[Federal Register: February 26, 2008 (Volume 73, Number 38)]
[Proposed Rules]
[Page 10199-10201]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe08-18]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
Joint Petitions for Certification Consenting to an Election
AGENCY: National Labor Relations Board (NLRB)
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: As part of its ongoing efforts to address the needs of
employers, individuals, and labor organizations and to further the
fundamental purposes of the National Labor Relations Act, the National
Labor Relations Board (NLRB) is proposing to adopt a rule that would
authorize a petition for a prompt NLRB election to be jointly filed by
a labor organization and an employer. The following proposal is offered
to provide initial focus for public comment. The public is nevertheless
encouraged to suggest alternatives.
DATES: All written comments must be received on or before March 27,
2008.
ADDRESSES: All written comments should be sent to the Office of the
Executive Secretary, National Labor Relations Board, 1099 14th Street,
NW., Room 11600, Washington, DC 20570-0001. The comments should be
filed in eight copies, double spaced on 8\1/2\-by-11 inch paper and
shall be printed or otherwise legibly duplicated.
FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive
Secretary, Telephone (202) 273-1067, e-mail address
Lester.Heltzer@nlrb.gov.
SUPPLEMENTARY INFORMATION: Section 102.62 of the Board's Rules and
Regulations currently provides three kinds of ``consent'' election
procedures. Under Sec. 102.62(a) and (b), the parties must stipulate
with respect to jurisdictional facts, labor organization status,
appropriate unit description, and classifications of employees included
and excluded. The parties must also agree to the time, place, and other
election details. Under Sec. 102.62(a), the parties agree that post-
election disputes will be resolved with finality by the Regional
Director. Under Sec. 102.62(b), post-election disputes are resolved
pursuant to Sec. 102.69 of the Board's Rules and Regulations, with the
parties retaining the right to file exceptions or requests for review
with the Board. Under Sec. 102.62(c), the parties can agree to the
conduct of an election with disputed pre-election and post-election
matters to be resolved with finality by the Regional Director.
The current proposal for revision of the Board's Rules and
Regulations would create a new, voluntary procedure whereby a labor
organization and an employer could file jointly a petition for
certification consenting to an election. The petition will provide the
date on which the parties have agreed for an election, not to exceed 28
days from the date of the filing of the petition, and the place and
hours on which the parties have agreed for an election. In addition,
the petition will provide a description of the bargaining unit that the
parties claim to be appropriate, the payroll period for eligibility to
vote in the election, and the full names and addresses of employees
eligible to vote in the election. If the petition lacks any necessary
information, the Regional Director will so advise the parties and
request that the petition be corrected.
No showing of interest is required to be filed with the petition.
If it appears to the Regional Director that the information provided on
the petition is accurate and sufficient and that the bargaining unit
description is appropriate on its face and not contrary to any
statutory provision, the petition will be docketed. Within 3 days of
the docketing of the petition, the Regional Director will advise the
parties of his/her approval of their request for an election. The
parties' agreement as to the date, place, and hours of the election
will be approved by the Regional Director, absent extraordinary
circumstances.
Also within 3 days of the docketing of the petition, the Regional
Director will send to the employer official NLRB notices, informing
employees that the joint petition for certification has been filed and
specifying the date, place, and hours of the election. These notices
must be posted by the employer in conspicuous places where notices to
employees are customarily posted and must remain posted through the
election. Failure to post these notices as required shall be grounds
for setting aside the election whenever proper and timely objections
are filed under the provisions of Sec. 102.69(a). In addition to these
notices, the employer must also post copies of the Board's official
Notice of Election in conspicuous places at least 3 full working days
prior to 12:01 a.m. of the day of the election, as required under Sec.
103.20 of the Board's Rules and Regulations.
Any motions to intervene may be filed with the Regional Director in
accordance with Sec. 102.65 of the Board's Rules and Regulations,
except that any such motion must be filed within 14 days from the
docketing of the petition. The Board's traditional intervention
policies regarding levels of intervention and the intervenor's
corresponding
[[Page 10200]]
rights to appear on the ballot, seek a different unit either in scope
or composition, or insist on a hearing, will be applicable.
Unfair labor practice charges, including those alleging Section
8(a)(2) or Section 8(a)(5) violations of the National Labor Relations
Act, will not serve to block the election or cause the ballots cast in
the election to be impounded, but will be handled in conjunction with
any post-election proceedings. All election and post-election matters
will be resolved with finality by the Regional Director. Except as
outlined above, the Board's traditional election rules and policies
will apply, including those relating to withdrawal or dismissal of the
petition.
Although the Agency has decided to give notice of proposed
rulemaking with respect to these rule changes, the changes involve
rules of agency organization, procedure, or practice and therefore no
notice of proposed rulemaking is required under section 553 of the
Administrative Procedure Act (5 U.S.C. 553). Accordingly, the
Regulatory Flexibility Act (5 U.S.C. 601) does not apply to these rule
changes.
List of Subjects in 29 CFR Parts 101 and 102
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, the NLRB proposes to amend 29 CFR
parts 101 and 102 as follows:
PART 101--STATEMENTS OF PROCEDURES
1. The authority citation for 29 CFR part 101 continues to read as
follows:
Authority: Section 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 55(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).
2. Section 101.17 is amended by adding a new second sentence and a
new sentence to the end of the section to read as follows:
Sec. 101.17 Initiation of representation cases and petitions for
clarification and amendment.
* * * In addition, a petition for certification consenting to an
election may be filed jointly by a labor organization and an employer.
* * * If a petition for certification consenting to an election is
filed jointly by a labor organization and an employer, no evidence of
representation is required to be filed.
