Breaking: Union rule despised by right-wingers now roaring back to life

[Omaha Steve]

Source: Salon.com

A rule that Romney scorched and judges killed is being revived by Obama appointees

Josh Eidelson

A proposal to streamline union elections that was slammed by Mitt Romney and scrapped by a Woody Allen-quoting judge is being revived by the National Labor Relations Board, the agency announced Wednesday morning.

“Unnecessary delay and inefficiencies hurt both employees and employers,” NLRB chairman Mark Pearce said in an emailed statement. While emphasizing that “No final decisions have been made,” Pearce argued the proposed changes “would modernize the representation case process and fulfill the promise of the National Labor Relations Act.” The new move by the NLRB, the federal agency charged with interpreting and enforcing private sector labor law, was made by a 3-2, party-line vote. It sets in motion a multi-month process, including an April public hearing, leading up to a final vote.

By changing how challenges to voter eligibility are handled, the proposed rule change has the potential to shorten the period between when non-union workers petition for a government-supervised election to win union recognition, and the date when the election actually takes place. Then-presidential contender Mitt Romney slammed the proposed changes in 2011, charging that Obama’s “out-of-control labor board continues to trample on the rights of workers, the interests of job creators, and the rule of law” and would “force employees into ‘quickie’ union elections” and thus “benefit only union bosses, while preventing employees from making an informed decision about unionization and preventing employers from challenging illegal activity.”

The business lobby made similar arguments, and the Chamber of Commerce successfully sued to block the change. Without assessing the merits of the Labor Board’s proposal, Judge James Boasberg ruled in 2012 that “the rule was adopted without the statutorily required quorum” of three members “present,” because GOP member Brian Hayes “simply did not show up” for an electronic vote. If Hayes had voted against the rule, it would have passed 2-to-1. “According to Woody Allen,” Boasberg noted at the start of his decision, “80 percent of life is just showing up.” The D.C. Circuit Court of Appeals dismissed the NLRB’s appeal last December. But by paving the way for approval of a full complement of NLRB members, Senate Democrats’ November move to curb the filibuster made it more feasible for the NLRB to introduce the election rule (and perhaps an also-stymied know-your-rights poster mandate) all over again.

FULL story at link.



Read more: http://www.salon.com/2014/02/05/breaking_union_rule_despised_by_right_wingers_now_roaring_back_to_life/

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Mitt Romney (Credit: Reuters/Jonathan Ernst)

[Sherman A1]

1. K&R

[benfranklin1776]

2. Outstanding!

It will limit the amount of time companies like squalid mart have to browbeat and intimidate workers during organizational campaigns. The irony is they spend more on their antiunion tactics then if they simply paid their workers a livable wage. Card check would be better but this is a good start.

[madrchsod]

3. this supreme court will make sure that will never happen...

we have to have a democratic house,senate ,and president to insure the supreme court is moved to the center left to make sure any pro labor laws are upheld.

the case winding its way to the court right now could be a crippling blow to unions and unionization in the usa.

[Titonwan]

4. I'm afraid you may be right.

[jwirr]

5. This is great news. The Union is our voice in this country regardless what our status. Wherever we

are in the 99% we need to somehow give them our support. I read my daughter's Union papers and talk with my Union son-in-law and it amazes me how much they are aware of what is going on with all the rest of us. Great news.

[happyslug]

6. Here is the actual PROPOSED rule

Last edited Thu Feb 6, 2014, 12:06 AM - Edit history (3)

https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-02128.pdf

The actual PROPOSED regulations start at the bottom of page 133 of the above.

An overview of the proposed rules start on page 33.

A "Response" to the dissent starts on page 68.

The Dissent of the two GOP members of the National Labor Relations board starts on page 79.

Remember once this rule is approved someone will challenge it, but the reason the Federal Courts ruled the previous effort to pass these rules can not be used. The previous proposed regulations had been approved by the vote of two Democratic members of the NLRB while the third then member of the board, the Court of Appeals found did NOT attend the vote (The NLRB said he did and abstained from the vote, but the court ruled otherwise). A Quorum is needed to have any vote of the NLRB and today that means three members must be in attendance. With only two voting on the rule and the third member of the board refusing to attend (And the US Senate refusing to confirm Obama's other two nominees to the board) the board did NOT have a Quorum and thus the rule was NOT properly adopted by the NLRB.

Senator Reid's abolishment of Filibusters of Presidential Appointments, men the Senate could approved Obama's three appointees to the NLRB (one of the appointees is a GOP, it is considered a rule that the NLRB contain at least two businessmen and two union members thus Obama appointed a GOP to satisfy that rule, knowing his other two appointments will more then cover for that second GOP vote on the NLRB).

Now, this does NOT mean these rules will withstand judicial attack, but as a rule the Courts will tend to defer to regulatory agencies when it comes to issuing regulations (Scalia is big on this concept, thus may vote to uphold these regulation on those grounds, through he may accept the argument this speeding up of union elections violate the right of corporations Freedom of Speech).



The Actual proposed rule

Note to moderators. This is an official US Government publication and as such is NOT subject to copyright, thus we can print all of it.


In consideration of the foregoing, the National Labor Relations Board proposes to amend chapter I of title 29, Code of Federal Regulations, as follows:

PART 101—STATEMENTS OF PROCEDURES

1. The authority citation for part 101 continues to read as follows:

Authority: Sec. 6 of the National Labor Relations Act, as amended (29 U.S.C. 151, 156), and sec. 552(a) of the Administrative Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1) of Pub. L. 100–236, 28 U.S.C. 2112(a)(1).

Subpart C— [Removed and Reserved]

2. Remove and reserve subpart C, consisting of §§ 101.17 through 101.21.

Subpart D—[Removed and Reserved]

3. Remove and reserve subpart D, consisting of §§ 101.22 through 101.25.

Subpart E—[Removed and Reserved]

4. Remove and reserve subpart E, consisting of §§ 101.26 through 101.30.

PART 102—RULES AND REGULATIONS, SERIES 8

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

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

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

6. Revise § 102.60 to read as follows:

§ 102.60 Petitions.

(a) Petition for certification or decertification. A petition for investigation of a question concerning representation of employees under paragraphs (1)(A)(i) and (1)(B) of section 9(c) of the Act (hereinafter called a petition for certification) may be filed by an employee or group of employees or any individual or labor organization acting in their behalf or by an employer. A petition under paragraph (1)(A)(ii) of section 9(c) of the Act, alleging that the individual or labor organization which has been certified or is being currently recognized as the bargaining representative is no longer such representative (hereinafter called a petition for decertification), may be filed by any employee or group of employees or any individual or labor organization acting in their behalf. Petitions under this section shall be in writing and signed, and either shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalty of perjury, that its contents are true and correct (see 28 U.S.C. 1746). One original of the petition shall be filed. A person filing a petition by facsimile or electronically pursuant to § 102.114(f) or (i) of this part shall also file an original for the Agency's records, but failure to do so shall not affect the validity of the filing by facsimile or electronically, if otherwise proper. Except as provided in § 102.72 of this subpart, such petitions shall be filed with the regional director for the Region wherein the
bargaining unit exists, or, if the bargaining unit exists in two or more Regions, with the
regional director for any of such Regions with a certificate of service on all parties named
in the petition. Along with the petition, the petitioner shall serve a description of
procedures in representation cases and a Statement of Position form. Prior to the transfer
of the record to the Board, the petition may be withdrawn only with the consent of the regional director with whom such petition was filed. After the transfer of the record to the Board, the petition may be withdrawn only with the consent of the Board. Whenever the regional director or the Board, as the case may be, approves the withdrawal of any petition, the case shall be closed.

