[Federal Register Volume 60, Number 188 (Thursday, September 28, 1995)]
[Proposed Rules]
[Pages 50145-50158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24001]



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[[Page 50146]]


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: Notice of proposed rulemaking.

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SUMMARY: To set forth the decisive factors for the appropriateness of 
most single location units, the National Labor Relations Board (the 
Board) proposes to amend its rules to include a new provision 
specifying the appropriateness of requested single location bargaining 
units. This rule, as proposed, would be applicable to all Board cases 
in which the issue arises as to whether a unit of unrepresented 
employees at a single location is an appropriate unit in all industries 
currently under the Board's jurisdiction, excluding the utility 
industry, construction industry, and seagoing crews in the maritime 
industry. The Board is publishing this 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 requested. Although the Board has given the 
matter considerable thought, we emphasize that the rule we are 
proposing is just that--a proposal--and not a final decision on what 
the rule, if any, should be. In some sections of this document we are 
more tentative than others and have specifically invited commentary or 
empirical information. In other sections we have not expressly asked 
for comments but nonetheless welcome them.

DATES: All responses to this notice must be received on or before 
November 27, 1995.

ADDRESSES: All responses should be sent to: Office of the Executive 
Secretary, 1099 14th Street, NW, Room 11600, Washington, DC 20570, 
Telephone: (202) 273-1940. All documents shall be filed in eight 
copies, double spaced, on 8\1/2\ by 11 inch paper and shall be printed 
or otherwise legibly duplicated.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Acting Executive 
Secretary, Telephone: (202) 273-1940.

SUPPLEMENTARY INFORMATION: The following is an outline of the contents 
of this Notice:

I. Background
II. Validity and Continuing Desirability of Rulemaking
    A. Opposition to Rulemaking
    1. Adjudication should be retained
    2. All factors should be retained
    3. Lack of empirical evidence
    4. Rule unnecessary
    5. Other concerns
    6. Summary and tentative conclusions
    B. Support for Rulemaking
    C. Conclusion
III. The Proposed Rule
    A. Scope
    1. Generally
    2. Industries Covered
    a. Reasons
    b. Excepted industries
    c. Summary
    3. Applicability to Board cases
    4. Summary and conclusions
    B. Content of the Proposed Rule
    1. Factors recited in prior single location cases
    a. Introduction
    b. Non-material factors
    1. Introduction
    2. Functional integration
    3. Centralized control
    4. Common skills, functions, and working conditions
    5. Permanent transfers
    6. Bargaining history
    7. Conclusion
    c. Material factors
    1. Introduction
    2. Temporary employee interchange
    3. Geographical separation
    4. Local autonomy
    5. Minimum unit size
    d. Summary and tentative conclusions
IV. Extraordinary Circumstances Exception
V. Docket
VI. Regulatory Flexibility Act
VII. Statement of Member Cohen

I. Background

    On June 2, 1994, the Board published an Advanced Notice of Proposed 
Rulemaking (ANPR) in the Federal Register entitled ``Appropriateness of 
Requested Single Location Bargaining Units in Representation Cases.'' 
59 FR 28501 (June 2, 1994). The ANPR set forth several reasons why the 
Board was considering rulemaking to determine the appropriateness of 
single location units for initial organizing cases in the retail, 
manufacturing, and trucking industries. The Board specifically stated, 
however, that it had made no decision on the propriety of rulemaking in 
this area.
    The Board sought comments on: (a) The wisdom of promulgating a rule 
or rules on the appropriateness of single location units in retail, 
manufacturing, and trucking industries; and (b) the appropriate content 
of such a rule or rules. The ANPR suggested that there could be 
separate rules for each industry, or a single rule applicable to all 
three industries. To encourage discussion and comments on the scope and 
content of a possible rule, the ANPR suggested language for a rule. The 
suggested rule was a single rule which set forth factors which would be 
necessary for the rule to apply, i.e., to grant a requested single 
location unit. The rule also provided for ``extraordinary 
circumstances'' which would render the rule inapplicable and require 
the case be decided by adjudication. Interested parties also were 
invited to address what constitutes a ``single facility.'' Member Cohen 
and former Member Stephens filed a separate joint statement in the 
ANPR. The comment period ended July 29, 1994.
    The Board received 41 written comments. Five comments were received 
from unions: Amalgamated Clothing and Textile Workers (ACTWU, C-8 \1\); 
Retail, Wholesale and Department Store Union, AFL-CIO (RWDSU, C-14); 
International Brotherhood of Teamsters (IBT, C-21); International 
Federation of Professional and Technical Engineers (PTE, C-22); and the 
AFL-CIO (AFL, C-33).

