Board: The Case for Making Rules on Collective Bargaining Units,

32

Lab. L.J.

105 (1981); see also

NLRB

v.

Bell Aerospace Co.,

416 U.S. 267, 295 (1974);

NLRB

v.

Wyman-Gordon Co.,

394 U.S. 759, 764, 770, 777, 779, 783 n.2 (1969). The Portland Cement Association (PCA) contends, as it did in another recent Board rulemaking, that the Board should place these and other law review articles discussed in the NPRM online for the public to read for free on

regulations.gov.

Just as the Board replied in that prior rulemaking, 76 FR 54014, the Board has placed these articles in the hard copy docket, but has not uploaded these articles to the electronic docket because such an action could violate copyright laws. It should also be noted that these materials are generally available in libraries.

The Board has thus asked for public comments on few proposed rules of any kind. A review of prior Board

rulemaking procedures reveals that, until this proceeding commenced, the Board had not held a public hearing attended by all Board members for at least half a century.

8

8

In the rulemaking proceedings that resulted in adoption of rules defining appropriate units in acute care hospitals, the Board directed an administrative law judge to hold a series of public hearings to take evidence concerning the proposed rules, but no Board members participated in the hearings.

A. Procedural History of This Rule

On June 22, 2011, the Board issued a Notice of Proposed Rulemaking. The Notice provided 60 days for comments and 14 additional days for reply comments. The Board issued press releases about the proposals and placed summaries, answers to frequently asked questions, and other more detailed information on its Web site (

www.nlrb.gov

). The Board held a public hearing during the comment period, on July 18 and 19, 2011, where the Board members heard commentary and asked questions of the speakers.

On November 30, 2011, the Board members engaged in public deliberations and a vote about whether to draft and issue a final rule, and, on December 22, 2011, a final rule issued. 76 FR 80138. A Federal court later held that the Board had lacked a quorum in issuing the final rule. See

Chamber of Commerce of the U.S.

v.

NLRB,

879 F. Supp. 2d 18, 28-30 (D.D.C. May 14, 2012). However, because the court did not reach the merits, the court also “emphasize[d] that its ruling need not necessarily spell the end of the final rule for all time * * *. [N]othing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”

The Board then issued a proposed rule on February 6, 2014 under the same docket number as the prior NPRM and containing the same proposals. 79 FR 7318

et seq.

The Board again issued press releases and placed supporting documents on its Web site. This was “in essence, a reissuance of the proposed rule of June 22, 2011.”

Id.

The purpose of this NPRM was to give a properly constituted quorum of the Board a “legally appropriate, administratively efficient, and demonstrably fair process for considering all the issues and comments raised in the prior proceeding, while giving an opportunity for any additional commentary.”

Id.

at 7335.

The Board provided 60 additional days for the submission of any new comments, and 7 days for replies. The Board advised commenters that it was not necessary to “resubmit any comment or repeat any argument that has already been made.”

Id.

at 7319. During the reply period, on April 10 and 11, 2014, the Board held another public hearing, at which the Board members again heard commentary and asked questions of the speakers.

In sum, the Board has accepted comments on these proposals for a total of 141 days, and held a total of 4 days of oral hearings with live questioning by Board members. Tens of thousands of people have submitted comments on the proposals, and Board members have heard over one thousand transcript pages of oral commentary.

The sole purpose of these procedures was to give the Board the benefit of the views of the public. To be clear, none of this process was required by law: The Board has never engaged in notice and comment rulemaking on representation case procedures, and all of the proposed changes could have been made without notice and comment—in part by adjudication, and in part by simply promulgating a final rule.

9

9

The rule is primarily procedural as defined in 5 U.S.C. 553(b)(B), and therefore exempt from notice and comment. To the extent portions of the rule are substantive—for example, relating to information in the voter lists—these changes could have been made by adjudication, which is also exempt from notice and comment.

Wyman Gordon, supra

.

Nonetheless, a number of comments have criticized the Board's process, both in 2011 and again in 2014. At bottom, the claim is that the process was inadequate to meaningfully engage with the public, and that the Board already had its mind made up. We disagree.

1. Advanced NPRMs and Consultation Under E.O. 13563

The 2011 comment of the Chamber of Commerce of the United States of America (the Chamber) provides a representative example of criticism of the 2011 pre-NPRM process. The Chamber believes that the Board missed “an opportunity to explore whether a consensus could have been reached” on the rule among stakeholder groups through forums such as the American Bar Association's Labor and Employment Law Section. The Chamber concedes that stakeholders “have widely divergent views,” but argues that a consensus on at least some changes might have been reached. The Chamber suggests that the Board should withdraw the NPRM and publish a more open-ended Advanced Notice of Proposed Rulemaking.

The Chamber cites Executive Order 13563 Section 2(c) (“Improving Regulation and Regulatory Review”), 76 FR 51735, as support. Section 2(c) of the Executive Order states that “[b]efore issuing a proposed regulation, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected * * *.”

Id.

In the NPRM, the Board explained the decision to issue a set of specific proposals, rather than a more open-ended Advanced NPRM, by stating that “public participation would be more orderly and meaningful if it was based on * * * specific proposals.” 76 FR 36829. The Chamber incorrectly suggests the Board conceded that it violated the Executive Order, and questions whether the comment process actually was more orderly or meaningful. Some other comments suggest that the Board should have engaged in negotiated rulemaking, or that the pre-NPRM process was insufficiently transparent.

10

10

See,

e.g.,

joint comment of HR Policy Association and Society for Human Resource Management (collectively, SHRM); Greater Easley Chamber of Commerce; Georgia Association of Manufacturers (GAM).

These arguments were repeated by the Chamber and a number of other commenters in 2014, most notably the American Hospital Association (AHA II)

11

and their counsel at the public hearing, (Testimony of Curt Kirschner II) who contended that the Board should have issued an Advanced NPRM or consulted with stakeholders before reissuing the NPRM in February 2014.

11

The preamble to the final rule uses the roman numeral II to signify that a cited comment was received during the second notice and comment period in 2014. Comments cited without the roman numeral II were received during the first notice and comment period in 2011.

An agency generally has discretion over its pre-NPRM procedures, including whether to use advanced NPRMs, negotiated rulemaking, or other pre-NPRM consultation. See

Vermont Yankee Nuclear Power Corp.

v.

Natural Resources Defense Council,

435 U.S. 519, 543-44 (1978). Moreover, as recognized by the AHA, the Board is not directly subject to Executive Order 13563, nor is its language pertaining to pre-NPRM procedures mandatory in any event.

As explained in both NPRMs, in this instance, the Board concluded that beginning the process of public comment by issuing NPRMs would be the most effective method of proceeding. The Board continues to believe that following the notice-and-comment procedures set forth in the Administrative Procedure Act (APA)—and thereby giving formal notice of specific proposals to all members of the public at the same time in the

Federal Register

and permitting all members of

the public to comment on those proposals through the same procedures and during the same time periods—was the fairest and soundest method of proceeding.

The contents of the comments themselves have also demonstrated the doubtfulness of the Chamber's suggestion that a broad consensus might have been reached through a different process. As the Chamber concedes, the labor-management bar is polarized on many of the relevant issues. Given the degree of polarization reflected at both the public hearings and in the comments—notwithstanding the 3 intervening years for members of the bar to consider and consult on possible improvements—consensus seems unlikely.

Nor would an Advanced NPRM have been an improvement on the present process. Indeed, in this proceeding the Board has already benefited from something similar to the iterative commenting process of an Advanced NPRM. From the 2011 hearing, to the 2011 comment period, to the 2011 reply period, to the 2014 comment period, to the 2014 hearing and reply period, the commenters have had the opportunity to consider and respond to each other's views on many occasions. And, in contrast to the typical Advanced NPRM, the specificity of the proposals in the NPRM encouraged many commenters to focus on important details. With the benefit of this repeated cross analysis and close attention to detail, the Board has modified its proposals in a number of significant respects in this final rule. We see no merit in the speculative retrospective claim that something better might have been achieved by another process.

In sum, the Board's pre-NPRM process was lawful and appropriate.

2. The 2014 NPRM

A variety of inconsistent claims were made by commenters about the significance of the Board's reissuing the NPRM in 2014. Some argued that the Board should have considered the 2011 comments before reissuing the NPRM.

12

By contrast, some said that the Board had considered and implicitly rejected the 2011 comments, and that this rejection required re-submitting the same comments again, or that it suggested that a final rule identical to the NPRM was a

fait accompli

.

13

Some faulted the Board for not addressing the prior final rule of December of 2011.

14

12

See,

e.g.,

Chamber II; International Franchising Association (IFA) II; AHA II. Along the same lines, some argued that the Board should have clarified the proposals in light of questions raised in the 2011 comments. See,

e.g.,

Association of the Nonwoven Fabrics Industry (INDA) II.

13

See,

e.g.,

Association of Equipment Manufacturers (AEM) II; INDA II.

14

See,

e.g.,

Senator Lamar Alexander and 17 Republican Senators (Senator Alexander and Republican Senators) II.

These arguments are misplaced, and many are predicated on an unsupportable and mistaken interpretation of the NPRM. In early 2014, the recently appointed and confirmed Board members had a choice to make. Significant public effort had been expended in commenting on a proposed rule that—according to one court—the Board had not yet lawfully acted on. Thus, the questions posed by the NPRM remained unanswered by the Board. As years had passed since the comment period had closed, the new Board members were interested to know whether the public had anything further to say about the proposals.

That is why the Board reissued the NPRM and reopened the comment period. This process allowed the new Board members an opportunity to consider new comments and old comments together in a single proceeding.

This is reasonable. To consider and analyze all the material submitted in the 2011 final rule—without considering whether anyone's views might have changed in the intervening years—and only then issuing a new proposed rule, would have been substantially less efficient. Where possible, it is far better, in the Board's judgment, to respond to the comments once, rather than twice.

The 2014 NPRM reflected absolutely no Board judgment about the 2011 comments. As the Board explained in the NPRM, the purpose was simply to re-raise, not resolve, the questions posed and to allow the Board to make its decisions about the final rule in light of all the comments received.

The AHA claimed that the Board was “hiding the ball from the public regarding its current views of what should be changed, in light of the comments previously received and its analysis of those comments. The implication of the Board's reissuance of the same NPRM is that the public comment process is, from the Board's perspective, largely perfunctory.” AHA II.

This statement misses the point. There was no ball to hide. The Board reissued the NPRM because it wanted to hear yet again from the public before forming its views. This manifests a greater respect for the public comment process. As Member Hirozawa said in responding to this point at the public hearing:

Curt, if it makes you feel any better, we don't know where we're headed, either. There are a lot of difficult decisions that are going to have to be made, a lot of questions where there are significant considerations on both sides, and there will be a lot of discussion among the members during the coming period of time * * *. But in terms of the views of the public, I think that I speak for all five of the members here that we all consider them very important and [an] essential part of this process.

A similar point applies to the Board's consideration of the December 2011 final rule. Of course, the court held that the rule itself is a legal nullity; without the requisite vote (in the court's analysis), the Board never took action. Although the various statements associated with that publication are important, and represent the carefully considered views of three individual Board members (two of whom are no longer on the Board), it would be strange, to say the least, if the Board were somehow bound to consider and respond to this non-action before it could issue a proposed rule. Indeed, although the Board has considered those views in issuing the present final rule, their function here is persuasive, not authoritative.

In sum, the Board's decision to consider the 2011 comments, 2011 hearing testimony, 2011 final rule, and 2012 Board Member statements, together and at the same time as the 2014 comments and 2014 hearing testimony, is not only a reasonable manner of proceeding, but clearly the fairest and most efficient manner of proceeding given the procedural posture of this matter as it stood in early 2014.

3. The Length, Timing, and Location of the Hearings

In 2011, the Board members held a 2-day public hearing in Washington, DC, approximately halfway through the initial comment period,

i.e.,

about 1 month after publication of the NPRM and 1 month before the initial comment period closed. All Board members heard 5-minute statements from speakers representing diverse organizations and groups, and then actively questioned the speakers for an additional period of time. This hearing was not legally required.

Then, in 2014, the Board members held another 2-day public hearing in Washington, DC, in the week after the close of the 2014 initial comment period,

i.e.,

during the reply period.

15

The Board first solicited requests to speak, and instructed requesters to clearly identify the particular proposed changes and issues they wished to address, and to summarize the statements they wished to make. This process enabled the Board to schedule the speakers addressing similar issues to speak in adjacent time slots. Everyone who requested to speak was given an opportunity to address the Board, and, as time allowed, those who wished to speak about multiple issues were given an opportunity to address the Board more than once.

15

After each public hearing in 2011 and 2014, the transcripts containing each speaker's testimony

along with any Board questioning of the speaker were made part of the record of the rulemaking. Any such testimony discussed in this final rule is cited as follows: “Testimony of [name of speaker] on behalf of [name or organization, if any].” As with the written comments, the roman numeral II follows testimony citations from the 2014 comment period.