(b) Petition for clarification of bargaining unit or petition for amendment of certification. A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation, may be filed by a labor organization or by an employer. Where applicable the same procedures set forth in paragraph (a) of this section shall be followed.

7. Revise § 102.61 to read as follows:

§ 102.61 Contents of petition for certification; contents of petition for decertification; contents of petition for clarification of bargaining unit; contents of petition for amendment of certification.

(a) RC Petitions. A petition for certification, when filed by an employee or group of employees or an individual or labor organization acting in their behalf, shall contain the following:

(1) The name of the employer.

(2) The address of the establishments involved.

(3) The general nature of the employer's business.

(4) A description of the bargaining unit which the petitioner claims to be appropriate.

(5) The names and addresses of any other persons or labor organizations who claim to represent any employees in the alleged appropriate unit, and brief descriptions of the contracts, if any, covering the employees in such unit.

(6) The number of employees in the alleged appropriate unit.

(7) A statement that a substantial number of employees in the described unit wish to be represented by the petitioner. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any other party.

(8) A statement that the employer declines to recognize the petitioner as the representative within the meaning of section 9(a) of the Act or that the labor organization is currently recognized but desires certification under the act.

(9) The name, affiliation, if any, and address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes
of the representation proceeding.

(10) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.

(11) Any other relevant facts.

(b) RM Petitions. A petition for certification, when filed by an employer, shall contain the following:

(1) The name and address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the the case if other factors require it unless the labor organization withdraws its claim to majority representation.

(c) RD Petitions. Petitions for decertification shall contain the following:

(1) The name of the employer.

(2) The address of the establishments and a description of the bargaining unit
involved.

(3) The general nature of the employer's business.

(4) The name and address of the petitioner and affiliation, if any, and the name,
title, address, telephone number, fax number, and email address of the individual who will
serve as the representative of the petitioner and accept service of all papers for purposes of
the representation proceeding.

(5) The name or names and addresses of the individuals or labor organizations who have been certified or are being currently recognized by the employer and who claim to represent any employees in the unit involved, and the expiration date of any contracts covering such employees.

(6) An allegation that the individuals or labor organizations who have been certified or are currently recognized by the employer are no longer the representative in the appropriate unit as defined in section 9(a) of the Act.

(7) The number of employees in the unit.

(8) A statement that a substantial number of employees in the described unit no longer wish to be represented by the incumbent representative. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any other party.

(9) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.
(10) Any other relevant facts.

(d) UC Petitions. A petition for clarification shall contain the following:

(1) The name of the employer and the name of the recognized or certified bargaining representative.

(2) The address of the establishment involved.

(3) The general nature of the employer's business.

(4) A description of the present bargaining unit, and, if the bargaining unit is certified, an identification of the existing certification.

(5) A description of the proposed clarification.

(6) The names and addresses of any other persons or labor organizations who claim to represent any employees affected by the proposed clarifications, and brief descriptions of the contracts, if any, covering any such employees.

(7) The number of employees in the present bargaining unit and in the unit as proposed under the clarification.

(8) The job classifications of employees as to whom the issue is raised, and the number of employees in each classification.

(9) A statement by petitioner setting forth reasons why petitioner desires clarification of unit.

(10) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.

(11) Any other relevant facts.

(e) AC Petitions. A petition for amendment of certification shall contain the following:

(1) The name of the employer and the name of the certified union involved.

(2) The address of the establishment involved.

(3) The general nature of the employer's business.

(4) Identification and description of the existing certification.

(5) A statement by petitioner setting forth the details of the desired amendment and reasons therefor.

(6) The names and addresses of any other persons or labor organizations who claim to represent any employees in the unit covered by the certification and brief descriptions of the contracts, if any, covering the employees in such unit.

(7) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.

(8) Any other relevant facts.

(f) Provision of original signatures. Evidence filed pursuant to § 102.61(a)(7), (b)(8), or (c)(8) of this subpart together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the regional director no later than two days after the facsimile or electronic filing.

8. Revise § 102.62 to read as follows:

(a) Consent election agreements with final regional director determinations of post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of employees involved may, with the approval of the regional director, enter into an agreement providing for the waiver of a hearing and for an election and further providing that postelection disputes will be resolved by the regional director. Such agreement, referred to as a consent election agreement, shall include a description of the appropriate unit, the time and place of holding the election, and the payroll period to be used in determining what employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the regional director. The method of conducting such election shall be consistent with the method followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70 of this subpart except that the rulings and determinations by the regional director of the results thereof shall be final, and the regional director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, provided further that rulings or determinations by the regional director in respect to any amendment of such certification shall also be final.

(b) Stipulated election agreements with discretionary board review. Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of the employees involved may, with the approval of the regional director, enter into an agreement providing for the waiver of a hearing and for an election as described in paragraph (a) of this section and further providing that the parties may request Board review of the regional director’s resolution of post-election disputes. Such agreement, referred to as a stipulated election agreement, shall also include a description of the appropriate bargaining unit, the time and place of holding the election, and the payroll period to be used in determining which employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the regional director. The method of conducting such
election and the post-election procedure shall be consistent with that followed by the
regional director in conducting elections pursuant to §§ 102.69 and 102.70 of this
subpart.

(c) Full consent election agreements with final regional director determinations of pre- and post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of the employees involved may, with the approval of the regional director, enter into an agreement, referred to as a full consent election agreement, providing that pre- and post-election disputes will be resolved by the regional director. Such agreement provides for a hearing pursuant to §§ 102.63, 102.64, 102.65, 102.66 and 102.67 of this subpart to determine if a question concerning representation exists. Upon the conclusion of such a hearing, the regional director shall issue a decision. The rulings and determinations by the regional director thereunder shall be final, with the same force and effect, in that case, as if issued by the Board. Any election ordered by the regional director shall be conducted under the direction and supervision of the regional director. The method of conducting such election shall be consistent with the method followed by the regional director in conducting elections pursuant to §§ 102.69 and 102.70 of this subpart, except that the rulings and determinations by the regional director of the results thereof shall be final, and the regional director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, provided further that rulings or determinations by the regional director in respect to any amendment of such certification shall also be final.

(d) Voter lists. Absent agreement of the parties to the contrary specified in the election agreement or extraordinary circumstances specified in the direction, within two days after approval of an election agreement pursuant to paragraphs (a) or (b) of this section, or issuance of a direction of election pursuant to paragraph (c) of this section, the employer shall provide to the regional director and the parties named in the agreement or direction a list of the full names, home addresses, available telephone numbers, available email addresses, work locations, shifts, and job classifications of all eligible voters. In order to be timely filed, the list must be received by the regional director and the parties named in the agreement or direction within two days after the approval of the agreement or issuance of the direction. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes related to the representation proceeding and related Board proceedings.

(e) Final notices to employees of election. Upon approval of the election agreement pursuant to paragraphs (a) or (b) or with the direction of election pursuant to paragraph (c), the regional director shall promptly transmit the Board’s Final Notice to Employees of Election to the parties by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The Final Notice to Employees of Election shall be posted in accordance with § 102.67(i) of this subpart.

9. Revise § 102.63 to read as follows:

§ 102.63 Investigation of petition by regional director; notice of hearing; service of notice; Initial Notice to Employees of Election; Statement of Position form;
withdrawal of notice.

(a) Investigations and notices.

