[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 39878-39888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19214]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 150 / Friday, August 4, 1995 /
Proposed Rules
[[Page 39878]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2421 and 2422
Meaning of Terms as Used in This Subchapter; Representation
Proceedings
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of proposed rulemaking with request for comments.
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SUMMARY: The Federal Labor Relations Authority proposes to revise its
regulations regarding the meaning of certain terms used in Subchapter C
(Part 2421) and representation proceedings (Part 2422). These proposed
revisions will streamline the regulations and make the rules more
flexible in addressing the representational concerns of agencies, labor
organizations, and individuals.
DATES: Comments must be received on or before September 18, 1995.
ADDRESSES: Mail or deliver written comments to the Office of Case
Control, Federal Labor Relations Authority, 607 14th Street NW.,
Washington, DC. 20424-0001. Copies of all written comments will be
available for inspection and photocopying between 8 a.m. and 5 p.m.,
Monday through Friday, in Suite 415 at the above address.
FOR FURTHER INFORMATION CONTACT: James H. Adams, Office of Case
Control, (202) 482-6540.
SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority
established a Task Force to study and evaluate Part 2422 of its
regulations--the regulations concerning representation proceedings. To
this end, the Task Force conducted focus groups to solicit and consider
customers' views prior to proposing these revisions. An additional
focus group meeting has been scheduled for August 29, 1995 at the
FLRA's Headquarters, 607 14th St. N.W., Washington, D.C. 20424, 2nd
Floor Agenda Room, at 10:00 a.m. Persons interested in attending this
meeting on this proposed rulemaking should call or write the point of
contact listed in the preceding section to confirm attendance.
Sectional analyses of the proposed amendments to Part 2421--Meaning
of Terms As Used in This Subchapter and the proposed revisions of Part
2422--Representation Proceedings are as follows:
Part 2421
Section 2421.11--The definition of ``party'' is clarified to
incorporate the statutory definition of the term ``person'' (an
individual, labor organization, activity or agency).
Section 2421.18--The term ``petitioner'' is not defined in the
current regulations. This section now defines ``petitioner.''
Section 2421.19--The term ``eligibility period'' is not defined in
the current regulations. This section now defines ``eligibility
period'' in connection with elections.
Section 2421.20--The term ``election agreement'' is not defined in
the current regulations. This section now defines ``election
agreement.''
Section 2421.21--A new term, ``affected by issues raised,'' used
throughout the proposed regulations, is defined in this section. The
term has been added to ensure that all appropriate entities are
afforded the opportunity to participate in a proceeding.
Section 2421.22--The term ``determinative challenged ballots'' is
not defined in the current regulations. This section now defines
``determinative challenged ballots.''
Part 2422
Section 2422.1--In a significant proposed change, this section
consolidates in one petition the seven separate petitions (RO, DR, RA,
CU, AC, UC, DA) provided for in Part 2422 of the current regulations.
This single petition permits resolution of all issues that may be
raised concerning the representation of employees by labor
organizations covered by the Statute and obtains the same type of
results provided for by using the current petitions. All of the current
petitions are incorporated into this section.
Combining the current seven petitions into a single petition
simplifies the current multiple filing requirements. A single petition
avoids the procedural issues that arise when a petitioner ``checks the
wrong box'' and files the wrong petition. A single petition also
provides a more flexible approach to complicated representation
matters.
Many of the current rights and obligations that flow to parties
while a representation petition is being processed are dependent upon
the type of petition that has been filed. The proposed regulations
contain a substantive rule in section 2422.34 to guide the parties'
conduct while the new petition is processed.
Section 2422.2--This section provides that, with one exception, the
new petition may be filed by any individual, labor organization,
activity or agency, or combination of these. The one exception,
consistent with section 7111(b) of the Statute, is that a petition
requesting an election to either elect or decertify a labor
organization and requiring a showing of interest may be filed only by
an individual or a labor organization. A petition may be filed as to
matters relating to majority status (if the activity or agency has a
good faith doubt, based on objective considerations, that a current
recognized or certified labor organization represents a majority of the
employees in an existing unit) or other matters relating to
representation (e.g., questions concerning whether a current unit
continues to be appropriate because of a substantial change in the
character and scope of the unit). Current pre-filing requirements
applicable to UC petitions are eliminated.