The AHA compares this proceeding to the hospital unit rulemaking and essentially argues that the Board should have held 14 days of hearings instead of 4. AHA II.

Agencies are not bound to use the same procedures in every rulemaking proceeding. Otherwise, agencies could neither learn from experience,

e.g.,

what rulemaking procedures are helpful and what procedures are simply wasteful, nor adopt procedures suited to the precise question at stake.

16

This learning process is shown in the changing nature of the hearings used by the Board from the hospital rulemaking, to the 2011 hearing, to the 2014 hearing. At each phase the hearing process became more meaningful and efficient.

16

As one scholar noted, the hospital unit rulemaking could be described as “procedural overkill,” see Mark H. Grunewald,

The NLRB's First Rulemaking: An Exercise in Pragmatism,

41 Duke L. J. 274, 319 (1991).

This point was recognized by counsel for the AHA itself, who “commend[ed] the Board on this public hearing process,” particularly in comparison to the 2011 hearing, and described the exchange with Board members as “gratifying,” “valuable,” and “productive.” Kirschner II. The Board agrees. The 5 minutes that speakers were given on each issue was supplemented by substantial time for questioning and the opportunity for written comments. Some speakers gave 2,000 words or more of well-informed testimony during their allotted time. The Board found that the speakers provided informed, thorough, and thoughtful analysis, and the back-and-forth dialogue with the Board members demonstrated the familiarity of the speakers with the proposals. Again, there was no such dialogue with Board members in the hospital rulemaking hearings—regardless of their length—simply because the Board members did not participate in those hearings.

17

17

In light of the extensive process provided in 2014, comments arguing that the 2011 process was “rushed” or gave “an inadequate opportunity for stakeholders to address the merits of the rules” are no longer salient. See National Association of Manufacturers (NAM). The parties have had a total of 141 days to comment on both NPRMs, (74 with respect to the 2011 NPRM and 67 for the 2014 NPRM), and to consider the proposals and data in submitting their comments. Some have published law review articles in the interim, and it is quite clear that the topics have remained relevant questions of public concern during this period. See Joseph P. Mastrosimone,

Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech,

52 Washburn L. J. 473, 501-06 (2013).

The Board believes that the hearings exceeded the requirements of the APA and were fair, appropriate, and useful. Holding the hearings in Washington, DC, was appropriate because many of the Board's major stakeholders are either headquartered in Washington or are represented by counsel in the city or who frequently appear in the city.

Both hearings were properly noticed and appropriately timed. The two hearings served two different functions. The first hearing was scheduled half-way through the first comment period. This gave the public time to develop their positions before the hearing, while also allowing the public to get a preview of the arguments at issue, so that written comments could be framed more responsively. The subsequent written comments were more informed, thoughtful, and technically sophisticated as a result, and many commenters in 2011, such as the Chamber, took the opportunity to cite extensively from the hearing transcripts for support and to respond to arguments made at the hearing. The Board believes the chosen sequence—the hearing followed by the close of the initial comment period and then the reply period—produced more meaningful public comments in 2011.

In 2014, of course, all of the 2011 comments were available for the public to engage, as was the transcript of the 2011 hearing. Thus the second hearing served a different purpose, and was therefore scheduled at a different time. By scheduling the hearing after the close of the comment period, but during the reply period, the Board members were able to engage with the speakers deeply and in detail on the substance of both their 2011 and 2014 comments, while giving time for speakers who wished to supplement or clarify their remarks after the hearing the ability to do so with additional written comments to the record.

In sum, the Board believes that the four days of public hearings, attended by all Board members, was highly valuable, was of an appropriate length, and was held at appropriate times and in appropriate locations.

4. The Length and Timing of the Comment Periods

The Board provided an initial comment period of 60 days beginning June 22, 2011, followed by a reply comment period of 14 days that ended on September 6, 2011. The Board then provided an additional comment period of 60 days beginning February 6, 2014, followed by a reply comment period of 7 days that ended on April 14, 2014.

The APA provides no minimum comment period, and many agencies, including the Board in some recent rulemaking proceedings, have afforded comment periods of only 30 days. The agency has discretion to provide still shorter periods, and is simply “encouraged to provide an appropriate explanation for doing so.” Administrative Conference of the United States (ACUS), Recommendation 2011-2 at 3 (June 16, 2011).

Yet, in 2011, many commenters criticized the length of the comment period. The Council on Labor Law Equality (COLLE) described the NLRB's comment period as “the bare-minimum 60-day[s],” and SHRM characterized the comment period as “hurried, abridged and clandestine.”

It would be reasonable to expect that these arguments would not be repeated in 2014, considering that the public had a cumulative total of 141 days in which to submit comments. Yet they were from time to time, most notably by the Chamber II, AHA II, and NAM II.

18

18

In each of its reply comments, the Chamber also complained that the reply period was too short to read and respond to all of the comments. But the purpose of the reply period was not to afford interested parties an opportunity to read and reply to

all

of the comments submitted, but to provide an opportunity to read the most significant comments and respond to the arguments raised in them. This the Chamber and others did quite successfully. For example, in 2011 the Service Employees International Union (SEIU) cited and replied to over twenty unique, detailed, and lengthy comments submitted by other parties. Others, such as the Association of Corporate Counsel (ACC), took the opportunity to focus on elaborating one particular issue of special importance. Both approaches were quite helpful, and served the purpose for which the Board afforded the reply period.

A lengthy additional reply period in this context would have served little purpose, particularly after a post-comment hearing in which the parties and the Board had the opportunity to engage with and reply to the comments in great detail. All of which is in addition to the fact that neither the APA nor any other law requires

any

opportunity to reply to public comments.

Although the desire for additional time to gather support and develop arguments is understandable, agencies must set some end to the comment

period: “Agencies should set comment periods that consider the competing interests of promoting optimal public participation while ensuring that the rulemaking is conducted efficiently.” ACUS 2011-2 at 3.

The Montana Chamber of Commerce—though opposing the rule—stated that the NPRM provided “a very reasonable time frame to allow ample comments and statements from all interested parties, whether they are supportive of these sweeping changes or not.” And a supportive comment noted that the Board was providing far more time for comments than required by law. Chairman Tom Harkin of the Senate Committee on Health, Education, Labor and Pensions, Senior Democratic Member George Miller of the House Committee on Education and the Workforce, and Democratic Senators and Members of the House of Representatives (Chairman Harkin, Senior Member Miller and Congressional Democrats) at 5.

The tens of thousands of comments submitted and the depth of analysis they provided are ample testament to the adequacy of the opportunities for public participation in the rulemaking process.

5. Post-Rulemaking Procedures and Review

One comment urges the Board to “incorporate[] plans for retrospective review” into the rule pursuant to Executive Orders 13,563 and 13,579. Sofie E. Miller. Executive Order 13,563, however, is directed to executive branch agencies, not independent agencies, which are only encouraged, by Executive Order 13,579, to comply with Executive Order 13,563. Moreover, both of the aforementioned Executive Orders apply only to “significant” regulatory actions, as defined by Section 3(f) of E.O. 12,866. This rulemaking does not fall into any of the definitions of a “significant regulatory action” set forth in Section 3(f). Nevertheless, the Board developed and disseminated a preliminary plan for retrospective review of significant regulations in May 2011 (

http://www.whitehouse.gov/files/documents/2011-regulatory-action-plans/NationalLaborRelationsBoardPreliminaryRegulatoryReformPlan.pdf

). In addition, the Board will continue its longstanding practice of incrementally evaluating and improving its processes going forward.

IV. Comments on General Issues

Before turning to comments on specific provisions of the final rule, the Board addresses a number of general issues: (a) the Board's rulemaking authority; (b) the need to amend the regulations generally; (c) the opportunity for free debate under the regulations; and (d) the effects on employee representation and the economy.

A. Board Authority To Promulgate Representation-Case Procedure Rules

Congress delegated both general and specific rulemaking authority to the Board. Generally, Section 6 of the National Labor Relations 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.” In addition, Section 9(c), 29 U.S.C. 159(c)(1), specifically 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 Board's well-established rulemaking authority is recognized by comments both opposing and supporting the proposed rule. For example, NAM states that “it is undisputed that the Board has the authority to promulgate rules and regulations,” and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) states that “[t]he NLRB has specific and express statutory authority to engage in rule-making to regulate its election process.”

The Supreme Court unanimously held in

American Hospital Association

v.

NLRB,

499 U.S. 606, 609-10 (1991), that the Act authorizes the Board to adopt both substantive and procedural rules governing representation case proceedings. The Board's rules are entitled to deference. See

Chevron U.S.A. Inc.

v.

Natural Res. Def. Council, Inc.,

467 U.S. 837, 843-44 (1984);

NLRB

v.

A.J. Tower Co.,

329 U.S. 324, 330 (1946). 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 n.21 (1974);

AFL

v.

NLRB,

308 U.S. 401, 409 (1940). “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 S.S. Corp.,

309 U.S. 206, 226 (1940); 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 noted 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 representative 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 (emphasis added). “[T]he determination of whether a majority in fact voted for the union must be made in accordance with such formal rules of procedure as the Board may find necessary to adopt in the sound exercise of its discretion.”

Id.

at 333. 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, the final rule is based upon just such concerns. Some comments allege that the Board lacks authority to issue these rules.

19

As discussed, the Supreme Court's interpretation of Section 6 clearly forecloses this argument.

19

See,

e.g.,

Testimony of Harold Weinrich on behalf of Jackson Lewis LLP; ACC; American Trucking Associations II.

The Board also received dueling comments from two different groups of members of Congress on this topic: One group claimed that the changes would “fundamentally alter the balance of employee, employer and union rights that Congress so carefully crafted and that only Congress can change;” the other group claimed that the changes are “commonsense and balanced” and “a positive step toward fixing a broken system” and are consistent with “the NLRB['s] broad authority under the NLRA to promulgate election regulations.” Compare Senator Alexander and Republican Senators; with Chairman Harkin, Senior Member Miller and Congressional Democrats.

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. Various members of Congress

may have divergent views, but Article I of the Constitution prescribes the method that Congress must use to enact its policies, and the Act as written gives the Board broad authority in this area. 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 and text of the Act—a question about which the Board remains the congressionally delegated expert authority.

In sum, the Board clearly has authority to amend its election rules.

B. The Need for the Final Rule

The Board's experience demonstrates that although the fundamentals are sound, many of the technical details of representation case procedures suffer from a variety of deficiencies. Especially as to contested cases, current procedures result in duplicative, unnecessary and costly litigation. Simplifying, streamlining and, in some cases, bolstering these procedures will reduce unnecessary barriers to the fair and expeditious resolution of representation disputes and result in more fair and accurate elections. The rule also codifies best practices to ensure that our procedures are more transparent and uniform across regions. Changes to the representation case procedures are also necessary to update and modernize the Board's processes in order to gain the advantages of and make effective use of new technology, especially affecting communications and document retrieval and transmission. These changes will enhance the ability of the Board to fulfill its statutory mission.

Some comments received in response to the Board's NPRM argue that the Board failed to present sufficient justification for the proposed amendments. For example, SHRM asserts that the Board “failed to articulate a legitimate justification for the significant changes set forth in the NPRM” and that the proposed amendments are therefore arbitrary and capricious.

20

Numerous comments contend generally that there is no need for revision of the Board's representation procedures because, as argued by NAM, there is no evidence contradicting the Board's own data showing that the present time frames for processing representation cases are among the most expeditious in the Board's history, and further that the Board currently meets its own internal time targets for processing representation cases.

21

As one speaker stated “the Board is just looking to solve a problem that doesn't exist” and “the NPRM has failed to identify a single problem to which the proposed solution is responsive.” Testimony of Kara Maciel on behalf of National Grocers Association (NGA) II. See also Testimony of Ross Freidman on behalf of CDW II (“the proposed rules are in large part a solution in search of a problem”).

20

See also SHRM; Klein, Dub & Holleb (Klein) II.

21

This point was also advanced by the AHA; American Council on Education (ACE); COLLE; CDW; Associated Oregon Industries; National Marine Manufacturers Association (NMMA); The Bluegrass Institute; and the Chamber.

These arguments appear to rest on a number of mistaken assumptions. (1) The sole purpose of the rule is to have faster representation proceedings; but (2) those proceedings are (generally) fast enough already; and, in any event, (3) the changes do not identify or address the true sources of delay. We will address each of these assumptions in turn.

1. The Amendments Address Efficiency, Fair and Accurate Voting, Transparency, Uniformity, and Adapting to New Technology; Speed Is Not the Sole or Principal Purpose

First, the focus on speed fails to consider all the reasons for which the various amendments are being made. Many of the changes have little to do with the timing of procedures. Indeed, there is no single problem that this rule addresses: Rather, as summarized in the list of changes above, there are a host of discrete problems addressed by a host of discrete amendments. We will amplify the particular rationale for each change in the discussion of specific sections below. However, in light of the common misconception that the rule is focused on speed, we will briefly describe other important principles of sound administration at issue.