(1) After a petition has been filed under § 102.61(a), (b), or (c) of this subpart, if no agreement such as that provided in § 102.62 of this subpart is entered into and if it appears to the regional director that there is reasonable list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be
grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes related to the representation proceeding and related Board proceedings.

(e) Final notices to employees of election. Upon approval of the election agreement pursuant to paragraphs (a) or (b) or with the direction of election pursuant to paragraph (c), the regional director shall promptly transmit the Board’s Final Notice to Employees of Election to the parties by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The Final Notice to Employees of Election shall be posted in accordance with § 102.67(i) of this subpart.

9. Revise § 102.63 to read as follows:

§ 102.63 Investigation of petition by regional director; notice of hearing; service of notice; Initial Notice to Employees of Election; Statement of Position form; withdrawal of notice.

(a) Investigations and notices. (1) After a petition has been filed under § 102.61(a), (b), or (c) of this subpart, if no agreement such as that provided in § 102.62 of this subpart is entered into and if it appears to the regional director that there is reasonable list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes related to the representation proceeding and related Board proceedings.

(e) Final notices to employees of election. Upon approval of the election agreement pursuant to paragraphs (a) or (b) or with the direction of election pursuant to paragraph (c), the regional director shall promptly transmit the Board’s Final Notice to Employees of Election to the parties by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The Final Notice to Employees of Election shall be posted in accordance with § 102.67(i) of this subpart.

9. Revise § 102.63 to read as follows:

§ 102.63 Investigation of petition by regional director; notice of hearing; service of notice; Initial Notice to Employees of Election; Statement of Position form;withdrawal of notice.

(a) Investigations and notices.

(1) After a petition has been filed under § 102.61(a), (b), or (c) of this subpart, if no agreement such as that provided in § 102.62 of this subpart is entered into and if it appears to the regional director that there is reasonable cause to believe that a question of representation affecting commerce exists, that the policies of the act will be effectuated, and that an election will reflect the free choice of employees in an appropriate unit, the regional director shall prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a notice of hearing before a hearing officer at a time and place fixed therein. The regional director shall set the hearing for a date 7 days from the date of service of the notice absent special circumstances. A copy of the petition, a description of procedures in representation cases, an “Initial Notice to Employees of Election”, and a Statement of Position form as described in paragraphs (b)(1) through (3) of this section, shall be served with such notice of hearing. Any such notice of hearing may be amended or withdrawn before the close of the hearing by the regional director on his own motion.

(2) The employer shall immediately post the Initial Notice to Employees of Election, where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically. The employer shall maintain the posting until the petition is dismissed or the Initial Notice is replaced by the Final Notice to Employees of Election. Failure to properly post and distribute the Initial Notice to Employees of Election shall be grounds for setting aside the results of the election whenever proper objections are filed. (b)(1) Statement of Position in RC cases. After a petition has been filed under § 102.61(a) of this subpart and the regional director has issued a notice of hearing, the employer shall file and serve on the parties named in the petition its Statement of Position
by the date and in the manner specified in the notice unless that date is the same as the hearing date. If the Statement of Position is due on the date of the hearing, its completion shall be the first order of business at the hearing before any further evidence is received, and its completion may be accomplished with the assistance of the hearing officer.

(i) The employer’s Statement of Position shall state whether the employer agrees that the Board has jurisdiction over the petition and provide the requested information concerning the employer’s relation to interstate commerce; state whether the employer agrees that the proposed unit is appropriate, and, if the employer does not so agree, state the basis of the contention that the proposed unit is inappropriate, and describe the most similar unit that the employer concedes is appropriate; identify any individuals occupying classifications in the petitioned-for unit whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention; raise any election bar; state the employer’s position concerning the type, dates, times, and location of the election and the eligibility period; and describe all other issues the employer intends to raise at the hearing.

(ii) The Statement of Position shall also state the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer. (iii) The Statement of Position shall further state the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer concedes is appropriate. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form.

(iv) In addition to the information described in paragraph (b)(1)(iii) of this section, the lists filed with the regional director, but not served on any other party, shall contain available telephone numbers, available email addresses, and home addresses of all individuals referred to in paragraph (b)(1)(iii) of this section.

(v) The employer shall be precluded from contesting the appropriateness of the petitioned-for unit at any time and from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(1)(iii) and (iv) of this section.

(2) Statement of Position in RM cases. If a petition has been filed under § 102.61(b) of this subpart, the individual or labor organization which is alleged to have presented to the petitioner a claim to be recognized shall file and serve on the regional director and the parties named in the petition its Statement of Position such that it is received by the regional director and the parties named in the petition on the date specified in the notice unless that date is the same as the hearing date. If the Statement of Position is due on the date of the hearing, its completion shall be the first order of business at the hearing before any further evidence is received, and its completion may be accomplished with the assistance of the hearing officer.

(i) Individual or labor organization’s Statement of Position. The individual or labor organization’s Statement of Position shall describe all issues the party intends to raise at the hearing.

(ii) Identification of representative for service of papers. The Statement of Position shall also state the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the individual or labor organization and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the individual or labor organization.

(iii) Employer’s Statement of Position. Within the time permitted for filing the Statement of Position, the employer shall file with the regional director, and serve on the individual or labor organization, a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form.

(iv) Contact information for individuals in proposed unit. In addition to the information described in paragraph (b)(2)(iii) of this section, the lists filed with the regional director, but not served on any other party, shall contain the full names, available telephone numbers, available e-mail addresses, and home addresses of all individuals referred to in paragraph (b)(2)(iii) of this section.

(v) Preclusion. The employer shall be precluded from contesting the appropriateness of the unit at any time and from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(2)(iii) and (iv) of this section.

(3) Statement of Position in RD cases. If a petition has been filed under § 102.61(c) of this subpart, the employer and the certified or recognized representative of employees shall file and serve on the regional director and the parties named in the petition their respective Statements of Position such that they are received by the regional director and the parties named in the petition on the date specified in the notice unless that date is the same as the hearing date. If the Statements of Position are due on the date of the hearing, their completion shall be the first order of business at the hearing before any further evidence is received, and their completion may be accomplished with the assistance of the hearing officer.

(i) The Statements of Position of the employer and the certified or recognized representative shall describe all issues each party intends to raise at the hearing.

(ii) The Statements of Position shall also state the name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the representative of the employer or the certified or recognized representative of the employees and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer or the certified or recognize representative, respectively.

(iii) The employer’s Statement of Position shall also state the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all individuals in the certified or recognized unit. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form.

(iv) In addition to the information described in paragraph (b)(3)(iii) of this section, the lists filed with the regional director, but not served on any other party, shall contain the full names, available telephone numbers, available email addresses, and home addresses of all individuals referred to in paragraph (b)(3)(iii) of this section.

(v) The employer shall be precluded from contesting the appropriateness of the petitioned-for unit at any time and from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses, if the employer fails to timely furnish the information described in paragraphs (b)(3)(iii) and (b)(3)(iv) of this section.

(c) UC or AC cases. After a petition has been filed under § 102.61(d) or (e) of this subpart, the regional director shall conduct an investigation and, as appropriate, he may issue a decision without a hearing; or prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a notice of hearing before a hearing officer at a time and place fixed therein; or take other appropriate action. If a notice of hearing is served, it shall be accompanied by a copy of the petition. Any such notice of hearing may be amended or withdrawn before the close of the hearing by the regional director on his own motion. All hearing and posthearing procedure under paragraph (c) of this section shall be in conformance with §§ 102.64 through 102.69 ofthis subpart whenever applicable, except where the unit or certification involved arises out of an agreement as provided in § 102.62(a) of this subpart, the regional director's action shall be final, and the provisions for review of regional director's decisions by theBoard shall not apply. Dismissals of petitions without a hearing shall not be governed by §102.71 of this subpart. The regional director's dismissal shall be by decision, and a request for review therefrom may be obtained under § 102.67 of this subpart, except where an agreement under § 102.62(a) of this subpart is involved.