Section 2422.3--The new petition is described in this section. This
section also contains, in separate subsections, requirements for:
compliance with section 7111(e) of the Statute; submission of a showing
of interest to support a request for an election; and certification for
a dues allotment.
The parties will be required to name in the petition the
activity(ies), agency(ies), labor organizations and bargaining units
affected by issues raised in the petition, as well as to state clearly
and concisely the issues raised in the petition and the results the
petitioner seeks. This section facilitates participation by all labor
organizations, agencies and activities that have an interest in the
issues raised in the petition.
[[Page 39879]]
Section 2422.4--This section consolidates service requirements and
applies to all documents unless the regulations specifically provide
otherwise. The section includes 2 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 interest,
other challenges, and objections, would be served.
Section 2422.5--This section identifies the method for filing the
new petition, including where to file, the number of copies to file,
and the date of filing. The petitioner would have to file an original
and 2 copies of the petition, rather than the current original and 4
copies.
Section 2422.6--This is a new section that ensures service of the
petition on all entities that may have an interest in a proceeding. It
provides that a Regional Director will notify interested parties
identified in a petition and any other interested parties known to the
Regional Director. This section does not alter the petitioner's service
requirements contained in section 2422.4.
Section 2422.7--Under this section, as under current regulation, a
Regional Director will direct an activity or agency to post a notice
for 10 days advising affected employees and interested parties about a
petition. However, as discussed in more detail in connection with
section 2422.8, the posting of the notice no longer will establish the
time period for filing intervention requests, challenges to the showing
of interest, or other challenges to the proceeding.
Section 2422.8--This section would significantly change the current
requirements for requesting intervention and filing cross-petitions.
Timeliness for filing requests for intervention and cross-petitions is
no longer subject to the 10-day posting period. Rather, the requests
and filings are timely if filed either: (1) prior to the close of a
hearing; or (2) if no hearing is held, prior to the approval of an
election agreement or issuance of a Decision and Order. The section
expands the criteria to qualify as an intervenor to allow all parties
who are affected by issues raised in the petition to participate in a
proceeding. Similarly, activities and agencies may qualify as
intervenors if they employ any employees affected by issues raised in a
petition.
Section 2422.9--This section defines the ``adequacy of a showing of
interest.'' This term is not defined in the current regulations. The
section clarifies that Regional Director decisions holding that a
showing of interest is adequate are final and binding.
Section 2422.10--This section clarifies that Regional Director
decisions holding that a showing of interest is valid are final and
binding decisions. Time limits for filing challenges to the validity of
a showing of interest are no longer tied to the 10-day posting period.
Rather, challenges are timely if filed: (1) prior to the close of a
hearing; or (2) if no hearing is held, prior to the approval of an
election agreement or issuance of a Decision and Order.
Section 2422.11--Time limits for filing challenges to the status of
a labor organization are no longer tied to the 10-day posting period.
Rather, status challenges are timely if filed: (1) prior to the close
of a hearing; or (2) if no hearing is held, prior to the approval of an
election agreement or issuance of a Decision and Order. The section
also clearly states the current requirement that the only basis on
which such a status challenge may be made is alleged non-compliance
with 5 U.S.C. 7103(a)(4).
Section 2422.12--This section lists the timeliness requirements for
filing a petition seeking an election. There are no substantive changes
in the election bar in subsection (a), the certification bar in
subsection (b) or the bar rules in subsections (d) through (f). A new
subsection (c) has been added to track case law concerning the filing
of a petition during the time for agency head review under 5 U.S.C.