    \1\ C-8 denotes Comment Number 8, for example.
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    Trucking industry employers submitted 17 comments. Retail industry 
employers submitted 2 comments.
    Seven comments were received from trade associations: U.S. Chamber 
of Commerce (USCC, C-7); National Association of Manufacturers (NAM, C-
12); American Trucking Associations (ATA, C-13); National Council of 
Chain Restaurants (NCCR, C-24); Ohio Grocers Association (OGA, C-29); 
National Retail Federation (NRF, C-32); and the International Mass 
Retail Association (IMRA, C-41).
    Four responses were received from policy organizations: National 
Right to Work Legal Defense Foundation (NRW, C-16); Council on Labor 
Law Equality (COLLE, C-18); Labor Policy Association (LPA, C-19); and 
Society for Human Resource Management (HRM, C-38).
    Six comments were submitted by individuals.

II. Validity and Continuing Desirability of Rulemaking

    Commentators generally did not take issue with the Board's 
statutory authority to engage in rulemaking concerning bargaining 
units. The general validity of the Board's statutory power to engage in 
rulemaking under Section 6 of the National Labor Relations Act (Act) is 
set forth fully in 

[[Page 50147]]
the notices of proposed rulemaking for units in the health care 
industry. See, Collective-Bargaining Units in the Health Care Industry, 
Notice of Proposed Rulemaking, 52 FR 25142, 25143-45 (July 2, 1987); 
Second Notice of Proposed Rulemaking, 53 FR 33900, 33901 (September 1, 
1988) and Final Rule, 54 FR 16336, 16337-38 (April 21, 1989), reprinted 
at 284 NLRB 1516, 1519-20, 1528, 1529-30 and 1582-83. Moreover, in 
American Hospital. Association v. NLRB, 499 U.S. 606 (1991), the 
Supreme Court upheld the Board's authority under Section 9(b) of the 
Act to resolve disputes regarding appropriate bargaining units by using 
its rulemaking authority.
    The ANPR set forth several reasons supporting the Board's desire to 
engage in rulemaking for single location units, including the 
historical likelihood in most cases that a single facility unit will be 
found appropriate, the extensive litigation currently involved, the 
unnecessary delays frequently caused by such litigation, the need for 
more certainty in such cases, and the fact that many of the factors 
considered in such cases have not affected the outcome of single 
location cases.
    After carefully examining all the comments, the Board continues to 
believe its reasons for desiring to engage in this rulemaking are valid 
and appropriate to effectuate the purposes of the Act. This Notice of 
Proposed Rulemaking (NPR) clarifies the Board's principal purpose for 
engaging in this rulemaking. That purpose is to let the public and 
practitioners know what is required for a single location unit to be 
found appropriate. The Board will, however, continue to decide novel 
and unusual cases by adjudication under the extraordinary circumstances 
exception to the rule, and therefore does not foresee a major change in 
results of these cases but merely a more expeditious method of deciding 
them. The Board believes the major benefit of this rulemaking will be a 
reduction in litigation over this issue and more efficient use of Board 
resources as well as improved service to the parties. In addition, 
because the law in this area will be codified and clarified, we believe 
the rule will facilitate the negotiation of stipulated election 
agreements.

A. Opposition to Rulemaking

1. Adjudication Should Be Retained.
    The major contention of the majority of the commentators opposing 
rulemaking was that the case-by-case adjudication approach should be 
retained. (USCC, C-7 ; SAIA MotorFreight, C-9; LPA, C-19; COLLE, C-18; 
and NCCR, C-24\2\). Commentators maintained that this approach is an 
invaluable tool to ensure that all facts and factors are considered in 
deciding a particular case. In their view, this approach has worked 
well over the many years that the Board has decided single location 
cases by adjudication.

