[Federal Register Volume 60, Number 250 (Friday, December 29, 1995)]
[Rules and Regulations]
[Pages 67288-67298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31413]
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2421, 2422, and 2429
Meaning of Terms as Used in This Subchapter; Representation
Proceedings; Miscellaneous and General Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Final rules.
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SUMMARY: The Federal Labor Relations Authority is amending its
regulations governing representation proceedings and related provisions
of other regulations that define or reference provisions of the
representation regulations. These amendments will streamline the
regulations and make the regulations more flexible in addressing the
representational concerns of agencies, labor organizations, and
individuals.
EFFECTIVE DATE: March 15, 1996.
FOR FURTHER INFORMATION CONTACT: Solly Thomas, Executive Director,
Federal Labor Relations Authority, 607 14th Street, N.W., Washington,
D.C. 20424-0001.
SUPPLEMENTARY INFORMATION:
Transition Rules and Regulations
Part 2422 of the regulations of the Federal Labor Relations
Authority governs representation proceedings. Several terms involved in
representation proceedings and used in Part 2422 are defined in certain
sections of Part 2421 of the regulations of the Federal Labor Relations
Authority. Additionally, there are references in Part 2429 of the
regulations to specific sections in Part 2422. The current definitions
and regulations will continue to govern all representation cases
currently pending before the Federal Labor Relations Authority and
those for which representation petitions are filed before March 15,
1996.
Notice and Opportunity to Comment
The Federal Labor Relations Authority proposed revision to its
regulations regarding the meaning of certain terms used in Subchapter C
(Part 2421) and representation proceedings (Part 2422). The proposed
revision was for the purpose of streamlining the regulations and making
the rules more flexible in addressing the representational concerns of
agencies, labor organizations, and individuals. The proposed rules were
published in the Federal Register for notice and comment on August 4,
1995. Customer views were solicited via a focus group meeting on August
29, 1995, and formal written comments were submitted by both agencies
and labor organizations. All comments have been considered and many
comments have prompted substantive revisions to the proposed rule. Any
such revision is noted in the section-by-section analysis.
Section-by-Section Analysis
The following sectional analysis reflects revisions to the proposed
changes to Part 2421--Meaning of Terms As Used in This Subchapter and
Part 2422--Representation Proceedings. Following this analysis,
conforming amendments to Part 2429--Miscellaneous and General
Requirements are briefly explained.
Part 2421
Section 2421.11
The proposed definition of ``party'' has been narrowed to clarify
that it does not include an individual in those instances referenced in
subsection (b).
Section 2421.18
Final rule is same as proposed rule.
Section 2421.19
The order of reference to agency or activity has been reversed.
Section 2421.20
Final rule is same as proposed rule.
Section 2421.21
The proposed definition has been narrowed to clarify that those
parties ``affected by issues raised'' in a petition include agencies,
activities or labor organizations, but not bargaining units.
Section 2421.22
Final rule is same as proposed rule.
Part 2422
Section 2422.1
The final sentence in proposed subsection (a)(2) has been
redesignated as subsection (3) to clarify that the showing of interest
requirement pertains to all petitions filed under subsection (a). One
commenter questioned whether any purposes for which petitions could
have been filed have been eliminated by the consolidation of the former
separate petitions into a single petition. As noted in the
supplementary information accompanying the proposed rule, all functions
of the former separate petitions are incorporated into the single
petition.
Section 2422.2
Several commenters objected to the fact that, unlike the current
regulations, the proposed regulation did not specify the purposes for
which listed entities may file petitions. For example, under current
practice, labor organizations can file petitions for eligibility for
dues allotment; individuals can file petitions seeking an election to
determine if employees in a unit no longer wish to be represented;
agencies can file petitions based upon good faith doubt as to the
continued appropriateness of a currently recognized labor organization
to represent an existing unit; and, petitions to consolidate existing
units can be filed by an agency, a labor organization, or both may file
jointly. Agreeing with the commenters that the proposed regulation
could lead to confusion, the final regulation has been revised to
clarify which entities have standing to file which representation
petitions. The order of reference to agency or activity has been
reversed.
Section 2422.3
The order of reference to agency or activity in subsections (a)(1)
and (a)(2) has been reversed.
Section 2422.4
The proposed rule offered two options concerning the service of
supporting documentation. Under Option 1, supporting documentation,
with the exception of showings of interest, would be served on all
affected parties. Under Option 2, supporting documentation, with the
exception of showings of interest, challenges to showings of
[[Page 67289]]
interest, challenges to the status of a labor organization, and
objections to elections, would be served. Some commenters favored
option 1, one commenter favored option 2, and one commenter disagreed
with both options, recommending broader service of everything except
challenges to the validity of a showing of interest, which would be
served only upon the specific entities involved in the challenge. In
response to comments concerning options 1 and 2, the final rule adopts
a compromise position as a rule that is in the best interest of both
the parties and the representation process. Under this rule all
documentation, except showings of interest, material that supports
challenges to the validity of the showing of interest, and
documentation which supports election objections, will be served on all
parties affected by issues raised in the filing. A superfluous
introductory phrase which was included in both options of the proposed
regulation has been deleted.
Section 2422.5
Final rule is same as proposed rule.
Section 2422.6
Comments have prompted several modifications to subsection (a) of
the proposed regulation. First, one commenter noted that the phrase
``interested parties'' is vague and could be construed too broadly.
Accordingly, the title of the subsection has been amended to simply
refer to ``parties.'' Second, in response to a comment noting that
parties affected by issues raised in a petition should be provided
notification whether or not the filer identified them as being
affected, and a comment noting that the obligations on the Regional
Director are unclear, a second sentence has been added clarifying the
obligations of the Regional Director vis-a-vis other parties. In
subsection (b)(2) of the final rule, ``(s)'' was added to the word
``unit'' in recognition of the fact that more than one unit may be
affected by issues raised in the petition.
Section 2422.7
In subsection (a) the phrase ``distribute copies of a notice'' has
been inserted for additional clarity between the phrase ``and/or'' and
the word ``in.'' For the same reasons referenced in the preceding
section, the phrase ``interested parties'' has been deleted from the
final rule.
Section 2422.8
One commenter noted that as drafted, the proposed regulation
inferred in subsection (a) that cross-petitions could be filed only for
the purpose of seeking an election. The subsection has been revised to
correct this misimpression. Several commenters objected to subsection
(b) of the proposed regulation permitting intervention and cross
petitions to be filed until the close of the hearing. Recognizing that
such belated filings could be disruptive to the representation process,
the final rule revises the subsection to require, absent a showing of
good cause, that such filings be submitted before the hearing opens.
Also in subsection (b), the phrase ``and/or filed with and submitted
to'' was changed in the final rule to ``and filed with either.'' In
subsection (d), the word ``intervention'' has been deleted from the
title and the phrase ``a party'' has been substituted for the phrase
``an intervenor.'' Lastly, in response to comment, proposed subsection
(e) has been subdivided into two separate subsections. The revised and
final subsection (e) provides the circumstances under which an
employing agency will be considered a party; subsection (f) indicates
the evidence an agency or activity must submit to intervene in a
representation proceeding.
Section 2422.9
Final rule is same as proposed rule.
