[Federal Register Volume 79, Number 14 (Wednesday, January 22, 2014)]
[Rules and Regulations]
[Pages 3483-3495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01061]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
RIN 3142-AA08
Representation--Case Procedures
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: This final rule rescinds the amendments to the National Labor
Relations Board's (the Board's) representation case procedures adopted
by the Board's final rule of December 22, 2011, consistent with the
district court's decision in Chamber of Commerce of the U.S. v. NLRB
setting aside that rule. On December 9, 2013, the Court of Appeals for
the District of Columbia Circuit dismissed the Board's appeal of the
district court's decision, pursuant to the parties' stipulation. Now
that the district court's decision is no longer subject to appellate
review, this final rule restores the relevant language in the CFR to
that which existed before the Board issued the December 22, 2011 final
rule.
DATES: Effective Date: January 22, 2014.
FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary,
National Labor Relations Board, 1099 14th Street, NW., Washington, DC
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572
(TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Introduction
On December 22, 2011, the National Labor Relations Board (Board or
NLRB) published a final rule amending its regulations governing
representation case procedures. 76 FR 80138. The final rule was
immediately challenged in Federal district court. See Chamber of
Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012).
On May 14, 2012, the court struck down the rule on only one ground:
that the Board lacked a quorum when it issued the final rule because
Member Hayes (one of the Board's three Members at the time of the
rule's publication) was ``absent'' from the vote--rather than
``abstaining'' from the vote, as the Board asserted. Id. at 28-30. On
July 27, 2012, the court denied the Board's motion for reconsideration
of its opinion. Id. at 30-35.
The Board appealed to the D.C. Circuit. On December 9, 2013, the
D.C. Circuit dismissed the Board's appeal of the district court's
decision pursuant to a joint stipulation of the parties. As there is no
longer a possibility that the district court's opinion will be
overturned on appeal, there is no basis for the language in the CFR to
continue to reflect the amendments made by the Board's December 22,
2011 final rule.
II. Changes to the CFR
Pursuant to the Board's December 22, 2011 final rule, the CFR was
changed in the following ways. In part 101, subpart C, consisting of
Sec. Sec. 101.17 through 101.21, was removed and reserved. In part
101, subpart D, Sec. Sec. 101.23 and 101.25 were amended. In part 101,
subpart E, Sec. Sec. 101.28, 101.29 and 101.30 were amended. In part
102, subpart C, Sec. Sec. 102.62, 102.63, 102.64, 102.65, 102.66,
102.67 and 102.69 were amended. In part 102, subpart D, Sec. 102.77
was amended. In part 102, subpart E, Sec. Sec. 102.85 and 102.86 were
amended.
To implement the district court's decision, this rule makes some
changes to the regulatory text. Specifically, the changes detailed in
this rule restore the language of each of those subparts to that which
existed prior to the December 22, 2011 amendments, with the exception
of certain non-substantive changes required for publication by the
Office of the Federal Register, such as spelling corrections and
formatting changes.
The Board finds that notice and comment are unnecessary for these
changes because they implement the final decision of the District Court
of the District of Columbia, which set aside the
[[Page 3484]]
December 2011 final rule. Even when the requirements of the
Administrative Procedure Act (APA) for notice of proposed rulemaking
(NPRM) and opportunity for public comment would otherwise be
applicable, the APA provides an exception when an agency ``for good
cause finds * * * that notice and public procedure * * * are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). The restoration of the sections detailed above in 29
CFR Parts 101 and 102, conforms the Board's statements of procedures
and rules and regulations to the district court's mandate that
``representation elections will have to continue under the old
procedures.'' Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d
at 30. The APA exception is appropriate because the Board lacks any
policy discretion in implementing this mandate. For the same reason,
the Board finds good cause for these changes to take immediate effect.
III. Regulatory Procedures
Regulatory Flexibility Act
The Board is not required to prepare a final regulatory flexibility
analysis for this final rule under the Regulatory Flexibility Act, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 601, et seq., because the Agency has not issued an NPRM
prior to this action. As addressed above, promulgation of this final
rule is strictly technical in that it restores the NLRB's statements of
procedures and rules and regulations in accord with a nondiscretionary
judicial mandate, and conforms the regulations to current agency
practice.
Paperwork Reduction Act
This final rule would not impose any information collection
requirements under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq.
List of Subjects
29 CFR Part 101
Administrative practice and procedure, Labor management relations.
29 CFR Part 102
Administrative practice and procedure, Labor management relations.
In consideration of the foregoing, the National Labor Relations
Board amends Chapter I of title 29, Code of Federal Regulations, as
follows:
PART 101--STATEMENTS OF PROCEDURES
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1. The authority citation for part 101 continues to read as follows:
Authority: Sec. 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 552(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).
0
2. Add Subpart C to Part 101 to read as follows:
Subpart C--Representation Cases Under Section 9(c) of the Act and
Petitions for Clarification of Bargaining Units and for Amendment
of Certifications Under Section 9(b) of the Act
Sec.
101.17 Initiation of representation cases and petitions for
clarification and amendment.
101.18 Investigation of petition.
101.19 Consent adjustments before formal hearing.
101.20 Formal hearing.
101.21 Procedure after hearing.
Sec. 101.17 Initiation of representation cases and petitions for
clarification and amendment.
The investigation of the question as to whether a union represents
a majority of an appropriate grouping of employees is initiated by the
filing of a petition by any person or labor organization acting on
behalf of a substantial number of employees or by an employer when one
or more individuals or labor organizations present a claim to be
recognized as the exclusive bargaining representative. If there is a
certified or currently recognized representative, any employee, or
group of employees, or any individual or labor organization acting in
their behalf may also file decertification petitions to test the
question of whether the certified or recognized agent is still the
representative of the employees. If there is a certified or currently
recognized representative of a bargaining unit and there is no question
concerning representation, a party may file a petition for
clarification of the bargaining unit. If there is a unit covered by a
certification and there is no question concerning representation, any
party may file a petition for amendment to reflect changed
circumstances, such as changes in the name or affiliation of the labor
organization involved or in the name or location of the employer
involved. The petition must be in writing and signed, and either must
be notarized or must contain a declaration by the person signing it,
under the penalties of the Criminal Code, that its contents are true
and correct to the best of his or her knowledge and belief. It is filed
with the Regional Director for the Region in which the proposed or
actual bargaining unit exists. Petition forms, which are supplied by
the Regional Office upon request, provide, among other things, for a
description of the contemplated or existing appropriate bargaining
unit, the approximate number of employees involved, and the names of
all labor organizations which claim to represent the employees. If a
petition is filed by a labor organization seeking certification, or in
the case of a petition to decertify a certified or recognized
bargaining agent, the petitioner must supply, within 48 hours after
filing but in no event later than the last day on which the petition
might timely be filed, evidence of representation. Such evidence is
usually in the form of cards, which must be dated, authorizing the
labor organization to represent the employees or authorizing the
petitioner to file a decertification petition. If a petition is filed
by an employer, the petitioner must supply, within 48 hours after
filing, proof of demand for recognition by the labor organization named
in the petition and, in the event the labor organization named is the
incumbent representative of the unit involved, a statement of the
objective considerations demonstrating reasonable grounds for believing
that the labor organization has lost its majority status.
Sec. 101.18 Investigation of petition.
(a) Upon receipt of the petition in the Regional Office, it is
docketed and assigned to a member of the staff, usually a field
examiner, for investigation. The field examiner conducts an
investigation to ascertain:
(1) Whether the employer's operations affect commerce within the
meaning of the Act,
(2) The appropriateness of the unit of employees for the purposes
of collective bargaining and the existence of a bona fide question
concerning representation within the meaning of the Act,
(3) Whether the election would effectuate the policies of the Act
and reflect the free choice of employees in the appropriate unit, and
(4) Whether, if the petitioner is a labor organization seeking
recognition, there is a sufficient probability, based on the evidence
of representation of the petitioner, that the employees have selected
it to represent them. The evidence of representation submitted by the
petitioning labor organization or by
[[Page 3485]]
the person seeking decertification is ordinarily checked to determine
the number or proportion of employees who have designated the
petitioner, it being the Board's administrative experience that in the
absence of special factors the conduct of an election serves no purpose
under the statute unless the petitioner has been designated by at least
30 percent of the employees. However, in the case of a petition by an
employer, no proof of representation on the part of the labor
organization claiming a majority is required and the Regional Director
proceeds with the case if other factors require it unless the labor
organization withdraws its claim to majority representation. The field
examiner, or other member of the staff, attempts to ascertain from all
interested parties whether or not the grouping or unit of employees
described in the petition constitutes an appropriate bargaining unit.