    \2\ Citation of a particular comment is intended to be 
illustrative of the comments made regarding a particular point. Such 
citation does not necessarily represent the entirety of the 
comments.
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    Although it is true that the Board has previously decided these 
cases by adjudication, the Act also permits the Board to decide 
representation cases by rulemaking. As discussed in great detail in the 
health care rulemaking, the courts, commentators, and others have urged 
the Board to use its dormant rulemaking authority to decide 
representation cases. See Collective-Bargaining Units in the Health 
Care Industry, Notice of Proposed Rulemaking, 52 FR 25142, 25144-45 
(1987), and Final Rule, 54 16336, 16337-39 (April 21, 1989), reprinted 
at 284 NLRB 1516, 1518-20, 1580, and 1583. We believe that a rule 
concerning the appropriateness of single location units would be a 
proper use of that authority.
    The Board recognizes one of the most frequently made arguments 
favoring adjudication is that it allows the parties to put before the 
Board all the available evidence which may be relevant to this issue in 
each particular case. While adjudication affords the parties the 
opportunity to present voluminous evidence in the hope that some of it 
will be found critical, a rule tells the parties, in advance, which 
evidence the Board has decided is critical. By announcing an intention 
to decide these cases by rule over adjudication, the Board is 
tentatively choosing between two legitimate methods of deciding 
representation cases. The Board is exchanging what is sometimes thought 
of to be the enhanced individual justice of adjudication, with its 
vagaries and unpredictability as to which facts are important, for the 
clarity and predictability of a rule. This choice may not be 
appropriate for all representation cases, but for the many reasons 
outlined in the ANPR and this Notice, the Board believes it is 
appropriate for the majority of single location cases.
    The arguments for retaining adjudication fail to address one of our 
major reasons for intending to use rulemaking in this area, most 
notably, our desire to reduce extensive litigation and use of Board and 
party resources to decide routine single location cases. Although the 
Board's only other bargaining unit rulemaking addressed a history of 
difficult and inconsistent health care precedent, rulemaking also is 
appropriate for other reasons, including the desire to use our limited 
and declining resources more efficiently.
    A major reason for litigation of this issue is the attempt by the 
parties to prove the existence of certain factors and the 
``significance'' of those factors. Were the Board to establish a rule 
specifying under which fact situations a single location unit will 
automatically be found appropriate, there would be considerably less 
litigation over the significance or lack of significance of these 
facts, and the factors to which they relate.
    The desirability of reducing litigation is evident from the current 
approach. The Board currently considers a number of factors in single 
location cases to determine whether the presumptive appropriateness of 
a requested single location has been rebutted. Often, the parties seek 
to prove the existence or absence of various factors by introducing 
voluminous testimony and documentary evidence concerning a myriad of 
facts. The parties litigate the significance of each fact and factor, 
and then the Regional Director and, if a request for review is filed, 
the Board determines whether the various factors exist and are 
significant. The parties and the public are left to their own devices 
to deduce which facts and factors may or may not be deemed most 
significant in a particular case, although, as indicated, the result in 
the majority of cases is that the single facility unit requested is 
found appropriate.
    We believe our decision to decide these cases under a rule will 
have little effect on the substantive results of most routine single 
location unit cases. Moreover, as described later in this document, the 
rule provides for an extraordinary circumstances exception to address 
those novel and difficult cases which should be decided by 
adjudication.--------
2. All Factors Should Be Retained
    Most commentators also argued that the Board should retain all the 
factors historically considered in deciding single location cases by 
adjudication. (SAIA, C-9; NAM, C-12; LPA, C-19 and NRF, C-32.) These 
factors, they contend, should continue to be determinative in single 
location cases. Their comments, however, have not, to date, given 
reasons to support this contention. As discussed more fully below in 
Section III.B., it seems to us, based both on our experience and a 

