[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82131-82133]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33668]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Special Procedural Rules With Respect to Representation Cases
Governing Periods When the National Labor Relations Board Lacks a
Quorum of Members
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board (the Board or the NLRB) is
revising its rules governing the processing of representation cases
during periods when the Board lacks a quorum of Members. This revision
is being adopted to facilitate, insofar as it is possible, the normal
functioning of the Agency when the number of Board Members falls below
three, the number required to establish a quorum of the Board. See 29
U.S.C. 153(b); New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). The
effect of the revision is to enable the Agency to process some
representation cases to the certification of a representative or the
certification of the results of the election, while deferring Board
consideration of parties' requests for review until a quorum has been
restored.
DATES: Effective December 30, 2011.
FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive
Secretary, National Labor Relations Board, 1099 14th Street NW., Room
11600, Washington, DC 20570. Telephone (202) 273-1067 (this is not a
toll-free number), 1-866-315-6572 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The National Labor Relations Board is
revising its rule requiring the automatic impoundment of ballots in
representation cases when a party files a request for review. This
rules revision is an addendum to the Board's December 14, 2011 rules
revisions,
[[Page 82132]]
which added a new Subpart X to the NLRB's Rules and Regulations (29 CFR
102.178-102.181; see 76 FR 77699). The December 14 revisions covered
the consideration of certain pleadings in unfair labor practice cases
that require a quorum of Board Members for final action, during periods
when the number of Board members falls below three, the number required
to establish a quorum of the Board. See 29 U.S.C. 153(b); New Process
Steel v. NLRB, 130 S.Ct. 2635 (2010). In representation cases, final
action on requests for review by the Board also requires a three-member
quorum. The instant rule revision, which adds 29 CFR 102.182 to the
NLRB's Rules and Regulations, is being adopted to facilitate, as far as
possible, the expeditious processing by the Agency of representation
cases during periods in which the Board lacks a quorum. No Notice of
Proposed Rulemaking (NPRM) is required with respect to this rules
revision, as it falls under the Administrative Procedure Act's
exception to the NPRM requirement for regulatory actions involving
agency organization, procedure, or practice. See 5 U.S.C. 553. In
addition, the Agency finds that notice and comment would be
impracticable within the meaning of 5 U.S.C. 5553(b)(3)(B) before the
Board loses a quorum on January 3, 2012, as now appears possible.
At present, the NLRB's Rules and Regulations provide only for the
adjudication of representation cases and the issuance of decisions on
review by the Board when it is composed of three or more members, which
constitutes the Congressionally-designated quorum of the Board. In New
Process Steel v. NLRB, supra, 130 S. Ct. 2635, the Supreme Court held
that Congress empowered the Board to delegate its powers to no fewer
than three members, and that, to maintain a valid quorum, a membership
of three must be maintained. Id. at 2640. It can be anticipated that,
from time to time, the number of individuals appointed by the President
and confirmed by Congress to serve as members of the Board may fall
below three. Current Section 102.67(b) of the NLRB's Rules and
Regulations requires that all ballots cast in a representation election
be impounded whenever the Board has not acted on a pending request for
review, thus halting the processing of the representation case at the
end of the voting, but before the ballots are counted. During periods
when the Board lacks a quorum, the effect of the current rule would be
to withhold information concerning the results of the election from
employees and employers, who are usually eager to know the results,
until the Board regains a quorum and rules on the request for review.
The investigation and adjudication of objections and determinative
challenges would be delayed during the same period. And in all
likelihood the request for review would ultimately be denied, as are
about 85% of requests for review currently filed. If the request for
review is denied, the delay of the tally and any ensuing proceedings
would have served no purpose whatsoever.