Section 2422.10
For consistency with other provisions of the rules, the phrase
``submitted to'' is changed in subsection (b) of the final rule to the
phrase ``filed with.'' Subsection (c) of the proposed rule has been
revised to bring it into conformity with the revisions made to section
2422.8(b). As a result, challenges to the validity of a showing of
interest, like requests to intervene and cross- petitions, must, absent
good cause, be filed before the hearing opens.
Section 2422.11
Subsection (b) of the proposed rule has been revised to bring it
into conformity with the revisions made to section 2422.8(b) and
section 2422.10(c). Accordingly, challenges to the status of a labor
organization, like requests to intervene, cross-petitions, and validity
challenges, must, absent good cause, be filed before the hearing opens.
Section 2422.12
The second sentence in subsection (b) has been broadened to clarify
that the certification bar applies during the statutory period of
agency head review referenced in subsection (c). The phrase ``signed
and dated'' or ``has been signed and dated'' in subsections (b),(d),
and (e), has been changed to ``is in effect.'' As proposed, the
regulations conditioned the various bars on the presence of a ``signed
and dated'' agreement and did not take into account that an agreement
can take effect through methods other than execution, e.g., 5 U.S.C.
7114(c)(3). For the same reason, the phrase ``and signed'' has been
deleted from subsection (g). Also in subsection (g) the phrase ``more
than,'' before the phrase ``sixty (60) days,'' has been changed in the
final rule to ``prior to,'' in order to clarify that the referenced 60
day time period does not apply to the duration of the extension.
Subsection (e) has been modified to apply only to situations where the
collective bargaining agreement has a term of more than three (3)
years. The word ``days'' after the number ``(105)'' has also been
deleted from subsection (e). One commenter noted that unlike the prior
regulations, the revised rules do not provide specific guidance
concerning the timeliness of petitions seeking to consolidate
bargaining units. The general guidance concerning timeliness, contained
in various subsections within this section of the final rules, will
apply, as appropriate, in consolidation situations.
Section 2422.13
Final rule is same as proposed rule.
Section 2422.14
One commenter questioned whether the reference in proposed
subsection (a) to ``another petition'' referred to another petition
being filed by the same party or to a petition filed by any other
party. The phrase is intended to refer to the latter, i.e., no
petition, regardless of who filed it, would be considered timely during
the period in question. Also in subsection (a), the phrase ``agency
or'' has been added in the final rule before the word ``activity,'' for
consistency of reference with other parts of the rule. Another
commenter noted the inconsistency between proposed subsections (b) and
(c). In response to this comment, the final rule amends subsection (b)
to treat petitioners seeking an election somewhat like the proposed
rule treated incumbents, i.e., petitions to represent the same unit, or
a subdivision thereof, are prohibited for 6 months if not withdrawn
within the time constraints described in subsection (b). However, the
final rule does not treat withdrawals by petitioners the same as
withdrawals by incumbents. In the former situation, the purpose of the
bar is to discourage an election petitioner's dilatory withdrawal
because such action will inconvenience all concerned. In the latter,
the purpose of
[[Page 67290]]
the bar is to prevent an incumbent from totally avoiding the possible
effect of a bar by withdrawing prior to an election. As a result,
unlike a petitioner seeking an election, an incumbent may not avoid the
effect of an election bar by filing a timely withdrawal. The titles to
subsection (b) and (c) have been abbreviated.
Section 2422.15
One commenter noted that by locating the cooperation requirement as
a subsection in a section addressing the duty to furnish information,
the regulation suggested that providing information was the primary
component of the cooperation obligation. Agreeing with this point, the
title of the section has been broadened and proposed subsection (c) has
been rewritten to specifically articulate the duty of all parties to
cooperate.
Section 2422.16
One commenter suggested that the ``method of election,'' i.e.,
typically mail or manual balloting, be listed as a procedural
determination that the Regional Director could make. This suggestion
has been incorporated into subsection (b) of the final rule. The word
``an'' has been deleted before the word ``Election'' in subsection (b)
of the final rule. In subsection (c)(2) the word ``the'' before the
phrase ``unit appropriateness'' has been omitted from the final rule. A
minor punctuation change has been made in subsection (c) of the final
rule.
Section 2422.17
The title of the section has been expanded to include a reference
to the prehearing conference. One commenter noted that the section's
use of the phrase ``employees and interested parties'' was vague and
could be construed too broadly. Accordingly, subsection (b) has been
revised to refer to ``affected parties.'' It was also noted that the
notice of hearing does not identify issues or establish prehearing
dates; as a result, the final sentence in subsection (b) has been added
to reflect that notice of these matters will be separate. The revisions
to subsection (c) make it consistent with the changes made to final
subsection (b). A commenter noted that the title and body of proposed
subsection (d) were inconsistent. The title and body of subsection (d)
have been revised to indicate that there is no interlocutory appeal of
a Regional Director's decision of whether to hold a hearing.
Section 2422.18
Final rule is same as proposed rule.
Section 2422.19
Subsection (c)(2) of proposed rule has been deleted to bring this
section of the final rule into conformity with revisions made to
section 2422.8(b).
Section 2422.20
In subsection (b) of the final rule the word ``copy'' is changed
for clarification purposes to ``copies,'' and the word ``between'' is
changed to ``between/among.''
Section 2422.21
Subsection (a) of this proposed section offered two options. Option
1 followed current regulations. Option 2 specifically authorized a
Hearing Officer to make recommendations on the record on any issue. All
commenters addressing this section favored option 2. Record
recommendations would advise the parties of the Hearing Officer's views
and could facilitate resolution of questions under consideration.
Moreover, the Hearing Officer's recommendations could be helpful to the
Regional Director in resolving certain issues. As a result, the final
rule incorporates option 2. The final rule includes minor changes,
substituting an ``and'' for a comma and substituting the word
``Duties'' for the word ``Duty'' in the title of subsection (a).
Section 2422.22
Final rule is same as proposed rule.
Section 2422.23
Subsection (a) has been revised to clarify that the Regional
Director will decide whether to conduct or supervise the election and
agencies are obliged to assist as specified. In subsection (b) of the
final rule the word ``distributed'' has been added between the phrases
``and/or'' and ``in a manner,'' for the sake of consistency with a
similar change in Sec. 2422.7(a) of the final rule. In subsection (e),
the word ``procedures,'' which was inadvertently included, has been
deleted, and the word ``with'' has been substituted for the word ``to''
before the phrase ``the Authority.'' The final rule reframes subsection
(h)(2) & (3) in positive terminology to reflect who can, rather than
who cannot, serve as an observer. Subsection (h)(2)(i) has been revised
to incorporate the statutory terminology contained in 5 U.S.C. 7103(a)
(10) & (11). One commenter recommended that proposed subsection (h)(3)
be revised to prevent union officials from acting as observers for
labor organizations. This suggestions has been adopted in part and is
reflected in subsection (h)(3)(ii).
Section 2422.24
In subsection (b) of the final rule, parentheses were placed around
the letter ``s'' in the word ``ballots'' in the phrase ``unresolved
challenged ballots,'' for the sake of consistency with other references
to ballots in the subsection.
Section 2422.25
A minor grammatical change was made in subsection (b) of the final
rule.