Efficiency: The importance of efficiency should be self-evident. If a particular procedure serves no purpose, or is unduly complex or wasteful, that is reason enough to change it, regardless of whether it also causes delay. Thus, for example, rules that permit unnecessary litigation, circuitous service of documents and mandatory interlocutory appeals are plainly inefficient and should be changed.

Fair and Accurate Voting: This rationale gets to the heart of Section 9, and is always under consideration in any revision of representation case procedures. Here, for example, the Board provides employees with notice of the petition for election sooner in the process, and provides more detailed, meaningful notices about the unit at issue, and the voting itself, throughout the process. The notices are also transmitted more effectively. As explained further below, the amendments provide a better process for identifying voters properly subject to challenge, which should reduce the number of ballots improperly commingled with unit ballots by oversight, or improperly challenged out of ignorance. These changes will all provide better guarantees of a fair voting process.

Transparency and Uniformity: Transparency allows the public to understand the process and uniformity allows the parties to form reasonable expectations. These two related principles also ensure that the protection of statutory rights does not vary arbitrarily from case to case or region to region. Again, these basic procedural principles should be beyond cavil. Cf.

Dorsey

v.

United States,

132 S. Ct. 2321, 2326 (2012) (written sentencing guidelines “increase transparency [and] uniformity”). These are adequate reasons to ensure that Board best practices are written into the regulations where appropriate, even if they do not address delay. Thus, for example, describing the best-practices hearing date in the rules will promote uniformity and transparency.

Changed Technology: Society changes rapidly, and new technology can quickly make old rules obsolete. Of particular relevance here, communications technologies developed in the last half-century have changed the way litigation, workplace relationships, and representation campaigns function. As the Supreme Court has stated in another context, “the responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board,” and we would be remiss in leaving unchanged procedures which are predicated on out-of-date facts or assumptions, even where there is no consequent delay.

NLRB

v.

J. Weingarten, Inc.,

420 U.S. 251, 266 (1975). Thus, for example, providing for electronic documents, filing, and transmission as well as updating the forms of employee contact information are important adaptations to changed technological circumstances. In addition, the Board is mindful that changes in technology have also raised concerns about privacy, and the final rule addresses those concerns.

In sum, timeliness is one of many reasons proffered for the amendments; some changes clearly reduce unnecessary delays; for other changes, timeliness is only a collateral benefit and by no means a primary purpose;

and sometimes it plays no role whatsoever. The need for the rule cannot be assessed without grappling with these specific, articulated reasons underlying each of the amendments.

2. The Board Can and Should Address Delays in the Current Rules

The second premise is also flawed: Nothing in the statute, the General Counsel's current time targets, or any other source establishes that current procedures are “fast enough.”

Section 9 is animated by the essential principle that representation cases should be resolved quickly and fairly. “[T]he Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.”

NLRB

v.

A.J. Tower Co.,

329 U.S. 324, 331 (1946). As the Supreme Court noted, discussing Section 9(d), the policy in favor of speedy representation procedures “was reaffirmed in 1947, at the time that the Taft-Hartley amendments were under consideration.”

Boire

v.

Greyhound Corp.,

376 U.S. 473, 479 (1964). Senator Taft stated that the Act should not “permit dilatory tactics in representation proceedings.”

Id.

In discussing the APA, Congress again exempted representation cases because of the “exceptional need for expedition.”

22

Finally, 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.' ”

Magnesium Casting Co.

v.

NLRB,

401 U.S. 137, 141-142 (quoting legislative history). Congress did not define any “time targets” for elections; indeed, in fashioning the LMRDA, Congress considered and expressly rejected a proposed amendment to the statute which would have imposed a 30-day minimum speed limit on the time from petition to election.

23

22

Senate Committee on the Judiciary, comparative print on revision of S. 7, 79th Cong., 1st Sess. 7 (1945). It is for this reason that 5 U.S.C. 554(a)(6) specifically exempts representation cases from even the minimal requirements of the APA.

23

Various legislative efforts to impose particular timelines on Board elections have failed repeatedly over the decades. See,

e.g.,

124 Cong. Rec. 7652-54 (1978) (side-by-side comparison of House and Senate versions of one proposal, accompanied by analysis and criticism by Senator Jesse Helms); “National Labor Relations Fair Elections Act” H.R. 4800 (1990), 101st Cong, 2d Session; H.R. 503, 102nd Cong., 1st Session (1991); H.R. 689, 103rd Cong., 1st Session (1993); “Labor Relations Representative Amendment Act” S. 1529, 103rd Cong., 1st Session (1993); S. 778, 104th Cong., 1st Session (1995).

In short, every time Congress has amended laws governing representation cases, it has reaffirmed the importance of speed. This is essential both to the effectuation of Section 7 rights of employees, and to the preservation of labor peace.

24

24

The importance of prompt resolutions of questions of representation is heightened by their perishable nature. “[U]nlike court judgments, [they] do not bind the parties for all time.”

Manhattan Center Studios, Inc.,

357 NLRB No. 139, slip op. at 5 (2011). “In the absence of employer unfair labor practices, a Board certification of a representative will bar a new election for only 1 year if no contract is agreed to, and for no more than an additional 3 years if an agreement is reached.”

Id.

The timeliness concerns of Congress in 1935, 1947 and 1959 remain salient today, as the comments show. Unduly lengthy campaigns cause voter participation to drop. Testimony of Glenn Rothner II; Testimony of Gabrielle Semel on behalf of CWA II. “[D]elay can create a sense of futility among workers.” Testimony of Brian Petruska on behalf of Laborer's International Union of North America Mid-Atlantic Regional Organizing Coalition (LIUNA MAROC) II; see also Testimony of Jody Mauller on behalf of the International Brotherhood of Boilermakers (IBB) II. As one employee testified at the hearing, significant delay in the NLRB's process causes employees to think that there is nothing the government can do to protect them. Testimony of Donna Miller II. This is precisely what Congress was worried about: that employees would think the NLRA's procedures were ineffectual and be tempted to take disruptive action instead.

Boire, supra.

The purpose of the Act is to protect with Federal power the free exercise of Section 7 and Section 9 rights. In one organizer's experience, most workers want elections faster than current procedures permit regardless of where the workers stand on the union. Testimony of Martin Hernandez on behalf of UFCW II.

To be clear, the problems caused by delay have nothing to do with employer speech.

25

As discussed

infra,

the statute encourages free debate, and neither Congress nor the Board in this rulemaking has cited limiting debate as a reason for speed. It is not the speech, but the delay itself which causes the ills identified by Congress and the Board. Nor is the problem with delay related to unfair labor practices. Though many commenters and academics have argued that lengthy campaigns encourage unfair labor practices,

26

this is not a reason that either Congress or the Board have cited in amending representation procedures in pursuit of timely elections and it does not underlie the final rule.

25

Some have claimed that the Board has a secret mission “to restrict, as far as possible, the participation of employers in the union organizing campaign and representation election process.”

E.g.

, COLLE II at 4-5. No credible evidence has ever been mustered in support of this claim by any of its proponents, and the Board expressly affirms that limiting debate is not a reason for any of the amendments.

26

See John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan Lamare, Ph.D. (summarizing their study, “New Data: NLRB Process Fails to Ensure a Fair Vote,”). See also SEIU; National Employment Law Project (NELP); and Senior Member George Miller and Democratic Members of the U.S. House of Representatives Committee on Education and the Workforce (Senior Member Miller and Democratic House Members) (citing Logan, Johanson, and Lamare study).

As shown, delay itself is the problem this rule addresses—not employer speech or unfair labor practices—and eliminating unnecessary delay is therefore unquestionably a valid reason to amend these regulations. In recognition of this fundamental principle, the Board has noted “the Act's policy of expeditiously resolving questions concerning representation.”

27

“In . . . representation proceedings under Section 9,” the Board has observed, “time is of the essence if Board processes are to be effective.”

28

Indeed, the Board's Casehandling Manual stresses that “[t]he expeditious processing of petitions filed pursuant to the Act represents one of the most significant aspects of the Agency's operations.”

29

27

See,

e.g., Northeastern University,

261 NLRB 1001, 1002 (1982),

enforced,

707 F.2d 15 (1st Cir. 1983).

28

Tropicana Products, Inc.,

122 NLRB 121, 123 (1958).

29

Pt. 2, Representation Proceedings, Section 11000.

Many comments argue that current procedures are fast enough because they meet the Board's time targets. The reliance on current time targets is mistaken. For decades the Board has continually strived to process representation cases more expeditiously, and the targets have accordingly been adjusted downward over time. 79 FR 7319-20.

30

Under the commenters' reasoning, in any given year when the agency was meeting its then-applicable time targets, the agency should have left well enough alone and should not have engaged in any analysis about how the process might be improved. This is clearly wrong. Past improvements do not and should not

preclude the Board's consideration and adoption of further improvements.

30

The amendments the Board has chosen to adopt represent a continuation of this incremental process, rather than a radical departure from Board practice as asserted by, for example, the Coalition for a Democratic Workplace (CDW) and Associated Builders and Contractors (ABC). ABC II asserts that the proposals are far more radical than the Board admits, but their contention is stated as

ipse dixit

and remains unsupported. See also AHA II (proposed rules are a “very radical departure” from December 2011 final rule).

The Chamber responds by claiming “[t]he Board cannot set goals regarding acceptable times for elections and then, without justification, disregard those benchmarks. Presumably some rational approach has been taken to develop the benchmarks over the years.” Chamber II.

There is a rational approach: the General Counsel sets benchmarks by trying to figure out what would be possible—in spite of structural delays identified under the rules—if the regions did their very best work. Thus, meeting those benchmarks shows only that the regions are doing the best they can in spite of the rules, not that the rules are incapable of improvement. That the Board seeks to, and does, meet those targets in most instances is irrelevant to whether additional improvements should be made by amending the rules.

In addition to the time targets, some commenters point to a number of other extrinsic facts which they claim are “strong evidence that the present system works fairly for all parties.” Testimony of Arnold Perl on behalf of the Tennessee Chamber of Commerce (TN Chamber) II. For example, they cite the rate of union success in elections as evidence that the current procedures are fair and not in need of revision. Associated General Contractors of America (AGC); Skripko II. From the Board's perspective, this argument is close to tautological. The purpose of the election is to find out what the employees want; if we knew this a priori, the election would be unnecessary. Whether the union win rate is 75% or 25% tells us nothing about whether the elections were fair. Either result might accurately reflect the employees' free choice. The results are therefore unhelpful in determining whether representation case procedures are fulfilling their statutory purpose as fully and efficiently as possible. On that question, we must look to the procedures themselves, and to the policies and purposes of the statute.

Many comments acknowledge that the expeditious resolution of questions of representation is a central purpose of the Act, but argue that the Board did not consider other statutory policies in proposing the amendments.

31

In fact, the Board did do so, both in proposing amendments to its rules in the NPRM and in issuing this final rule. As discussed, the Board considered the statute as a whole, as well as the various policies underlying its enactment and amendment. Specifically, the Board considered the statutory requirement that the pre-election hearing be an “appropriate hearing” and the parties' constitutional, statutory, and regulatory rights in relation to the hearing. As explained in detail below, the final rule makes the hearing more, not less, “appropriate” to its statutory purpose. The final rule also fully respects the procedural rights of the parties. In fact, it permits the parties to fully exercise their procedural rights more efficiently and with less burden and expense. The final rule promotes a more informed electorate by providing an improved process for informing the unit about election procedures, the appropriate unit for bargaining and the voting procedure for individuals who may properly vote subject to challenge. Similarly, the Board considered employees' statutory right under Section 7 to “bargain collectively through representatives of their own choosing” and “to refrain from any or all such activities.” 29 U.S.C. 157. As explained in detail below, the amendments adopted in the final rule do not establish inflexible time deadlines or mandate that elections be conducted in a set number of days after the filing of a petition. Further, the amendments honor free speech rights; they do not in any manner alter existing regulation of parties' campaign conduct or restrict freedom of speech. In this connection, the Board has carefully considered the possibility that the amendments might reduce the time between the filing of the petition and the election so as to threaten the communication, association, and deliberation needed by employees in order to truly exercise freedom of choice. It has concluded the amendments pose no such risk, as more fully explained below.

31

See,

e.g.,

Assisted Living Foundation of America (ALFA); COLLE; SHRM; Seyfarth Shaw.

In sum, the Board is charged by Congress with eliminating unnecessary delays, and nothing about the current process suggests that it is “fast enough” such that no further improvements are justifiable.

3. The Amendments Which Are Intended To Address Delay Will in Fact Do So

Finally, the commenters are also mistaken in claiming that the Board has not identified the subset of cases where unnecessary delay is prevalent, and has not designed rules responsive to the particular delays identified. Again, many of the changes address other purposes, but where delay is at issue, the Board clearly identifies problems, and the amendments supply sensible and reasonable solutions. Most of the changes apply to only a very small subset of Board cases, and those cases are the very ones most likely to suffer inordinate delays.