7114(c). See Kansas Army National Guard, Topeka, Kansas, 47 FLRA 937
(1993); Fort Bragg Association of Teachers and U.S. Department of the
Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852
(1992); U.S. Department of Defense, Defense Contract Audit Agency,
Central Region and American Federation of Government Employees, Local
3529, 37 FLRA 1218 (1990). Also, a new subsection (h) has been added to
track case law concerning the requirements that a contract must meet to
serve as a bar. See U.S. Department of the Interior, Redwood National
Park, Crescent City, California, 48 FLRA 666 (1993); U.S. Department of
Health and Human Services, Social Security Administration, 44 FLRA 230
(1992); Florida (Air) National Guard, St. Augustine, Florida, 43 FLRA
1475 (1992); U.S. Department of Housing and Urban Development, Newark
Office, Newark, New Jersey, 37 FLRA 1122 (1990); Department of the
Army, U.S. Army Concord District Recruiting Command, Concord, New
Hampshire, 14 FLRA 73 (1984). These changes place in one section all
requirements concerning a contract as a bar to a petition seeking an
election.
Section 2422.13--This is a new section highlighting the importance
of discussions among the parties to narrow and resolve issues raised in
a representation matter and the role of personnel in the Regional
Offices in assisting parties in these discussions, both before and
after the filing of a petition. Subsection (a) encourages all parties
to meet prior to the filing of a petition to discuss and narrow the
issues. If requested by all parties, Regional Office personnel also
will participate in these meetings. Subsection (b) allows a Regional
Director to require all affected parties to meet to attempt to narrow
and resolve issues after a petition has been filed.
Section 2422.14--This section states the consequences of a
withdrawal or dismissal of a petition seeking an election less than 60
days before the expiration of a contract covering the employees
affected or anytime after the expiration of the agreement. The section
now applies to all contracts, not just those having a term of 3 years
or less. This section makes no substantive changes in the current
regulations concerning consequences of withdrawal or dismissal of a
petition seeking an election less than 60 days before the expiration of
a collective bargaining agreement (subsection (a)); or such
consequences when a petition seeking an election is withdrawn by the
petitioner less than 3 days prior to a hearing, or after a Regional
Director has approved an election agreement or directed an election
(subsection (b)). However, in a departure from current regulation, a
new subsection (c) bars an incumbent from seeking an election in a unit
for which it has disclaimed interest within the previous 6 months.
Section 2422.15--This section requires all parties to furnish
information concerning issues raised in a petition and to cooperate
fully in an investigation, subject to dismissal of a petition or a
request to intervene.
Section 2422.16--This section discusses election agreements and
elections directed by a Regional Director. The section does not change
the existing requirement that parties will be provided an opportunity
for a hearing on other than procedural matters before a Regional
Director directs an election.
However, the section reflects a significant change: after a
hearing, if there are no questions regarding unit appropriateness, a
Regional Director may issue a Direction of Election without issuing a
Decision and Order. Thus, elections may be conducted
[[Page 39880]]
without delay when the parties agree on, and a Regional Director
approves, an appropriate unit even though the parties are unable to
agree on such matters as the eligibility of employees that do not
affect the appropriateness of the unit. Any party would be permitted to
file challenges to the eligibility of any person voting in the election
and/or file objections to the election.
Section 2422.17--This section, pertaining to a notice of hearing,
provides that parties must participate in a prehearing conference
scheduled by the Hearing Officer and must be prepared to discuss,
narrow and resolve the issues raised by the petition set forth in the
notice of hearing. This section, in conjunction with section 2422.13,
emphasizes the resolution of issues at the earliest stage possible
during a proceeding.
Sections 2422.18-2422.20--These three sections set forth hearing
procedures and rights of the parties at a hearing.
Section 2422.21--This section offers two options. Option 1 follows
current regulations. Option 2 would authorize a Hearing Officer to make
recommendations on the record on any issue. Other options exist,
including limiting the type of recommendations that may be made to
certain matters, such as credibility and eligibility issues. Following
receipt of comments, consideration will be given to whether, if current
regulations are changed, the authority of Hearing Officers to make
recommendations should be more limited than that proposed in Option 2.
Section 2422.22--This section addresses objections to the conduct
of the hearing.
