[Federal Register: January 25, 2005 (Volume 70, Number 15)]
[Rules and Regulations]
[Page 3477-3478]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja05-3]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
Final Rules Governing Consent-Election Agreements
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: On July 22, 2004 the National Labor Relations Board published
in the Federal Register proposed changes to its rules to provide a
mechanism to have preelection disputes decided with finality by the
Regional Director as part of its ongoing efforts to address the needs
of employers, individuals and labor organizations and to further the
fundamental purposes of the Act. One comment was received in response
to this publication. The American Federation of Labor and Congress of
Industrial Organizations, AFL-CIO, supported the proposed changes, but
expressed the view that the changes did not address what it considered
to be major problems in the Board's representation process. Upon
consideration of that comment, the National Labor Relations Board
(NLRB) is adopting the proposed changes and publishing the rules as
final.
EFFECTIVE DATES: March 1, 2005.
FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room
11600, Washington, DC 20570. Telephone: (202) 273-1067.
SUPPLEMENTARY INFORMATION: Section 102.62 of the Board's Rules and
Regulations currently provides two kinds of ``consent'' election
procedures. Under both procedures, 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
postelection disputes will be resolved with finality by the Regional
Director. Under Sec. 102.62(b), postelection disputes are resolved
pursuant to Sec. 102.69, with the parties retaining the right to file
exceptions or requests for review with the Board. The Board is revising
its Rules and Regulations to create a new, voluntary procedure whereby
the parties can agree to the conduct of an election with disputed
preelection and postelection matters to be resolved with finality by
the Regional Director. The new rule also amends Sec. 102.62(a) to
provide that the decision of the Regional Director in a postelection
proceeding has the same force and effect as that of the Board ``in that
case.'' The addition of this language makes it clear that the Regional
Director's decision will not be regarded as Board precedent in future
cases. Identical language is present in the revised Sec. 102.62(c). In
addition to revisions to Sec. 102.62 of the Board's Rules and
Regulations, the Board also has revised its Statements of Procedures,
Sec. 101.19 and 101.28, to reflect the revisions to Sec. 102.62 in the
description of Board processing of union deauthorization elections
(Sec. 101.28) and all other elections (Sec. 101.19).
Under the new procedures, after the filing of a petition supported
by the requisite showing of interest, an employer and individual or
labor organization can voluntarily enter into an agreement under which
the Regional Director will resolve with finality disputed pre- and
postelection issues and issue a certification of representative or
results. If the parties voluntarily agree to utilize this new procedure
they will be assured of a more expeditious and final resolution of
their question concerning representation by a Regional Director, who
will act in a neutral, expert, and conclusive fashion. Although the
Agency decided to give notice of proposed rulemaking with respect to
these rule changes, the changes involve rules of agency organization,
procedure, or practice and thus no notice of proposed rulemaking was
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.
0
For the reasons set forth above, the NLRB amends 29 CFR parts 101 and
102 as follows:
PART 101--STATEMENTS OF PROCEDURES
0
1. The authority citation for 29 CFR part 101 continues to read as
follows:
Authority: Section 6 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 Public Law 100-236, 28 U.S.C. 2112(a)(1).
0
2. Section 101.19 is amended by revising the introductory text and
adding paragraph (c) to read as follows:
[[Page 3478]]
Sec. 101.19 Consent adjustments before formal hearing.
The Board has devised and makes available to the parties three
types of informal consent procedures through which representation
issues can be resolved without recourse to formal procedures. These
informal arrangements are commonly referred to as consent-election
agreement followed by Regional Director's determination, stipulated
election agreement followed by Board certification, and full consent
agreement, in which the parties agree that all pre- and postelection
disputes will be resolved with finality by the Regional Director. Forms
for use in these informal procedures are available in the Regional
Offices.
* * * * *
(c) The full consent-election agreement followed by the Regional
Director's determination of representatives is another method of
informal adjustment of representation cases.
(1) Under these terms the parties agree that if they are unable to
informally resolve disputes arising with respect to the appropriate
unit and other issues pertaining to the resolution of the question
concerning representation; the payroll period to be used as the basis
of eligibility to vote in an election, the place, date, and hours of
balloting, or other details of the election, those issues will be
presented to, and decided with finality by the Regional Director after
a hearing conducted in a manner consistent with the procedures set
forth in Sec. 101.20.
(2) Upon the close of the hearing, the entire record in the case is
forwarded to the Regional Director. The hearing officer also transmits
an analysis of the issues and the evidence, but makes no
recommendations as to resolution of the issues. All parties may file
briefs with the Regional Director within 7 days after the close of the
hearing. The parties may also request to be heard orally. After review
of the entire case, the Regional Director issues a final decision,
either dismissing the petition or directing that an election be held.
In the latter event, the election is conducted under the supervision of
the Regional Director in the manner already described in this section.
(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.
0
3. Section 101.28 is revised to read as follows:
Sec. 101.28 Consent agreements providing for election.
(a) The Board makes available to the parties three types of
informal consent procedures through which authorization issues can be
resolved without resort to formal procedures. These informal agreements
are commonly referred to as consent-election agreement followed by
Regional Director's determination, stipulated election agreement
followed by Board certification, and full consent-election agreement
providing for the Regional Director's determination of both pre- and
postelection matters. Forms for use in these informal procedures are
available in the Regional Offices.
(b) The procedures to be used in connection with a consent-election
agreement providing for the Regional Director's determination, a
stipulated election agreement providing for Board certification, and
the full consent-election agreement providing for the Regional
Director's determination of both pre- and postelection matters are the
same as those already described in subpart C of this part in connection
with similar agreements in representation cases under section 9(c) of
the Act, except that no provision is made for runoff elections.
PART 102--RULES AND REGULATIONS, SERIES 8
0
4. The authority citation for 29 CFR part 102 continues to read as
follows:
Authority: Section 6, National Labor Relations Act, as amended
(29 U.S.C. 151, of Information Act, as amended (5 U.S.C.
552(a)(4)(A)), and section 552a(j) and (k) of the Privacy Act (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)).
0
5. Section 102.62 is amended by revising paragraph (a) and adding
paragraph (c) to read as follows:
Sec. 102.62 Consent-election agreements.
(a) 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 a consent-election agreement leading to a determination by
the Regional Director of the facts ascertained after such consent
election. Such 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 consent election shall be
conducted under the direction and supervision of the Regional Director.
The method of conducting such consent election shall be consistent with
the method followed by the Regional Director in conducting elections
pursuant to Sec. 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, 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.
* * * * *
(c) 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 providing for a hearing pursuant to Sec. Sec.
102.63, 102.64, 102.65, 102.66 and 102.67 to resolve any issue
necessary to resolve the question concerning representation. 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 consent election shall
be consistent with the method followed by the Regional Director in
conducting elections pursuant to Sec. 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, 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.
Dated in Washington, DC, on January 13, 2005.
By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 05-1173 Filed 1-24-05; 8:45 am]
BILLING CODE 7545-01-P