For example, it is quite clear from the Board's statistics that fully litigated cases—that is, cases in which the parties are unable to stipulate about pre-election issues—generally take almost twice as long to get to an election. The median for all cases is 38 days, whereas the median for this particular subset of cases is closer to 70 in most years. Clearly, these cases suffer a delay in the time it takes to hold elections.

The Board has identified the primary sources of this delay, and the amendments address them. Under current rules a delay of 25 to 30 days is automatically imposed between the direction of election and the election. There can be absolutely no question that eliminating this waiting period addresses a very significant source of delay that is unique to this subset of demonstrably slower cases.

Other changes to pre-election litigation—such as the 8 to 10 day hearing opening, the standard for continuance, the provision of oral argument rather than briefing, the date to provide voter lists, etc.—will also address less substantial sources of delay in this same small subset of cases. And it is important to bear in mind that many of these changes are aimed at other goals, such as efficiency, uniformity, and adapting to modern technology, and that timeliness is often only a collateral benefit.

Other comments acknowledge that the Board's procedures have been subject to misuse in some cases, but suggest that such cases were rare and do not form an adequate basis for the Board's proposals. The National Retail Federation (NRF) and Printing Industries of America, Inc. (PIA), for example, suggest that the rules should be amended only to address the more egregious cases. Relatedly, many comments cite the high rate of voluntary election agreements (reached in over 90 percent of cases), which obviate the need for pre-election hearings, as evidence that the representation case procedures are working well in the overwhelming majority of cases.

In a way, this argument accords with the Board's own sense of the final rule: many of the amendments are minor changes to the procedure used in the small subset of litigated cases where the problem of delay is demonstrably more severe. The lack of greater ambitions does not mean that the rule is unjustified; rather it means that the amendments provide targeted solutions to specifically identified problems.

In addition, as discussed below, it must be noted that changes to litigation

procedures can be significant in framing the circumstances for entering stipulations in all cases.

32

Under the former rules, the regional director lacked discretion to limit the presentation of evidence to that relevant to the existence of a question of representation. Thus, the possibility of using unnecessary litigation to gain strategic advantage existed in every case. That specter, sometimes articulated as an express threat according to some comments,

33

had the effect of detrimentally affecting negotiations of pre-election agreements.

34

32

As another example, consider the new Statement of Position requirement, which assists both parties in making more informed decisions about stipulations. Knowing the issues in dispute will help the parties reach agreement.

33

See American Federation of Teachers (AFT); International Brotherhood of Electrical Workers (IBEW); LIUNA.

34

Comments by the United Food and Commercial Workers International Union (UFCW), LIUNA, AFT, NELP, and Retired Field Examiner Michael D. Pearson all point to the impact of that specter of unnecessary litigation on negotiations of pre-election agreements.

Finally, many comments argue that the proposed amendments did not address the most serious causes of delay in Board proceedings. Some comments point to delay in the Board's own adjudication of cases.

35

Other comments point to the Board's blocking charge policy.

36

35

See,

e.g.,

NAM; PIA.

36

See,

e.g.,

AHA; PIA; SHRM; Chamber; CDW; Professor Samuel Estreicher.

The Board is aware that, in too many instances, it has taken too long to decide both representation and unfair labor practice cases. This was a problem in 1959 when Section 3(b) was enacted, and, though the situation is much improved, it remains a problem today. Part of this problem is being addressed by the amendments—namely, by codifying the text of Section 3(b), and by the requirement that regional directors issue a final decision on the hearing officer's post-election recommendations. Giving the Board an authoritative and well-reasoned regional director's decision to consider whenever an appeal is taken will enhance the Board's decision-making on appeals and permit it to deny them where appropriate. To the extent that purely internal Board inefficiencies create additional unnecessary delays, these are not enshrined in the current rules and therefore need not be addressed by rulemaking.

As for the Board's blocking charge policy, the NPRM specifically asked for comments on various proposed revisions. As discussed below, the Board received extensive commentary, particularly in 2014, regarding this matter, and has decided to make changes which will address delay by expediting decision-making on blocking charges.

Of course, an administrative agency, like a legislative body, is not required to address all procedural or substantive problems at the same time. It need not “choose between attacking every aspect of a problem or not attacking the problem at all.”

Dandridge

v.

Williams,

397 U.S. 471, 487 (1970). Rather, the Board “may select one phase of one field and apply a remedy there, neglecting the others.”

FCC

v.

Beach Communications,

508 U.S. 307, 316 (1993) (quoting

Williamson

v.

Lee Optical of Okla., Inc.,

348 U.S. 483, 489 (1955)). “[T]he reform may take one step at a time.”

Id.

37

37

These same principles have been applied to administrative action. See,

e.g., United Hosp.

v.

Thompson,

383 F.3d 728, 733 (8th Cir. 2008) (the equal protection clause does not require the government to attack every aspect of the problem or refrain from regulating at all);

Great American Houseboat Co.

v.

U.S.,

780 F.2d 741, 749 (9th Cir. 1986) (same). The AHA acknowledges this fact, but states that “[w]hile this is true, the fact that the Board is declining to revise one of the biggest hurdles to timely elections [blocking charge policy], and at the same time proposing extensive revisions to other aspects of the process that have not proven to hold up elections . . . leaves the Board open to questions about its motives in issuing the NPRM.” AHA II at 27. Of course, the Board is revising its blocking charge policy, and it is unclear why AHA was under the impression that this matter would not be addressed when the Board specifically proposed a number of potential options in the NPRM and invited comments. And the claim that the other changes do not address delay is equally faulty because, as previously stated, many of the changes have nothing to do with delay, while those that are intended to address delay are in fact related to proven sources of delay.

In short, as to those aspects of the final rule where the Board has based its amendments on limiting delays, it has in fact identified the delay at issue specifically, and has crafted amendments rationally designed to address the delay.

C. The Opportunity for Free Speech and Debate

Many comments filed by employers and employer organizations argue that the proposed rule changes in the NPRM would drastically shorten the time between the filing of petitions and elections and thereby effectively reduce employers' opportunity to communicate with their employees concerning whether they should choose to be represented for purposes of collective bargaining. These comments make both legal and policy arguments based on that claim. The Board also considered the matter extensively at the public hearing in 2014, asking questions and taking approximately 175 transcript pages of testimony on this specific issue from a wide variety of speakers with different views.

The Board has concluded that the final rule will facilitate employees' free choice of representative while advancing the statutory objective of promptly resolving questions of representation, and will not impinge on anyone's free speech rights or any statutory mandate or policy. The amendments do not establish any rigid timeline for the conduct of the election itself. Indeed, the Board rejects requests that we set minimum or maximum time limits in which all elections must occur.

38

The election date will continue to vary from case to case. In selecting the election date under the rules, the regional director will continue to consider, among other factors,

39

the desires of the parties, which may include their opportunity for meaningful speech about the election.

38

The Board declines to adopt a suggestion by one commenter, which urged that the election be held within 15 days of the final voter list. See Testimony of Hernandez on behalf of UFCW II. Likewise, the Board declines to set the election date to be the same day the petition is filed, as another commenter urged. See Testimony of Thomas Meiklejohn II. The Board also rejects a suggestion by the dissent to impose 60 days as a maximum period before holding the election.

39

See Casehandling Manual Section 11302.1.

1. NLRA Section 8(c) and the First Amendment

Many employer comments contend that the rule changes reflected in the NPRM would be inconsistent with Section 8(c) of the Act

40

and the First Amendment.

41

But neither the proposed rule nor the final rule imposes any restrictions on the speech of any party.

40

See,

e.g.,

SHRM; Sheppard, Mullin, Richter & Hampton LLP (Sheppard Mullin); and the National Retail Federation (NRF).

41

See,

e.g.,

National Grocer's Association (NGA); Waste Connections; ALFA.

Section 8(c) of the Act provides:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. 158(c). On its face, Section 8(c)'s stated purpose is to prevent speech from “constitut[ing] or be[ing] evidence of an unfair labor practice.” Accordingly, the Board has repeatedly held that Section 8(c) applies only in unfair labor practice and not in representation proceedings. See,

e.g., Hahn Property Management Corp.,

263 NLRB 586, 586 (1982);

Rosewood Mfg. Co., Inc.,

263 NLRB 420, 420 (1982);

Dal-Tex Optical Co., Inc.,

137 NLRB

1782, 1787 fn. 11 (1962). Because the final rule, which addresses representation case procedures, does not in any way permit the Board to use speech or its dissemination as evidence of an unfair labor practice, the literal language of Section 8(c) is not implicated. Compare

Nat'l Ass'n of Mfrs.

v.

NLRB,

717 F.3d 947, 956 (D.C. Cir. 2013) (invalidating Board rule that required employers to permanently post a prescribed notice of employee rights “upon pain of being held to have committed an unfair labor practice”), with

id.

at 959 n.19 (concluding that a Board rule requiring employers to post an election notice immediately before a representation election “does not implicate § 8(c)” because violation of that rule does not carry the prospect of unfair labor practice liability).

Nor does the final rule run afoul of the First Amendment. Aside from the accurate statement that speech about unions is protected by the First Amendment,

42

the comments do not appear to argue (except in the most abbreviated fashion)

43

that the proposed amendments would violate the First Amendment. In any event, neither the proposed nor the final rule restricts speech. The rule does not eliminate the opportunity for the parties to campaign before an election, nor does it impose any restrictions on campaign speech. As under the current rules, employers remain free to express their views on unionization, both before and after the petition is filed, so long as they refrain from threats, coercion, or objectionable interference.

44

As the Supreme Court stated in 1941, “The employer . . . is as free now as ever to take any side it may choose on this controversial issue.”

NLRB

v.

Virginia Electric & Power Co.,

314 U.S. 469, 477 (1941). Likewise, the rule does not impose any new limitations on union speech. Accordingly, the Board's effort to simplify and streamline the representation case process does not infringe the speech rights of any party.

42

Thomas

v.

Collins,

323 U.S. 516, 537-38 (1945).

43

See,

e.g.,

AEM II; INDA II; Knife River II.

44

In this regard, the Board agrees with comments stating that the rule does not restrict, let alone prohibit, any form of expression or any particular message. See LIUNA MAROC II; AFL-CIO Reply II.

The comments do not contend that employers will be prevented from expressing their opinions on unionization, but only that, because there may be less time between petition and election in some cases, employers will have fewer opportunities to express their opinions before the Board concludes its investigation under Section 9. 29 U.S.C. 159. The Board recognizes that “[t]he First Amendment protects the right of every citizen to `reach the minds of willing listeners and to do so there must be opportunity to win their attention.' ”

Heffron

v.

Int'l Soc. for Krishna Consciousness, Inc.,

452 U.S. 640, 655 (1981) (quoting

Kovacs

v.

Cooper,

336 U.S. 77, 87 (1949) (plurality opinion)). But the rule does not violate this constitutional principle because employers will continue to have ample meaningful opportunities to express their views both before and after a petition is filed, as discussed below.

45

45

Some comments draw comparisons to political elections, which typically occur at regularly set intervals, but the Board does not find these comparisons to be apt. See Joseph P. Mastrosimone,

Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech,

52 Washburn L. J. 473, 501-06 (2013); U.S. Poultry & Egg Association, the National Chicken Council, and the National Turkey Federation (U.S. Poultry) II. Although they share certain common features, such as the secret ballot, political elections and representation elections are still quite different. Most notably, as discussed above, Congress has consistently expressed a clear purpose of limiting obstructions to commerce by holding union organizing elections quickly,

Boire

v.

Greyhound Corp.,

376 U.S. 473, 478 (1964) (quoting legislative history)—a consideration which is unique to elections held in the labor relations context. Another significant difference is the existence of an employment relationship between the electorate and one of the parties to the representation case proceeding; this changes the election in countless ways, from the various parties' relative ease of access to the electorate, to the reasonable implications which can be drawn from employer-specific conduct—none of which finds any parallel in modern political elections. The Board therefore declines to borrow campaign timing principles from the political election context wholesale.

2. The Final Rule Accords With the Statutory Policy in Favor of Free Debate

Although it is clear that the proposed amendments implicate neither the First Amendment nor the literal language of Section 8(c) of the Act, many comments nevertheless suggest that the amendments would leave employers with too little time to effectively inform their employees about the choice whether to be represented by a union.

46

They contend that the consequences of a union vote are long-lasting and could significantly affect employees' livelihoods and careers, and therefore ensuring that employees have sufficient time to hear from all sides is critical to the statutory objective of ensuring employee free choice.

47

Comments in favor of the amendments contend, on the other hand, that employers can and do communicate their views on unions to employees even before a petition has been filed and will continue to have sufficient time to do so after filing under the proposed amendment.

46

See Chamber; COLLE; SHRM; Seyfarth Shaw; Sheppard Mullin; Baker & McKenzie; John Deere Water; PIA; Senator Alexander and Republican Senators II; Diamond Transportation; Testimony of Peter Kirsanow on behalf of NAM II.