The petition may be amended at any time prior to hearing and may be
amended during the hearing in the discretion of the hearing officer
upon such terms as he or she deems just.
(b) The petitioner may on its own initiative request the withdrawal
of the petition if the investigation discloses that no question of
representation exists within the meaning of the statute, because, among
other possible reasons, the unit is not appropriate, or a written
contract precludes further investigation at that time, or where the
petitioner is a labor organization or a person seeking decertification
and the showing of representation among the employees is insufficient
to warrant an election under the 30-percent principle stated in
paragraph (a) of this section.
(c) For the same or similar reasons the Regional Director may
request the petitioner to withdraw its petition. If the petitioner,
despite the Regional Director's recommendations, refuses to withdraw
the petition, the Regional Director then dismisses the petition,
stating the grounds for dismissal and informing the petitioner of its
right of appeal to the Board in Washington, DC. The petition may also
be dismissed in the discretion of the Regional Director if the
petitioner fails to make available necessary facts which are in its
possession. The petitioner may within 14 days appeal from the Regional
Director's dismissal by filing such request with the Board in
Washington, DC; after a full review of the file with the assistance of
its staff, the Board may sustain the dismissal, stating the grounds of
its affirmance, or may direct the Regional Director to take further
action.
Sec. 101.19 Consent adjustments before formal hearing.
The Board has devised and makes available to the parties three
types of informal consent procedures through which representation
issues can be resolved without recourse to formal procedures. These
informal arrangements are commonly referred to as consent-election
agreement followed by Regional Director's determination, stipulated
election agreement followed by Board certification, and full consent
agreement, in which the parties agree that all pre- and postelection
disputes will be resolved with finality by the Regional Director. Forms
for use in these informal procedures are available in the Regional
Offices.
(a)(1) The consent-election agreement followed by the Regional
Director's determination of representatives is one method of informal
adjustment of representation cases. The terms of the agreement
providing for this form of adjustment are set forth in printed forms,
which are available upon request at the Board's Regional Offices. Under
these terms the parties agree with respect to the appropriate unit, the
payroll period to be used as the basis of eligibility to vote in an
election, and the place, date, and hours of balloting. A Board agent
arranges the details incident to the mechanics and conduct of the
election. For example, the Board agent usually arranges preelection
conferences in which the parties check the list of voters and attempt
to resolve any questions of eligibility. Also, prior to the date of
election, the holding of such election shall be adequately publicized
by the posting of official notices in the establishment whenever
possible or in other places, or by the use of other means considered
appropriate and effective. These notices reproduce a sample ballot and
outline such election details as location of polls, time of voting, and
eligibility rules.
(2) The actual polling is always conducted and supervised by Board
agents. Appropriate representatives of each party may assist them and
observe the election. As to the mechanics of the election, a ballot is
given to each eligible voter by the Board's agents. The ballots are
marked in the secrecy of a voting booth. The Board agents and
authorized observers have the privilege of challenging for reasonable
cause employees who apply for ballots.
(3) Customarily the Board agents, in the presence and with the
assistance of the authorized observers, count and tabulate the ballots
immediately after the closing of the polls. A complete tally of the
ballots is made available to the parties upon the conclusion of the
election.
(4) If challenged ballots are sufficient in number to affect the
results of the election, the Regional Director conducts an
investigation and rules on the challenges. Similarly, if objections to
the conduct of the election are filed within 7 days after the tally of
ballots has been prepared, the Regional Director likewise conducts an
investigation and rules on the objections. If, after investigation, the
objections are found to have merit, the Regional Director may void the
election results and conduct a new election.
(5) This form of agreement provides that the rulings of the
Regional Director on all questions relating to the election (for
example, eligibility to vote and the validity of challenges and
objections) are final and binding. Also, the agreement provides for the
conduct of a runoff election, in accordance with the provisions of the
Board's Rules and Regulations, if two or more labor organizations
appear on the ballot and no one choice receives the majority of the
valid votes cast.
(6) The Regional Director issues 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.
(b) The stipulated election agreement followed by a Board
determination provides that disputed matters following the agreed-upon
election, if determinative of the results, can be the basis of a formal
decision by the Board instead of an informal determination by the
Regional Director, except that if the Regional Director decides that a
hearing on objections or challenged ballots is necessary the Director
may direct such a hearing before a hearing officer, or, if the case is
consolidated with an unfair labor practice proceeding, before an
administrative law judge. If a hearing is directed, such action on the
part of the Regional Director constitutes a transfer of the case to the
Board. Thus, except for directing a hearing, it is provided that the
Board, rather than the Regional Director, makes the final determination
of questions raised concerning eligibility, challenged votes, and
objections to the conduct of the election. If challenged ballots are
sufficient in number of affect the results of the election, the
Regional Director conducts an investigation and issues a report on the
challenges instead of ruling thereon, unless the Director elects to
hold a hearing. Similarly, if objections to the conduct of the election
are filed within 7 days after the tally of ballots has been prepared,
the Regional Director likewise
[[Page 3486]]
conducts an investigation and issues a report instead of ruling on the
validity of the objections, unless the Director elects to hold a
hearing. The Regional Director's report is served on the parties, who
may file exceptions thereto within 14 days with the Board in
Washington, DC. The Board then reviews the entire record made and may,
if a substantial issue is raised, direct a hearing on the challenged
ballots or the objections to the conduct of the election. Or, the Board
may, if no substantial issues are raised, affirm the Regional
Director's report and take appropriate action in termination of the
proceedings. If a hearing is ordered by the Regional Director or the
Board on the challenged ballots or objections, all parties are heard
and a report containing findings of fact and recommendations as to the
disposition of the challenges or objections, or both, and resolving
issues of credibility is issued by the hearing officer and served on
the parties, who may file exceptions thereto within 14 days with the
Board in Washington, DC. The record made on the hearing is reviewed by
the Board with the assistance of its staff counsel and a final
determination made thereon. If the objections are found to have merit,
the election results may be voided and a new election conducted under
the supervision of the Regional Director. If the union has been
selected as the representative, the Board or the Regional Director, as
the case may be, issues its certification and the proceeding is
terminated. If upon a decertification or employer petition the union
loses the election, the Board or the Regional Director, as the case may
be, certifies that the union is not the chosen representative.
(c) The full consent-election agreement followed by the Regional
Director's determination of representatives is another method of
informal adjustment of representation cases.
(1) Under these terms the parties agree that if they are unable to
informally resolve disputes arising with respect to the appropriate
unit and other issues pertaining to the resolution of the question
concerning representation; the payroll period to be used as the basis
of eligibility to vote in an election, the place, date, and hours of
balloting, or other details of the election, those issues will be
presented to, and decided with finality by the Regional Director after
a hearing conducted in a manner consistent with the procedures set
forth in Sec. 101.20.
(2) Upon the close of the hearing, the entire record in the case is
forwarded to the Regional Director. The hearing officer also transmits
an analysis of the issues and the evidence, but makes no
recommendations as to resolution of the issues. All parties may file
briefs with the Regional Director within 7 days after the close of the
hearing. The parties may also request to be heard orally. After review
of the entire case, the Regional Director issues a final decision,
either dismissing the petition or directing that an election be held.
In the latter event, the election is conducted under the supervision of
the Regional Director in the manner already described in this section.
(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.
Sec. 101.20 Formal hearing.
