E8-2767. Joint Petitions for Certification Consenting to an Election

AGENCY:

National Labor Relations Board (NLRB)

ACTION:

Notice of Proposed Rulemaking.

SUMMARY:

As part of its ongoing efforts to address the needs of employers, individuals, and labor organizations and to further the fundamental purposes of the National Labor Relations Act, the National Labor Relations Board (NLRB) is proposing to adopt a rule that would authorize a petition for a prompt NLRB election to be jointly filed by a labor organization and an employer. The following proposal is offered to provide initial focus for public comment. The public is nevertheless encouraged to suggest alternatives.

DATES:

All written comments must be received on or before March 27, 2008.

ADDRESSES:

All written comments should be sent to the Office of the Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Room 11600, Washington, DC 20570-0001. The comments should be filed in eight copies, double spaced on 81/2-by-11 inch paper and shall be printed or otherwise legibly duplicated.

FOR FURTHER INFORMATION CONTACT:

Lester A. Heltzer, Executive Secretary, Telephone [phone], e-mail address [e-mail].

SUPPLEMENTARY INFORMATION:

Section 102.62 of the Board's Rules and Regulations currently provides three kinds of “consent” election procedures. Under § 102.62(a) and (b), the parties must stipulate with respect to jurisdictional facts, labor organization status, appropriate unit description, and classifications of employees included and excluded. The parties must also agree to the time, place, and other election details. Under § 102.62(a), the parties agree that post-election disputes will be resolved with finality by the Regional Director. Under § 102.62(b), post-election disputes are resolved pursuant to § 102.69 of the Board's Rules and Regulations, with the parties retaining the right to file exceptions or requests for review with the Board. Under § 102.62(c), the parties can agree to the conduct of an election with disputed pre-election and post-election matters to be resolved with finality by the Regional Director.

The current proposal for revision of the Board's Rules and Regulations would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected.

No showing of interest is required to be filed with the petition. If it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances.

Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under § 103.20 of the Board's Rules and Regulations.

Any motions to intervene may be filed with the Regional Director in accordance with § 102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable.

Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition.

Although the Agency has decided to give notice of proposed rulemaking with respect to these rule changes, the changes involve rules of agency organization, procedure, or practice and therefore no notice of proposed rulemaking is required under section 553 of the Administrative Procedure Act (5 U.S.C. 553). Accordingly, the Regulatory Flexibility Act (5 U.S.C. 601) does not apply to these rule changes.

List of Subjects in 29 CFR Parts 101 and 102

• Administrative practice and procedure
• Labor management relations

For the reasons set forth above, the NLRB proposes to amend 29 CFR parts 101 and 102 as follows:

PART 101—STATEMENTS OF PROCEDURES

1. The authority citation for 29 CFR part 101 continues to read as follows:

Authority: Section 6 of the National Labor Relations Act, as amended (29 U.S.C. 151, 156), and sec. 55(a) of the Administrative Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).

2. Section 101.17 is amended by adding a new second sentence and a new sentence to the end of the section to read as follows:

§ 101.17

Initiation of representation cases and petitions for clarification and amendment.

* * * In addition, a petition for certification consenting to an election may be filed jointly by a labor organization and an employer. * * * If a petition for certification consenting to an election is filed jointly by a labor organization and an employer, no evidence of representation is required to be filed.

3. Section 101.18(a) is amended by adding a new sentence at the end to read as follows:

§ 101.18

Investigation of petition.

(a) * * * In the case of a petition for certification consenting to an election filed jointly by a labor organization and an employer, the bargaining unit description, if appropriate on its face and not contrary to any statutory provision, will be deemed to constitute an appropriate unit and there will be no investigation of the evidence of representation, which is not required to be filed.

* * * * *

4. Section 101.19 is amended by adding a new sentence to the end of the introductory text and adding a new paragraph (d) to read as follows:

§ 101.19

Consent adjustments before formal hearing.

* * * In addition, the labor organization and the employer may consent to an election by means of filing a joint petition for certification, as provided for in § 102.60(b), § 102.61(c), and § 102.62(d).

* * * * *

(d) A petition for certification consenting to an election filed jointly by a labor organization and an employer is another method of informal adjustment of representation cases.

(1) The terms of the consent election, as specified on the petition, including the bargaining unit description, the payroll period to be used as a basis of eligibility to vote in the election, and the place, date, and hours of balloting, will be approved by the Regional Director, absent extraordinary circumstances, within 3 days of the docketing of the petition. Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the petition has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election.

(2) The election will be conducted under the supervision of the Regional Director in the manner already described in this section. The filing of an unfair labor practice charge will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings in accordance with § 102.69.

(3) All matters arising after the election, including determinative challenged ballots and objections to the conduct of the election shall be processed in a manner consistent with paragraphs (a) (4), (5), and (6) of this section.

5. Section § 102.60 is amended by adding a new second sentence to paragraph (a), redesignating paragraph (b) as (c), and adding a new paragraph (b) to read as follows:

§ 102.60

Petitions.

(a) * * * A petition may also be filed jointly by a labor organization and an employer (see paragraph (b) of this section). * * *

(b) Joint petition for certification consenting to an election; who may file; where to file; withdrawal.—A petition for certification consenting to an election may be filed jointly by a labor organization and an employer. Where applicable, the same procedures set forth in paragraph (a) of this section shall be followed.

6. Section 102.61 is amended by redesignating paragraphs (c) through (e) as (d) through (f) and adding a new paragraph (c) to read as follows:

§ 102.61

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

* * * * *

(c) A petition for certification consenting to an election, when filed jointly by a labor organization and an employer, shall contain the following:

(1) The name of the employer.

(2) The address of the establishment involved.

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

(4) Commerce information establishing that the employer's operations affect commerce within the meaning of the Act.

(5) The name, the affiliation, if any, and the address of the labor organization.

(6) A description of the bargaining unit that the parties claim to be appropriate.

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

(8) The date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition.

(9) The place and hours on which the parties have agreed for an election.

(10) The payroll period for eligibility to vote in the election.

(11) The full names and addresses of employees eligible to vote in the election.

(12) Any other relevant facts.

* * * * *

7. Section 102.62 is amended by adding a new paragraph (d) to read as follows:

§ 102.62

Consent-election agreements.

* * * * *

(d) Where a petition for certification consenting to an election has been duly filed jointly by a labor organization and an employer pursuant to § 102.60(b) and 102.61(c), and it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances. Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under § 103.20. Any motions to intervene may be filed with the Regional Director in accordance with § 102.65, except that any such motion must be filed within 14 days from the docketing of the petition. The filing of an unfair labor practice charge will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings in accordance with § 102.69. The election shall be conducted under the direction and supervision of the Regional Director. The method of conducting the election shall be consistent with the method followed by the Regional Director in conducting elections pursuant to § 102.69 and 102.70 except that the rulings and determinations by the Regional Director of the results thereof shall be final, and the Regional Director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect as if issued by the Board, provided further that rulings or determinations by the Regional Director in respect to any amendment of such certification shall also be final.

Dated: Washington, DC, February 11, 2008.

By direction of the Board.

Lester A. Heltzer,

Executive Secretary.