Section 2422.26
Subsection (a) has been clarified to reflect that only a party may
file an objection to an election. One commenter objected to the
requirement that objections must be ``received by'' the Regional
Director within 5 days of the furnishing of the tally of ballots and
recommended that the Authority retain the ``postmarked by'' rule. The
final rule adopts the ``received by'' rule as preferable because it
allows the Regional Director to certify election results after a fixed
period if no objections are lodged. The ``postmark'' rule would require
the Regional Director to delay acting for some uncertain period of time
after 5 days have passed in order to provide timely posted objections--
if there are any--an opportunity to arrive. Note that pursuant to 5 CFR
2429.21(a), intermediate Saturdays, Sundays, and Federal legal holidays
are excluded from the 5-day period.
Section 2422.27
The order of subsections (c) and (d) has been reversed for
clarification purposes. One commenter questioned whether the
opportunity for a hearing, provided for under the previous regulations,
would continue. The revised final regulations do not discontinue the
opportunity for a hearing on challenged ballots.
Section 2422.28
Final rule is same as proposed rule.
Section 2422.29
Final rule is same as proposed rule.
Section 2422.30
One commenter noted that as proposed, subsection (c)--in
conjunction with sections 2422.8(b), 2422.10(c), and 2422.11(c)--
extends the time period for filing interventions, cross petitions, and
challenges until after the Regional Director has directed an election
or approved an election agreement. This would be disruptive of the
representation process. Accordingly, the final subsection (c) has been
revised to include directing an election or approving an election
agreement.
[[Page 67291]]
Section 2422.31
Language in the current regulation (5 CFR 2422.17(b)) has been
added to subsection (b) of the final rule. Subsection (c) of the
proposed regulation offered two options for when the Authority would
grant an application for revi ew of a Regional Director's decision.
Option 1 retained the current grounds for review with minor editorial
changes. Option 2 specified that, in addition to satisfying one or more
of those grounds, a party seeking review was obliged to assert and
establish that the Authority's decision would have a substantial impact
on labor-management relations law unless the Authority determines, in
its discretion, that extraordinary circumstances exist to grant review.
Option 1 was the overwhelming preference of those commenting on this
subsection. The final rule adopts a modified version of option 1. An
error in phraseology in subsection (f) has been corrected.
Section 2422.32
An incorrect reference in proposed subsection (a)(2) has been
revised to refer to section 2422.31(e). The ``Revocations'' subsection,
mistakenly identified as subsection (c), has been redesignated as
subsection (b).
Section 2422.33
Final rule is same as proposed rule.
Section 2422.34
Several commenters noted and objected to subsection (a) of the
proposed regulation changing current law by requiring the fulfillment
of representational and bargaining obligations during periods when
there is a ``question concerning representation.'' The commenters are
correct that this subsection is, in some respects, a change from
current law. This revision is intended to allow more flexibility during
such periods through the exercise of bargaining and representational
obligations. As such, the modification of the law enhances both
government efficiency and federal sector labor relations. Proposed
subsection (b) has been amended by adding statutory references which
define the term ``employee'' and provide for which employees may be
included within a unit. The inclusion of this phrase is intended to
clarify that subsection (b) only trumps subsection (a) to the extent
that subsection (b) allows parties to take action based on unit status
of individuals.
Part 2429
Changes to Part 2429 are required as a result of the different
section numbers in the revised Part 2422.
Section 2429.21
In subsection (a), in discussing how time will be computed in
various bar situations, there are two references to sections 2422.3 (c)
and (d). In the revised regulations, the bars to which this section
refers will be located in section 2422.12 (c), (d), (e), and (f). In
subsection (b), the filing of a representation petition is listed as an
exception to the ``postmark date'' rule and reference is made to
section 2422.2. Because the revised regulations have numerous sections
dealing with such filings, the reference is changed to Part 2422.
Section 2429.22
The revised regulations address applications for review of a
Regional Director Decision and Order in section 2422.31. Accordingly,
the reference to section 2422.17 is changed to section 2422.31.
List of Subjects
5 CFR Part 2421
Government employees, Labor-management relations.
5 CFR Part 2422
Administrative practice and procedure, Government employees, Labor
unions.
5 CFR Part 2429
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Labor
Relations Authority amends Parts 2421, 2422, and 2429 of its
regulations as follows:
PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER
1. The authority citation for Part 2421 continues to read as
follows:
Authority: 5 U.S.C. 7134.
2. Section 2421.11 is revised to read as follows:
Sec. 2421.11 Party.
Party means:
(a) Any labor organization, employing agency or activity or
individual filing a charge, petition, or request;
(b) Any labor organization or agency or activity
(1) Named as
(i) A charged party in a charge,
(ii) A respondent in a complaint, or
(iii) An employing agency or activity or an incumbent labor
organization in a petition;
(2) Whose intervention in a proceeding has been permitted or
directed by the Authority; or
(3) Who participated as a party
(i) In a matter that was decided by an agency head under 5 U.S.C.
7117, or
(ii) In a matter where the award of an arbitrator was issued; and
(c) The General Counsel, or the General Counsel's designated
representative, in appropriate proceedings.
3. Sections 2421.18 through 2421.22 are added to read as follows:
Sec. 2421.18 Petitioner.
Petitioner means the party filing a petition under Part 2422 of
this Subchapter.
Sec. 2421.19 Eligibility period.
Eligibility period means the payroll period during which an
employee must be in an employment status with an agency or activity in
order to be eligible to vote in a representation election under Part
2422 of this Subchapter.
Sec. 2421.20 Election agreement.
Election agreement means an agreement under Part 2422 of this
Subchapter signed by all the parties, and approved by the Regional
Director, concerning the details and procedures of a representation
election in an appropriate unit.
Sec. 2421.21 Affected by issues raised.
The phrase affected by issues raised, as used in Part 2422, should
be construed broadly to include parties and other labor organizations,
or agencies or activities that have a connection to employees affected
by, or questions presented in, a proceeding.
Sec. 2421.22 Determinative challenged ballots.
Determinative challenged ballots are challenges that are unresolved
prior to the tally and sufficient in number after the tally to affect
the results of the election.
4. Part 2422 is revised to read as follows:
PART 2422--REPRESENTATION PROCEEDINGS
Sec.
2422.1 Purposes of a petition.
2422.2 Standing to file a petition.
2422.3 Contents of a petition.
2422.4 Service requirements.
2422.5 Filing petitions.
2422.6 Notification of filing.
2422.7 Posting notice of filing of a petition.
2422.8 Intervention and cross-petitions.
[[Page 67292]]
2422.9 Adequacy of showing of interest.
2422.10 Validity of showing of interest.
2422.11 Challenge to the status of a labor organization.
2422.12 Timeliness of petitions seeking an election.
2422.13 Resolution of issues raised by a petition.
2422.14 Effect of withdrawal/dismissal.
2422.15 Duty to furnish information and cooperate.
2422.16 Election agreements or directed elections.
2422.17 Notice of hearing and prehearing conference.
2422.18 Hearing Procedures.
2422.19 Motions.
2422.20 Rights of parties at a hearing.
2422.21 Duties and powers of the Hearing Officer.
2422.22 Objections to the conduct of the hearing.
2422.23 Election procedures.
2422.24 Challenged ballots.
2422.25 Tally of ballots.
2422.26 Objections to the election.
2422.27 Determinative challenged ballots and objections.
2422.28 Runoff elections.
2422.29 Inconclusive elections.
2422.30 Regional Director investigations, notices of hearings,
actions and Decisions and Orders.