47

See NGA; Retail Industry Leaders Association (RILA); Society of Independent Gasoline Marketers of America (SIGMA); Ranking Member Michael B. Enzi of the U.S. Senate Committee on Health, Education, Labor & Pensions, and Republican Senators (Ranking Member Enzi and Republican Senators); National Meat Association; NAM II.

There is a clear statutory policy in favor of free debate and these amendments recognize, and are fully consistent with that policy.

a. Chamber of Commerce v. Brown

The Supreme Court recognized in

Chamber of Commerce

v.

Brown,

554 U.S. 60 (2008), that the enactment of Section 8(c) embodies a general “congressional intent to encourage free debate on issues dividing labor and management.”

Id.

at 67 (quoting

Linn

v.

Plant Guard Workers,

383 U.S. 53, 62 (1966) (a defamation case)). The Court further recognized that such debate contemplates advocacy by both labor and management, noting that the inclusion in Section 7 of the right to refrain from joining a union “implies an underlying right to receive information opposing unionization.”

Id.

at 68.

48

The Court relied on these features of the Act to invalidate, on preemption grounds, a California law that prohibited the use of state funds to encourage or discourage employees from seeking union representation. As the Court found, “California's policy judgment that partisan employer speech necessarily `interfere[s] with an employee's choice about whether to join or to be represented by a labor union' ” was in direct conflict with national labor policy as reflected by the foregoing provisions of the Act.

Id.

at 69.

48

This is not to suggest, of course, that employers are required to engage in any campaign speech at all, or to contest evidence of majority status; employers are free to decide whether to express their views on unionization—pro or con or neutral—if done without threat of reprisal or force of promise of benefit. See

Linden Lumber Div., Summer & Co.

v.

NLRB,

419 U.S. 301, 310 (1974); cf.

Nat'l Ass'n of Mfrs.

v.

NLRB,

717 F.3d at 956-59 (discussing the employer's right to remain silent). See also

NLRB

v.

Creative Food Design LTD.,

852 F.2d 1295, 1297, 1299 (D.C. Cir. 1988) (“an employer's voluntary recognition of a majority union also remains `a favored element of national labor policy.' ”) (citation omitted).

As recognized by the Court in

Brown

the Act encourages free debate by employers, labor organizations and employees during representation proceedings. But ultimately, it is up to employees to evaluate the campaign information with which they are presented, as Board precedent recognizes. See

Alto Plastics Mfg. Corp.,

136 NLRB 850, 851 (1962) (“[T]he employees may select a `good' labor organization, a `bad' labor organization, or no labor organization, it being

presupposed that employees will intelligently exercise their right to select their bargaining representative”);

Handy Andy, Inc.,

228 NLRB 447, 456 (1977) (declining to withhold certification from unions with records of discriminatory practices);

Midland Nat'l Life Ins. Co.,

263 NLRB 127, 131-32 (1982) (relaxing the Board's misrepresentation standard on the ground that more reliance on the vigorous campaigning by the parties would reduce dilatory post-election litigation). These decisions confirm that the Act presupposes that all parties to a representation proceeding will have a meaningful opportunity to speak.

But a meaningful opportunity to speak does not mean an unlimited opportunity to speak. As in the First Amendment context, there is no fundamental right for parties to “publicize their views `whenever and however and wherever they please.' ”

Wood

v.

Moss,

134 S. Ct. 2056, 2066 (2014).

The election must be held sometime; therefore, the resource of time to campaign is an inherently limited one.

49

This is particularly significant where, as discussed above, the Act also embodies a very strong countervailing policy in favor of holding elections “efficiently and speedily.”

50

In short, the Board is not required to wait for the parties to exhaust all opportunities for speech before holding an election, so long as the opportunity they have is a meaningful one.

49

In this way time is fundamentally different from other speech resources; by necessity, the government must impose some kind of cap on time. Money, by contrast, is a speech resource with no such inherent cap. This distinction must be taken into account in reading cases such as

McCutcheon

v.

FEC,

134 S.Ct. 1434, 1441 (2014);

Citizens United

v.

Federal Election Commission,

130 S.Ct. 876, 898 (2010);

Chamber of Commerce

v.

Brown,

554 U.S. 60 (2008), which involve regulation of campaign spending. Compare NGA II (eliding this distinction in relying on

McCutcheon

) with Testimony of Thomas Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II (discussing this distinction).

50

NLRB

v.

A.J. Tower Co.,

329 U.S. 324, 331 (1946).

As discussed below, the Board concludes that these amendments will not deprive employers of a meaningful opportunity to participate in election campaigns. Many employers are aware of the campaign before the petition is filed, and begin communicating at that time. Indeed, many employers speak to employees about unions in the absence of any particular campaign, and will have laid the foundation for effective campaign speech well in advance. Finally, and most significantly, even where no pre-petition speech whatsoever takes place, these amendments will not eliminate the opportunity for meaningful speech, which will continue to be ample even after the petition is filed.

b. Employer Pre-Petition Knowledge

Numerous comments contend that any shortening of the time period between the petition and election will be detrimental to employers because employers are often unaware that an organizing campaign is underway until the petition is filed.

51

These comments contend that the union will have had a head start in the campaign because it will, necessarily, have already obtained authorization cards from at least 30 percent of employees in the petitioned-for unit, and will have been able to delay filing the petition for whatever amount of time it believed was advantageous in order to communicate with employees.

52

For example, the Chamber comments that union petitions “catch[] many if not most employers off guard and ill-prepared to immediately respond * * *.” The Board was presented with no reliable empirical evidence, however, suggesting that employers are frequently unaware of an organizing drive before the filing of a petition.

53

Indeed, the available evidence suggests the contrary.

51

See,

e.g.,

Chamber; CDW; National Ready-Mixed Concrete Association (NRMCA); Greater Raleigh Chamber of Commerce; Landmark Legal Foundation; Vigilant; Food Marketing Institute (FMI) II; Klein II.

52

NGA; National Meat Association. See also Spartan Motors, Inc.; Cook Illinois Corporation; Arizona Hospital and Healthcare Association; Constangy, Brooks & Smith, LLP (Constangy); Sheppard Mullin; Ranking Member Enzi and Republican Senators; Specialty Steel Industry of North America; International Foodservice Distributors Association; NAM; Chamber; NRTWLDF; Chairman John Kline of the House Committee on Education and the Workforce, and Chairman Phil Roe of the House Subcommittee on Health, Education, Labor and Pensions (Chairmen Kline and Roe) II.

53

COLLE acknowledges this in its comment.

The Supreme Court's decision in

NLRB

v.

Gissel Packing Co.,

395 U.S. 575, 620 (1969), which upheld the Board's authority to order an employer to bargain with a union that had not been certified as the result of an election, is relevant to this issue. In

Gissel,

the employers argued that the Board could not order an employer to bargain with the union, even when the union's majority support was demonstrated through employees' authorization cards and the employer's unfair labor practices had made a free and fair election impossible, because a union could solicit such cards before the employer had an adequate opportunity to communicate with employees. The Court rejected this argument:

The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer's awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful. See,

e.g., Hunt Oil Co.,

157 NLRB 282 (1966);

Don Swart Trucking Co.,

154 NLRB 1345 (1965). Thus, in all of the cases here but [one,] the employer, whether informed by the union or not, was aware of the union's organizing drive almost at the outset and began its antiunion campaign at that time; and even in the [one] case, where the recognition demand came about a week after the solicitation began, the employer was able to deliver a speech before the union obtained a majority.

Id.

at 603. The Supreme Court has thus recognized that the concern expressed in the comments “normally” does not arise even when there is no election and the organizing effort does not proceed beyond the signing of authorization cards. What was true at the time of

Gissel

is still true today.

There is substantial evidence on this point in the rulemaking record. See Testimony, Ole Hermanson on behalf of AFT II, Gabrielle Semel on behalf of CWA II, Thomas Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II, Maneesh Sharma on behalf of AFL-CIO II. In some cases, the employer's knowledge of the campaign is apparent from the fact that the employer committed unfair labor practices targeting employees' organizing activity before the filing of the petition.

54

This is the basis for an empirical study conducted by Professors Kate Bronfenbrenner and Dorian Warren (and submitted with their comment).

55

The study concluded that in 47 percent of cases involving serious unfair labor practice allegations against employers that resulted in a settlement or a Board finding that the law was violated, the alleged unlawful conduct occurred before the petition was filed; in 60 percent of cases involving allegations of interrogation and harassment, the conduct occurred before the petition; and in 54 percent of cases involving allegations of threats and other coercive statements, the conduct occurred before the petition. Professor Warren testified at the 2011 public hearing that the researchers' review of the files in these cases indicated that the conduct resulting in the charge, whether it was actually unlawful or not, evidenced the employer's knowledge of the organizing campaign. Critics of the study contend that it inappropriately focuses on mere allegations of misconduct and that the category of “charges won” inappropriately includes settlements.

56

The importance of the study's findings for present purposes, however, does not rest on whether or not the charges had merit, but rather on the fact that they were filed based on pre-petition conduct and that available information in the case files suggests the employer had pre-petition knowledge of the organizing campaign. The study's findings in that regard are consistent with the Board's experience, and no contrary study was presented to the Board.

54

See,

e.g., Ryder Truck Rental,

341 NLRB 761, 765 n.9, 767 (2004) (petition filed in December; in November, employer invited employees to report any harassment by union),

enforced,

401 F.3d 815 (7th Cir. 2005);

Dlubak Corp.,

307 NLRB 1138, 1141, 1147 (1992) (threats and discriminatory discharges occurred October 5-13; petition filed October 24),

enforced mem.,

5 F.3d 1488 (3d Cir. 1993);

Spring City Knitting Co.,

285 NLRB 426, 431, 444, 448-49, 450 (1987) (unfair labor practices occurred March 1, 14, and 29; petition filed May 3);

Well-Bred Loaf, Inc.,

280 NLRB 306, 311-16 (1986) (threats, interrogation, and unlawful discharges occurred August 22 and 23, at a time when union activity was already common knowledge; petition filed October 6);

Dilling Mechanical Contractors,

318 NLRB 1140, 1141, 1144, 1155 (1995) (union informed employer of campaign on January 4, but employer had threatened employees with discharge in December if they engaged in union activity),

enforced,

107 F.3d 521 (7th Cir. 1997), cert. denied 522 U.S. 862 (1997).

55

The study was based on a random sample of 1000 elections during the period 1999 through 2003

in units with 50 or more eligible voters and a survey of 562 campaigns from that sample. See Bronfenbrenner & Warren,

supra

at 2. An updated version of the study was discussed by Professor Bronfenbrenner in her 2014 hearing testimony.

56

The Chamber in particular makes this point, and complains that the 2011 final rule did not respond to the Chamber's criticism. Chamber II. However, again, the Board is not relying on any evidence of increased ULPs during a lengthy campaign, or in any way suggesting that settled charges are meritorious. The essential point is that the case files themselves show that there was evidence that the employer knew about the campaign before the petition was filed.

Other comments argue that the study shows that only about 50-60% of employers have prepetition knowledge. This is a misunderstanding of the study. The study does not survey a statistical sample of campaigns generally, and ask whether the employer had prepetition knowledge; the study surveys campaigns which resulted in ULP charges, and asks whether the ULP occurred before a petition had been filed. Assuming that employers do not commit ULPs at the earliest possible moment, the fact that about half of ULPs surveyed occurred after petition filing does not prove the negative,

i.e.,

that the employers in those cases

lacked

prepetition knowledge.

Thus the Board recognizes that neither the surveyed universe nor the 50-60% rates observed reflect the broader realities of union organizing campaigns. (The rates very likely are substantially higher.) The study merely provides some measure of empirical confirmation of the Board's qualitative conclusion, based on its own experience, that employers are very often aware of the organizing campaign before the petition is filed. Indeed, the study's focus on employer's with bargaining units larger than the Board's historical medians drives home this point. For the Board has long presumed that in smaller workplaces, employers are even more likely to be aware of union organizing activity among their employees. See,

e.g., Wiese Plow Welding Co.,

123 NLRB 616, 618 (1959).

In addition, the AFL-CIO surveyed 57 union-side labor lawyers, and asked whether “[i]n the organizing drives you have been involved in that resulted in a petition for an election, was the employer aware of the organizing before the petition was filed?” The vast majority—41 attorneys—gave an unqualified “yes” in answer to this question (9 answered “no” and 7 gave some answer other than yes or no).

57

AFL-CIO II. Though this does not show with quantitative precision how often employers know about the campaign, it does cast doubt on the Chambers' unsupported statement that “many if not most” employers are surprised by the petition.

