[Federal Register Volume 59, Number 105 (Thursday, June 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13429]


[[Page Unknown]]

[Federal Register: June 2, 1994]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 103

 

Appropriateness of Requested Single Location Bargaining Units in 
Representation Cases

AGENCY: National Labor Relations Board (NLRB).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY:  The National Labor Relations Board (NLRB) is publishing an 
advance notice of proposed rulemaking on the issue of the 
appropriateness of requested single location bargaining units in 
representation cases. This rule would be applicable only in cases 
involving initial organizing in the retail, manufacturing and trucking 
industries. The Board is publishing this advance notice to seek timely 
comments and suggestions from the public, labor organizations, employer 
groups, and other interested organizations on how the Board may best 
fulfill its statutory obligation to determine an appropriate unit when 
a single location bargaining unit is sought in these particular 
industries.

DATES: All responses to this notice must be received on or before July 
29, 1994.

ADDRESSES: All responses should be sent to: Office of Executive 
Secretary, 1099 14th Street, NW., room 11600, Washington, DC 20570. 
Telephone: (202) 273-1940.

FOR FURTHER INFORMATION CONTACT: John C. Truesdale, Executive 
Secretary, Telephone: (202) 273-1940.

SUPPLEMENTARY INFORMATION: The question of the appropriateness of a 
single location bargaining unit when requested by a labor organization 
has been an issue in NLRB representation proceedings for almost 60 
years. See, e.g., Atlantic Refining Co. 1 NLRB 359, 364-5 (1936). In 
the vast majority of cases, the single location unit is found 
appropriate, but only after extensive litigation of such factors as 
geographical separation, similarity of employee skills and terms and 
conditions of employment, autonomy of the location manager, extent of 
employee interchange, contact between facilities, functional 
integration, and other miscellaneous matters. The years of litigation 
have not been enlightening. A presumption of separate appropriateness 
has evolved in most industries when the unit petitioned for is single 
facility in scope. See, e.g., Sav-On Drugs, Inc., 138 NLRB 1032, 1033 
(1962); and Haag Drug Co., 169 NLRB 877 (1968).\1\ One court spent nine 
pages reciting the facts in two separate cases, involving two separate 
industries, reaching opposite results in the cases despite combining 
them for purposes of decision. NLRB v Chicago Health & Tennis Clubs, 
567 F.2d 331 (7th Cir. 1977). (In the course of its opinion, the court 
noted that the Board's approach in this area has ``fluctuated'' (pages 
335-336, fn. 7). We believe it is time to strive for more certainty and 
less litigation and delay on this issue, and invite comments on how 
best to do this in the retail, manufacturing and trucking industries.
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    \1\The presumption does not apply when the unit petitioned for 
is multi-facility in scope. See, e.g., Capital Coors Co., 309 NLRB 
322 (1992), and cases cited therein.
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    Many different industries have been involved in litigation of this 
issue, but large groups of cases have centered on the retail, 
manufacturing and trucking industries. See e.g., Red Lobster, 300 NLRB 
908 1990 (retail); J&L Plate, 310 NLRB 429 (1993) (manufacturing); and 
Bowie Hall Trucking 290 NLRB 41 (1988) (trucking). Although this issue 
is litigated in other industries, cases involving these other 
industries fall outside the scope of the Board's concern in this 
proceeding. With regard to retail, manufacturing and trucking, however, 
the factors considered by the Board in these cases, including the 
presumptive appropriateness of a separate facility, appear to us to be 
well-established. The Board's decisions in these industries are 
reasonably predictable; with certain limited exceptions, the single-
facility unit usually is found appropriate. We believe, that in normal 
circumstances, it is no longer necessary for the Board and the parties 
involved to expend extensive resources litigating the issue. Hence, the 
Board seeks to promulgate a rule or rules to limit to the extent 
possible the necessity to adjudicate the appropriateness of petitioned-
for single facility units in these three industries.
    One possibility would be for the Board to promulgate a rule or 
several rules which are specifically tailored to these particular 
industries.\2\ It is possible, though not certain, that the issue of 
separate appropriateness when raised in different industries may 
present different considerations. For example, a rule which finds a 
single facility appropriate, in part, because of a defined 
insubstantial amount of interchange among locations may differ between 
the trucking industry and the retail industry because of the differing 
nature of the duties of the employees in the two industries, including 
their itinerant as opposed to stationary work stations, respectively.
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    \2\It is not the Board's present intention to promulgate rules 
for any particular sub-categories or sub-industries within the 
retail, manufacturing or trucking industries. The Board's intention 
is to promulgate a rule or rules with the broadest applicability 
possible within these three generic categories of industries.
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    Another possibility would be to promulgate a single rule applicable 
across all three industries, deeming appropriateness to be determined 
by reference to several specified factors. For example, a rule could be 
promulgated which would declare appropriate any separate facility unit 
requested where (a) A given number of employees--for example, 15--were 
employed, or (b) no other facility of the employer was located within a 
specified distance--for example, one mile--and where, in addition, a 
supervisor within the meaning of the Act, located at the site, oversaw 
operation of the facility requested. Extraordinary circumstances would 
render the rule inapplicable. One such extraordinary circumstance might 
be where a set percentage (e.g., at least 10 percent) of the employees 
in the unit sought performed work at other locations a certain 
percentage (e.g., at least 10 percent) of the time (frequently referred 
to as temporary interchange.) Because they have seldom made a 
difference in prior Board decisions, permanent interchange would no 
longer be deemed relevant; nor would centralization of personnel 
functions, functional integration, or contact between employees at the 
facilities. If extraordinary circumstances were present, or if the rule 
were for other reasons inapplicable, the issue would be decided by 
adjudication, under published precedent.
    The rule or rules also may address the definitional question of 
what constitutes a single facility. See, e.g., Child's Hospital, 307 
NLRB 90 (1992).
    Numerous other possibilities present themselves on these subjects.
    Given the fact that the Board has made no decision on the propriety 
of any form of rulemaking in this area, we invite all interested 
parties to comment on (a) The wisdom of promulgating a rule or rules on 
this issue in the three specified industries, and (b) the appropriate 
content of such a rule or rules.

Statement of Member Stephens and Member Cohen

    The rule declaring the presumptive appropriateness of a single 
facility bargaining unit has had a long and somewhat stable history, 
unlike the Board's turbulent experience with health care unit 
determinations that prompted our rulemaking on that subject in 1987. 
Nevertheless, given the prevailing view of our colleagues that the 
single facility presumption should be reexamined and perhaps 
strengthened, we have no objection to considering the matter in the 
context of informal rulemaking. Unlike case adjudication, an advance 
notice proceeding such as this will enable the Board to solicit 
comments from a broad cross-section of interested persons before 
making a final decision on the relevant issues, including whether 
rulemaking is at all warranted, whether (and how) the substantive 
law defining the pertinent factors that can rebut the presumption 
should be changed, and whether indeed extensive (and perhaps 
unnecessary) resources are being expended litigating this unit 
question. Until the appropriate administrative record is compiled, 
we join our colleagues in deferring a final decision on any of these 
questions.

    Dated: Washington, DC, May 27, 1994.

    By Direction of the Board.
National Labor Relations Board.
Joseph E. Moore,
Acting Executive Secretary.
[FR Doc. 94-13429 Filed 6-1-94; 8:45 am]
BILLING CODE 7545-01-M