2422.31 Application for review of a Regional Director Decision and
Order.
2422.32 Certifications and revocations.
2422.33 Relief obtainable under Part 2423.
2422.34 Rights and obligations during the pendency of
representation proceedings.
Authority: 5 U.S.C. 7134.
Sec. 2422.1 Purposes of a petition.
A petition may be filed for the following purposes:
(a) Elections or Eligibility for dues allotment. To request:
(1) (i) An election to determine if employees in an appropriate
unit wish to be represented for the purpose of collective bargaining by
an exclusive representative, and/or
(ii) A determination of eligibility for dues allotment in an
appropriate unit without an exclusive representative; or
(2) an election to determine if employees in a unit no longer wish
to be represented for the purpose of collective bargaining by an
exclusive representative.
(3) Petitions under this subsection must be accompanied by an
appropriate showing of interest.
(b) Clarification or Amendment. To clarify, and/or amend:
(1) A recognition or certification then in effect; and/or
(2) Any other matter relating to representation.
(c) Consolidation. To consolidate two or more units, with or
without an election, in an agency and for which a labor organization is
the exclusive representative.
Sec. 2422.2 Standing to file a petition.
A representation petition may be filed by: an individual; a labor
organization; two or more labor organizations acting as a joint-
petitioner; an individual acting on behalf of any employee(s); an
agency or activity; or a combination of the above: Provided, however,
that
(a) only a labor organization has standing to file a petition
pursuant to section 2422.1(a)(1);
(b) only an individual has standing to file a petition pursuant to
section 2422.1(a)(2); and
(c) only an agency or a labor organization may file a petition
pursuant to section 2422.1(b) or (c).
Sec. 2422.3 Contents of a petition.
(a) What to file. A petition must be filed on a form prescribed by
the Authority and contain the following information:
(1) The name and mailing address for each agency or activity
affected by issues raised in the petition, including street number,
city, state and zip code.
(2) The name, mailing address and work telephone number of the
contact person for each agency or activity affected by issues raised in
the petition.
(3) The name and mailing address for each labor organization
affected by issues raised in the petition, including street number,
city, state and zip code. If a labor organization is affiliated with a
national organization, the local designation and the national
affiliation should both be included. If a labor organization is an
exclusive representative of any of the employees affected by issues
raised in the petition, the date of the recognition or certification
and the date any collective bargaining agreement covering the unit will
expire or when the most recent agreement did expire should be included,
if known.
(4) The name, mailing address and work telephone number of the
contact person for each labor organization affected by issues raised in
the petition.
(5) The name and mailing address for the petitioner, including
street number, city, state and zip code. If a labor organization
petitioner is affiliated with a national organization, the local
designation and the national affiliation should both be included.
(6) A description of the unit(s) affected by issues raised in the
petition. The description should generally indicate the geographic
locations and the classifications of the employees included (or sought
to be included) in, and excluded (or sought to be excluded) from, the
unit.
(7) The approximate number of employees in the unit(s) affected by
issues raised in the petition.
(8) A clear and concise statement of the issues raised by the
petition and the results the petitioner seeks.
(9) A declaration by the person signing the petition, under the
penalties of the Criminal Code (18 U.S.C. 1001), that the contents of
the petition are true and correct to the best of the person's knowledge
and belief.
(10) The signature, title, mailing address and telephone number of
the person filing the petition.
(b) Compliance with 5 U.S.C. 7111(e). A labor organization/
petitioner complies with 5 U.S.C. 7111(e) by submitting to the agency
or activity and to the Department of Labor a roster of its officers and
representatives, a copy of its constitution and bylaws, and a statement
of its objectives. By signing the petition form, the labor
organization/petitioner certifies that it has submitted these documents
to the activity or agency and to the Department of Labor.
(c) Showing of interest supporting a representation petition. When
filing a petition requiring a showing of interest, the petitioner must:
(1) So indicate on the petition form;
(2) Submit with the petition a showing of interest of not less than
thirty percent (30%) of the employees in the unit involved in the
petition; and
(3) Include an alphabetical list of the names constituting the
showing of interest.
(d) Petition seeking dues allotment. When there is no exclusive
representative, a petition seeking certification for dues allotment
shall be accompanied by a showing of membership in the petitioner of
not less than ten percent (10%) of the employees in the unit claimed to
be appropriate. An alphabetical list of names constituting the showing
of membership must be submitted.
Sec. 2422.4 Service requirements.
Every petition, motion, brief, request, challenge, written
objection, or application for review shall be served on all parties
affected by issues raised in the filing. The service shall include all
documentation in support thereof, with the exception of a showing of
interest, evidence supporting challenges to the validity of a showing
of interest, and evidence supporting objections to an election. The
filer must submit a written statement of service to the Regional
Director.
Sec. 2422.5 Filing petitions.
(a) Where to file. Petitions must be filed with the Regional
Director for the
[[Page 67293]]
region in which the unit or employee(s) affected by issues raised in
the petition are located. If the unit(s) or employees are located in
two or more regions of the Authority, the petitions must be filed with
the Regional Director for the region in which the headquarters of the
agency or activity is located.
(b) Number of copies. An original and two (2) copies of the
petition and the accompanying material must be filed with the Regional
Director.
(c) Date of filing. A petition is filed when it is received by the
appropriate Regional Director.
Sec. 2422.6 Notification of filing.
(a) Notification to parties. After a petition is filed, the
Regional Director will notify any labor organization, agency or
activity that the parties have identified as being affected by issues
raised by the petition, that a petition has been filed with the
Regional Director. The Regional Director will also make reasonable
efforts to identify and notify any other party affected by the issues
raised by the petition.
(b) Contents of the notification. The notification will inform the
labor organization, agency or activity of:
(1) The name of the petitioner;
(2) The description of the unit(s) or employees affected by issues
raised in the petition; and,
(3) A statement that all affected parties should advise the
Regional Director in writing of their interest in the issues raised in
the petition.
Sec. 2422.7 Posting notice of filing of a petition.
(a) Posting notice of petition. When appropriate, the Regional
Director, after the filing of a representation petition, will direct
the agency or activity to post copies of a notice to all employees in
places where notices are normally posted for the employees affected by
issues raised in the petition and/or distribute copies of a notice in a
manner by which notices are normally distributed.
(b) Contents of notice. The notice shall advise affected employees
about the petition.
(c) Duration of notice. The notice should be conspicuously posted
for a period of ten (10) days and not be altered, defaced, or covered
by other material.
Sec. 2422.8 Intervention and cross-petitions.
(a) Cross-petitions. A cross-petition is a petition which involves
any employees in a unit covered by a pending representation petition.
Cross-petitions must be filed in accordance with this subpart.
(b) Intervention requests and cross-petitions. A request to
intervene and a cross-petition, accompanied by any necessary showing of
interest, must be submitted in writing and filed with either the
Regional Director or the Hearing Officer before the hearing opens,
unless good cause is shown for granting an extension. If no hearing is
held, a request to intervene and a cross-petition must be filed prior
to action being taken pursuant to Sec. 2422.30.