10. Revise § 102.64 to read as follows:

§ 102.64 Conduct of hearing.

(a) The purpose of a hearing conducted under section 9(c) of the Act is to determine if a question of representation exists. A question of representation exists if a petition as described in section 9(c) of the Act has been filed concerning a unit appropriate for the purpose of collective bargaining or, in the case of a petition filed under section 9(c)(1)(A)(ii), concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. If, upon the record of the hearing, the regional director finds that such a question of representation exists and there is no bar to an election, he shall direct an election to resolve the question and, subsequent to that election, unless
specifically provided otherwise in these rules, resolve any disputes concerning the eligibility or inclusion of voters that might affect the results of the election.

(b) Hearings shall be conducted by a hearing officer and shall be open to the public unless otherwise ordered by the hearing officer. At any time, a hearing officer may be substituted for the hearing officer previously presiding. Subject to the provisions of § 102.66 of this subpart, it shall be the duty of the hearing officer to inquire fully into all genuine disputes as to material facts in order to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the Act.

(c) The hearing officer shall continue the hearing from day to day until completed absent extraordinary circumstances.

11. Revise § 102.65 to read as follows:

§ 102.65 Motions; interventions.

(a) All motions, including motions for intervention pursuant to paragraphs (b) and (e) of this section, shall be in writing or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. An original and two copies of written motions shall be filed and a copy thereof immediately shall be served on the other parties to the proceeding. Motions made prior to the transfer of the record to the Board shall be filed with the regional director, except that motions made during the hearing shall be filed with the hearing officer. After the transfer of the record to the Board, all motions shall be filed with the Board. Such motions shall be printed or otherwise legibly duplicated. Eight copies of such motions shall be filed with the Board. The regional director may rule upon all motions filed with him, causing a copy of said ruling to be served on the parties, or he may refer the motion to the hearing officer: Provided, That if the regional director prior to the close of the hearing grants a motion to dismiss the petition, the petitioner may obtain a review of such ruling in the manner prescribed in § 102.71 of this subpart. The hearing officer shall rule, either orally on the record or in writing, upon all motions filed at the hearing or referred to him as hereinabove provided, except that all motions to dismiss petitions shall be referred for appropriate action at such time as the entire record is considered by the regional director or the Board, as the case may be.

(b) Any person desiring to intervene in any proceeding shall make a motion for intervention, stating the grounds upon which such person claims to have an interest in the proceeding. The regional director or the hearing officer, as the case may be, may by order permit intervention in person or by counsel or other representative to such extent and upon such terms as he may deem proper, and such intervenor shall thereupon become a party to the proceeding. Any person desiring to intervene in any such proceeding shall also complete a Statement of Position form.

(c) All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpoenas shall become a part of the record only upon the request of the party aggrieved thereby as provided in § 102.66(g) of this subpart. Unless expressly authorized by the Rules and Regulations, rulings by the regional director or by the hearing officer shall not be appealed directly to the Board, but shall be considered by the Board on appropriate request for review pursuant to § 102.67 (b), (c), and (d) or § 102.69 of this subpart. Nor shall rulings by the hearing officer be appealed directly to the regional director unless expressly authorized by the Rules and Regulations, except by special permission of the regional director, but shall be considered by the regional director when he reviews the entire record. Requests to the regional director, or to the Board in appropriate cases, for special permission to appeal from a ruling of the hearing officer or the regional director, together with the appeal from such ruling, shall be filed promptly, in writing, and shall briefly state the reasons special permission should be granted, including why the issue will otherwise evade review, and the grounds relied on for the appeal. The moving party shall immediately serve a copy of the request for special permission and of the appeal on the other parties and on the regional director. Any statement in opposition or other response to the request and/or to the appeal shall be filed promptly, in writing, and shall be served immediately on the other parties and on the regional director. Neither the Board nor the regional director will grant a request for special permission to appeal except in extraordinary circumstances where it appears that the issue will otherwise evade review. No party shall be precluded from raising an issue at a later time based on its failure to seek special permission to appeal. If the Board or the regional director, as the case may be, grants the request for special permission to appeal, the Board or the regional director may proceed forthwith to rule on the appeal. Neither the filing nor the grant of such a request shall, unless otherwise ordered by the Board, operate as a stay of an election or any action taken or directed by the regional director. Notwithstanding a pending request for special permission to appeal, the regional director shall not impound ballots cast in an election unless otherwise ordered by
the Board.

(d) The right to make motions or to make objections to rulings on motions shall not be deemed waived by participation in the proceeding.

(e) (1) A party to a proceeding may, because of extraordinary circumstances, move after the close of the hearing for reopening of the record, or move after the decision or report for reconsideration, for rehearing, or to reopen the record, but no such motion shall stay the time for filing a request for review of a decision or exceptions to a report. No motion for reconsideration, for rehearing, or to reopen the record will be entertained by the Board or by any regional director or hearing officer with respect to any matter which could have been but was not raised pursuant to any other section of these rules:

Provided, however, That the regional director may treat a request for review of a decision or exceptions to a report as a motion for reconsideration. A motion for reconsideration shall state with particularity the material error claimed and with respect to any finding of material fact shall specify the page of the record relied on for the motion. A motion for rehearing or to reopen the record shall specify briefly the error alleged to require a rehearing or hearing de novo, the prejudice to the movant alleged to result from such error, the additional evidence sought to be adduced, why it was not presented previously, and what result it would require if adduced and credited. Only newly discovered evidence—evidence which has become available only since the close of the hearing—or evidence which the regional director or the Board believes should have been taken at the hearing will be taken at any further hearing.

(2) Any motion for reconsideration or for rehearing pursuant to this paragraph (e) shall be filed within 14 days, or such further period as may be allowed, after the service of the decision or report. Any request for an extension of time to file such a motion shall be served promptly on the other parties. A motion to reopen the record shall be filed promptly on discovery of the evidence sought to be adduced.

(3) The filing and pendency of a motion under this provision shall not unless so ordered operate to stay the effectiveness of any action taken or directed to be taken nor will a regional director or the Board delay any decision or action during the period specified in paragraph (e)(2) of this section, except that, if a motion for reconsideration based on changed circumstances or to reopen the record based on newly discovered evidence states with particularity that the granting thereof will affect the eligibility to vote of specific employees, the Board agent shall have discretion to allow such employees to vote subject to challenge even if they are specifically excluded in the direction of election and to permit the moving party to challenge the ballots of such employees even if they are specifically included in the direction of election in any
election conducted while such motion is pending. A motion for reconsideration, for
rehearing, or to reopen the record need not be filed to exhaust administrative remedies.

12. Revise § 102.66 to read as follows:

§ 102.66 Introduction of evidence: rights of parties at hearing; subpoenas.

(a) Rights of parties at hearing. Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party and the hearing officer shall have power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence relevant to any genuine dispute as to a material fact. The hearing officer shall identify such disputes as follows:

(1) Joinder in RC cases. In a case arising under § 102.61(a) of this subpart, after the employer completes its Statement of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statement. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the employer fails to take a position regarding the appropriateness of the petitioned-for unit, the petitioner shall explain why the proposed unit is appropriate and may support its explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) of this subpart or through examination of witnesses and introduction of documentary or other evidence.