(a) If no informal adjustment of the question concerning
representation has been effected and it appears to the Regional
Director that formal action is necessary, the Regional Director will
institute formal proceedings by issuance of a notice of hearing on the
issues, which is followed by a decision and direction of election or
dismissal of the case. In certain types of cases, involving novel or
complex issues, the Regional Director may submit the case for advice to
the Board before issuing notice of hearing.
(b) The notice of hearing, together with a copy of the petition, is
served on the unions and employer filing or named in the petition and
on other known persons or labor organizations claiming to have been
designated by employees involved in the proceeding.
(c) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official.
The hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the Board's agents is to
ensure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties
are afforded full opportunity to present their respective positions and
to produce the significant facts in support of their contentions. In
most cases a substantial number of the relevant facts are undisputed
and stipulated. The parties are permitted to argue orally on the record
before the hearing officer.
Sec. 101.21 Procedure after hearing.
(a) Pursuant to section 3(b) of the Act, the Board has delegated to
its Regional Directors its powers under section 9 of the Act to
determine the unit appropriate for the purpose of collective
bargaining, to investigate and provide for hearings and determine
whether a question of representation exists, and to direct an election
or take a secret ballot under subsection (c) or (e) of section 9 and
certify the results thereof. These powers include the issuance of such
decisions, orders, rulings, directions, and certifications as are
necessary to process any representation or deauthorization petition.
Thus, by way of illustration and not of limitation, the Regional
Director may dispose of petitions by administrative dismissal or by
decision after formal hearing; pass upon rulings made at hearings and
requests for extensions of time for filing of briefs; rule on
objections to elections and challenged ballots in connection with
elections Directed by the Regional Director or the Board, after
administrative investigation or formal hearing; rule on motions to
amend or rescind any certification issued after the effective date of
the delegation; and entertain motions for oral argument. The Regional
Director may at any time transfer the case to the Board for decision,
but until such action is taken, it will be presumed that the Regional
Director will decide the case. In the event the Regional Director
decides the issues in a case, the decision is final subject to the
review procedure set forth in the Board's Rules and Regulations.
(b) Upon the close of the hearing, the entire record in the case is
forwarded to the Regional Director or, upon issuance by the Regional
Director of an order transferring the case, to the Board in Washington,
DC. The hearing officer also transmits an analysis of the issues and
the evidence, but makes no recommendations in regard to resolution of
the issues. All parties may file briefs with the Regional Director or,
if the case is transferred to the Board at the close of the hearing,
with the Board, within 7 days after the close of the hearing. If the
case is transferred to the Board after the close of the hearing, briefs
may be filed with the Board within the time prescribed by the Regional
Director. The parties may also request to be heard orally. Because of
the nature of the proceedings, however, permission to argue orally is
rarely granted. After review of the entire case, the Regional Director
or the Board issues a decision, either dismissing the petition or
directing that an election be held. In the latter event, the election
is
[[Page 3487]]
conducted under the supervision of the Regional Director in the manner
already described in Sec. 101.19 of this subpart.
(c) With respect to objections to the conduct of the election and
challenged ballots, the Regional Director has discretion:
(1) To issue a report on such objections and/or challenged ballots
and transmit the issues to the Board for resolution, as in cases
involving stipulated elections to be followed by Board certifications,
or
(2) To decide the issues on the basis of the administrative
investigation or after a hearing, with the right to transfer the case
to the Board for decision at any time prior to disposition of the
issues on the merits. In the event the Regional Director adopts the
first procedure, the parties have the same rights, and the same
procedure is followed, as has already been described in connection with
the postelection procedures in cases involving stipulated elections to
be followed by Board certifications. In the event the Regional Director
adopts the second procedure, the parties have the same rights, and the
same procedure is followed, as has already been described in connection
with hearings before elections.
(d) The parties have the right to request review of any final
decision of the Regional Director, within the times set forth in the
Board's Rules and Regulations, on one or more of the grounds specified
therein. Any such request for review must be a self-contained document
permitting the Board to rule on the basis of its contents without the
necessity of recourse to the record, and must meet the other
requirements of the Board's Rules and Regulations as to its contents.
The Regional Director's action is not stayed by the filing of such a
request or the granting of review, unless otherwise ordered by the
Board. Thus, the Regional Director may proceed immediately to make any
necessary arrangements for an election, including the issuance of a
notice of election. However, unless a waiver is filed, the Director
will normally not schedule an election until a date between the 25th
and 30th days after the date of the decision, to permit the Board to
rule on any request for review which may be filed. As to administrative
dismissals prior to the close of hearing, see Sec. 101.18(c) of this
subpart.
(e) If the election involves two or more labor organizations and if
the election results are inconclusive because no choice on the ballot
received the majority of valid votes cast, a runoff election is held as
provided in the Board's Rules and Regulations.
Subpart D--Unfair Labor Practice and Representation Cases Under
Sections 8(b)(7) and 9(c) of the Act
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3. Revise Sec. 101.23 to read as follows:
Sec. 101.23 Initiation and investigation of a petition in connection
with a case under section 8(b)(7).
(a)(1) A representation petition \1\ involving the employees of the
employer named in the charge is handled under an expedited procedure
when the investigation of the charge has revealed that:
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\1\ The manner of filing of such petition and the contents
thereof are the same as described in Sec. 101.17 of this part,
except that the petitioner is not required to allege that a claim
was made on the employer for recognition or that the union
represents a substantial number of employees.
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(i) The employer's operations affect commerce within the meaning of
the Act;
(ii) Picketing of the employer is being conducted for an object
proscribed by section 8(b)(7) of the Act;
(iii) Subparagraph (C) of that section of the Act is applicable to
the picketing; and
(iv) The petition has been filed within a reasonable period of time
not to exceed 30 days from the commencement of the picketing.
(2) In these circumstances, the member of the Regional Director's
staff to whom the matter has been assigned investigates the petition to
ascertain further: the unit appropriate for collective bargaining; and
whether an election in that unit would effectuate the policies of the
Act.
(b) If, based on such investigation, the Regional Director
determines that an election is warranted, the Director may, without a
prior hearing, direct that an election be held in an appropriate unit
of employees. Any party aggrieved may file a request with the Board for
special permission to appeal that action to the Board, but such review,
if granted, will not, unless otherwise ordered by the Board, stay the
proceeding. If it is determined that an election is not warranted, the
Director dismisses the petition or makes other disposition of the
matter. Should the Regional Director conclude that an election is
warranted, the Director fixes the basis of eligibility of voters and
the place, date, and hours of balloting. The mechanics of arranging the
balloting, the other procedures for the conduct of the election, and
the postelection proceedings are the same, insofar as appropriate, as
those described in Sec. 101.19 of this part, except that the Regional
Director's rulings on any objections to the conduct of the election or
challenged ballots are final and binding, unless the Board, on an
application by one of the parties, grants such party special permission
to appeal from the Regional Director's rulings. The party requesting
such review by the Board must do so promptly, in writing, and state
briefly the grounds relied on. Such party must also immediately serve a
copy on the other parties, including the Regional Director. Neither the
request for review by the Board nor the Board's grant of such review
operates as a stay of any action taken by the Regional Director, unless
specifically so ordered by the Board. If the Board grants permission to
appeal, and it appears to the Board that substantial and material
factual issues have been presented with respect to the objections to
the conduct of the election or challenged ballots, it may order that a
hearing be held on such issues or take other appropriate action.
(c) If the Regional Director believes, after preliminary
investigation of the petition, that there are substantial issues which
require determination before an election may be held, the Director may
order a hearing on the issues. This hearing is followed by Regional
Director or Board decision and direction of election, or other
disposition. The procedures to be used in connection with such hearing
and posthearing proceedings are the same, insofar as they are
applicable, as those described in Sec. Sec. 101.20 and 101.21 of this
part, except that the parties may not file briefs with the Regional
Director or the Board unless special permission therefore is granted,
but may state their respective legal positions fully on the record at
the hearing, and except that any request for review must be filed
promptly after issuance of the Regional Director's decision.