(c) Labor organization intervention requests. Except for incumbent
intervenors, a labor organization seeking to intervene shall submit a
statement that it has complied with 5 U.S.C. 7111(e) and one of the
following:
(1) A showing of interest of ten percent (10%) or more of the
employees in the unit covered by a petition seeking an election, with
an alphabetical list of the names of the employees constituting the
showing of interest; or
(2) A current or recently expired collective bargaining agreement
covering any of the employees in the unit affected by issues raised in
the petition; or
(3) Evidence that it is or was, prior to a reorganization, the
recognized or certified exclusive representative of any of the
employees affected by issues raised in the petition.
(d) Incumbent. An incumbent exclusive representative, without
regard to the requirements of paragraph (c) of this section, will be
considered a party in any representation proceeding raising issues that
affect employees the incumbent represents, unless it serves the
Regional Director with a written disclaimer of any representation
interest in the claimed unit.
(e) Employing agency. An agency or activity will be considered a
party if any of its employees are affected by issues raised in the
petition.
(f) Agency or activity intervention. An agency or activity seeking
to intervene in any representation proceeding must submit evidence that
one or more employees of the agency or activity may be affected by
issues raised in the petition.
Sec. 2422.9 Adequacy of showing of interest.
(a) Adequacy. Adequacy of a showing of interest refers to the
percentage of employees in the unit involved as required by
Secs. 2422.3 (c) and (d) and 2422.8(c)(1).
(b) Regional Director investigation and Decision and Order. The
Regional Director will conduct such investigation as deemed
appropriate. A Regional Director's determination that the showing of
interest is adequate is final and binding and not subject to collateral
attack at a representation hearing or on appeal to the Authority. If
the Regional Director determines that a showing of interest is
inadequate, the Regional Director will issue a Decision and Order
dismissing the petition, or denying a request for intervention.
Sec. 2422.10 Validity of showing of interest.
(a) Validity. Validity questions are raised by challenges to a
showing of interest on grounds other than adequacy.
(b) Validity challenge. The Regional Director or any party may
challenge the validity of a showing of interest.
(c) When and where validity challenges may be filed. Party
challenges to the validity of a showing of interest must be in writing
and filed with the Regional Director or the Hearing Officer before the
hearing opens, unless good cause is shown for granting an extension. If
no hearing is held, challenges to the validity of a showing of interest
must be filed prior to action being taken pursuant to Sec. 2422.30.
(d) Contents of validity challenges. Challenges to the validity of
a showing of interest must be supported with evidence.
(e) Regional Director investigation and Decision and Order. The
Regional Director will conduct such investigation as deemed
appropriate. The Regional Director's determination that a showing of
interest is valid is final and binding and is not subject to collateral
attack or appeal to the Authority. If the Regional Director finds that
the showing of interest is not valid, the Regional Director will issue
a Decision and Order dismissing the petition or denying the request to
intervene.
Sec. 2422.11 Challenge to the status of a labor organization.
(a) Basis of challenge to labor organization status. The only basis
on which a challenge to the status of a labor organization may be made
is compliance with 5 U.S.C. 7103(a)(4).
(b) Format and time for filing a challenge. Any party filing a
challenge to the status of a labor organization involved in the
processing of a petition must do so in writing to the Regional Director
or the Hearing Officer before the hearing opens, unless good cause is
shown for granting an extension. If no hearing is held, challenges must
be filed prior to action being taken pursuant to Sec. 2422.30.
Sec. 2422.12 Timeliness of petitions seeking an election.
(a) Election bar. Where there is no certified exclusive
representative, a
[[Page 67294]]
petition seeking an election will not be considered timely if filed
within twelve (12) months of a valid election involving the same unit
or a subdivision of the same unit.
(b) Certification bar. Where there is a certified exclusive
representative of employees, a petition seeking an election will not be
considered timely if filed within twelve (12) months after the
certification of the exclusive representative of the employees in an
appropriate unit. If a collective bargaining agreement covering the
claimed unit is pending agency head review under 5 U.S.C. 7114(c) or is
in effect, paragraphs (c), (d), or (e) of this section apply.
(c) Bar during 5 U.S.C. 7114(c) agency head review. A petition
seeking an election will not be considered timely if filed during the
period of agency head review under 5 U.S.C. 7114(c). This bar expires
upon either the passage of thirty (30) days absent agency head action,
or upon the date of any timely agency head action.
(d) Contract bar where the contract is for three (3) years or less.
Where a collective bargaining agreement is in effect covering the
claimed unit and has a term of three (3) years or less from the date it
became effective, a petition seeking an election will be considered
timely if filed not more than one hundred and five (105) and not less
than sixty (60) days prior to the expiration of the agreement.
(e) Contract bar where the contract is for more than three (3)
years. Where a collective bargaining agreement is in effect covering
the claimed unit and has a term of more than three (3) years from the
date it became effective, a petition seeking an election will be
considered timely if filed not more than one hundred and five (105) and
not less than sixty (60) days prior to the expiration of the initial
three (3) year period, and any time after the expiration of the initial
three (3) year period.
(f) Unusual circumstances. A petition seeking an election or a
determination relating to representation matters may be filed at any
time when unusual circumstances exist that substantially affect the
unit or majority representation.
(g) Premature extension. Where a collective bargaining agreement
with a term of three (3) years or less has been extended prior to sixty
(60) days before its expiration date, the extension will not serve as a
basis for dismissal of a petition seeking an election filed in
accordance with this section.
(h) Contract requirements. Collective bargaining agreements,
including agreements that go into effect under 5 U.S.C. 7114(c) and
those that automatically renew without further action by the parties,
do not constitute a bar to a petition seeking an election under this
section unless a clear and unambiguous effective date, renewal date
where applicable, duration, and termination date are ascertainable from
the agreement and relevant accompanying documentation.
Sec. 2422.13 Resolution of issues raised by a petition.
(a) Meetings prior to filing a representation petition. All parties
affected by the representation issues that may be raised in a petition
are encouraged to meet prior to the filing of the petition to discuss
their interests and narrow and resolve the issues. If requested by all
parties a representative of the appropriate Regional Office will
participate in these meetings.
(b) Meetings to narrow and resolve the issues after the petition is
filed. After a petition is filed, the Regional Director may require all
affected parties to meet to narrow and resolve the issues raised in the
petition.
Sec. 2422.14 Effect of withdrawal/dismissal.
(a) Withdrawal/dismissal less than sixty (60) days before contract
expiration. When a petition seeking an election that has been timely
filed is withdrawn by the petitioner or dismissed by the Regional
Director less than sixty (60) days prior to the expiration of an
existing agreement between the incumbent exclusive representative and
the agency or activity or any time after the expiration of the
agreement, another petition seeking an election will not be considered
timely if filed within a ninety (90) day period from either:
(1) The date the withdrawal is approved; or
(2) The date the petition is dismissed by the Regional Director
when no application for review is filed with the Authority; or
(3) The date the Authority rules on an application for review.
Other pending petitions that have been timely filed under this Part
will continue to be processed.
(b) Withdrawal by petitioner. A petitioner who submits a withdrawal
request for a petition seeking an election that is received by the
Regional Director after the notice of hearing issues or after approval
of an election agreement, whichever occurs first, will be barred from
filing another petition seeking an election for the same unit or any
subdivision of the unit for six (6) months from the date of the
approval of the withdrawal by the Regional Director.
(c) Withdrawal by incumbent. When an election is not held because
the incumbent disclaims any representation interest in a unit, a
petition by the incumbent seeking an election involving the same unit
or a subdivision of the same unit will not be considered timely if
filed within six (6) months of cancellation of the election.