57

The Chamber criticizes the statistical rigor and ambiguity of the AFL-CIO's survey. Chamber II reply. It is quite true, as the Chamber notes, that it is unclear how many campaigns in total are represented in this answer, and that, for a variety of reasons, it would not be methodologically sound to draw rigorous statistical inferences. A speaker representing the AFL-CIO conceded as much at the hearing. That is not, however, the purpose for which the survey was taken or submitted, and that is not the purpose for which the Board is citing it. Rather, the “survey” is nothing more than a summary of “what practitioners are reporting that they are experiencing.” Testimony of Sharma on behalf of AFL-CIO II. In this way, it is like a compilation of comments from experienced labor attorneys, sharing the varieties of their experiences with Board procedures.

Board precedent is also replete with cases in which there was clear evidence that the employer was aware of the organizing campaign well before the petition was filed. In many cases, unions give the employer formal notice of the campaign before filing the petition, either by demanding recognition or by providing the employer with a list of employees on the organizing committee.

58

There are many pragmatic reasons for this common practice, which were explained in some detail by one speaker at the hearing: “[First,] the union, in order to build strength, has to * * * build up the confidence among the employees that they can join together to speak up for themselves. And then, in order to get that message to the larger group of employees, there has to be some committee, some group of people who are willing to go public, have their faces on campaign literature and have their names disclosed as the people who are willing to lead the campaign. Once that happens, the employer knows there is something going on. The second reason for this is quite simply that if you end up in litigation where somebody was discriminated against because of their union activity, you want to be able to show that [the employer knew about their union activity.] If it's been concealed you have a much, much harder time proving that. And then the third reason is because it doesn't work to keep it secret * * *. [W]ord gets to the employer.” Testimony of Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II.

58

See,

e.g., Lucky Cab Co.,

360 NLRB No. 43, slip op. at 1 (Feb. 20, 2014) (Union filed petition on March 30th, but informed the employer of its organizing activity on February 25th. Board also finds that employer already knew of the organizing drive for months before notice was given.);

Flamingo Hilton-Laughlin,

324 NLRB 72, 76 (1997) (union informed employer of campaign and committee members on January 26 and filed petition on March 26), enf. granted in part, denied in part 148 F.3d 1166 (D.C. Cir. 1998);

Keco Industries,

306 NLRB 15, 16 (1992) (union informed employer of campaign in January and filed petition on October 31);

Mariposa Press,

273 NLRB 528, 533 (1984) (union informed employer of campaign on September 25 and filed petition on October 6);

Comet Corp.,

261 NLRB 1414, 1418, 1422 (1982) (union informed employer of campaign and committee members on July 23 and filed petition on August 23);

Quebecor Group, Inc.,

258 NLRB 961, 964 (1981) (union informed employer of campaign on November 17 and filed petition on November 28).

Finally, the evidence on the record on this point is also consistent with the Board's own experience and expertise in processing representation petitions and unfair labor practice cases.

c. General Employer Communications About Unionization

The foregoing authority casts doubt on the contention that “many if not most” employers are unaware of an organizing drive prior to the filing of a petition. But even 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.

59

Some comments suggest that, prior to receiving a petition, employers pay little attention to the issue of union representation, and that general efforts to inform and persuade employees about unionization in the absence of a petition would be time-consuming and expensive.

60

Although some employers may choose not to discuss unionization until a petition is filed, the Board's experience suggests that other employers do discuss unionization with their employees beforehand, often as soon as they are hired. For example,

some employers distribute employee handbooks or show orientation videos to all new employees that express the employer's view on unions or its desire that employees remain unrepresented.

61

59

See comments of John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan Lamare, Ph.D.; Center for American Progress Action Fund; LIUNA MAROC II; Testimony of Hermanson on behalf of AFT II; Testimony of Semel on behalf of CWA II.

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Fox Rothschild LLP; National Mining Association; NRF.

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See,

e.g., U-Haul Co. of California,

347 NLRB 375, 378 (2006) (employee handbook, distributed to all new employees, included a section entitled, “What about Unions?”; the section stated the employer's preference to be union-free and asserted that employees do not need a union or outside third party to resolve workplace issues);

SNE Enterprises,

347 NLRB 472, 473 (2006) (employee handbook stated, “The Company believes a union is not necessary and not in the best interest of either the Company or its Team Members.”),

enforced,

257 Fed.Appx. 642 (4th Cir. 2007);

Overnite Transportation Co.,

343 NLRB 1431, 1455 (2004) (employee handbook stated: “It is important for you to know that the Company values union-free working conditions. We believe that true job security can come only from you and the management of this company working together in harmony to produce a quality product. A union-free environment allows this kind of teamwork to develop.”);

MEMC Electronic Materials, Inc.,

342 NLRB 1172, 1188 (2004) (employee handbook stated that remaining “union-free” is an objective of the company);

Noah's New York Bagels,

324 NLRB 266, 272 (1997) (section of employee handbook entitled “Unions” states: “At Noah's Bagels we believe that unions

are not necessary.

We believe this for many reasons[.] First, there is no reason why you should have to pay union initiation fees, union dues, and union assessments for what you already have. . . . Second, there is no reason why you or your family should fear loss of income or job because of strikes or other union-dictated activity. Third, we believe that the best way to achieve results is to work and communicate directly with each other without the interference of third parties or unions. . . . The Federal government gives employees the right to organize and join unions. It also gives employees the right to say 'no' to union organizers and not join unions. Remember, a union authorization card is a power of attorney which gives a union the right to speak and act

for

you. If you should be asked to sign a union authorization card, we are asking you to say `no.'”);

American Wire Products,

313 NLRB 989, 994 (1994) (employee handbook states, “Our Company is a non-union organization and it is our desire that we always will be”; the same section also requests employees to direct union-related questions to a supervisor);

Heck's, Inc.,

293 NLRB 1111, 1114 (1989) (employee handbook's “Union Policy” read: “As a Company, we recognize the right of each individual Employee, their freedom of choice, their individuality and their needs as a worker and a fellow human being. For these reasons and others, we do not want any of our Employees to be represented by a Union. . . . When you thoroughly understand Heck's liberal benefit programs, the desire to assist you in your job progress and willingness to discuss your job-related problems, you surely will agree there is no need for a union or any other paid intermediary to stand between you and your company.”) Thus, employees may be well aware of their employer's views regarding unions even before any campaign begins.

Several comments contend that an employer's general ability to communicate with employees regarding unions is not a complete substitute for the ability to communicate regarding a specific petition and a known petitioner.

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However, a complete substitute is not necessary in this context; rather, the question is whether the overall speech opportunity in the campaign is meaningful. The opportunity to engage in general speech of this sort is undoubtedly relevant on this question, and must be considered together with the opportunities for later, more specific campaign speech as part of the overall analysis.

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See SHRM; COLLE; NAM; Seyfarth Shaw; ALFA; Testimony of Arnold Perl on behalf of TN Chamber of Commerce.

Finally, even in the absence of any pre-petition campaign, employees have experience with the existing labor-management regime in their workplace, which informs their choice of whether to seek to alter it through collective bargaining. In unionized workplaces in which the incumbent union faces a decertification petition or a rival union petition, the incumbent union will be appropriately judged by its performance to date. Thus, eligible voters have a preexisting base of knowledge and experience with which to evaluate the incumbent. The same is true in workplaces where employees are unrepresented. Employees there have experience with labor-management relations in the absence of union representation. In both cases, employees base their choice, at least in part, on the relationship they are being asked to change.

63

63

See Testimony of Darrin Murray on behalf of SEIU II. In contrast to this point, which is unassailable, the AFL-CIO contends that, based upon a study by Getman and Goldberg, the employees' votes are determined

almost entirely

by preexisting attitudes toward working conditions, rather than by campaign speech. AFL-CIO Reply II. Regardless of the empirical reality of this claim, which we strongly doubt, the Act itself is premised on a contrary assumption, as discussed above. The supposed ineffectiveness of employer speech in persuading voters cannot be cited as reason to restrict that speech, and we expressly decline to rely on this rationale.

d. Employers' Post-Petition Opportunities for Speech

Although the Board has concluded that the record does not establish that pre-petition employer ignorance of an organizing campaign is the norm, the Board accepts that, in at least some cases, employers may, in fact, be unaware of an organizing campaign until a petition is filed. For example, COLLE cites union campaign strategy documents that allegedly call for “stealth” campaigns. In such cases, the union may indeed have a “head start” in the campaign in the sense that it begins communicating its specific message to the unit employees before the employer does so.

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64

See also comment of RILA, contending that “stealth campaigns” are common in the retail industry.

And so the question is presented whether, as a general matter, the rules will provide a meaningful opportunity to campaign under these circumstances. The argument has been presented that a great deal of time is required, weeks and even months, in order to decide on a message and effectively communicate it. Testimony of Kirsanow on behalf of NAM II; Testimony of Edgardo Villanueva on behalf of EMSI Consulting II. This is not consistent with our experience in overseeing Board elections.

Most elections involve a small number of employees. A quarter of elections are held in units with 10 or fewer employees; half of elections are held in units smaller than 25; and three-quarters of all Board elections have 60 or fewer employees in the unit.

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Given this small size—much, much smaller than even the smallest political elections—effective communication with all voters can be accomplished in a short period of time. Even in much larger units, employers have a meaningful opportunity for speech.

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In FY2013; 99% of elections involved fewer than 500 employees.

The employer has opportunities to communicate with employees while they are in the workplace, during the workday. It can compel employees to attend meetings on working time at the employer's convenience.

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Most employers spend more than 35 hours per week in close, in-person contact with the voters. As pointed out at the Board's public hearings in both 2014 and 2011, employers can use as much of that time as they wish communicating with employees about these matters. Testimony of Hermanson on behalf of AFT II; Testimony of Professor Joseph McCartin on behalf of the Kalmanovitz Initiative for Labor and the Working Poor. Both professional “persuaders” and employer representatives who testified against the rule were in agreement on this point. See,

e.g.,

Testimony of Villanueva on behalf of EMSI Consulting II. Yet, generally, only three or four such meetings were considered necessary to communicate with employees effectively.

Id.

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A 1990 study of over 200 representation elections found that employers conducted mandatory meetings prior to 67 percent of the elections. John J. Lawler, Unionization and Deunionization: Strategy, Tactics, and Outcomes 145 (1990). A more recent study found that in 89 percent of campaigns surveyed, employers required employees to attend so-called “captive audience” meetings during work time and that the majority of employees attended at least five such meetings during the course of the campaign. Bronfenbrenner & Warren,

supra

at 6.

Another speaker testified about a recent campaign which aptly illustrates this principle. Testimony of Elizabeth Bunn on behalf of AFL-CIO II. In the

stipulation, the election was set 25 days from the petition; the unit comprised eight employees. The employer held a total of 30 individual, mandatory meetings to communicate with employees about the vote. This demonstrates that, where employers wish to engage in an unusually high amount of communication, they can accomplish that in a short period of time because they control the quantum of work time which is used in conveying their message.

Under current law, employers can compel attendance at meetings at which employees are often expressly urged to vote against representation.

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There is no limit on either the frequency or duration of such mandatory meetings and the rule imposes none. Employees may be relieved of regular duties and, instead, be required to attend such meetings.

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See,

e.g., Fontaine Converting Works Inc.,

77 NLRB 1386, 1387 (1948) (employer did not violate the Act by “compelling its employees to attend and listen to speeches on company time and property”).

These are examples of how employer speech can be expeditiously accomplished. The rule does not limit any communication methods available to employers. Indeed, that is precisely the point of this discussion: That employers have meaningful opportunities to speak with employees both under the old rules and the new.

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68

In light of this fact, the dissent's reading of this discussion is particularly perverse. Relying on

Citizen's United,

130 S.Ct. 876 (2010) and progeny, the dissent claims the Board is using an “anti-distortion” theory to limit “an employer's undue influence,” and rectify employers' “upper hand in campaign communications” by limiting the time employers have to speak. We—yet again—emphatically disclaim any such motivation. As previously discussed, the problems caused by delay have nothing to do with employer speech.

The Board considered such factors in its

Excelsior

rule, which requires that the names and addresses of voters be provided to the petitioning union prior to the election.

Excelsior Underwear, Inc.,

156 NLRB 1236, 1240-41 (1966). The rule was designed, in part, to ensure fairness by maximizing the likelihood that all voters would be exposed to the nonemployer party arguments concerning representation. The rule requires that the petitioner have the opportunity to make use of a list of names and addresses of voters for a minimum of 10 days before the election, effectively allowing the petitioner a minimum of 10 days for such speech. See

Mod Interiors,

324 NLRB 164, 164 (1997); Casehandling Manual Section 11302.1. “The

Excelsior

rule is not intended to test employer good faith or `level the playing field' between petitioners and employers, but to achieve important statutory goals by ensuring that all employees are fully informed about the arguments concerning representation and can freely and fully exercise their Section 7 rights.”

Mod Interiors, Inc.,

324 NLRB 164 (1997). We think a similar analysis is relevant to employers' meaningful opportunity to speak here.

Finally, modern communications technology available in many workplaces permits employers to communicate instantly and on an on-going, even continuous basis with all employees in the voting unit. See,

e.g., Virginia Concrete Corp.,

338 NLRB 1182, 1182 (2003) (employer sent “Vote No” message to “mobile data units” in employees' trucks in the final 24 hours before an election); Testimony of Bunn & Sharma on behalf of AFL-CIO II (less time is needed to communicate in the era of communications technology, from text messaging to video presentations on flash drives).