(d) Should the parties so desire, they may, with the approval of
the Regional Director, resolve the issues as to the unit, the conduct
of the balloting, and related matters pursuant to informal consent
procedures, as described in Sec. 101.19(a) of this part.
(e) If a petition has been filed which does not meet the
requirements for processing under the expedited procedures, the
Regional Director may process it under the procedures set forth in
subpart C of this part.
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4. Revise Sec. 101.25 to read as follows:
Sec. 101.25 Appeal from the dismissal of a petition, or from the
refusal to process it under the expedited procedure.
If it is determined after investigation of the representation
petition that further proceedings based thereon are not warranted, the
Regional Director,
[[Page 3488]]
absent withdrawal of the petition, dismisses it, stating the grounds
therefore. If it is determined that the petition does not meet the
requirements for processing under the expedited procedure, the Regional
Director advises the petitioner of the determination to process the
petition under the procedures described in subpart C of this part. In
either event, the Regional Director informs all the parties of such
action, and such action is final, although the Board may grant an
aggrieved party permission to appeal from the Regional Director's
action. Such party must request such review promptly, in writing, and
state briefly the grounds relied on. Such party must also immediately
serve a copy on the other parties, including the Regional Director.
Neither the request for review by the Board, nor the Board's grant of
such review, operates as a stay of the action taken by the Regional
Director, unless specifically so ordered by the Board.
Subpart E--Referendum Cases Under Section 9(e)(1) and (2) of the
Act
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5. Revise Sec. 101.28 to read as follows:
Sec. 101.28 Consent agreements providing for election.
(a) The Board makes available to the parties three types of
informal consent procedures through which authorization issues can be
resolved without resort to formal procedures. These informal agreements
are commonly referred to as consent-election agreement followed by
Regional Director's determination, stipulated election agreement
followed by Board certification, and full consent-election agreement
providing for the Regional Director's determination of both pre- and
postelection matters. Forms for use in these informal procedures are
available in the Regional Offices.
(b) The procedures to be used in connection with a consent-election
agreement providing for the Regional Director's determination, a
stipulated election agreement providing for Board certification, and
the full consent-election agreement providing for the Regional
Director's determination of both pre- and postelection matters are the
same as those already described in subpart C of this part in connection
with similar agreements in representation cases under section 9(c) of
the Act, except that no provision is made for runoff elections.
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6. Revise Sec. 101.29 to read as follows:
Sec. 101.29 Procedure respecting election conducted without hearing.
If the Regional Director determines that the case is an appropriate
one for election without formal hearing, an election is conducted as
quickly as possible among the employees and upon the conclusion of the
election the Regional Director makes available to the parties a tally
of ballots. The parties, however, have an opportunity to make
appropriate challenges and objections to the conduct of the election
and they have the same rights, and the same procedure is followed, with
respect to objections to the conduct of the election and challenged
ballots, as has already been described in subpart C of the Statements
of Procedure in connection with the postelection procedures in
representation cases under section 9(c) of the Act, except that no
provision is made for a runoff election. If no such objections are
filed within 7 days and if the challenged ballots are insufficient in
number to affect the results of the election, the Regional Director
issues to the parties a certification of the results of the election,
with the same force and effect as if issued by the Board.
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7. Revise Sec. 101.30 to read as follows:
Sec. 101.30 Formal hearing and procedure respecting election
conducted after hearing.
(a) The procedures are the same as those described in subpart C of
the Statements of Procedure respecting representation cases arising
under section 9(c) of the Act. If the preliminary investigation
indicates that there are substantial issues which require determination
before an appropriate election may be held, the Regional Director will
institute formal proceedings by issuance of a notice of hearing on the
issues which, after hearing, is followed by Regional Director or Board
decision and direction of election or dismissal. The notice of hearing
together with a copy of the petition is served on the petitioner, the
employer, and any other known persons or labor organizations claiming
to have been designated by employees involved in the proceeding.
(b) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official.
The hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the Board's agents is to
insure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties
are afforded full opportunity to present their respective positions and
to produce the significant facts in support of their contentions. In
most cases a substantial number of the relevant facts are undisputed
and stipulated. The parties are permitted to argue orally on the record
before the hearing officer.
(c) Upon the close of the hearing, the entire record in the case is
then forwarded to the Regional Director or the Board, together with an
informal analysis by the hearing officer of the issues and the evidence
but without recommendations. All parties may file briefs with the
Regional Director or the Board within 7 days after the close of the
hearing. If the case is transferred to the Board after the close of the
hearing, briefs may be filed with the Board within the time prescribed
by the Regional Director. The parties may also request to be heard
orally. Because of the nature of the proceeding, however, permission to
argue orally is rarely granted. After review of the entire case, the
Board issues a decision either dismissing the petition or directing
that an election be held. In the latter event, the election is
conducted under the supervision of the Regional Director in the manner
already described in Sec. 101.19 of this part.
(d) The parties have the same rights, and the same procedure is
followed, with respect to objections to the conduct of the election and
challenged ballots as has already been described in connection with the
postelection procedures in representation cases under section 9(c) of
the Act.
PART 102--RULES AND REGULATIONS, SERIES 8
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8. The authority citation for part 102 continues to read as follows:
Authority: Sections. 1, 6, National Labor Relations Act (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)), and Section 102.117a also issued under section
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and
(k)). 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)).
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9. Revise the heading to Subpart C of Part 102 to read as follows:
[[Page 3489]]
Subpart C--Procedure Under Section 9(c) of the Act for the
Determination of Questions Concerning Representation of Employees
\2\ and for Clarification of Bargaining Units and for Amendment of
Certifications Under Section 9(b) of the Act
---------------------------------------------------------------------------
\2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the
Act is governed by subpart D of this part.
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10. Revise Sec. 102.62 to read as follows:
Sec. 102.62 Consent-election agreements.
(a) Where a petition has been duly filed, the employer and any
individual or labor organizations representing a substantial number of
employees involved may, with the approval of the Regional Director,
enter into a consent-election agreement leading to a determination by
the Regional Director of the facts ascertained after such consent
election. Such agreement shall include a description of the appropriate
unit, the time and place of holding the election, and the payroll
period to be used in determining what employees within the appropriate
unit shall be eligible to vote. Such consent election shall be
conducted under the direction and supervision of the Regional Director.
The method of conducting such consent election shall be consistent with
the method followed by the Regional Director in conducting elections
pursuant to Sec. Sec. 102.69 and 102.70 of this subpart 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, in that case, 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.
(b) Where a petition has been duly filed, the employer and any
individuals or labor organizations representing a substantial number of
the employees involved may, with the approval of the regional director,
enter into an agreement providing for a waiver of hearing and a consent
election leading to a determination by the Board of the facts
ascertained after such consent election, if such a determination is
necessary. Such agreement shall also include a description of the
appropriate bargaining unit, the time and place of holding the
election, and the payroll period to be used in determining which
employees within the appropriate unit shall be eligible to vote. Such
consent election shall be conducted under the direction and supervision
of the regional director. The method of conducting such election and
the post election procedure shall be consistent with that followed by
the regional director in conducting elections pursuant to Sec. Sec.
102.69 and 102.70 of this subpart.
(c) Where a petition has been duly filed, the employer and any
individual or labor organizations representing a substantial number of
the employees involved may, with the approval of the Regional Director,
enter into an agreement providing for a hearing pursuant to Sec. Sec.
102.63, 102.64, 102.65, 102.66 and 102.67 of this subpart to resolve
any issue necessary to resolve the question concerning representation.
Upon the conclusion of such a hearing, the Regional Director shall
issue a Decision. The rulings and determinations by the Regional
Director thereunder shall be final, with the same force and effect, in
that case, as if issued by the Board. Any election ordered by the
Regional Director shall be conducted under the direction and
supervision of the Regional Director. The method of conducting such
consent election shall be consistent with the method followed by the
Regional Director in conducting elections pursuant to Sec. Sec. 102.69
and 102.70 of this subpart, 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, in that case, 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.