Section 2422.23--This section clarifies and simplifies the
procedure by which elections are conducted or supervised by a Regional
Director. This section continues current practices with two exceptions:
subsection (e) provides that when the parties agree, the Regional
Director may allow an intervenor to remove its name from the ballot
even if the request to withdraw is received after the approval of an
election agreement or the direction of an election; subsection (f) adds
that if an incumbent withdraws from a ballot to decertify the
incumbent, any intervenor will be given time, as established by a
Regional Director, to proffer a thirty percent (30%) showing of
interest in the unit. Subsection (g) describes whether an election will
be held when the petitioner requests withdrawal.
Sections 2422.24-2422.29--These six sections discuss challenged
ballots, the tally of ballots, objections to the election, the
processing of determinative challenged ballots and objections to an
election, and runoff and inconclusive elections. These sections make no
substantive changes in current practices in these areas, except in one
instance: subsection (a) of section 2422.26 provides that objections to
an election must be filed and received by a Regional Director within 5
days after the tally of ballots has been furnished to the parties.
Current regulations measure the timeliness of objections from the date
of service of the objections, which encompasses the date mailed. This
change allows certifications following elections to be issued more
expeditiously.
Section 2422.30--This section clarifies in subsection (b),
consistent with section 2422.16(c), that a Regional Director will issue
a notice of hearing when there is either a material issue of fact or
reasonable cause to believe a question exists regarding unit
appropriateness. The section also clarifies in subsection (e) what
constitutes ``the record'' in a representation proceeding. The section
makes no substantive changes in the current practices in these areas.
The section states that a Regional Director will resolve matters in
dispute and issue a Decision and Order when appropriate but does not
list all potential actions a Regional Director may take.
Section 2422.31--Subsection (c) includes two options for when the
Authority will grant an application for review of a Regional Director's
decision. Option 1 retains the current grounds for review with minor
editorial changes. Option 2 specifies that, in addition to satisfying
one or more of those grounds, a party seeking review must assert and
establish that the Authority's decision will have a substantial impact
on labor-management relations law unless the Authority determines, in
its discretion, that extraordinary circumstances exist to grant review.
Following receipt of comments, the Authority will adopt one of the
options or a combination thereof.
Section 2422.32--This is a new section that states when
certifications and revocations may be issued. The section allows a
Regional Director to issue, as appropriate, revocations of recognitions
or certifications, when an exclusive representative no longer
represents an appropriate unit, such as when a disclaimer is filed by
an incumbent or when there has been a substantial change in the
character and scope of a unit. The issuance of revocations will enable
parties and the Authority to better track the history of a bargaining
unit and provide a definitive declaration of the representational
status of the unit. The section also clarifies that a revocation of a
certification has no impact on any rights and obligations that may
exist under the Statute.
Section 2422.33--This section clarifies that relief which was or
could have been obtained in a representation proceeding may not be
obtained in an unfair labor practice proceeding.
Section 2422.34--This new substantive rule sets out the obligations
and rights of parties during the pendency of a representation petition.
Subsection (a) provides that during the pendency of any
representation petition, parties must maintain existing recognitions
and adhere to the terms and conditions of existing collective
bargaining agreements. These aspects of the section reflect existing
case law requirements. E.g., U.S. Department of the Navy, Naval Air
Engineering Center, Lakehurst, New Jersey, 3 FLRA 568 (1980);
Department of Energy, 2 FLRA 838 (1980). Subsection (a) also provides
that, during such pendency, parties must fulfill all other
representational and bargaining responsibilities. In part, this aspect
of subsection (a) reflects existing requirements. See, e.g., Department
of the Interior, Bureau of Reclamation, Yuma Projects Office, Yuma
Arizona, 4 FLRC 486, 497 (1976) (during pendency of a representation
petition, if an agency ``must make changes in otherwise negotiable
personnel policies and practices and matters affecting working
conditions, then the agency must notify the incumbent union or unions
of those proposed changes and, upon request, negotiate on those matters
* * *''). However, subsection (a) would alter existing law by
permitting changes after representational and collective bargaining
responsibilities under the Statute are satisfied. Additionally,
subsection (a) departs from existing law insofar as it would require
parties to, among other things, bargain over and execute a term
agreement during the pendency of certain petitions. E.g., Immigration
and Naturalization Service, 16 FLRA 80, 87 (1984) (agency did not
violate the Statute by refusing to bargain over changes in negotiated
promotion plan during pendency of a question concerning representation
because such bargaining ``would necessarily have led to changes in
conditions of employment * * * which the [r]espondent was required to
maintain to the maximum extent possible''). Subsection (b) permits
parties to take actions consistent with their position regarding the
unit status of individual employees, subject to challenge and review.