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Access to information about particular unions, such as news reports, regulatory disclosures, or judicial opinions are readily available on the Internet, both for employees to peruse and for employers who desire to use such information as part of their messaging. See,

e.g.,

Office of Labor-Management Standards (OLMS),

http://www.dol.gov/olms/regs/compliance/rrlo/lmrda.htm

. More general information praising or decrying the effects of union representation is also plentiful. Indeed, now more than ever, parties who wish to immediately participate in an election campaign have the tools to do so at their disposal.

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As described in the NPRM, and below, the Board's experience suggests employers are also increasingly using company and personal email to send campaign communications to their employees. 76 FR 36812, 36820 (June 22, 2011).

e. No Regulatory Minimum or Maximum Time Should Be Set

Many comments propose that the Board set specific standards for the number of days between the petition and the election. In general, however, none of these proposals agree as to what the standards should be.

Some have contended that the minimum should be 0 days. Testimony of Meiklejohn on behalf of Livingston, Adler, Pulda, Meiklejohn & Kelly II. Or the minimum could be 10 days, paralleling the Union's time with the list of voter contact information, also discussed above. Cook-Illinois Corporation suggests a minimum of 21 days, subject to expansion or contraction by agreement of the parties. The dissent suggests a minimum of 30-35 days and a maximum of 60 days. National Right to Work Legal Defense Foundation (NRTWLDF) II proposes a minimum of 35 days. The Heritage Foundation proposes a minimum of 40 days. Others suggest times longer still.

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On the other hand, others have suggested imposing a different kind of regulatory maximum on the election date,

i.e.,

that the election should be held within 15 days of the final voter list unless the parties agree to a later date. Testimony of Hernandez on behalf of UFCW II.

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CDW draws an analogy to the Older Workers Benefit Protection Act, 29 U.S.C. 626, which provides 45 days for employees to sign releases regarding age discrimination claims. CDW argues that this provision demonstrates the impropriety of forcing employees to make a decision on representation in less time than the current 38-day median. The Board does not find it instructive to compare an individual employee's permanent waiver of rights under a completely different statutory scheme with the election procedures at issue here involving groups of employees and, typically, an active campaign by several parties. We also reject NAM's (II) analogy to the 45-day plant-closing or mass layoff notice period under the Worker Adjustment and Retraining Notification Act.

As both supporters and opponents of the rule have noted, however, every case will be different, and it would disserve the purposes of the Act to create a procrustean timeline for election speech. Testimony of Professor Samuel Estreicher; Testimony of Petruska on behalf of LIUNA MAROC II; Testimony of Ronald Meisburg on behalf of the Chamber II; cf. Testimony of Kirsanow on behalf of NAM II (there is no “irreducible point” where “logistical First Amendment violation” takes place). The election will “vary in size, geography and complexity in just about every way imaginable,” and various unique situations will present themselves in particular workplaces. Testimony of Petruska on behalf of LIUNA MAROC II.

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Bearing in mind

the general principles articulated above, the regional director will retain a measure of discretion to consider these matters along with other relevant factors in selecting an election date.

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Many commenters argued that their industry or employment situation presented unique speech needs that should be considered.

RILA and NRF argue that sufficient time to campaign is particularly critical in the retail industry, where employees work on different shifts, often are seasonal or part-time, are less accessible during the workday because they are on the sales floor, and often are unavailable outside normal working hours due to other commitments. See also Food Marketing Institute (FMI) II (similar arguments in food retail). NRF contends, however, that more than 98 percent of all retailers employ fewer than 100 workers, and RILA contends that most petitions seek elections in single-store units and that front-line managers typically constitute 10 to 20 percent of the workforce in each store.

NRMCA and construction industry employers (ABC II) make similar arguments, that their various industries have unique features such as isolated plant locations, unpredictable delivery hours, and dispersed employees. But again, the commenters state that the vast majority of employers in the industry are small businesses. Therefore, most bargaining units are likely to be quite small, which should enable employer communication to take

place in a relatively short period of time. In addition, as explained in the text, under extant precedent, these employers (and others) can require all employees to attend a meeting or multiple meetings outside their normal work hours, in a central location, in order to ensure they receive the employer's message prior to the election.

AHA II takes a different tack, arguing that large units are common in the healthcare field, where large hospitals average 471 RNs, and that this requires more time for speech. There is no question that a small fraction of the Board's elections take place in larger units: in 2013, for example, approximately 2.5% of elections were held in units of 300 or more. But this does not necessarily mean more time for speech is required; in large units it is generally most likely that the employer will have prepetition notice of the organizing simply because a campaign of that magnitude cannot be kept secret. Moreover, considering all the opportunities for speech available in the particular workplace, the mere size of the unit may not be sufficient to justify lengthening the campaign period in the particular case.

Nor are we persuaded by the suggestion that prompt elections are not possible in work forces with a large number of non-English speakers. See testimony of Villanueva on behalf of EMSI Consulting II. Of necessity employers with linguistically diverse work forces have to find ways to communicate with their employees in order to respond to the day-to-day demands of the business. The press of daily business requires prompt response in other matters, and it is reasonable to believe that employers can respond with equal promptness when questions of representation arise in their workplace. In addition, standardized campaign material has been developed by persuaders in a wide variety of languages.

As an alternative, some have discussed reserving “expedited” procedures for cases where the employer has received advanced notice of the campaign from the union. U.S. Poultry II; Testimony of Perl on behalf of the TN Chamber II. This suggestion would at least partially account for case-by-case variation in employer knowledge of the campaign. However, it would account for none of the other ways that campaigns vary, and would continue to apply inappropriate standards to cases that do not justify them. More fundamentally, as discussed, the petition itself is adequate notice because the procedures under the new rules still provide a meaningful opportunity to campaign.

As another alternative, some have argued that the Board should publish, together with the final rule, revised “time targets” for representation case procedures. CDW; Testimony of Joseph Torres on behalf of Winston & Strawn II; Testimony of Ross Friedman on behalf of CDW II. The existing time targets set expectations that facilitate the negotiation of stipulations because “there is discretion to negotiate an election date anytime within” the time target. CDW. Time targets have never been published by the Board; rather, the extant time targets were published by the General Counsel, and represent his experience administratively overseeing the regions. The Board declines to publish any such time targets at present, and will continue to leave the matter within General Counsel discretion. We note that experience with the rules will continue to provide the frame of reference for the General Counsel's time targets, and that some time may be necessary before sufficient experience is available to intelligently revise the current targets; however, we think it reasonable to anticipate that time targets will ultimately be revised and published, and that timely completion of this process will serve the Board's objective of encouraging election agreements as parties adjust to the new rule. Any short term difficulties in reaching election agreements, should dissipate quickly, as they have in the past when prior time targets have been adjusted.

The Board believes that its duty is to perform its statutory functions as promptly as practicable consistent with the policies of the Act. The Board has amended its rules in order to facilitate that objective, but even under the amended rules, which leave the ultimate decision about the setting of the election date within the sound discretion of the regional director after consultation with the parties, the Board does not believe it is likely or even feasible that it could perform its statutory functions in such a short period, and a regional director would set an election so promptly, that employee free choice would be undermined. The Board has thus decided to maintain the current practice of not setting either a maximum or a minimum number of days between petition and election via its rules.

f. Timing Under the Rules in Practice

Finally, it must be noted that many of the concerns expressed about the time from petition to election are predicated on erroneous speculation. Citing Member Hayes's dissent from the NPRM, some comments suggest that the amendments will provide for elections in as few as 10 days after the filing of the petition.

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The practicalities of a regional director's conducting a directed election suggest otherwise. First, it takes at least 8 days to begin the hearing. At least 1 day is required for the hearing and then a decision and direction of election must be drafted and issued; thereafter, the voter list must be produced and the Notice of Election posted for 3 days—all before an election is conducted.

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See Chamber; COLLE.

We are also not persuaded by the complaint that the amendments will work a deprivation of employer speech rights in cases where the employer feels pressured to enter an agreement regarding the election date that provides for a very fast election. Testimony of Elizabeth Milito on behalf of National Federation of Independent Business (NFIB) II. If the employer does not want a particular election date, it is free to not sign, state its position in its statement of position, and the regional director can fix the date of the election in the direction of election. If the employer does sign, there cannot have been a deprivation of rights absent evidence of actual duress.

In addition to arguing that the rule fails to give employers sufficient time to deliver their campaign message, some comments contend that the new rules do not give employees sufficient time to receive and evaluate that message and, if they so choose, to organize themselves to oppose union representation.

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This argument is pressed with particular force in cases where the employer has exercised its statutory right to decline to express any opposition to the union. As a related matter, it is argued that an employer's choice to enter into an election agreement will deny employees an adequate opportunity for free debate among themselves.

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See NRTWLDF; Seyfarth Shaw; ALFA; ACE; CDW; NRMCA; Indiana Chamber; Con-way; Specialty Steel; Americans for Limited Government; International Foodservice; testimony of C. Stephen Jones, Jr. on behalf of Chandler Concrete Co., Inc.; testimony of Charles I. Cohen on behalf of CDW; testimony of David Kadela on behalf of Littler Mendelson; testimony of Harold Weinrich on behalf of Jackson Lewis LLP; testimony of Brett McMahon on behalf of Miller & Long Construction; NRTWLDF II; testimony of William Messenger on behalf of NRTWLDF II.

Some comments include a related argument that employees who are considered likely to oppose the union, and therefore were not involved in the pre-petition organizing campaign, may not know about the organizing drive until the petition is filed. See Seyfarth Shaw; ALFA.

This final rule does not change anything about an employer's ability to remain silent and agree to an election on a particular date. The very same scenario occurs under current rules. If the situation were ever such as to truly work a deprivation of employee rights, the Board would of course remain free to address it. But to date no such case has arisen. Indeed, an important change in this final rule—to require an initial notice upon filing of the petition—is likely to obviate any such risk. A representative of NRTWLDF acknowledged as much at the public

hearing in 2014. Testimony of Messenger on behalf of NRTWLDF II.

g. Miscellaneous Matters Relating to the Opportunity To Campaign

The Board discounts the argument made in some comments that the proposed rule improperly fails to give the employer sufficient time to refute unrealistic promises or correct any mischaracterizations or errors by union organizers.

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For 3 decades, Board law has been settled that campaign misstatements—regardless of their timing—are generally insufficient to interfere with an election, unless they involve forged documents that make employees unable to evaluate the statements as propaganda. See

Midland National Life Insurance Co.,

263 NLRB 127, 132 (1982) (noting that employees are capable of “recognizing campaign propaganda for what it is and discounting it”). The

Midland

rule applies even if the misrepresentation takes place only a few days before the election. See,

e.g., U-Haul Co. of Nevada, Inc.,

341 NLRB 195, 195 (2004) (document circulated by union two days before election did not amount to objectionable misrepresentation under

Midland

).

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Vigilant; Indiana Chamber of Commerce; John Deere Water; PIA; Greater Raleigh Chamber of Commerce; NMMA; Associated Oregon Industries; NAM; testimony of Michael Prendergast on behalf of Holland & Knight; Ohio Grocers Association II; Klein Dub & Holleb II. T&W Block Company makes a related argument, contending that the failure to allow sufficient time would destabilize labor relations because employees would enter bargaining with unrealistic expectations.

The Board rejects the argument of Vigilant that a shorter period between petition and election will result in a greater number of mail-ballot elections and an accompanying increase in the potential for fraud and coercion. Nothing in the proposed or adopted rules alters the standard for determining when an election should be conducted by mail ballot. A regional director's determination of whether an election should be held manually or by mail is not informed by the number of days between the petition and the election. Rather, it is based on factors such as the desires of the parties and whether employees are “scattered” due to their geographic locations or work hours and whether there is a strike, lockout, or picketing in progress. See

San Diego Gas & Electric,

325 NLRB 1143, 1145 (1998); Casehandling Manual Section 11301.2.

Baker & McKenzie contends that, to the extent the amendments will result in elections being held within 10 to 25 days after the petition, they are inconsistent with the Board's other notice provisions, which provide longer periods. For example, Baker & McKenzie notes that a respondent must post a remedial notice in an unfair labor practice case for 60 days or longer, and that the Board previously promulgated a rule requiring employers to continuously post in the workplace a notice of employee rights under the Act.

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The Board does not agree that its other posting requirements are or were in any way inconsistent with the final rule, because each serves different purposes in different contexts than the notice rules issued today. First, remedial notices alleviate the impact of unlawful acts by an employer or union, rather than communicate about a specific petition in a specific unit. Thus, the time reasonably necessary for employees to obtain the message from a posted remedial notice, and for that message to dissipate the effects of unfair labor practices, is longer than that necessary for employees to receive information from employers and unions actively campaigning for their support. Second, the Board explained why it required continuous posting of the NLRA rights notice, as opposed to its remedial and election notices, “[I]t is reasonable to expect that even though some employees may not see the notices immediately, more and more will see them and learn about their NLRA rights as time goes by.” 76 FR 54005, 54030 (Aug. 30, 2011). Thus, the Board recognized the goal of “reach[ing] new employees” (

id.