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11. Revise Sec. 102.63 to read as follows:
Sec. 102.63 Investigation of petition by regional director; notice of
hearing; service of notice; withdrawal of notice.
(a) After a petition has been filed under Sec. 102.61(a), (b), or
(c) of this subpart, if no agreement such as that provided in Sec.
102.62 of this subpart is entered into and if it appears to the
regional director that there is reasonable cause to believe that a
question of representation affecting commerce exists, that the policies
of the act will be effectuated, and that an election will reflect the
free choice of employees in the appropriate unit, the Regional Director
shall prepare and cause to be served upon the parties and upon any
known individuals or labor organizations purporting to act as
representatives of any employees directly affected by such
investigation, a notice of hearing before a hearing officer at a time
and place fixed therein. A copy of the petition shall be served with
such notice of hearing. Any such notice of hearing may be amended or
withdrawn before the close of the hearing by the regional director on
his own motion.
(b) After a petition has been filed under Sec. 102.61(d) or (e) of
this subpart, the regional director shall conduct an investigation and,
as appropriate, he may issue a decision without a hearing; or prepare
and cause to be served upon the parties and upon any known individuals
or labor organizations purporting to act as representatives of any
employees directly affected by such investigation, a notice of hearing
before a hearing officer at a time and place fixed therein; or take
other appropriate action. If a notice of hearing is served, it shall be
accompanied by a copy of the petition. Any such notice of hearing may
be amended or withdrawn before the close of the hearing by the regional
director on his own motion. All hearing and posthearing procedure under
this paragraph (b) shall be in conformance with Sec. Sec. 102.64
through 102.68 of this subpart whenever applicable, except where the
unit or certification involved arises out of an agreement as provided
in Sec. 102.62(a) of this subpart, the regional director's action
shall be final, and the provisions for review of regional director's
decisions by the Board shall not apply. Dismissals of petitions without
a hearing shall not be governed by Sec. 102.71 of this subpart. The
regional director's dismissal shall be by decision, and a request for
review therefrom may be obtained under Sec. 102.67 of this subpart,
except where an agreement under Sec. 102.62(a) of this subpart is
involved.
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12. Revise Sec. 102.64 to read as follows:
Sec. 102.64 Conduct of hearing.
(a) Hearings shall be conducted by a hearing officer and shall be
open to the public unless otherwise ordered by the hearing officer. At
any time, a hearing officer may be substituted for the hearing officer
previously presiding. It shall be the duty of the hearing officer to
inquire fully into all matters and issues necessary to obtain a full
and complete record upon which the Board or the regional director may
discharge their duties under section 9(c) of the Act.
(b) The hearing officer may, in his discretion, continue the
hearing from day to day, or adjourn it to a later date or to a
different place, by announcement
[[Page 3490]]
thereof at the hearing or by other appropriate notice.
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13. Revise Sec. 102.65 to read as follows:
Sec. 102.65 Motions; interventions.
(a) All motions, including motions for intervention pursuant to
paragraphs (b) and (e) of this section, shall be in writing or, if made
at the hearing, may be stated orally on the record and shall briefly
state the order or relief sought and the grounds for such motion. An
original and two copies of written motions shall be filed and a copy
thereof immediately shall be served on the other parties to the
proceeding. Motions made prior to the transfer of the case to the Board
shall be filed with the regional director, except that motions made
during the hearing shall be filed with the hearing officer. After the
transfer of the case to the Board, all motions shall be filed with the
Board. Such motions shall be printed or otherwise legibly duplicated:
Provided, however, That carbon copies of typewritten matter shall not
be filed and if submitted will not be accepted. Eight copies of such
motions shall be filed with the Board. The regional director may rule
upon all motions filed with him, causing a copy of said ruling to be
served on the parties, or he may refer the motion to the hearing
officer: Provided, That if the regional director prior to the close of
the hearing grants a motion to dismiss the petition, the petitioner may
obtain a review of such ruling in the manner prescribed in Sec. 102.71
of this subpart. The hearing officer shall rule, either orally on the
record or in writing, upon all motions filed at the hearing or referred
to him as hereinabove provided, except that all motions to dismiss
petitions shall be referred for appropriate action at such time as the
entire record is considered by the regional director or the Board, as
the case may be.
(b) Any person desiring to intervene in any proceeding shall make a
motion for intervention, stating the grounds upon which such person
claims to have an interest in the proceeding. The regional director or
the hearing officer, as the case may be, may by order permit
intervention in person or by counsel or other representative to such
extent and upon such terms as he may deem proper, and such intervenor
shall thereupon become a party to the proceeding.
(c) All motions, rulings, and orders shall become a part of the
record, except that rulings on motions to revoke subpoenas shall become
a part of the record only upon the request of the party aggrieved
thereby as provided in Sec. 102.66(c) of this subpart. Unless
expressly authorized by the Rules and Regulations, rulings by the
regional director or by the hearing officer shall not be appealed
directly to the Board, but shall be considered by the Board on
appropriate appeal pursuant to Sec. 102.67 (b), (c), and (d) of this
subpart or whenever the case is transferred to it for decision:
Provided, however, That if the regional director has issued an order
transferring the case to the Board for decision such rulings may be
appealed directly to the Board by special permission of the Board. Nor
shall rulings by the hearing officer be appealed directly to the
regional director unless expressly authorized by the Rules and
Regulations, except by special permission of the regional director, but
shall be considered by the regional director when he reviews the entire
record. Requests to the regional director, or to the Board in
appropriate cases, for special permission to appeal from a ruling of
the hearing officer, together with the appeal from such ruling, shall
be filed promptly, in writing, and shall briefly state the reasons
special permission should be granted and the grounds relied on for the
appeal. The moving party shall immediately serve a copy of the request
for special permission and of the appeal on the other parties and on
the regional director. Any statement in opposition or other response to
the request and/or to the appeal shall be filed promptly, in writing,
and shall be served immediately on the other parties and on the
regional director. If the Board or the regional director, as the case
may be, grants the request for special permission to appeal, the Board
or the regional director may proceed forthwith to rule on the appeal.
(d) The right to make motions or to make objections to rulings on
motions shall not be deemed waived by participation in the proceeding.
(e)(1) A party to a proceeding may, because of extraordinary
circumstances, move after the close of the hearing for reopening of the
record, or move after the decision or report for reconsideration, for
rehearing, or to reopen the record, but no such motion shall stay the
time for filing a request for review of a decision or exceptions to a
report. No motion for reconsideration, for rehearing, or to reopen the
record will be entertained by the Board or by any regional director
with respect to any matter which could have been but was not raised
pursuant to any other section of these rules: Provided, however, That
the regional director may treat a request for review of a decision or
exceptions to a report as a motion for reconsideration. A motion for
reconsideration shall state with particularity the material error
claimed and with respect to any finding of material fact shall specify
the page of the record relied on for the motion. A motion for rehearing
or to reopen the record shall specify briefly the error alleged to
require a rehearing or hearing de novo, the prejudice to the movant
alleged to result from such error, the additional evidence sought to be
adduced, why it was not presented previously, and what result it would
require if adduced and credited. Only newly discovered evidence--
evidence which has become available only since the close of the
hearing--or evidence which the regional director or the Board believes
should have been taken at the hearing will be taken at any further
hearing.
(2) Any motion for reconsideration or for rehearing pursuant to
this paragraph shall be filed within 14 days, or such further period as
may be allowed, after the service of the decision or report. Any
request for an extension of time to file such a motion shall be served
promptly on the other parties. A motion to reopen the record shall be
filed promptly on discovery of the evidence sought to be adduced.
(3) The filing and pendency of a motion under this provision shall
not unless so ordered operate to stay the effectiveness of any action
taken or directed to be taken, except that, if the motion states with
particularity that the granting thereof will affect the eligibility to
vote of specific employees, the ballots of such employees shall be
challenged and impounded in any election conducted while such motion is
pending. A motion for reconsideration, for rehearing, or to reopen the
record need not be filed to exhaust administrative remedies.