Sec. 2422.15 Duty to furnish information and cooperate.
(a) Relevant information. After a petition is filed, all parties
must, upon request of the Regional Director, furnish the Regional
Director and serve all parties affected by issues raised in the
petition with information concerning parties, issues, and agreements
raised in or affected by the petition.
(b) Inclusions and exclusions. After a petition seeking an election
is filed, the Regional Director may direct the agency or activity to
furnish the Regional Director and all parties affected by issues raised
in the petition with a current alphabetized list of employees and job
classifications included in and/or excluded from the existing or
claimed unit affected by issues raised in the petition.
(c) Cooperation. All parties are required to cooperate in every
aspect of the representation process. This obligation includes
cooperating fully with the Regional Director, submitting all required
and requested information, and participating in prehearing conferences
and hearings. The failure to cooperate in the representation process
may result in the Regional Director taking appropriate action,
including dismissal of the petition or denial of intervention.
Sec. 2422.16 Election agreements or directed elections.
(a) Election agreements. Parties are encouraged to enter into
election agreements.
(b) Regional Director directed election. If the parties are unable
to agree on procedural matters, specifically, the eligibility period,
method of election, dates, hours, or locations of the election, the
Regional Director will decide election procedures and issue a Direction
of Election, without prejudice to the rights of a party to file
objections to the procedural conduct of the election.
(c) Opportunity for a hearing. Before directing an election, the
Regional Director shall provide affected parties an opportunity for a
hearing on other than procedural matters, and thereafter may:
(1) Issue a Decision and Order; or
(2) If there are no questions regarding unit appropriateness, issue
a Direction
[[Page 67295]]
of Election without a Decision and Order.
(d) Challenges or objections to a directed election. A Direction of
Election issued under this section will be issued without prejudice to
the right of a party to file a challenge to the eligibility of any
person participating in the election and/or objections to the election.
Sec. 2422.17 Notice of hearing and prehearing conference.
(a) Purpose of notice of a hearing. The Regional Director may issue
a notice of hearing involving any issues raised in the petition.
(b) Contents. The notice of hearing will advise affected parties
about the hearing. The Regional Director will also notify affected
parties of the issues raised in the petition and establish a date for
the prehearing conference.
(c) Prehearing conference. A prehearing conference will be
conducted by the Hearing Officer, either by meeting or teleconference.
All parties must participate in a prehearing conference and be prepared
to fully discuss, narrow and resolve the issues set forth in the
notification of the prehearing conference.
(d) No interlocutory appeal of hearing determination. A Regional
Director's determination of whether to issue a notice of hearing is not
appealable to the Authority.
Sec. 2422.18 Hearing procedures.
(a) Purpose of a hearing. Representation hearings are considered
investigatory and not adversarial. The purpose of the hearing is to
develop a full and complete record of relevant and material facts.
(b) Conduct of hearing. Hearings will be open to the public unless
otherwise ordered by the Hearing Officer. There is no burden of proof,
with the exception of proceedings on objections to elections as
provided for in Sec. 2422.27(b). Formal rules of evidence do not apply.
(c) Hearing officer. Hearings will be conducted by a Hearing
Officer appointed by the Regional Director. Another Hearing Officer may
be substituted for the presiding Hearing Officer at any time.
(d) Transcript. An official reporter will make the official
transcript of the hearing. Copies of the official transcript may be
examined in the appropriate Regional Office during normal working
hours. Requests by parties to purchase copies of the official
transcript should be made to the official hearing reporter.
Sec. 2422.19 Motions.
(a) Purpose of a motion. Subsequent to the issuance of a Notice of
Hearing in a representation proceeding, a party seeking a ruling, an
order, or relief must do so by filing or raising a motion stating the
order or relief sought and the grounds therefor. Challenges and other
filings referenced in other sections of this subpart may, in the
discretion of the Regional Director or Hearing Officer, be treated as a
motion.
(b) Prehearing motions. Prehearing motions must be filed in writing
with the Regional Director. Any response must be filed with the
Regional Director within five (5) days after service of the motion. The
Regional Director may rule on the motion or refer the motion to the
Hearing Officer.
(c) Motions made at the hearing. During the hearing, motions will
be made to the Hearing Officer and may be oral on the record, unless
otherwise required in this subpart to be in writing. Responses may be
oral on the record or in writing, but, absent permission of the Hearing
Officer, must be provided before the hearing closes. When appropriate,
the Hearing Officer will rule on motions made at the hearing or
referred to the Hearing Officer by the Regional Director.
(d) Posthearing motions. Motions made after the hearing closes must
be filed in writing with the Regional Director. Any response to a
posthearing motion must be filed with the Regional Director within five
(5) days after service of the motion.
Sec. 2422.20 Rights of parties at a hearing.
(a) Rights. A party at a hearing will have the right:
(1) To appear in person or by a representative;
(2) To examine and cross-examine witnesses; and
(3) To introduce into the record relevant evidence.
(b) Documentary evidence and stipulations. Parties must submit two
(2) copies of documentary evidence to the Hearing Officer and copies to
all other parties. Stipulations of fact between/among the parties may
be introduced into evidence.
(c) Oral argument. Parties will be entitled to a reasonable period
prior to the close of the hearing for oral argument. Presentation of a
closing oral argument does not preclude a party from filing a brief
under paragraph (d) of this section.
(d) Briefs. A party will be afforded an opportunity to file a brief
with the Regional Director.
(1) An original and two (2) copies of a brief must be filed with
the Regional Director within thirty (30) days from the close of the
hearing.
(2) A written request for an extension of time to file a brief must
be filed with and received by the Regional Director no later than five
(5) days before the date the brief is due.
(3) No reply brief may be filed without permission of the Regional
Director.
Sec. 2422.21 Duties and powers of the Hearing Officer.
(a) Duties of the Hearing Officer. The Hearing Officer will receive
evidence and inquire fully into the relevant and material facts
concerning the matters that are the subject of the hearing, and may
make recommendations on the record to the Regional Director.
(b) Powers of the Hearing Officer. During the period a case is
assigned to a Hearing Officer by the Regional Director and prior to the
close of the hearing, the Hearing Officer may take any action necessary
to schedule, conduct, continue, control, and regulate the hearing,
including ruling on motions when appropriate.
Sec. 2422.22 Objections to the conduct of the hearing.
(a) Objections. Objections are oral or written complaints
concerning the conduct of a hearing.
(b) Exceptions to rulings. There are automatic exceptions to all
adverse rulings.
Sec. 2422.23 Election procedures.
(a) Regional Director conducts or supervises election. The Regional
Director will decide to conduct or supervise the election. In
supervised elections, agencies will perform all acts as specified in
the Election Agreement or Direction of Election.
(b) Notice of election. Prior to the election a notice of election,
prepared by the Regional Director, will be posted by the activity in
places where notices to employees are customarily posted and/or
distributed in a manner by which notices are normally distributed. The
notice of election will contain the details and procedures of the
election, including the appropriate unit, the eligibility period, the
date(s), hour(s) and location(s) of the election, a sample ballot, and
the effect of the vote.
(c) Sample ballot. The reproduction of any document purporting to
be a copy of the official ballot that suggests either directly or
indirectly to employees that the Authority endorses a particular choice
in the election may constitute grounds for setting aside an election if
objections are filed under Sec. 2422.26.