(2) Joinder in RM cases. In a case arising under § 102.61(b) of this subpart, after the individual or labor organization completes its Statement of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statement. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the individual or labor organization fails to take a position regarding the appropriateness of the petitioned-for unit, the petitioner shall explain why the proposed unit is appropriate and may support its explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) of this subpart or through examination of witnesses and introduction of documentary or other evidence.

(3) Joinder in RD cases. In a case arising under § 102.61(c) of this subpart, after
the employer and the certified or recognized representative of employees complete their
respective Statements of Position and prior to the introduction of further evidence, the petitioner shall respond to each issue raised in the Statements. The hearing officer shall not receive evidence relevant to any issue concerning which parties have not taken adverse positions: Provided, however, That if the employer and/or the certified or recognized representative fails to take a position regarding whether the petitioned-for unit is coextensive with the unit for which a representative is certified or recognized, the petitioner shall explain why the proposed unit is appropriate and may support its explanation with evidence in the form of sworn statements or declarations consistent with the requirements stated in § 102.60(a) of this subpart or through examination of witnesses and introduction of documentary or other evidence.

(b) Offers of proof; discussion of election procedure. After identifying the issues in dispute pursuant to paragraph (a) of this section, the hearing officer shall solicit offers of proof from the parties or their counsel as to all such issues. The offers of proof shall take the form of a written statement or an oral statement on the record identifying each witness the party would call to testify concerning the issue and summarizing the witness’ testimony. The hearing officer shall examine the offers of proof related to each issue in dispute and shall proceed to hear testimony and accept other evidence relevant to the issue only if the offers of proof raise a genuine dispute as to any material fact. Prior to the close of the hearing, the hearing officer will:

(1) Solicit the parties’ positions on the type, dates, times, and locations of the election and the eligibility period, but shall not permit litigation of those issues;

(2) Inform the parties that the regional director will issue a decision, direction of election or both as soon as practicable and that the director will immediately transmit the document(s) to the parties’ designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided); and

(3) Inform the parties what their obligations will be under these rules if the director directs an election and of the time for complying with such obligations.

(c) Preclusion. A party shall be precluded from raising any issue, presenting any evidence relating to any issue, cross-examining any witness concerning any issue, and presenting argument concerning any issue that the party failed to raise in its timely Statement of Position or to place in dispute in response to another party’s Statement:

Provided, however, that no party shall be precluded from contesting or presenting
evidence relevant to the Board’s statutory jurisdiction to process the petition; Provided, further, that no party shall be precluded, on the grounds that a voter’s eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of any voter during the election. If a party contends that the petitioned-for unit is not appropriate in its Statement of Position but fails to state the most similar unit that it concedes is appropriate, the party shall also be precluded from raising any issue as to the appropriateness of the unit, presenting any evidence relating to the appropriateness of the unit, cross-examining any witness concerning the appropriateness of the unit, and presenting argument concerning the appropriateness of the unit.

(d) Disputes concerning less than 20 percent of the unit. If at any time during the hearing, the hearing officer determines that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer shall close the hearing.

(e) Witness examination and evidence. Witnesses shall be examined orally under oath. The rules of evidence prevailing in courts of law or equity shall not be controlling. Stipulations of fact may be introduced in evidence with respect to any issue.

(f) Objections. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing, accompanied by a short statement of the grounds of such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing.

(g) Subpoenas. The Board, or any Member thereof, shall, on the written application of any party, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence, or documents, in their possession or under their control. The Executive Secretary shall have the authority to sign and issue any such subpoenas on behalf of the Board or any Member thereof. Any party may file applications for subpoenas in writing with the regional director if made prior to hearing, or with the hearing officer if made at the hearing. Applications for subpoenas may be made ex parte. The regional director or the hearing officer, as the case may be, shall forthwith grant the subpoenas requested. Any person served with a subpoena, whether ad testificandum or duces tecum, if he or she does not intend to comply with the subpoena, shall, within 5 days after the date of service of the subpoena or by such earlier time as the hearing officer or regional director
shall determine, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke shall be the date the subpoena is received. Such petition shall be filed with the regional director who may either rule upon it or refer it for ruling to the hearing officer: Provided, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer or, with the permission of the hearing officer, presented orally. Notice of the filing of petitions to revoke shall be promptly given by the regional director or hearing officer, as the case may be, to the party at whose request the subpoena was issued. The regional director or the hearing officer, as the case may be, shall revoke the subpoena if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The regional director or the hearing officer, as the case may be, shall make a simple statement of procedural or other grounds for his ruling. The petition to revoke, any answer filed thereto, and any ruling thereon shall not become part of the record except upon the request of the party aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them.

(h) Oral argument and briefs. Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Briefs shall be filed only upon special permission of the hearing officer and within the time the hearing officer permits.

(i) Hearing officer analysis. The hearing officer may submit an analysis of the record to the regional director but he shall make no recommendations.

(j) Witness fees. Witness fees and mileage shall be paid by the party at whose instance the witness appears.

13. Revise § 102.67 to read as follows:

§ 102.67 Proceedings before the regional director; further hearing; action by the
regional director; review of action by the regional director; statement in opposition;
final notice of election; voter list.

(a) Proceedings before regional director. The regional director may proceed, either forthwith upon the record or after oral argument, the submission of briefs, or further hearing, as he may deem proper, to determine whether a question concerning representation exists in a unit appropriate for purposes of collective bargaining, and to direct an election, dismiss the petition, or make other disposition of the matter. If the hearing officer has determined during the hearing or the regional director determines after the hearing that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the regional director shall direct that those individuals be permitted to vote subject to challenge. In the event that the regional director permits individuals whose eligibility or inclusion remains in dispute to vote subject to challenge, the Final Notice to Employees of Election shall advise employees that said individuals are neither included in, nor excluded from, the bargaining unit, inasmuch as the regional director has permitted them to vote subject to challenge. The election notice shall further advise employees that the eligibility or inclusion of said individuals will be resolved, if
necessary, following the election.

(b) Directions of elections; dismissals; requests for review. A decision by the regional director upon the record shall set forth his findings, conclusions, and order or direction: Provided, however, that the regional director may direct an election with findings and a statement of reasons to follow prior to the tally of ballots. In the event that the regional director directs an election, said direction shall specify the type, date, time, and place of the election and the eligibility period. The regional director shall schedule the election for the earliest date practicable consistent with these rules. The regional director shall transmit the direction of election to the parties’ designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). Along with the direction of election, the regional director shall also transmit the Board’s Final Notice to Employees of Election by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The
regional director shall also electronically transmit the Final Notice to Employees of Election to affected employees to the extent practicable. The decision of the regional director shall be final: Provided, however, That within 14 days after service of a decision dismissing a petition any party may file a request for review of such a dismissal with the Board in Washington, DC: Provided, further, That any party may, after the election, file a request for review of a regional director’s decision to direct an election within the time periods specified and as described in § 102.69 of this subpart.

(c) Grounds for review. The Board will grant a request for review only where compelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds:

(1) That a substantial question of law or policy is raised because of:

(i) The absence of, or

(ii) A departure from, officially reported Board precedent.

(2) That the regional director's decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.

(3) That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.

(4) That there are compelling reasons for reconsideration of an important Board rule or policy.