[[Page 50148]]
reexamination of prior and recent cases, that only a few of the several 
factors historically considered in single location cases actually have 
made, or in the future should make, a material difference in the 
outcome of these cases.
    Moreover, the current multi-factor approach is difficult for lay 
people and even for lawyers to understand. The current approach 
represents itself as a shifting, unpredictable mix of many facts and 
factors. No single fact or factor is said to be determinative. Board 
decisions weigh the evidence supporting the factors and decide, without 
setting forth any precise standards, that there is sufficient evidence 
supporting the existence of certain factors in one case, but not in 
another. The Board then pronounces that certain factors are 
``significant'' or ``substantial'' to support a particular result. 
There are no announced, pre-set standards, however, for what is 
``significant'' interchange, a ``substantial'' distance between 
locations, or local autonomy which is ``severely circumscribed.'' These 
imprecise and vague litigation-producing factors are the very 
ambiguities which rulemaking appears well-suited to address.
    We believe that for many cases this litigation is wasteful and that 
this area is ripe for consideration of the alternative approach of 
rulemaking. While there remain cases which will benefit from 
adjudication and a thorough consideration of all the facts and factors, 
our experience indicates that the results of most single location cases 
can be made more predictable.
3. Lack of Empirical Evidence
    Several commentators challenged the rule because no supporting 
empirical evidence regarding the number of single location cases was 
cited in the ANPR. (USCC, C-7; NAM, C-12; and IMRA, C-41.) The comments 
argued, for example, that because 80 percent of Board elections are by 
stipulation and consent, few cases are litigated and still fewer are 
likely to involve single location issues. Representatives of the 
trucking industry in particular cited the paucity of recent published 
decisions in that industry. (SAIA MotorFreight, C-9; ATA, C-13; Viking 
Freight et al., C-30.) Commentators from the trucking industry also 
disputed that the single location unit is usually found appropriate, 
based on cases decided in the 1980's. (Viking Freight, et al., C-30.)
    It is commonly recognized, however, that single location unit 
issues have arisen with some frequency since the inception of the Act. 
See P. Hardin, Developing Labor Law, 468-72 (3d ed. 1992). In any 
event, the Board's desire to engage in this rulemaking is not 
predicated solely on the number of cases involving this issue. This 
proposed rule merely recognizes that a group of cases which are 
periodically and repeatedly addressed by the Board are appropriate for 
rulemaking for the reasons stated in the ANPR and this Notice.
4. Rule Unnecessary
    Several commentators argued that rulemaking is unnecessary because 
the circumstances here are unlike those which gave rise to the health 
care rules. (NAM, C-12; COLLE, C-18; LPA, C-19; and MotorFreight, C-
35.) The ANPR, however, did not represent that the circumstances here 
are the same as those which resulted in the health care rulemaking. As 
we indicated above, we do not believe that the reasons supporting this 
rulemaking must mirror the circumstances or the reasons which supported 
the health care rulemaking. We believe the ANPR and this Notice set 
forth a number of legitimate reasons for this rule, particularly the 
Board's desire that, in a significant number of cases, the specific 
factors necessary for an appropriate single location unit be made clear 
and known in advance to all interested parties. There are, however, 
common goals and benefits between the two rulemakings. As with the 
health care rules, the Board is attempting to bring more clarity to the 
issue of appropriateness of bargaining units and to avoid lengthy 
litigation, possibly inconsistent results, and unnecessary expenditure 
of limited Board resources and the resources of the parties. See 
Collective-Bargaining Units in the Health Care Industry, Notice of 
Proposed Rulemaking, 52 FR 25142, 25144-45 (1987), reprinted at 284 
NLRB 1516, 1518-20.
5. Other Concerns
    Some commentators believe that a rule simply will add to the 
advantage they claim unions already have in these cases (NAM, C-12); 
that the result will be increased legal fees to conduct campaigns and 
to negotiate contracts, and impairment of an employer's efficiency and 
productivity (TNT Reddaway Truck, C-10; NCCR, C-24; and NAM, C-12; ); 
that it will be harder to administer contracts and transfer employees 
between union and non-union locations (NCCR, C-24; NRF, C-32,); and 
that by representing splintered or fragmented units, unions may use 
whipsaw strikes to enforce their bargaining demands (NRF, C-32; NCCR, 
C-24.).
    Most of these concerns, however, exist whenever single facility 
units are found appropriate, regardless of whether they would be 
decided by adjudication or rulemaking. The major fear of these 
commentators appears to be that a rule will exacerbate these perceived 
problems by increasing organizing activity. A major purpose of the Act, 
however, is to encourage collective bargaining; increased organizing is 
not, therefore, a proper basis for not engaging in rulemaking. 
Moreover, experience with the health care rules demonstrates that it 
cannot be presumed that increased organizing will materialize because 
of a rule. See Burda, Hospital Elections Continue to Decline, Modern 
Healthcare 26, May 2, 1994, in which it was reported, relying on Board 
statistics, that the Board's health care rules ``haven't led to 
unbridled organizing efforts at hospitals, as many executives had 
feared.'' It has also been our experience that the health care rule has 
benefited the Board by reducing the delay in processing health care 
cases caused by litigation of unit scope questions. These previous 
delays were caused by lengthy hearings and the substantial time 
necessary to prepare decisions.
    Hence, we do not believe that these concerns about unions' 
organizing efforts, which exist even outside of rulemaking, should 
preclude the Board's attempt to decide these cases more expeditiously. 
Moreover, where novel and unusual situations are presented, the rule 
provides for continued decision by adjudication.
6. Summary and Tentative Conclusions
    Although the general tenor of many opposing comments was that a 
rule would be a radical departure from the Board's current treatment of 
these cases, we believe, to the contrary, that for routine cases there 
will be little substantive change in results. Thus, under adjudication 
the Board applies a presumption that single location units are 
appropriate. The presumption is based on Board decisions which note 
that Section 9(b) lists the ``plant'' unit as one of the units 
appropriate for bargaining. See Dixie Belle Mills, 139 NLRB 629, 631 
(1962); Haag Drug Co., 169 NLRB 877 (1968).\3\ This 