) could be met by requiring the rights notice to be readily available to employees whenever they chose to examine it. In contrast, employee turnover is unlikely to be of concern during the time between a direction of election and the election itself. Finally, the Board's existing notice-posting provision for elections, unaltered by the final rule, requires that the notice be posted for only 3 working days before the election. Compare 29 CFR 103.20 (2010)

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with amended 102.67(k). The Board thus rejects the “one size fits all” suggestion for maximum and/or minimum time periods for conducting elections under the Act.

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Following litigation, that rule was withdrawn by the Board. See 77 FR 25868 (May 2, 2012) (announcing indefinite delay in effective date pending litigation outcome); NLRB January 6, 2014 press release announcing decision not to seek Supreme Court review of the two adverse appeals court decisions,

http://www.nlrb.gov/news-outreach/news-story/nlrbs-notice-posting-rule

(last visited September 26, 2014).

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This and subsequent citations to the regulations in 2010 is not meant to suggest that there is a substantive difference between the current regulations and the regulations as they existed in 2010, but rather to emphasize that the relevant language existed in our regulations before the issuance of the first June 22, 2011 NPRM in this rulemaking.

Other comments suggest that the amendments will generate litigation because, if a party has less time to campaign between the petition and election, the party will “assert as many defenses as possible” or try to obtain a hearing simply to “buy . . . more time” before the election. AHA. SEIU's reply comment notes that there was no significant drop in the consent or stipulation rate following former General Counsel Fred Feinstein's initiative aimed at commencing all pre-election hearings between 10 and 14 days after the filing of the petition. Rather than undermining the rationale for the proposals, the suggestion that parties might use the pre-election hearing to delay the conduct of an election reinforces the need for the final rule. Both the ability and incentive for parties to attempt to raise issues and engage in litigation in order to delay the conduct of an election are reduced by the final rule.

Some comments, including that of Professor Samuel Estreicher, suggest that the employer needs sufficient time not only to campaign, but to retain counsel so that the employer understands the legal constraints on its campaign activity and does not violate the law or engage in objectionable conduct.

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A number of comments specifically argue that any compression of the time period between the petition and election will be particularly difficult for small businesses, which do not have in-house legal departments and may not have ready access to either in-house or outside labor attorneys or consultants to counsel them on how to handle the campaign.

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Similarly, some comments suggest that, to the extent the amendments result in a shorter period of time between the petition and the election, they will increase objections and unfair labor practice litigation, because employers will not have an opportunity to train managers on how to avoid objectionable and unlawful

conduct. See Con-way Inc.; Bluegrass Institute; ATA.

79

77

See also testimony of former Board Member Marshall Babson on behalf of Seyfarth Shaw LLP (emphasizing that the rules must balance the various competing interests).

78

NRMCA; Indiana Chamber; National Automobile Dealers Association (NADA); T&W Block Company; York Society for Human Resource Management; NMMA; Council of Smaller Enterprises (COSE); Bluegrass Institute; Landmark Legal Foundation; American Trucking Associations (ATA); testimony of C. Stephen Jones, Jr. on behalf of Chandler Concrete Co., Inc.; American Fire Sprinkler Association; Leading Age; testimony of Milito on behalf of NFIB II.

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Other comments, however, cite evidence indicating a positive correlation between the length of a campaign and unfair labor practice allegations. See SEIU; NELP; Senior Member Miller and Democratic House Members; John Logan, Ph.D., Erin Johansson, M.P.P., and Ryan Lamare, Ph.D.; Senators Tom Harkin, Robert Casey, and Patty Murray, and U.S. Representatives George Miller and John Tierney. See also testimony of Professor Ethan Daniel Kaplan (citing similar results from a study in Canada).

However, under the final rule, when the petition is served on the employer by the regional office, it will be accompanied by the Notice of Petition for Election, (a revised version of Form NLRB 5492), which will continue to set forth in understandable terms the central rules governing campaign conduct. This provides an immediate explanation of rights and obligations, while an employer who wishes to locate counsel may do so. In any event, the Board does not believe that any shortening of the time between petition and election that results from the final rule will impair employers' ability to retain counsel in a timely manner.

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In this regard, Russ Brown, an experienced labor-relations consultant, testified at the public hearing that his firm routinely monitors petitions filed in the regional offices and promptly offers its services to employers named in those petitions. In general, the well-documented growth of the labor-relations consulting industry undermines the contention that small businesses are unable to obtain advice quickly. Comments, such as the one cited above, indicate that it is a routine practice for labor-relations consultants to monitor petitions filed with the regional offices, so that the consultants may then approach the employers to offer their services.

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80

Ranking Member Enzi and Republican Senators assert that employers will significantly limit their use of legal counsel during organizing campaigns due to the Department of Labor's recent NPRM interpreting the advice exemption to the “persuader” disclosure requirement under the Labor-Management Reporting and Disclosure Act. See 76 FR 36178 (proposed June 21, 2011). However, the DOL's stated goal is publicizing the interactions between employers and covered entities, not stopping those interactions from taking place. See

id.

at 36182, 36190. In any event, the Board views such concerns as more properly directed to the DOL. The Department of Labor has not yet taken action on the proposed rule. See 79 FR 896, 1025 (Jan. 7, 2014). The Board also wishes to make clear that—contrary to COLLE's suggestion—its actions have been in no way influenced by any actions of the DOL.

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See testimony of Russ Brown on behalf of the Labor Relations Institute (LRI), noting that the Labor Relations Institute's Web site “is probably one of the leading sources of keeping up with just about every scrap of paper you guys push.” The Web site,

www.lrionline.com

, includes a section entitled “union avoidance” and advertises online libraries that include a “daily petition library” with “supplemental petition information available daily” and an “organizing library” tracking “union organizing activity.” See also testimony of Michael D. Pearson, former field examiner (noting that consultants check the public filings of RC petitions on a daily basis to solicit business from employers); testimony of Professor Joseph McCartin on behalf of the Kalmanovitz Initiative for Labor and the Working Poor (noting that a “thriving industry of consultants has emerged”).

3. Congressional Inaction in 1959

ACC points out that Congress, in enacting the Labor-Management Reporting and Disclosure Act (LMRDA) in 1959, rejected a proposal that would have permitted an election to take place before a hearing when there were no issues warranting adjudication, so long as the election was not held sooner than 30 days after the petition was filed (ACC Reply). The proposal, contained in the Senate version of the bill, would have permitted a so-called “pre-hearing election,” barred by the 1947 Taft-Hartley amendments to the Act. S. 1555, 86th Cong., 1st Sess. 705 (as passed by Senate, Apr. 25, 1959). At one point Senator Kennedy suggested that this 30-day period would provide a “safeguard against rushing employees into an election where they are unfamiliar with the issues.” 105 Cong. Rec. 5984 (April 15, 1959) (statement of Sen. Kennedy). The House bill, however, never contained a parallel provision, and it was not enacted into law.

Nevertheless, ACC (Reply) argues that the proposed amendments described in the NPRM are inconsistent with congressional intent because they do not guarantee a minimum of 30 days between petition and election. To the extent that ACC's argument bears on the final rule, the Board rejects it. Report language and statements of individual legislators on a provision that was not enacted in 1959 are entitled to little if any weight in assessing the meaning of legislation adopted in 1935 and amended in 1947. In fact, the Supreme Court has clearly stated that “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute” because a bill can be proposed or rejected for any number of reasons.

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Solid Waste Agency of Northern Cook County

v.

U.S. Army Corps of Engineers,

531 U.S. 159, 169-70 (2001) (internal quotation marks omitted); see also

Central Bank of Denver, N.A.

v.

First Interstate Bank of Denver, N.A.,

511 U.S. 164, 187 (1994). Indeed, the rejection of the proposed amendment would more reasonably be understood as an indication that Congress did not believe a minimum time between petition and election is necessary. However, the legislative history of the LMRDA offers no guidance on why the provision was rejected, and Congress imposed no requirements in the LMRDA or at any other time concerning the length of time that must elapse between petition and election. Accordingly, the Board finds no indication in this legislative history that the final rule is in any way contrary to Congress's intent.

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For this reason, the Board declines COLLE's similar suggestion to find relevant Congress' failure to pass the 1978 Labor Law Reform Act, versions of which provided for varying time frames for representation elections.

D. Effects on Employee Representation and the Economy

Many comments do not address the substance of the proposed amendments, but instead speak generally in favor of, or in opposition to, labor unions and the process of collective bargaining. In response, the Board continues to observe that, by passing and amending the NLRA, Congress has already made the policy judgment concerning the value of the collective-bargaining process; the Board is not free to ignore or revisit that judgment. As explained in the NPRM, the amendments are intended to carry out the Board's statutory mandate to establish fair and efficient procedures for determining if a question of representation exists, for conducting secret-ballot elections, and for certifying the results of secret-ballot elections. Accordingly, the Board will not engage in an analysis, invited by these comments, concerning the general utility of labor unions and the collective-bargaining process.

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Many comments additionally charge that the Board's motives for issuing the rule are improper in that the Board seeks to act as an advocate for unions (rather than as a neutral overseer of the process), to drive up the rates of union representation, and to “stack the deck” against employers in union organizing campaigns. No credible evidence has ever been provided in support of this claim. The reasons for issuing the rule are fully set forth in the NPRM and in this preamble; favoritism is not among them.

Other comments assert that the proposed amendments would lead to increased union representation and question the wisdom of adopting rules that would have such an effect on a fragile economy. Again, the Board views these comments as questioning policy decisions already made by Congress.

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The amendments do not reflect a judgment concerning whether increased employee representation would benefit or harm the national economy.

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To the extent that comments suggest that the Board failed to consider the proposed rule's potential to increase the costs on small employers associated with increased unionization as part of its obligations under the Regulatory Flexibility Act, 5 U.S.C. 601

et seq.,

those comments are addressed in the Regulatory Flexibility Act section below.

V. Comments on Particular Sections

Part 102, Subpart C—Procedure Under Sec. 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 Sec. 9(b) of the Act

Sec. 102.60 Petitions

The final rule adopts the Board's proposals to permit parties to file petitions electronically and to require that the petitioner serve a copy of the petition on all other interested parties. The final rule also clarifies that parties filing petitions electronically need not also file an original for the Agency's records. The final rule further adopts the Board's proposal to require service of two additional agency documents that will be available to petitioners in the regional offices and on the Board's public Web site. The first document, which will substitute for and be an expanded version of the Board's Form 4812, will describe the Board's representation case procedures. The second document the petitioner will serve along with the petition will be a Statement of Position form, which will include a request for commerce information (such as that solicited by current NLRB Form 5081, the Questionnaire on Commerce Information).

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The contents and purpose of the Statement of Position form are described further below in relation to § 102.63.

The Board received generally positive comments regarding its proposal to allow parties to file petitions electronically.

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For instance, the AFL-CIO II noted that the electronic filing of petitions is consistent with general Federal, state and local government practices and is part of the Board's `gradual and entirely sensible transition' to electronic filing, service and storage of documents. The Center on National Labor Policy (CNLP) commends the proposal as “excellent”, but apparently misunderstands the proposal as establishing

mandatory

electronic filing, when it does not. The Board's view, echoed by several comments, is that allowing—but not requiring—the electronic filing of petitions is part of its nearly decade-long effort to adapt its procedures to modern methods of communication.

87

This rule recognizes the widely accepted use of email for legal and official communications and more closely aligns Board service procedures with those of the Federal courts.

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See PIA; American Federation of State, County and Municipal Employees (AFSCME); Chamber; Chairman Harkin, Senior Member Miller, and Congressional Democrats II; United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of US and Canada (Plumbers) II; Bart Bolger II; Testimony of Professor Anne Marie Lofaso.

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Also, the Board has decided to clarify, consistent with its current e-filing practice concerning other types of case documents, that petitioners who file their petitions electronically are not required to file an extra copy of the petition in paper form. Upon careful consideration of the NPRM proposal, which would have required extra paper copies to be filed for both faxed petitions and electronically-filed petitions, the Board is of the view that an extra paper copy of an electronically-filed petition would be unnecessary. The Board's experience has been that the legibility of electronically-filed documents does not differ significantly from paper originals, unlike faxes, which are sometimes significantly less legible than their original paper versions. Moreover, original paper-copies could cause administrative difficulties if regional staff were to inadvertently treat the later-arriving paper copy as a new case rather than a courtesy copy of the electronically-filed petition that would have been docketed earlier. However, the Board has concluded that such risks are worth incurring to overcome potential legibility issues regarding faxed petitions.

The final rule's requirement that the petitioner serve a copy of the petition on all other interested parties when it files its petition with the Board further co

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