(d) Contents of request. Any request for review must be a self-contained document enabling the Board to rule on the basis of its contents without the necessity or recourse to the record; however, the Board may, in its discretion, examine the record in evaluating the request. With respect to the ground listed in paragraph (c)(2) of this section, and other grounds where appropriate, said request must contain a summary of all evidence or rulings bearing on the issues together with page citations from the transcript and a summary of argument. But such request may not raise any issue or allege any facts not timely presented to the regional director.

(e) Opposition to request. Any party may, within 7 days after the last day on which the request for review must be filed, file with the Board a statement in opposition thereto, which shall be served in accordance with the requirements of paragraph (h) of this section. A statement of such service of opposition shall be filed simultaneously with the Board. The Board may deny the request for review without awaiting a statement in opposition thereto.

(f) Waiver; denial of request. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.

(g) Grant of review; briefs. The granting of a request for review shall not stay the regional director's decision unless otherwise ordered by the Board. Except where the Board rules upon the issues on review in the order granting review, the appellants and other parties may, within 14 days after issuance of an order granting review, file briefs with the Board. Such briefs may be reproductions of those previously filed with the regional director and/or other briefs which shall be limited to the issues raised in the request for review. Where review has been granted, the Board will consider the entire record in the light of the grounds relied on for review. Any request for review may be withdrawn with the permission of the Board at any time prior to the issuance of the decision of the Board thereon.

(h)(1) Format of request. All documents filed with the Board under the provisions of this section shall be filed in seven copies, double spaced, on 81/2- by 11-inch paper, and shall be printed or otherwise legibly duplicated. Requests for review, including briefs in support thereof; statements in opposition thereto; and briefs on review shall not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the Board by motion, setting forth the reasons therefor, filed not less than 5 days, including Saturdays, Sundays, and holidays, prior to the date the document is due. Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page authorities cited.

(2) Service of copies of request. The party filing with the Board a request for review, a statement in opposition to a request for review, or a brief on review shall serve a copy thereof on the other parties and shall file a copy with the regional director. A statement of such service shall be filed with the Board together with the document.

(3) Extensions. Requests for extensions of time to file requests for review, statements in opposition to a request for review, or briefs, as permitted by this section, shall be filed with the Board or the regional director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the regional director. A statement of such service shall be filed with the document.

(i) Final notice to employees of election. The employer shall post copies of the Board's Final Notice to Employees of Election in conspicuous places at least 2 full working days prior to 12:01 a.m. of the day of the election and shall also distribute the Final Notice to Employees of Election electronically if the employer customarily communicates with employees in the unit electronically. In elections involving mail ballots, the election shall be deemed to have commenced the day the ballots are deposited by the regional office in the mail. In all cases, the notices shall remain posted until the end of the election. The term working day shall mean an entire 24-hour period excluding Saturdays, Sundays, and holidays. A party shall be estopped from objecting to nonposting of notices if it is responsible for the nonposting. Failure properly to post and distribute the election notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a) of this subpart.

(j) Voter lists. Absent extraordinary circumstances specified in the direction of election, the employer shall, within 2 days after such direction, provide to the regional director and the parties named in such direction a list of the full names, home addresses, available telephone numbers, available email addresses, work locations, shifts, and job classifications of all eligible voters. In order to be timely filed, the list must be received by the regional director and the parties named in the direction within 2 days of the direction of election unless a longer time is specified therein. The list of names shall be alphabetized (overall or by department) and be in an electronic format generally approved by the Board’s Executive Secretary unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the regional director and served electronically on the other parties named in the petition. Failure to file or serve the list within the specified time and in proper format shall be grounds for setting aside the election whenever proper objections are filed. The regional director shall make the list available upon request to all parties in the case on the same day or as soon as practicable after the director receives the list from the employer. The parties shall use the list exclusively for purposes of the representation proceeding and related Board proceedings.

14. Revise § 102.68 to read as follows:

§ 102.68 Record; what constitutes; transmission to Board. The record in a proceeding conducted pursuant to the foregoing section, or conducted pursuant to § 102.69 of this subpart, shall consist of: the petition, notice of hearing with affidavit of service thereof, Statements of Position, motions, rulings, orders, the stenographic report of the hearing and of any oral argument before the regional director, stipulations, exhibits, affidavits of service, and any briefs or other legal memoranda submitted by the parties to the regional director or to the Board, and the decision of the regional director, if any. Immediately upon issuance of an order granting a request for review by the Board, the regional director shall transmit the record to the
Board.

15. Revise § 102.69 to read as follows:

§ 102.69 Election procedure; tally of ballots; objections; requests for review of directions of elections, hearings; hearing officer reports on objections and challenges; exceptions to hearing officer reports; requests for review of regional director reports or decisions in stipulated or directed elections.

(a) Election procedure; tally; objections. Unless otherwise directed by the Board, all elections shall be conducted under the supervision of the regional director in whose Region the proceeding is pending. All elections shall be by secret ballot. Whenever two or more labor organizations are included as choices in an election, either participant may, upon its prompt request to and approval thereof by the regional director, whose decision shall be final, have its name removed from the ballot: Provided, however, That in a proceeding involving an employer-filed petition or a petition for decertification the labor organization certified, currently recognized, or found to be seeking recognition may not have its name removed from the ballot without giving timely notice in writing to all parties and the regional director, disclaiming any representation interest among the employees in the unit. A pre-election conference may be held at which the parties may check the list of voters and attempt to resolve any questions of eligibility or inclusions in the unit. When the election is conducted manually, any party may be represented by observers of its own selection, subject to such limitations as the regional director may prescribe. Any party and Board agents may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded. Upon the conclusion of the election the ballots will be counted and a tally of ballots prepared and immediately made available to the parties. Within 7 days after the tally of ballots has been prepared, any party may file with the regional director an original and five copies of objections to the conduct of the election or to conduct affecting the results of the election with a certificate of service on all parties, which shall contain a short statement of the reasons therefore and a written offer of proof in the form described in § 102.66(b) of this subpart insofar as applicable, but the written offer of proof shall not be served on any other party. Such filing must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. A person filing objections by facsimile or electronically pursuant to § 102.114(f) or (i) of this part shall also file an original for the Agency's records, but failure to do so shall not affect the validity of the filing if otherwise proper. In addition, extra copies need not be filed if the filing is by facsimile or electronically pursuant to § 102.114(f) or (i) of this part.

(b) Requests for review of directions of elections. If the election has been conducted pursuant to § 102.67 of this subpart, any party may file a request for review of the decision and direction of election with the Board in Washington, D.C. In the absence of election objections or potentially determinative challenges, the request for review of the decision and direction of election shall be filed within 14 days after the tally of ballots has been prepared. In a case involving election objections or potentially determinative challenges, the request for review shall be filed within 14 days after the regional director’s report or supplemental decision on challenged ballots, on objections, or on both, and may be combined with a request for review of that decision as provided in paragraph (d)(3) of this section. The procedures for such request for review shall be the same as set forth in § 102.67(c) through (h) of this subpart insofar as applicable. If no request for review is filed, the decision and direction of election is final and shall have the same effect as if issued by the Board. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.

(c) Certification in the absence of objections, determinative challenges and requests for review. If no objections are filed within the time set forth in paragraph (a) of this section, if the challenged ballots are insufficient in number to affect the results of the election, if no runoff election is to be held pursuant to § 102.70 of this subpart, and if no request for review is filed pursuant to paragraph (b) of this section, the regional director shall forthwith issue to the parties a certification of the results of the election, including certification of representative where appropriate, with the same force and effect as if issued by the Board, and the proceeding will thereupon be closed.

