[Federal Register Volume 59, Number 105 (Thursday, June 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13429]
[[Page Unknown]]
[Federal Register: June 2, 1994]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 103
Appropriateness of Requested Single Location Bargaining Units in
Representation Cases
AGENCY: National Labor Relations Board (NLRB).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The National Labor Relations Board (NLRB) is publishing an
advance notice of proposed rulemaking on the issue of the
appropriateness of requested single location bargaining units in
representation cases. This rule would be applicable only in cases
involving initial organizing in the retail, manufacturing and trucking
industries. The Board is publishing this advance notice to seek timely
comments and suggestions from the public, labor organizations, employer
groups, and other interested organizations on how the Board may best
fulfill its statutory obligation to determine an appropriate unit when
a single location bargaining unit is sought in these particular
industries.
DATES: All responses to this notice must be received on or before July
29, 1994.
ADDRESSES: All responses should be sent to: Office of Executive
Secretary, 1099 14th Street, NW., room 11600, Washington, DC 20570.
Telephone: (202) 273-1940.
FOR FURTHER INFORMATION CONTACT: John C. Truesdale, Executive
Secretary, Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: The question of the appropriateness of a
single location bargaining unit when requested by a labor organization
has been an issue in NLRB representation proceedings for almost 60
years. See, e.g., Atlantic Refining Co. 1 NLRB 359, 364-5 (1936). In
the vast majority of cases, the single location unit is found
appropriate, but only after extensive litigation of such factors as
geographical separation, similarity of employee skills and terms and
conditions of employment, autonomy of the location manager, extent of
employee interchange, contact between facilities, functional
integration, and other miscellaneous matters. The years of litigation
have not been enlightening. A presumption of separate appropriateness
has evolved in most industries when the unit petitioned for is single
facility in scope. See, e.g., Sav-On Drugs, Inc., 138 NLRB 1032, 1033
(1962); and Haag Drug Co., 169 NLRB 877 (1968).\1\ One court spent nine
pages reciting the facts in two separate cases, involving two separate
industries, reaching opposite results in the cases despite combining
them for purposes of decision. NLRB v Chicago Health & Tennis Clubs,
567 F.2d 331 (7th Cir. 1977). (In the course of its opinion, the court
noted that the Board's approach in this area has ``fluctuated'' (pages
335-336, fn. 7). We believe it is time to strive for more certainty and
less litigation and delay on this issue, and invite comments on how
best to do this in the retail, manufacturing and trucking industries.
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\1\The presumption does not apply when the unit petitioned for
is multi-facility in scope. See, e.g., Capital Coors Co., 309 NLRB
322 (1992), and cases cited therein.
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Many different industries have been involved in litigation of this
issue, but large groups of cases have centered on the retail,
manufacturing and trucking industries. See e.g., Red Lobster, 300 NLRB
908 1990 (retail); J&L Plate, 310 NLRB 429 (1993) (manufacturing); and
Bowie Hall Trucking 290 NLRB 41 (1988) (trucking). Although this issue
is litigated in other industries, cases involving these other
industries fall outside the scope of the Board's concern in this
proceeding. With regard to retail, manufacturing and trucking, however,
the factors considered by the Board in these cases, including the
presumptive appropriateness of a separate facility, appear to us to be
well-established. The Board's decisions in these industries are
reasonably predictable; with certain limited exceptions, the single-
facility unit usually is found appropriate. We believe, that in normal
circumstances, it is no longer necessary for the Board and the parties
involved to expend extensive resources litigating the issue. Hence, the
Board seeks to promulgate a rule or rules to limit to the extent
possible the necessity to adjudicate the appropriateness of petitioned-
for single facility units in these three industries.
One possibility would be for the Board to promulgate a rule or
several rules which are specifically tailored to these particular
industries.\2\ It is possible, though not certain, that the issue of
separate appropriateness when raised in different industries may
present different considerations. For example, a rule which finds a
single facility appropriate, in part, because of a defined
insubstantial amount of interchange among locations may differ between
the trucking industry and the retail industry because of the differing
nature of the duties of the employees in the two industries, including
their itinerant as opposed to stationary work stations, respectively.
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\2\It is not the Board's present intention to promulgate rules
for any particular sub-categories or sub-industries within the
retail, manufacturing or trucking industries. The Board's intention
is to promulgate a rule or rules with the broadest applicability
possible within these three generic categories of industries.
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Another possibility would be to promulgate a single rule applicable
across all three industries, deeming appropriateness to be determined
by reference to several specified factors. For example, a rule could be
promulgated which would declare appropriate any separate facility unit
requested where (a) A given number of employees--for example, 15--were
employed, or (b) no other facility of the employer was located within a
specified distance--for example, one mile--and where, in addition, a
supervisor within the meaning of the Act, located at the site, oversaw
operation of the facility requested. Extraordinary circumstances would
render the rule inapplicable. One such extraordinary circumstance might
be where a set percentage (e.g., at least 10 percent) of the employees
in the unit sought performed work at other locations a certain
percentage (e.g., at least 10 percent) of the time (frequently referred
to as temporary interchange.) Because they have seldom made a
difference in prior Board decisions, permanent interchange would no
longer be deemed relevant; nor would centralization of personnel
functions, functional integration, or contact between employees at the
facilities. If extraordinary circumstances were present, or if the rule
were for other reasons inapplicable, the issue would be decided by
adjudication, under published precedent.
The rule or rules also may address the definitional question of
what constitutes a single facility. See, e.g., Child's Hospital, 307
NLRB 90 (1992).
Numerous other possibilities present themselves on these subjects.
Given the fact that the Board has made no decision on the propriety
of any form of rulemaking in this area, we invite all interested
parties to comment on (a) The wisdom of promulgating a rule or rules on
this issue in the three specified industries, and (b) the appropriate
content of such a rule or rules.
Statement of Member Stephens and Member Cohen
The rule declaring the presumptive appropriateness of a single
facility bargaining unit has had a long and somewhat stable history,
unlike the Board's turbulent experience with health care unit
determinations that prompted our rulemaking on that subject in 1987.
Nevertheless, given the prevailing view of our colleagues that the
single facility presumption should be reexamined and perhaps
strengthened, we have no objection to considering the matter in the
context of informal rulemaking. Unlike case adjudication, an advance
notice proceeding such as this will enable the Board to solicit
comments from a broad cross-section of interested persons before
making a final decision on the relevant issues, including whether
rulemaking is at all warranted, whether (and how) the substantive
law defining the pertinent factors that can rebut the presumption
should be changed, and whether indeed extensive (and perhaps
unnecessary) resources are being expended litigating this unit
question. Until the appropriate administrative record is compiled,
we join our colleagues in deferring a final decision on any of these
questions.
Dated: Washington, DC, May 27, 1994.
By Direction of the Board.
National Labor Relations Board.
Joseph E. Moore,
Acting Executive Secretary.
[FR Doc. 94-13429 Filed 6-1-94; 8:45 am]
BILLING CODE 7545-01-M