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14. Revise Sec. 102.66 to read as follows:
Sec. 102.66 Introduction of evidence: rights of parties at hearing;
subpoenas.
(a) Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, and any party and the
hearing officer shall have power to call, examine, and cross-examine
witnesses and to introduce into the record documentary and other
evidence. Witnesses shall be examined orally under oath. The rules of
evidence prevailing in courts of law or equity shall not be
controlling. Stipulations of fact may be introduced in evidence with
respect to any issue.
(b) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, may be stated
orally or in
[[Page 3491]]
writing, accompanied by a short statement of the grounds of such
objection, and included in the record. No such objection shall be
deemed waived by further participation in the hearing.
(c) The Board, or any Member thereof, shall, on the written
application of any party, forthwith issue subpoenas requiring the
attendance and testimony of witnesses and the production of any
evidence, including books, records, correspondence, or documents, in
their possession or under their control. The Executive Secretary shall
have the authority to sign and issue any such subpoenas on behalf of
the Board or any Member thereof. Any party may file applications for
subpoenas in writing with the Regional Director if made prior to
hearing, or with the hearing officer if made at the hearing.
Applications for subpoenas may be made ex parte. The Regional Director
or the hearing officer, as the case may be, shall forthwith grant the
subpoenas requested. Any person served with a subpoena, whether ad
testificandum or duces tecum, if he or she does not intend to comply
with the subpoena, shall, within 5 days after the date of service of
the subpoena, petition in writing to revoke the subpoena. The date of
service for purposes of computing the time for filing a petition to
revoke shall be the date the subpoena is received. Such petition shall
be filed with the regional director who may either rules upon it or
refer it for ruling to the hearing officer: Provided, however, That if
the evidence called for is to be produced at a hearing and the hearing
has opened, the petition to revoke shall be filed with the hearing
officer. Notice of the filing of petitions to revoke shall be promptly
given by the regional director or hearing officer, as the case may be,
to the party at whose request the subpoena was issued. The regional
director or the hearing officer, as the case may be, shall revoke the
subpoena if, in his opinion, the evidence whose production is required
does not relate to any matter under investigation or in question in the
proceedings or the subpoena does not describe with sufficient
particularity the evidence whose production is required, or if for any
other reason sufficient in law the subpoena is otherwise invalid. The
regional director or the hearing officer, as the case may be, shall
make a simple statement of procedural or other grounds for his ruling.
The petition to revoke, any answer filed thereto, and any ruling
thereon shall not become part of the record except upon the request of
the party aggrieved by the ruling. Persons compelled to submit data or
evidence are entitled to retain or, on payment of lawfully prescribed
costs, to procure copies or transcripts of the data or evidence
submitted by them.
(d) Any party shall be entitled, upon request, to a reasonable
period at the close of the hearing for oral argument, which shall be
included in the stenographic report of the hearing.
(e) The hearing officer may submit an analysis of the record to the
regional director or the Board but he shall make no recommendations.
(f) Witness fees and mileage shall be paid by the party at whose
instance the witness appears.
0
15. Revise Sec. 102.67 to read as follows:
Sec. 102.67 Proceedings before the regional director; further
hearing; briefs; action by the regional director; appeals from action
by the regional director; statement in opposition to appeal; transfer
of case to the Board; proceedings before the Board; Board action.
(a) The regional director may proceed, either forthwith upon the
record or after oral argument, the submission of briefs, or further
hearing, as he may deem proper, to determine the unit appropriate for
the purpose of collective bargaining, to determine whether a question
concerning representation exists, and to direct an election, dismiss
the petition, or make other disposition of the matter. Any party
desiring to submit a brief to the regional director shall file the
original and one copy thereof, which may be a typed carbon copy, within
7 days after the close of the hearing: Provided, however, That prior to
the close of the hearing and for good cause the hearing officer may
grant an extension of time not to exceed an additional 14 days. Copies
of the brief shall be served on all other parties to the proceeding and
a statement of such service shall be filed with the regional director
together with the brief. No reply brief may be filed except upon
special leave of the regional director.
(b) 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 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.
(c) The Board will grant a request for review only where compelling
reasons exist therefor. Accordingly, a request for review may be
granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because
of
(i) The absence of, or
(ii) A departure from, officially reported Board precedent.
(2) That the regional director's decision on a substantial factual
issue is clearly erroneous on the record and such error prejudicially
affects the rights of a party.
(3) That the conduct of the hearing or any ruling made in
connection with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an
important Board rule or policy.
(d) Any request for review must be a self-contained document
enabling the Board to rule on the basis of its contents without the
necessity or recourse to the record; however, the Board may, in its
discretion, examine the record in evaluating the request. With respect
to ground (2), and other grounds where appropriate, said request must
contain a summary of all evidence or rulings bearing on the issues
together with page citations from the transcript and a summary of
argument. But such request may not raise any issue or allege any facts
not timely presented to the regional director.
(e) Any party may, within 7 days after the last day on which the
request for review must be filed, file with the Board a statement in
opposition thereto, which shall be served in accordance with the
requirements of paragraph (k) of this section. A statement of such
service of opposition shall be filed simultaneously with the Board. The
Board may deny the request for review without awaiting a statement in
opposition thereto.
(f) The parties may, at any time, waive their right to request
review. Failure to request review shall preclude such parties from
relitigating, in any related subsequent unfair labor practice
proceeding, any issue which was, or could have been, raised in the
representation proceeding. Denial of a request for review shall
constitute an affirmance of the regional director's action which shall
also preclude relitigating any such issues in any
[[Page 3492]]
related subsequent unfair labor practice proceeding.
(g) The granting of a request for review shall not stay the
regional director's decision unless otherwise ordered by the Board.
Except where the Board rules upon the issues on review in the order
granting review, the appellants and other parties may, within 14 days
after issuance of an order granting review, file briefs with the Board.
Such briefs may be reproductions of those previously filed with the
regional director and/or other briefs which shall be limited to the
issues raised in the request for review. Where review has been granted,
the Board will consider the entire record in the light of the grounds
relied on for review. Any request for review may be withdrawn with the
permission of the Board at any time prior to the issuance of the
decision of the Board thereon.
(h) In any case in which it appears to the regional director that
the proceeding raises questions which should be decided by the Board,
he may, at any time, issue an order, to be effective after the close of
the hearing and before decision, transferring the case to the Board for
decision. Such an order may be served on the parties upon the record of
the hearing.
(i) If any case is transferred to the Board for decision after the
parties have filed briefs with the regional director, the parties may,
within such time after service of the order transferring the case as is
fixed by the regional director, file with the Board the brief
previously filed with the regional director. No further briefs shall be
permitted except by special permission of the Board. If the case is
transferred to the Board before the time expires for the filing of
briefs with the regional director and before the parties have filed
briefs, such briefs shall be filed as set forth above and served in
accordance with the requirements of paragraph (k) of this section
within the time set by the regional director. If the order transferring
the case is served on the parties during the hearing, the hearing
officer may, prior to the close of the hearing and for good cause,
grant an extension of time within which to file a brief with the Board
for a period not to exceed an additional 14 days. No reply brief may be
filed except upon special leave of the Board.
(j) Upon transfer of the case to the Board, the Board shall
proceed, either forthwith upon the record, or after oral argument or
the submission of briefs, or further hearing, as it may determine, to
decide the issues referred to it or to review the decision of the
regional director and shall direct a secret ballot of the employees or
the appropriate action to be taken on impounded ballots of an election
already conducted, dismiss the petition, affirm or reverse the regional
director's order in whole or in part, or make such other disposition of
the matter as it deems appropriate.
(k)(1) All documents filed with the Board under the provisions of
this section shall be filed in eight copies, double spaced, on 8\1/2\
by 11-inch paper, and shall be printed or otherwise legibly duplicated.
Carbon copies of typewritten materials will not be accepted. Requests
for review, including briefs in support thereof; statements in
opposition thereto; and briefs on review shall not exceed 50 pages in
length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 5 days, including Saturdays, Sundays, and holidays, prior to
the date the document is due. Where any brief filed pursuant to this
section exceeds 20 pages, it shall contain a subject index with page
authorities cited.