(d)(1)(i) Reports. If timely objections are filed to the conduct of an election or to conduct affecting the results of the election, and the regional director determines that the evidence described in the accompanying offer of proof would not constitute grounds for overturning the election if introduced at a hearing, the regional director shall issue a report or supplemental decision disposing of objections and a certification of the results of the election, including certification of representative where appropriate, unless there are potentially determinative challenges.

(ii) Notices of hearing. If timely objections are filed to the conduct of the election or to conduct affecting the results of the election, and the regional director determines that the evidence described in the accompanying offer of proof could be grounds for overturning the election if introduced at a hearing, or if the challenged ballots are sufficient in number to affect the results of the election, the regional director shall transmit to the parties’ designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided) a notice of hearing before a hearing officer at a place and time fixed therein no later than 14 days after the preparation of the tally of ballots or as soon as practicable thereafter: Provided, however, that the regional director may consolidate the hearing concerning objections and determinative challenges with an unfair labor practice proceeding before an administrative law judge.

(iii) Hearings; hearing officer reports; exceptions to regional director. Any hearing pursuant to this section shall be conducted in accordance with the provisions of §§ 102.64, 102.65, and 102.66 of this subpart, insofar as applicable, except that, upon the close of such hearing, the hearing officer shall prepare and cause to be served on the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the issues. Any party may, within 14 days from the date of issuance of such report, file with the regional director an original and one copy of exceptions to such report, with supporting brief if desired. A copy of such exceptions, together with a copy of any brief filed, shall immediately be served on the other parties and a statement of service filed with the regional director. Within 7 days from the last date on which exceptions and any supporting brief may be filed, or such further time as the regional director may allow, a party opposing the exceptions may file an answering brief with the regional director. An original and one copy shall be submitted. A copy of such answering brief shall immediately be served on the other parties and a statement of service filed with the regional director. If no exceptions are filed to such report, the regional director, upon the expiration of the period for filing such exceptions, may decide the matter forthwith upon the record or may make other disposition of the case.

(2) Regional director reports or decisions in consent or full consent elections. If the election has been held pursuant to § 102.62(a) or (c) of this subpart, the report or decision of the regional director shall be final and shall include a certification of the results of the election, including certification of representative where appropriate.

(3) Requests for review of regional director reports or decisions in stipulated or directed elections. If the election has been held pursuant to §§ 102.62(b) or 102.67 of this subpart, within 14 days from the date of issuance of the regional director’s report or decision on challenged ballots or on objections, or on both, any party may file with the Board in Washington, DC, a request for review of such report or decision which may be combined with a request for review of the regional director’s decision to direct an election as provided in § 102.67(b) of this subpart. The procedures for post-election requests for review shall be the same as set forth in § 102.67(c) through (h) of this subpart insofar as applicable. If no request for review is filed, the report or decision is final and shall have the same effect as if issued by the Board. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any
issue which was, or could have been, raised in the representation proceeding. Denial of a
request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. Provided, however, that in any proceeding wherein a representation case has been consolidated with an unfair labor practice proceeding for purposes of hearing the provisions of § 102.46 of this part shall govern with respect to the filing of exceptions or an answering brief to the exceptions to the administrative law judge’s decision.

(e)(1)(i) Record in case with hearing. In a proceeding pursuant to this section in which a hearing is held, the record in the case shall consist of the notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exhibits, together with the objections to the conduct of the election or to conduct affecting the results of the election, offers of proof, any briefs or other legal memoranda submitted by the parties, any report on such objections and/or on challenged ballots, exceptions, the decision of the regional director, any requests for review, and the record previously made as defined in § 102.68 of this subpart. Materials other than those set out above shall not be a part of the record.

(ii) Record in case with no hearing. In a proceeding pursuant to this section in which no hearing is held, the record shall consist of the objections to the conduct of the election or to conduct affecting the results of the election, any report or decision on objections or on challenged ballots and any request for review of such a report or decision, any documentary evidence, excluding statements of witnesses, relied upon by the regional director in his decision or report, any briefs or other legal memoranda submitted by the parties, and any other motions, rulings or orders of the regional director. Materials other than those set out above shall not be a part of the record, except as provided in paragraph (e)(3) of this section.

(2) Immediately upon issuance of an order granting a request for review by the Board, the regional director shall transmit to the Board the record of the proceeding as defined in paragraph (e)(1) of this section.

(3) In a proceeding pursuant to this section in which no hearing is held, a party filing a request for review of a regional director’s report or decision on objections, or any opposition thereto, may support its submission to the Board by appending thereto copies of any offer of proof, including copies of any affidavits or other documentary evidence, it has timely submitted to the regional director and which were not included in the report or decision. Documentary evidence so appended shall thereupon become part of the record in the proceeding. Failure to append that evidence to its submission to the Board in the representation proceeding as provided above, shall preclude a party from relying on such evidence in any subsequent unfair labor proceeding.

(f) Revised tally of ballots. In any case under this section in which the regional director, upon a ruling on challenged ballots, has directed that such ballots be opened and counted and a revised tally of ballots issued, and no objection to such revised tally is filed by any party within 7 days after the revised tally of ballots has been made available, the regional director shall forthwith issue to the parties certification of the results of the election, including certifications of representative where appropriate, with the same force and effect as if issued by the Board. The proceeding shall thereupon be closed.

(g) Format of filings with regional director. All documents filed with the regional director under the provisions of this section shall be filed double spaced, on 81/2- by 11- inch paper, and shall be printed or otherwise legibly duplicated. Briefs in support of exceptions or answering briefs shall not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the regional director by motion, setting forth the reasons therefor, filed not less than 5 days, including Saturdays, Sundays, and holidays, prior to the date the brief is due. Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page references and an alphabetical table of cases and other authorities cited.

(h) Extensions of time. Requests for extensions of time to file exceptions, requests for review, supporting briefs, or answering briefs, as permitted by this section, shall be filed with the Board or the regional director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the regional director. A statement of such service shall be filed with the document.

16. Revise § 102.71(c) to read as follows:

§ 102.71 Dismissal of petition; refusal to proceed with petition; requests for review
by the Board of action of the regional director.
* * * * *

(c) A request for review must be filed with the Board in Washington, DC, and a copy filed with the regional director and copies served on all the other parties within 14 days of service of the notice of dismissal or notification that the petition is to be held in abeyance. The request shall be submitted in eight copies and shall contain a complete statement setting forth facts and reasons upon which the request is based. Such request shall be printed or otherwise legibly duplicated. Requests for an extension of time within which to file the request for review shall be filed with the Board in Washington, DC, and a statement of service shall accompany such request.

Subpart D—Procedure for Unfair Labor Practice and Representation Cases Under
Sections 8(b)(7) and 9(c) of the Act

17. Revise § 102.76 to read as follows:

§ 102.76 Petition; who may file; where to file; contents.

When picketing of an employer has been conducted for an object proscribed by Section 8(b)(7) of the Act, a petition for the determination of a question concerning representation of the employees of such employer may be filed in accordance with the provisions of §§ 102.60 and 102.61 of this part, insofar as applicable:

Provided, however, That if a charge under § 102.73 of this subpart has been filed against the labor organization on whose behalf picketing has been conducted, the petition shall not be required to contain a statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act; or that the union represents a substantial number of employees; or that the labor organization is currently recognized but desires certification under the act; or that the individuals or labor organizations who have been certified or are currently recognized by the employer are no longer the representative; or, if the petitioner is an employer, that one or more individuals or labor organizations have presented to the petitioner a claim to be recognized as the exclusive representative of the employees in the unit claimed to be appropriate.