For example, an agency may refuse to process, under a negotiated
grievance procedure, a
[[Page 39881]]
grievance filed by an employee who it claims is outside a recognized
bargaining unit. This refusal to process is subject to challenge by the
exclusive representative of the relevant unit. Subsection (b) is
consistent with existing case law requirements, which recognize that,
in situations such as these, a party acts at its peril in taking
actions based on its position regarding an employee's unit status.
List of Subjects in 5 CFR Parts 2421 and 2422
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Labor
Relations Authority proposes to amend Part 2421 and revise Part 2422 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
(1) Filing a charge, petition, or request;
(2) 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;
(3) Whose intervention in a proceeding has been permitted or
directed by the Authority; or
(4) 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
(b) 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 activity or agency 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,
agencies or activities, or bargaining units that have a connection to
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 Who may 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.
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.
2422.16 Election agreements or directed elections.
2422.17 Notice of Hearing.
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. 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 Who may 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
activity or an agency; or a combination of the above, Provided, that
petitions requiring by a showing of interest may be filed only by an
individual or a labor organization.
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 activity or agency
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 activity or agency 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
[[Page 39882]]
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.
Option 1
Unless otherwise specifically provided, 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. The filer must submit a written
statement of service to the Regional Director.
Option 2
Unless otherwise specifically provided, 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, challenges to a showing of
interest, and documentation supporting challenges and objections. 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 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 interested parties. After a petition is filed,
the Regional Director will notify any labor organization, agency or
activity the parties have indicated as being affected by issues raised
by the petition, or any other interested party known to the Regional
Director, that a petition has been filed with the Regional Director.
(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 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 in a manner by which notices are
normally distributed.
(b) Contents of notice. The notice shall advise affected employees
and interested parties 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 seeking an
election in a unit which includes 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/or filed and submitted to
the Regional Director prior to a hearing, or to the Hearing Officer
after the hearing opens but before it closes. 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
[[Page 39883]]
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 intervention. An incumbent exclusive representative,
without regard to the requirements of paragraph (c) of this section,
will be considered an intervenor 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) 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 submitted to the Regional Director prior to a hearing, or to the
Hearing Officer after the hearing opens but before it closes. 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
prior to a hearing, or to the Hearing Officer after the hearing opens
but before it closes. 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 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 is signed and
dated covering the claimed unit, paragraphs (c), (d), and (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 has been signed and dated
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 three (3) years or more.
Where a collective bargaining agreement has been signed and dated
covering the claimed unit and has a term of three (3) years or more
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)
days 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 and signed
more than 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.
[[Page 39884]]
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 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 less than three (3) days prior to a hearing or after
approval of an election agreement. A petitioner who submits a
withdrawal request for a petition seeking an election that is received
by the Regional Director 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 if such request is filed:
(1) Within three (3) days before a hearing is scheduled to be held;
or
(2) After the approval by the Regional Director of an election
agreement or direction of an election by the Regional Director under
Sec. 2422.16.
(c) Withdrawal of incumbent prior to an election. 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.
(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. The failure to submit supporting information or to
cooperate fully in the investigation of the petition or request to
intervene may result in dismissal.
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,
dates, hours, or locations of the election, the Regional Director will
decide election procedures and issue a Direction of an 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 the unit appropriateness,
issue a Direction 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.
(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 be served on all
interested parties and will advise affected employees and interested
parties about the hearing.
(c) Prehearing conference. The Hearing Officer will schedule a
prehearing conference, 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 notice of
hearing.
(d) No appeal of hearing determination. A Regional Director's
determination 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. (1) 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.
