[Title 29 CFR C]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 29 - LABOR]
[Subtitle B - Regulations Relating to Labor]
[Chapter I - NATIONAL LABOR RELATIONS BOARD]
[Part 101 - STATEMENTS OF PROCEDURES]
[Subpart C - Representation Cases Under Section 9(c) of the Act and]
[From the U.S. Government Printing Office]


29LABOR22002-07-012002-07-01falseCSubpart CLABORRegulations Relating to LaborNATIONAL LABOR RELATIONS BOARDSTATEMENTS OF PROCEDURES
   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.

    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

[[Page 22]]

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 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 two 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, and stipulated election 
agreement followed by Board certification. 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

[[Page 23]]

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 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

[[Page 24]]

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.



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 fomal 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

[[Page 25]]

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 recomendations 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 conducted under the supervision of the 
Regional Director in the manner already described in Sec. 101.19.
    (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).
    (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.