[Federal Register: July 27, 2004 (Volume 69, Number 143)]
[Proposed Rules]
[Page 44612-44613]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy04-24]
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[[Page 44612]]
NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
Proposed Rules Governing Consent-Election Agreements
July 22, 2004
AGENCY: National Labor Relations Board.
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 Act, the National Labor Relations Board
(NLRB) is proposing to revise its rules to provide a mechanism to have
preelection disputes decided with finality by the Regional Director.
DATES: All comments must be received on or before August 26, 2004.
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. 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.
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 current proposal
for revision of the Board's Rules and Regulations would create a new,
voluntary procedure whereby the parties could agree to the conduct of
an election with disputed preelection and postelection matters to be
resolved with finality by the Regional Director.
The proposal would also amend Sec. 102.62(a) to provide that the
decision of the Regional Director in a postelection proceeding would
have the same force and effect as that of the Board ``in that case.''
The addition of this language would make it clear that the Regional
Director's decision will not be regarded as Board precedent in future
cases. Identical language is present in the proposed Sec. 102.62(c).
In addition to revisions to Sec. 102.62 of the Board's Rules and
Regulations, also proposed are revisions to the Statements of
Procedures, Sec. 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 proposed 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 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 thus 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 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 101.19 is amended by revising the introductory text and
adding paragraph (c) to read as follows:
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
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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.
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
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, 156). Section 102.117(c) 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 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)).
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 July 22, 2004.
By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 04-17095 Filed 7-26-04; 8:45 am]
BILLING CODE 7545-01-P