The Board has determined that the purposes of the National Labor
Relations Act will best be served, and the Board's Congressional
mandate will best be carried out, if its rules are revised to suspend,
during any period the Board lacks a quorum, the second proviso of
Section 102.67(b) of the NLRB's Rules and Regulations. Section
102.67(b) provides that a decision by the Regional Director upon the
record shall set forth his findings, conclusions, and order or
direction. The decision of the Regional Director shall be final:
Provided, however, that within 14 days after service thereof any party
may file a request for review with the Board in Washington, DC. The
Regional Director shall schedule and conduct any election directed by
the decision notwithstanding that a request for review has been filed
with or granted by the Board. The filing of such a request shall not,
unless otherwise ordered by the Board, operate as a stay of the
election or any other action taken or directed by the Regional
Director: Provided, however, that if a pending request for review has
not been ruled upon or has been granted ballots whose validity might be
affected by the final Board decision shall be segregated in an
appropriate manner, and all ballots shall be impounded and remain
unopened pending such decision.
Thus, suspension of the automatic impoundment of ballots during
periods in which the Board lacks a quorum will permit Regional
Directors promptly to tally the ballots cast by bargaining unit
employees. The Board anticipates that the suspension of the automatic
impoundment of ballots will serve the interests of the public and the
parties in the speedy resolution of representation cases by avoiding
extended and unnecessary delays in the tally of ballots. In addition,
the Board anticipates that, in some cases the prompt tallying of
ballots and recording the results of the election will cause parties to
determine that it is unnecessary to pursue a request for review. In
such cases, the choice of the bargaining unit employees will be
effectuated expeditiously. Thus, the instant rules revision will
provide the parties the opportunity to pursue numerous representation
cases through to certification, while deferring consideration of
requests for review by the Board until a quorum has been restored. The
rules revision expressly preserves the Board's authority, based on a
properly filed request for review, to revise or revoke any
certification issued by a regional director. Member Brian E. Hayes
voted against the rules revision.
Executive Order 12866
The regulatory review provisions of Executive Order 12866 do not
apply to independent regulatory agencies. However, even if they did,
the proposed changes in the Board's rules would not be classified as
``significant rules'' under Section 6 of Executive Order 12866, because
they will not result in (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or foreign markets. Accordingly, no regulatory
impact assessment is required.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Regulatory Flexibility Act
Because no notice of proposed rulemaking is required for procedural
rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.) pertaining to regulatory flexibility analysis do not apply to
these rules. However, even if the Regulatory Flexibility Act were to
apply, the NLRB certifies that these rules will not have a significant
economic impact on a substantial number of small business entities as
they merely provide parties with avenues for expeditiously resolving
certain representation cases before the Board.
[[Page 82133]]
Paperwork Reduction Act
These rules are not subject to Section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3501) since they do not contain any new
information collection requirements.
Small Business Regulatory Enforcement Fairness Act
Because these rules relate to Agency procedure and practice and
merely modify the Agency's internal processing of ballots in
representation cases, the Board has determined that the Congressional
review provisions of the Small Business Regulatory Enforcement Fairness
Act (5 U.S.C. 801) do not apply.
List of Subjects in 29 CFR Part 102
Administrative practice and procedure; Labor-management relations.
Accordingly, the Board amends 29 CFR part 102 as follows:
PART 102--RULES AND REGULATIONS, SERIES 8
0
1. The authority citation for 29 CFR part 102 continues to read as
follows:
Authority: Section 6, National Labor Relations Act, as amended
(29 U.S.C. 151, 156). Section 102.117 also issued under Section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5
U.S.C. 504(c)(1)).
Subpart X--Special Procedures When the Board Lacks a Quorum
0
2. Add Sec. 102.182 to subpart X to read as follows:
Sec. 102.182 Representation Cases Should Be Processed to
Certification.
During any period when the Board lacks a quorum, the second proviso
of Sec. 102.67(b) regarding the automatic impounding of ballots shall
be suspended. To the extent practicable, all representation cases
should continue to be processed and the appropriate certification
should be issued by the Regional Director notwithstanding the pendency
of a request for review, subject to revision or revocation by the Board
pursuant to a request for review filed in accordance with this subpart.
Signed in Washington, DC, on December 28, 2011.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2011-33668 Filed 12-29-11; 8:45 am]
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