(2) The party filing with the Board a request for review, a
statement in opposition to a request for review, or a brief on review
shall serve a copy thereof on the other parties and shall file a copy
with the regional director. A statement of such service shall be filed
with the Board together with the document.
(3) Requests for extensions of time to file requests for review,
statements in opposition to a request for review, or briefs, as
permitted by this section, shall be filed with the Board or the
Regional Director, as the case may be. The party filing the request for
an extension of time shall serve a copy thereof on the other parties
and, if filed with the Board, on the Regional Director. A statement of
such service shall be filed with the document.
0
16. Revise Sec. 102.69 to read as follows:
Sec. 102.69 Election procedure; tally of ballots; objections;
certification by the regional director; report on challenged ballots;
report on objections; exceptions; action of the Board; hearing.
(a) Unless otherwise directed by the Board, all elections shall be
conducted under the supervision of the Regional Director in whose
Region the proceeding is pending. All elections shall be by secret
ballot. Whenever two or more labor organizations are included as
choices in an election, either participant may, upon its prompt request
to and approval thereof by the Regional Director, whose decision shall
be final, have its name removed from the ballot: Provided, however,
That in a proceeding involving an employer-filed petition or a petition
for decertification the labor organization certified, currently
recognized, or found to be seeking recognition may not have its name
removed from the ballot without giving timely notice in writing to all
parties and the Regional Director, disclaiming any representation
interest among the employees in the unit. Any party may be represented
by observers of its own selection, subject to such limitations as the
Regional Director may prescribe. Any party and Board agents may
challenge, for good cause, the eligibility of any person to participate
in the election. The ballots of such challenged persons shall be
impounded. Upon the conclusion of the election the ballots will be
counted and a tally of ballots prepared and immediately made available
to the parties. Within 7 days after the tally of ballots has been
prepared, any party may file with the Regional Director an original and
five copies of objections to the conduct of the election or to conduct
affecting the results of the election, which shall contain a short
statement of the reasons therefor. Such filing must be timely whether
or not the challenged ballots are sufficient in number to affect the
results of the election. A person filing objections by facsimile
pursuant to Sec. 102.114(f) of this part shall also file an original
for the Agency's records, but failure to do so shall not affect the
validity of the filing by facsimile, if otherwise proper. In addition,
extra copies need not be filed if the filing is by facsimile pursuant
to Sec. 102.114(f) of this part. The Regional Director will cause a
copy of the objections to be served on each of the other parties to the
proceeding. Within 7 days after the filing of objections, or such
additional time as the Regional Director may allow, the party filing
objections shall furnish to the Regional Director the evidence
available to it to support the objections.
(b) If no objections are filed within the time set forth above, if
the challenged ballots are insufficient in number to affect the results
of the election, and if no runoff election is to be held pursuant to
Sec. 102.70 of this subpart, the regional director shall forthwith
issue to the parties a certification of the results of the election,
including certification of representative where appropriate, with the
same force and effect as if issued by the Board, and the proceeding
will thereupon be closed.
(c)(1) If timely objections are filed to the conduct of the
election or to conduct affecting the results of the election, or if the
challenged ballots are sufficient in
[[Page 3493]]
number to affect the results of the election, the regional director
shall, consistent with the provisions of Sec. 102.69(d) of this
subpart, initiate an investigation, as required, of such objections or
challenges.
(2) If a consent election has been held pursuant to Sec. 102.62(b)
of this subpart, the regional director shall prepare and cause to be
served on the parties a report on challenged ballots or on objections,
or on both, including his recommendations, which report, together with
the tally of ballots, he shall forward to the Board in Washington, DC.
Within 14 days from the date of issuance of the report on challenged
ballots or on objections, or on both, any party may file with the Board
in Washington, DC, exceptions to such report, with supporting documents
as permitted by Sec. 102.69(g)(3) of this subpart and/or a supporting
brief if desired. Within 7 days from the last date on which exceptions
and any supporting documents and/or supporting brief may be filed, or
such further period as the Board may allow, a party opposing the
exceptions may file an answering brief, with supporting documents as
permitted by Sec. 102.69(g)(3) of this subpart if desired, with the
Board in Washington, DC. If no exceptions are filed to such report, the
Board, upon the expiration of the period for filing such exceptions,
may decide the matter forthwith upon the record or may make other
disposition of the case. The report on challenged ballots may be
consolidated with the report on objections in appropriate cases.
(3) If the election has been conducted pursuant to a direction of
election issued following any proceeding under Sec. 102.67 of this
subpart, the regional director may:
(i) Issue a report on objections or on challenged ballots, or on
both, as in the case of a consent election pursuant to paragraph (b) of
Sec. 102.62 of this subpart, or
(ii) Exercise his authority to decide the case and issue a decision
disposing of the issues, and directing appropriate action or certifying
the results of the election.
(4) If the regional director issues a report on objections and
challenges, the parties shall have the rights set forth in paragraph
(c)(2) of this section and in Sec. 102.69(f) of this subpart; if the
regional director issues a decision, the parties shall have the rights
set forth in Sec. 102.67 of this subpart to the extent consistent
herewith, including the right to submit documents supporting the
request for review or opposition thereto as permitted by Sec.
102.69(g)(3) of this subpart.
(d) In issuing a report on objections or challenged ballots, or
both, following proceedings under Sec. Sec. 102.62(b) or 102.67 of
this subpart, or in issuing a decision on objections or challenged
ballots, or both, following proceedings under Sec. 102.67 of this
subpart, the regional director may act on the basis of an
administrative investigation or upon the record of a hearing before a
hearing officer. Such hearing shall be conducted with respect to those
objections or challenges which the regional director concludes raise
substantial and material factual issues.
(e) Any hearing pursuant to this section shall be conducted in
accordance with the provisions of Sec. Sec. 102.64, 102.65, and 102.66
of this subpart, insofar as applicable, except that, upon the close of
such hearing, the hearing officer shall, if directed by the regional
director, prepare and cause to be served on the parties a report
resolving questions of credibility and containing findings of fact and
recommendations as to the disposition of the issues. In any case in
which the regional director has directed that a report be prepared and
served, any party may, within 14 days from the date of issuance of such
report, file with the regional director the original and one copy,
which may be a carbon copy, of exceptions to such report, with
supporting brief if desired. A copy of such exceptions, together with a
copy of any brief filed, shall immediately be served on the other
parties and a statement of service filed with the regional director.
Within 7 days from the last date on which exceptions and any supporting
brief may be filed, or such further time as the regional director may
allow, a party opposing the exceptions may file an answering brief with
the regional director. An original and one copy, which may be a carbon
copy, shall be submitted. A copy of such answering brief shall
immediately be served on the other parties and a statement of service
filed with the regional director. If no exceptions are filed to such
report, the regional director, upon the expiration of the period for
filing such exceptions, may decide the matter forthwith upon the record
or may make other disposition of the case.
(f) In a case involving a consent election held pursuant to Sec.
102.62(b) of this subpart, if exceptions are filed, either to the
report on challenged ballots or on objections, or on both if it be a
consolidated report, and it appears to the Board that such exceptions
do not raise substantial and material issues with respect to the
conduct or results of the election, the Board may decide the matter
forthwith upon the record or may make other disposition of the case. If
it appears to the Board that such exceptions raise substantial and
material factual issues, the Board may direct the regional director or
other agent of the Board to issue and cause to be served on the parties
a notice of hearing on said exceptions before a hearing officer. The
hearing shall be conducted in accordance with the provisions of
Sec. Sec. 102.64, 102.65, and 102.66 of this subpart insofar as
applicable. Upon the close of the hearing the agent conducting the
hearing, if directed by the Board, shall prepare and cause to be served
on the parties a report resolving questions of credibility and
containing findings of fact and recommendations to the Board as to the
disposition of the challenges or objections, or both if it be a
consolidated report. In any case in which the Board has directed that a
report be prepared and served, any party may within 14 days from the
date of issuance of the report on challenged ballots or on objections,
or on both, file with the Board in Washington, DC, exceptions to such
report, with supporting brief if desired. Within 7 days from the last
date on which exceptions and any supporting brief may be filed, or such
further period as the Board may allow, a party opposing the exceptions
may file an answering brief with the Board in Washington, DC. If no
exceptions are filed to such report, the Board, upon the expiration of
the period for filing such exceptions, may decide the matter forthwith
upon the record or may make other disposition of the case. The Board
shall thereupon proceed pursuant to Sec. 102.67: Provided, however,
That in any with an unfair labor practice case for purposes of hearing
the provisions of Sec. 102.46 of this part of these rules shall govern
with respect to the filing of exceptions or an answering brief to the
exceptions to the administrative law judge's decision.