3. Section 101.18(a) is amended by adding a new sentence at the end
to read as follows:
Sec. 101.18 Investigation of petition.
(a) * * * In the case of a petition for certification consenting to
an election filed jointly by a labor organization and an employer, the
bargaining unit description, if appropriate on its face and not
contrary to any statutory provision, will be deemed to constitute an
appropriate unit and there will be no investigation of the evidence of
representation, which is not required to be filed.
* * * * *
4. Section 101.19 is amended by adding a new sentence to the end of
the introductory text and adding a new paragraph (d) to read as
follows:
Sec. 101.19 Consent adjustments before formal hearing.
* * * In addition, the labor organization and the employer may
consent to an election by means of filing a joint petition for
certification, as provided for in Sec. 102.60(b), Sec. 102.61(c), and
Sec. 102.62(d).
* * * * *
(d) A petition for certification consenting to an election filed
jointly by a labor organization and an employer is another method of
informal adjustment of representation cases.
(1) The terms of the consent election, as specified on the
petition, including the bargaining unit description, the payroll period
to be used as a basis of eligibility to vote in the election, and the
place, date, and hours of balloting, will be approved by the Regional
Director, absent extraordinary circumstances, within 3 days of the
docketing of the petition. Also within 3 days of the docketing of the
petition, the Regional Director will send to the employer official NLRB
notices, informing employees that the petition has been filed and
specifying the date, place, and hours of the election. These notices
must be posted by the employer in conspicuous places where notices to
employees are customarily posted and must remain posted through the
election.
(2) The election will be conducted under the supervision of the
Regional Director in the manner already described in this section. The
filing of an unfair labor practice charge will not serve to block the
election or cause the ballots cast in the election to be impounded, but
will be handled in conjunction with any post-election proceedings in
accordance with Sec. 102.69.
(3) All matters arising after the election, including determinative
challenged ballots and objections to the conduct of the election shall
be processed in a manner consistent with paragraphs (a) (4), (5), and
(6) of this section.
5. Section Sec. 102.60 is amended by adding a new second sentence
to paragraph (a), redesignating paragraph (b) as (c), and adding a new
paragraph (b) to read as follows:
Sec. 102.60 Petitions.
(a) * * * A petition may also be filed jointly by a labor
organization and an employer (see paragraph (b) of this section). * * *
(b) Joint petition for certification consenting to an election; who
may file; where to file; withdrawal.--A petition for certification
consenting to an election may be filed jointly by a labor organization
and an employer. Where applicable, the same procedures set forth in
paragraph (a) of this section shall be followed.
6. Section 102.61 is amended by redesignating paragraphs (c)
through (e) as (d) through (f) and adding a new paragraph (c) to read
as follows:
Sec. 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.
* * * * *
(c) A petition for certification consenting to an election, when
filed jointly by a labor organization and an employer, shall contain
the following:
(1) The name of the employer.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) Commerce information establishing that the employer's
operations affect commerce within the meaning of the Act.
(5) The name, the affiliation, if any, and the address of the labor
organization.
(6) A description of the bargaining unit that the parties claim to
be appropriate.
(7) The number of employees in the alleged appropriate unit.
(8) The date on which the parties have agreed for an election, not
to exceed 28 days from the date of the filing of the petition.
(9) The place and hours on which the parties have agreed for an
election.
(10) The payroll period for eligibility to vote in the election.
(11) The full names and addresses of employees eligible to vote in
the election.
(12) Any other relevant facts.
* * * * *
[[Page 10201]]
7. Section 102.62 is amended by adding a new paragraph (d) to read
as follows:
Sec. 102.62 Consent-election agreements.
* * * * *
(d) Where a petition for certification consenting to an election
has been duly filed jointly by a labor organization and an employer
pursuant to Sec. 102.60(b) and 102.61(c), and it appears to the
Regional Director that the information provided on the petition is
accurate and sufficient and that the bargaining unit description is
appropriate on its face and not contrary to any statutory provision,
the petition will be docketed. Within 3 days of the docketing of the
petition, the Regional Director will advise the parties of his/her
approval of their request for an election. The parties' agreement as to
the date, place, and hours of the election will be approved by the
Regional Director, absent extraordinary circumstances. Also within 3
days of the docketing of the petition, the Regional Director will send
to the employer official NLRB notices, informing employees that the
joint petition for certification has been filed and specifying the
date, place, and hours of the election. These notices must be posted by
the employer in conspicuous places where notices to employees are
customarily posted and must remain posted through the election. Failure
to post these notices as required herein shall be grounds for setting
aside the election whenever proper and timely objections are filed
under the provisions of Sec. 102.69(a). In addition to these notices,
the employer must also post copies of the Board's official Notice of
Election in conspicuous places at least 3 full working days prior to
12:01 a.m. of the day of the election, as required under Sec. 103.20.
Any motions to intervene may be filed with the Regional Director in
accordance with Sec. 102.65, except that any such motion must be filed
within 14 days from the docketing of the petition. The filing of an
unfair labor practice charge will not serve to block the election or
cause the ballots cast in the election to be impounded, but will be
handled in conjunction with any post-election proceedings in accordance
with Sec. 102.69. The election shall be conducted under the direction
and supervision of the Regional Director. The method of conducting the
election shall be consistent with the method followed by the Regional
Director in conducting elections pursuant to Sec. 102.69 and 102.70
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 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.
Dated: Washington, DC, February 11, 2008.
By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. E8-2767 Filed 2-25-08; 8:45 am]
BILLING CODE 7545-01-P