(d) Secret ballot. All elections will be by secret ballot.
(e) Intervenor withdrawal from ballot. When two or more labor
organizations
[[Page 67296]]
are included as choices in an election, an intervening labor
organization may, prior to the approval of an election agreement or
before the direction of an election, file a written request with the
Regional Director to remove its name from the ballot. If the request is
not received prior to the approval of an election agreement or before
the direction of an election, unless the parties and the Regional
Director agree otherwise, the intervening labor organization will
remain on the ballot. The Regional Director's decision on the request
is final and not subject to the filing of an application for review
with the Authority.
(f) Incumbent withdrawal from ballot in an election to decertify an
incumbent representative. When there is no intervening labor
organization, an election to decertify an incumbent exclusive
representative will not be held if the incumbent provides the Regional
Director with a written disclaimer of any representation interest in
the unit. When there is an intervenor, an election will be held if the
intervening labor organization proffers a thirty percent (30%) showing
of interest within the time period established by the Regional
Director.
(g) Petitioner withdraws from ballot in an election. When there is
no intervening labor organization, an election will not be held if the
petitioner provides the Regional Director with a written request to
withdraw the petition. When there is an intervenor, an election will be
held if the intervening labor organization proffers a thirty percent
(30%) showing of interest within the time period established by the
Regional Director.
(h) Observers. All parties are entitled to representation at the
polling location(s) by observers of their own selection subject to the
Regional Director's approval.
(1) Parties desiring to name observers must file in writing with
the Regional Director a request for specifically named observers at
least fifteen (15) days prior to an election. The Regional Director may
grant an extension of time for filing a request for specifically named
observers for good cause where a party requests such an extension or on
the Regional Director's own motion. The request must name and identify
the observers requested.
(2) An agency or activity may use as its observers any employees
who are not eligible to vote in the election, except:
(i) Supervisors or management officials;
(ii) Employees who have any official connection with any of the
labor organizations involved; or
(iii) Non-employees of the Federal government.
(3) A labor organization may use as its observers any employees
eligible to vote in the election, except:
(i) Employees on leave without pay status who are working for the
labor organization involved; or
(ii) Employees who hold an elected office in the union.
(4) Objections to a request for specific observers must be filed
with the Regional Director stating the reasons in support within five
(5) days after service of the request.
(5) The Regional Director's ruling on requests for and objections
to observers is final and binding and is not subject to the filing of
an application for review with the Authority.
Sec. 2422.24 Challenged ballots.
(a) Filing challenges. A party or the Regional Director may, for
good cause, challenge the eligibility of any person to participate in
the election prior to the employee voting.
(b) Challenged ballot procedure. An individual whose eligibility to
vote is in dispute will be given the opportunity to vote a challenged
ballot. If the parties and the Region are unable to resolve the
challenged ballot(s) prior to the tally of ballots, the unresolved
challenged ballot(s) will be impounded and preserved until a
determination can be made, if necessary, by the Regional Director.
Sec. 2422.25 Tally of ballots.
(a) Tallying the ballots. When the election is concluded, the
Regional Director will tally the ballots.
(b) Service of the tally. When the tally is completed, the Regional
Director will serve the tally of ballots on the parties in accordance
with the election agreement or direction of election.
(c) Valid ballots cast. Representation will be determined by the
majority of the valid ballots cast.
Sec. 2422.26 Objections to the election.
(a) Filing objections to the election. Objections to the procedural
conduct of the election or to conduct that may have improperly affected
the results of the election may be filed by any party. Objections must
be filed and received by the Regional Director within five (5) days
after the tally of ballots has been served. Any objections must be
timely regardless of whether the challenged ballots are sufficient in
number to affect the results of the election. The objections must be
supported by clear and concise reasons. An original and two (2) copies
of the objections must be received by the Regional Director.
(b) Supporting evidence. The objecting party must file with the
Regional Director evidence, including signed statements, documents and
other materials supporting the objections within ten (10) days after
the objections are filed.
Sec. 2422.27 Determinative challenged ballots and objections.
(a) Investigation. The Regional Director will investigate
objections and/or determinative challenged ballots that are sufficient
in number to affect the results of the election.
(b) Burden of proof. A party filing objections to the election
bears the burden of proof by a preponderance of the evidence concerning
those objections. However, no party bears the burden of proof on
challenged ballots.
(c) Regional Director Action. After investigation, the Regional
Director will take appropriate action consistent with Sec. 2422.30.
(d) Consolidated hearing on objections and/or determinative
challenged ballots and an unfair labor practice hearing. When
appropriate, and in accordance with Sec. 2422.33, objections and/or
determinative challenged ballots may be consolidated with an unfair
labor practice hearing. Such consolidated hearings will be conducted by
an Administrative Law Judge. Exceptions and related submissions must be
filed with the Authority and the Authority will issue a decision in
accordance with Part 2423 of this chapter, except for the following:
(1) Sections 2423.18 and 2423.19(j) of this Subchapter concerning
the burden of proof and settlement conferences are not applicable;
(2) The Administrative Law Judge may not recommend remedial action
to be taken or notices to be posted as provided by Sec. 2423.26(a) of
this Subchapter; and,
(3) References to ``charge'' and ``complaint'' in Sec. 2423.26(b)
of this chapter will be omitted.
Sec. 2422.28 Runoff elections.
(a) When a runoff may be held. A runoff election is required in an
election involving at least three (3) choices, one of which is ``no
union'' or ``neither,'' when no choice receives a majority of the valid
ballots cast. However, a runoff may not be held until the Regional
Director has ruled on objections to the election and determinative
challenged ballots.
(b) Eligibility. Employees who were eligible to vote in the
original election and who are also eligible on the date of the runoff
election may vote in the runoff election.
[[Page 67297]]
(c) Ballot. The ballot in the runoff election will provide for a
selection between the two choices receiving the largest and second
largest number of votes in the election.
Sec. 2422.29 Inconclusive elections.
(a) Inconclusive elections. An inconclusive election is one where
challenged ballots are not sufficient to affect the outcome of the
election and one of the following occurs:
(1) The ballot provides for at least three (3) choices, one of
which is ``no union'' or ``neither'' and the votes are equally divided;
or
(2) The ballot provides for at least three (3) choices, the choice
receiving the highest number of votes does not receive a majority, and
at least two other choices receive the next highest and same number of
votes; or
(3) When a runoff ballot provides for a choice between two labor
organizations and results in the votes being equally divided; or
(4) When the Regional Director determines that there have been
significant procedural irregularities.
(b) Eligibility to vote in a rerun election. A current payroll
period will be used to determine eligibility to vote in a rerun
election.
(c) Ballot. If the Regional Director determines that the election
is inconclusive, the election will be rerun with all the choices that
appeared on the original ballot.
(d) Number of reruns. There will be only one rerun of an
inconclusive election. If the rerun results in another inconclusive
election, the tally of ballots will indicate a majority of valid
ballots has not been cast for any choice and a certification of results
will be issued. If necessary, a runoff may be held when an original
election is rerun.
Sec. 2422.30 Regional Director investigations, notices of hearings,
actions, and Decisions and Orders.
(a) Regional Director investigation. The Regional Director will
make such investigation of the petition and any other matter as the
Regional Director deems necessary.