(g)(1)(i) In a proceeding pursuant to this section in which a
hearing is held, the record in the case shall consist of the notice of
hearing, motions, rulings, orders, stenographic report of the hearing,
stipulations, exhibits, together with the objections to the conduct of
the election or to conduct affecting the results of the election, any
report on such objections, any report on challenged ballots, exceptions
to any such report, any briefs or other legal memoranda submitted by
the parties, the decision of the regional director, if any, and the
record previously made as defined in Sec. 102.68 of this subpart.
[[Page 3494]]
Materials other than those set out above shall not be a part of the
record.
(ii) In a proceeding pursuant to this section in which no hearing
is held, the record shall consist of the objections to the conduct of
the election or to conduct affecting the results of the election, any
report on objections or on challenged ballots and any exceptions to
such a report, any regional director's decision on objections or
challenged ballots and any request for review of such a decision, any
documentary evidence, excluding statements of witnesses, relied upon by
the regional director in his decision or report, any briefs or other
legal memoranda submitted by the parties, and any other motions,
rulings or orders of the regional director. Materials other than those
set out above shall not be a part of the record, except as provided in
paragraph (g)(3) of this section.
(2) Immediately upon issuance of a report on objections or
challenges, or both, upon issuance by the regional director of an order
transferring the case to the Board, or upon issuance of an order
granting a request for review by the Board, the regional director shall
transmit to the Board the record of the proceeding as defined in
paragraph (g)(1) of this section.
(3) In a proceeding pursuant to this section in which no hearing is
held, a party filing exceptions to a regional director's report on
objections or challenges, a request for review of a regional director's
decision on objections or challenges, or any opposition thereto, may
support its submission to the Board by appending thereto copies of
documentary evidence, including copies of any affidavits, it has timely
submitted to the regional director and which were not included in the
report or decision. Documentary evidence so appended shall there upon
become part of the record in the proceeding. Failure to timely submit
such documentary evidence to the regional director, or to append that
evidence to its submission to the Board in the representation
proceeding as provided above, shall preclude a party from replying on
such evidence in any subsequent related unfair labor proceeding.
(h) In any such case in which the regional director or the Board,
upon a ruling on challenged ballots, has directed that such ballots be
opened and counted and a revised tally of ballots issued, and no
objection to such revised tally is filed by any party within 7 days
after the revised tally of ballots has been made available, the
regional director shall forthwith issue to the parties 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. The proceeding shall thereupon be closed.
(i)(1) The action of the regional director in issuing a notice of
hearing on objections or challenged ballots, or both, following
proceedings under Sec. 102.62(b) of this subpart shall constitute a
transfer of the case to the Board, and the provisions of Sec.
102.65(c) of this subpart shall apply with respect to special
permission to appeal to the Board from any such direction of hearing.
(2) Exceptions, if any, to the hearing officer's report or to the
administrative law judge's decision, and any answering brief to such
exceptions, shall be filed with the Board in Washington, DC, in
accordance with paragraph (f) of this section.
(j)(1) All documents filed with the Board under the provisions of
this section shall be filed in eight copies, double spaced, on 8\1/2\
by 11-inch paper, and shall be printed or otherwise legibly duplicated.
Carbon copies of typewritten materials will not be accepted. Briefs in
support of exceptions or answering briefs shall not exceed 50 pages in
length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 5 days, including Saturdays, Sundays, and holidays, prior to
the date the brief is due. Where any brief filed pursuant to this
section exceeds 20 pages, it shall contain a subject index with page
references and an alphabetical table of cases and other authorities
cited.
(2) The party filing with the Board exceptions to a report, a
supporting brief, or an answering brief shall serve a copy thereof on
the other parties and shall file a copy with the regional director. A
statement of such service shall be filed with the Board together with
the document.
(3) Requests for extensions of time to file exceptions to a report,
supporting briefs, or answering briefs, as permitted by this section,
shall be filed with the Board on the Regional Director, as the case may
be. The party filing the request for an extension of time shall serve a
copy thereof on the other parties and, if filed with the Board, or the
Regional Director. A statement of such service shall be filed with the
document.
Subpart D--Procedure for Unfair Labor Practice and Representation
Cases Under Sections 8(b)(7) and 9(c) of the Act
0
17. Amend Sec. 102.77 by revising paragraph (b) to read as follows:
Sec. 102.77 Investigation of petition by regional director; directed
election.
* * * * *
(b) If after the investigation of such petition or any petition
filed under subpart C of this part, and after the investigation of the
charge filed pursuant to Sec. 102.73 of this subpart, it appears to
the regional director that an expedited election under section
8(b)(7)(C) is warranted, and that the policies of the act would be
effectuated thereby, he shall forthwith proceed to conduct an election
by secret ballot of the employees in an appropriate unit, or make other
disposition of the matter: Provided, however, That in any case in which
it appears to the regional director that the proceeding raises
questions which cannot be decided without a hearing, he may issue and
cause to be served on the parties, individuals, and labor organizations
involved a notice of hearing before a hearing officer at a time and
place fixed therein. In this event, the method of conducting the
hearing and the procedure following, including transfer of the case to
the Board, shall be governed insofar as applicable by Sec. Sec. 102.63
to 102.68 of this part, inclusive, except that the parties shall not
file briefs without special permission of the regional director or the
Board, as the case may be, but shall, however, state their respective
legal positions upon the record at the close of the hearing, and except
that any request for review of a decision of the regional director
shall be filed promptly after the issuance of such decision.
Subpart E--Procedure for Referendum Under Section 9(e) of the Act
0
18. Revise Sec. 102.85 to read as follows:
Sec. 102.85 Investigation of petition by regional director; consent
referendum; directed referendum.
Where a petition has been filed pursuant to Sec. 102.83 of this
subpart and it appears to the regional director that the petitioner has
made an appropriate showing, in such form as the regional director may
determine, that 30 percent or more of the employees within a unit
covered by an agreement between their employer and a labor organization
requiring membership in such labor organization desire to rescind the
authority of such labor organization to make such an agreement, he
shall
[[Page 3495]]
proceed to conduct a secret ballot of the employees involved on the
question whether they desire to rescind the authority of the labor
organization to make such an agreement with their employer: Provided,
however, That in any case in which it appears to the regional director
that the proceeding raises questions which cannot be decided without a
hearing, he may issue and cause to be served on the parties a notice of
hearing before a hearing officer at a time and place fixed therein. The
regional director shall fix the time and place of the election,
eligibility requirements for voting, and other arrangements of the
balloting, but the parties may enter into an agreement, subject to the
approval of the regional director, fixing such arrangements. In any
such consent agreements, provision may be made for final determination
of all questions arising with respect to the balloting by the regional
director or by the Board.
0
19. Revise Sec. 102.86 to read as follows:
Sec. 102.86 Hearing; posthearing procedure.
The method of conducting the hearing and the procedure following
the hearing, including transfer of the case to the Board, shall be
governed, insofar as applicable, by Sec. Sec. 102.63 to 102.68 of this
part, inclusive.
By direction of the Board.
Dated: Washington, DC, January 15, 2014.
William B. Cowen,
Solicitor.
[FR Doc. 2014-01061 Filed 1-21-14; 8:45 am]
BILLING CODE 7545-01-P