18. Revise § 102.77(b) to read as follows:

§ 102.77 Investigation of petition by regional director; directed election.
* * * * *

(b) If after the investigation of such petition or any petition filed under subpart C of this part, and after the investigation of the charge filed pursuant to § 102.73 of this subpart, it appears to the regional director that an expedited election under section 8(b)(7)(C) of the Act is warranted, and that the policies of the Act would be effectuated thereby, he shall forthwith proceed to conduct an election by secret ballot of the employees in an appropriate unit, or make other disposition of the matter: Provided, however, That in any case in which it appears to the regional director that the proceeding raises questions which cannot be decided without a hearing, he may issue and cause to be served on the parties, individuals, and labor organizations involved a notice of hearing before a hearing officer at a time and place fixed therein. In this event, the method of conducting the hearing and the procedure following, shall be governed insofar as applicable by §§ 102.63 to 102.69 inclusive of this part. Provided further, however, That if a petition has been filed which does not meet the requirements for processing under the
expedited procedures, the regional director may process it under the procedures set forth
in subpart C of this part.

Subpart E—Procedure for Referendum Under Section 9(e) of the Act

19. Revise § 102.83 to read as follows:

§ 102.83 Petition for referendum under section 9(e)(1) of the Act; who may file;
where to file; withdrawal.

A petition to rescind the authority of a labor organization to make an agreement requiring as a condition of employment membership in such labor organization may be filed by an employee or group of employees on behalf of 30 percent or more of the employees in a bargaining unit covered by such an agreement. The petition shall be in writing and signed, and either shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief. One original of the petition shall be filed with the regional director wherein the bargaining unit exists or, if the unit exists in two or more Regions, with the regional director for any of such Regions. A person filing a petition by facsimile or electronically pursuant to § 102.114(f) or (i) of this part shall also file an original for the Agency's records, but failure to do so shall not affect the validity of the filing by facsimile, if otherwise proper. The petition may be withdrawn only with the approval of the regional director with whom such petition was filed. Upon approval of the withdrawal of any petition the case shall be closed.

20. Amend § 102.84 by revising paragraph (i), redesignating paragraph (j) as paragraph (k), and adding new paragraphs (j), (l) and (m) to read as follows:

§ 102.84 Contents of petition to rescind authority.
* * * * *

(i) The name and address of the petitioner, and the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the proceeding.

(j) A statement that 30 percent or more of the bargaining unit employees covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3) of the Act, desire that the authority to make such an agreement be rescinded.
* * * * *

(l) Evidence supporting the statement that 30 percent or more of the bargaining unit employees desire to rescind the authority of their employer and labor organization to enter into an agreement made pursuant to section 8(a)(3) of the Act. Such evidence shall be filed together with the petition, but shall not be served on any other party.

(m) Evidence filed pursuant to paragraph (l) of this section together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the regional director no later than two days after the facsimile or electronic filing.


21. Revise § 102.85 to read as follows:

§ 102.85 Investigation of petition by regional director; consent referendum;directed referendum.

Where a petition has been filed pursuant to § 102.83 of this subpart and it appears to the regional director that the petitioner has made an appropriate showing, in such form as the regional director may determine, that 30 percent or more of the employees within a unit covered by an agreement between their employer and a labor organization requiring membership in such labor organization desire to rescind the authority of such labor organization to make such an agreement, he shall proceed to conduct a secret ballot of the employees involved on the question whether they desire to rescind the authority of the labor organization to make such an agreement with their employer: Provided, however, That in any case in which it appears to the regional director that the proceeding raises questions which cannot be decided without a hearing, he may issue and cause to be served on the parties a notice of hearing before a hearing officer at a time and place fixed therein. The regional director shall fix the time and place of the election, eligibility requirements for voting, and other arrangements of the balloting, but the parties may enter into an agreement, subject to the approval of the regional director, fixing such
arrangements. In any such consent agreements, provision may be made for final determination of all questions arising with respect to the balloting by the regional director or, upon grant of a request for review, by the Board.

22. Revise § 102.86 to read as follows:

§ 102.86 Hearing; posthearing procedure

The method of conducting the hearing and the procedure following the hearing shall be governed, insofar as applicable, by §§ 102.63 to 102.69 inclusive of this part

Subpart I—Service and Filing of Papers

23. Revise § 102.112 to read as follows:

§ 102.112 Date of service; date of filing

The date of service shall be the day when the matter served is deposited in the United States mail, or is deposited with a private delivery service that will provide a record showing the date the document was tendered to the delivery service, or is delivered in person, as the case may be. Where service is made by electronic mail, the date of service shall be the date on which the message is sent. Where service is made by facsimile transmission, the date of service shall be the date on which transmission is received. The date of filing shall be the day when the matter is required to be received by the Board as provided by § 102.111 of this subpart.

24. Revise § 102.113(d) to read as follows:

§ 102.113 Methods of service of process and papers by the Agency; proof of service.
* * * * *

(d) Service of other documents. Other documents may be served by the Agency by any of the foregoing methods as well as regular mail, electronic mail or private delivery service. Such other documents may be served by facsimile transmission with the permission of the person receiving the document.
* * * * *

25. Revise § 102.114(a), (d), and (g) to read as follows:

§ 102.114 Filing and service of papers by parties; form of papers; manner and proof of filing or service; electronic filings.

(a) Service of documents by a party on other parties may be made personally, or by registered mail, certified mail, regular mail, electronic mail (if the document was filed electronically or if specifically provided for in these rules), or private delivery service. Service of documents by a party on other parties by any other means, including facsimile transmission, is permitted only with the consent of the party being served. Unless otherwise specified elsewhere in these rules, service on all parties shall be made in the same manner as that utilized in filing the document with the Board, or in a more expeditious manner; however, when filing with the Board is done by hand, the other parties shall be promptly notified of such action by telephone, followed by service of a copy in a manner designed to insure receipt by them by the close of the next business day. The provisions of this section apply to the General Counsel after a complaint has issued, just as they do to any other party, except to the extent that the provisions of § 102.113(a) or (c) of this subpart provide otherwise.
* * * * *

(d) Papers filed with the Board, General Counsel, Regional Director, Administrative Law Judge, or Hearing Officer shall be typewritten or otherwise legibly duplicated on 81/2 by 11-inch plain white paper, shall have margins no less than one inch on each side, shall be in a typeface no smaller than 12 characters-per-inch (elite or the equivalent), and shall be double spaced (except that quotations and footnotes may be single spaced). Nonconforming papers may, at the Agency's discretion, be rejected.
* * * * *

(g) Facsimile transmissions of the following documents will not be accepted for filing: Answers to Complaints; Exceptions or Cross-Exceptions; Briefs; Requests for Review of Regional Director Decisions; Administrative Appeals from Dismissal of Petitions or Unfair Labor Practice Charges; Objections to Settlements; EAJA Applications; Motions for Default Judgment; Motions for Summary Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to Transfer, Consolidate or Sever; or Petitions for Advisory Opinions. Facsimile transmissions in contravention of this rule will not be filed.
* * * * *

PART 103—OTHER RULES

26. The authority citation for part 103 continues to read as follows:

Authority: 29 U.S.C. 156, in accordance with the procedure set forth in 5 U.S.C.
553.

Subpart B—[Removed and Reserved]

27. Remove and reserve subpart B, consisting of § 103.20.

By direction of the Board.
Dated: Washington, DC, January 28, 2014.
William B. Cowen, Solicitor.