(b) Regional Director notice of hearing. The Regional Director will
issue a notice of hearing to inquire into any matter about which a
material issue of fact exists, and any time there is reasonable cause
to believe a question exists regarding unit appropriateness.
(c) Regional Director action and Decision and Order. After
investigation and/or hearing, when a hearing has been ordered, the
Regional Director will resolve the matter in dispute and, when
appropriate, direct an election or approve an election agreement, or
issue a Decision and Order.
(d) Appeal of Regional Director Decision and Order. A party may
file with the Authority an application for review of a Regional
Director Decision and Order.
(e) Contents of the Record. When no hearing has been conducted all
material submitted to and considered by the Regional Director during
the investigation becomes a part of the record. When a hearing has been
conducted, the transcript and all material entered into evidence,
including any posthearing briefs, become a part of the record.
Sec. 2422.31 Application for review of a Regional Director Decision
and Order.
(a) Filing an application for review. A party must file an
application for review with the Authority within sixty (60) days of the
Regional Director's Decision and Order. The sixty (60) day time limit
provided for in 5 U.S.C. 7105(f) may not be extended or waived.
(b) Contents. An application for review must be sufficient to
enable the Authority to rule on the application without recourse to the
record; however, the Authority may, in its discretion, examine the
record in evaluating the application. An application must specify the
matters and rulings to which exception(s) is taken, include a summary
of evidence relating to any issue raised in the application, and make
specific reference to page citations in the transcript if a hearing was
held. An application may not raise any issue or rely on any facts not
timely presented to the Hearing Officer or Regional Director.
(c) Review. The Authority may grant an application for review only
when the application demonstrates that review is warranted on one or
more of the following grounds:
(1) The decision raises an issue for which there is an absence of
precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director
has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a
substantial factual matter.
(d) Opposition. A party may file with the Authority an opposition
to an application for review within ten (10) days after the party is
served with the application. A copy must be served on the Regional
Director and all other parties and a statement of service must be filed
with the Authority.
(e) Regional Director Decision and Order becomes the Authority's
action. A Decision and Order of a Regional Director becomes the action
of the Authority when:
(1) No application for review is filed with the Authority within
sixty (60) days after the date of the Regional Director's Decision and
Order; or
(2) A timely application for review is filed with the Authority and
the Authority does not undertake to grant review of the Regional
Director's Decision and Order within sixty (60) days of the filing of
the application; or
(3) The Authority denies an application for review of the Regional
Director's Decision and Order.
(f) Authority grant of review and stay. The Authority may rule on
the issue(s) in an application for review in its order granting the
application for review. Neither filing nor granting an application for
review shall stay any action ordered by the Regional Director unless
specifically ordered by the Authority.
(g) Briefs if review is granted. If the Authority does not rule on
the issue(s) in the application for review in its order granting
review, the Authority may, in its discretion, afford the parties an
opportunity to file briefs. The briefs will be limited to the issue(s)
referenced in the Authority's order granting review.
Sec. 2422.32 Certifications and revocations.
(a) Certifications. The Regional Director will issue an appropriate
certification when:
(1) After an election, runoff, or rerun,
(i) No objections are filed or challenged ballots are not
determinative, or
(ii) Objections and determinative challenged ballots are decided
and resolved; or
(2) The Regional Director issues a Decision and Order requiring a
certification and the Decision and Order becomes the action of the
Authority under Sec. 2422.31(e) or the Authority otherwise directs the
issuance of a certification.
(b) Revocations. Without prejudice to any rights and obligations
which may exist under the Statute, the Regional Director will revoke a
recognition or certification, as appropriate, and provide a written
statement of reasons when:
(1) An incumbent exclusive representative files, during a
representation proceeding, a disclaimer of any representational
interest in the unit; or
(2) Due to a substantial change in the character and scope of the
unit, the unit is no longer appropriate and an election is not
warranted.
[[Page 67298]]
Sec. 2422.33 Relief obtainable under Part 2423.
Remedial relief that was or could have been obtained as a result of
a motion, objection, or challenge filed or raised under this subpart,
may not be the basis for similar relief if filed or raised as an unfair
labor practice under Part 2423 of this Chapter: Provided, however, that
related matters may be consolidated for hearing as noted in
Sec. 2422.27(d) of this subpart.
Sec. 2422.34 Rights and obligations during the pendency of
representation proceedings.
(a) Existing recognitions, agreements, and obligations under the
Statute. During the pendency of any representation proceeding, parties
are obligated to maintain existing recognitions, adhere to the terms
and conditions of existing collective bargaining agreements, and
fulfill all other representational and bargaining responsibilities
under the Statute.
(b) Unit status of individual employees. Notwithstanding paragraph
(a) of this section and except as otherwise prohibited by law, a party
may take action based on its position regarding the bargaining unit
status of individual employees, pursuant to 5 U.S.C. 7103(a)(2), 7112
(b) and (c): Provided, however, that its actions may be challenged,
reviewed, and remedied where appropriate.
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
5. The authority citation for Part 2429 continues to read as
follows:
Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28
U.S.C. 2112(a).
6. Section 2429.21 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 2429.21 Computation of time for filing papers.
(a) In computing any period of time prescribed by or allowed by
this subchapter, except in agreement bar situations described in
Sec. 2422.12 (c), (d), (e), and (f) of this subchapter, and except as
to the filing of exceptions to an arbitrator's award under Sec. 2425.1
of this subchapter, the day of the act, event, or default from or after
which the designated period of time begins to run shall not be
included. The last day of the period so computed is to be included
unless it is a Saturday, Sunday, or a Federal legal holiday in which
event the period shall run until the end of the next day which is
neither a Saturday, Sunday, or a Federal legal holiday. Provided,
however, in agreement bar situations described in Sec. 2422.12 (c),
(d), (e), and (f), if the 60th day prior to the expiration date of an
agreement falls on Saturday, Sunday, or a Federal legal holiday, a
petition, to be timely, must be filed by the close of business on the
last official workday preceding the 60th day. When the period of time
prescribed or allowed is 7 days or less, intermediate Saturdays,
Sundays, and Federal legal holidays shall be excluded from the
computations.
(b) Except when filing an unfair labor practice charge pursuant to
Sec. 2423.6 of this subchapter, a representation petition pursuant to
Part 2422 of this subchapter, and a request for an extension of time
pursuant to Sec. 2429.23(a) of this part, when this subchapter requires
the filing of any paper with the Authority, the General Counsel, a
Regional Director, or an Administrative Law Judge, the date of filing
shall be determined by the date of mailing indicated by the postmark
date. If no postmark date is evident on the mailing, it shall be
presumed to have been mailed 5 days prior to receipt. If the filing is
by personal delivery, it shall be considered filed on the date it is
received by the Authority or the officer or agent designated to receive
such matter.
7. Section 2429.22 is revised to read as follows:
Sec. 2429.22 Additional time after service by mail.
Except as to the filing of an application for review to a Regional
Director's Decision and Order under Sec. 2422.31 of this subchapter,
whenever a party has the right or is required to do some act pursuant
to this subchapter within a prescribed period after service of a notice
or other paper upon such party, and the notice or paper is served on
such party by mail, five (5) days shall be added to the prescribed
period: Provided, however, That five (5) days shall not be added in any
instance where an extension of time has been granted.
Dated: December 22, 1995.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 95-31413 Filed 12-28-95; 8:45 am]
BILLING CODE 6727-01-P