(2) When a motion to intervene pursuant to Sec. 2422.8 is made at
the hearing, the Hearing Officer will either grant the motion, deny the
motion, or conditionally allow participation in the hearing pending the
Regional Director's ruling on the motion.
[[Page 39885]]
(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 a copy to
all other parties. Stipulations of fact between 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.
Option 1
(a) Duty 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.
Option 2
(a) Duty of the Hearing Officer. The Hearing Officer will receive
evidence, 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 election
will either be conducted or supervised by the Regional Director.
(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 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 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 procedures, 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 to 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 not use as its observer:
(i) Supervisory or managerial personnel;
(ii) Employees eligible to vote in the election;
(iii) Employees who have any official connection with any of the
labor organizations involved; or
(iv) Non-employees of the Federal government.
(3) A labor organization may not use as its observer:
(i) Supervisory or managerial personnel;
(ii) Non-employees of the Federal government; or
(iii) Employees on leave without pay status who are working for the
labor organization involved.
(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,
[[Page 39886]]
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 ballots 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 to 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 must be submitted to the Regional Director.
Objections must be filed and received by the Regional Director within
five (5) days after the tally of ballots has been furnished. 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) 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.
(d) Regional Director Action. After investigation, the Regional
Director will take appropriate action consistent with Sec. 2422.30.
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.
(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) What is an inconclusive election. 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, 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.
[[Page 39887]]
(b) Contents. An application for review must be sufficient to
enable the Authority to rule on the application without recourse to the
record. 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.
Option 1
(c) Review. The Authority may grant an application for review only
where it appears that compelling reasons exist therefor. Accordingly,
an application for review may be granted only upon one or more of the
following grounds:
(1) The decision raises an issue for which there is an absence of
precedent or the decision is based upon a clear error in application of
law or policy;
(2) The decision is based on law or policy which clearly warrants
reconsideration;
(3) The conduct of a hearing or a procedural ruling has resulted in
prejudicial error;
(4) The Regional Director's decision regarding a substantial
factual issue was clearly erroneous and prejudicially affected the
rights of a party;
Option 2
(c) Review. (1) Assertions required for review. The Authority will
grant an application for review when a party filing has specifically
asserted and established that:
(i) Review of the decision is warranted on one or more of the
grounds set forth in paragraph (c)(2) of this section and,
(ii) The Authority's decision will have a substantial impact on
labor-management relations law, as set forth in paragraph (c)(3) of
this section.
(2) Grounds warranting review. A filing party must assert and
establish that review of a Regional Director's decision is warranted on
one or more of the following grounds:
(i) The decision raises an issue for which there is an absence of
precedence or the decision is based upon a clear error in application
of law or policy;
(ii) The decision is based on law or policy which clearly warrants
reconsideration;
(iii) The conduct of a hearing or a procedural ruling has resulted
in prejudicial error;
(iv) The Regional Director's decision regarding a substantial
factual issue was clearly erroneous and prejudicially affected the
rights of a party;
(3) Substantial impact on labor-management relations law. In
addition to the requirements set forth in subsection (d), a filing
party must assert and establish that the Authority's decision will have
a substantial impact on labor-management relations law. Such impact may
be found, but is not limited to, situations where:
(i) The Regional Director's Decision is likely to have a
substantial impact in cases other than the one(s) directly involved in
the decision; or
(ii) Review would resolve a question of particular importance to
the Federal sector labor-management relations program.
(4) Discretionary determination of Authority to review.
Notwithstanding paragraphs (c), (d), and (e) of this section, an
application for review may be granted when, in the Authority's
discretion, extraordinary circumstances exist for reviewing the
Regional Director's Decision and Order.
(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 does not 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(h) or the Authority otherwise directs the
issuance of a certification.
(c) 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.
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, that related
matters may be consolidated for hearing as noted in Sec. 2422.27(c) 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, Provided, that its actions may be
challenged, reviewed, and remedied where appropriate.
[[Page 39888]]
Dated: August 1, 1995.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 95-19214 Filed 8-3-95; 8:45 am]
BILLING CODE 6267-01-P