[[Page 50149]]
presumption of appropriateness is, to some extent, already a ``rule,'' 
as the Board recognized in the health care rulemaking. See Collective 
Bargaining Units in the Health Care Industry, Final Rule, 54 FR 16336, 
16338 (1989), reprinted at 284 NLRB 1580, 1583 (1989), in which the 
Board noted, in support of those rules, that the Board has long made 
use of ``rules'' of general applicability to determine appropriate 
units, citing, inter alia, the single facility unit presumption.

    \3\ We recognize that two Courts of Appeals have questioned the 
presumption. See, NLRB v. Cell Agricultural Manufacturing, 41 F.3d 
389 (8th Cir. 1994), denying enf. in relevant part of 311 NLRB 1228 
(1993); Electronic Data Systems Corp. v. NLRB, 938 F.2d 570 n.3 (5th 
Cir. 1991), enfg. 297 NLRB No. 156 (1990) (not reported in printed 
Board volumes). On the other hand, at least seven circuits have 
recognized the validity of the presumption. Staten Island University 
Hospital v . NLRB, 24 F.3d 450, 456 (2nd Cir. 1994); NLRB v. Aaron's 
Office Furniture Co., 825 F.2d 1167, 1169 (7th Cir. 1987); NLRB v. 
Child World, Inc., 817 F.2d 1251, 1253 (6th Cir. 1987); Beth Israel 
Hospital v. NLRB, 688 F.2d 697 (10th Cir. 1982), modifying and 
reaffirming en banc 655 F.2d 1028 (10th Cir. 1981); NLRB v. Living 
and Learning Centers, Inc., 652 F.2d 209, 212 (1st Cir. 1981); 
Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1014 (9th Cir. 
1981); NLRB v. Western & Southern Life Ins. Co. v. NLRB, 391 F.2d 
119, 123 (3d Cir. 1978), cert. denied, 393 U.S. 978 (1968). We note 
that the facilities in Cell were less than a mile apart and thus, 
the rule we propose would not have applied in that case in any 
event. In Electronic Data Systems, the court pointed out in that in 
a prior case arising in that Circuit, NLRB v. Purnell's Pride, 609 
F.2d 1153, 1160-61 & nn.4 and 5 (1980), that court expressed the 
opinion that the presumption was confusing and useless in practice. 
Without agreeing with this court's view of the presumption, we 
believe our clear delineation as to which factors are critical to 
finding a single location unit appropriate will remove much of the 
confusion regarding the appropriateness of most requested single 
locations units, will be useful in practice, and to that extent may 
satisfy some of the court's concerns.
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    Moreover, the Board has recognized that a single location unit 
furthers certain policy considerations with regard to Section 9(b). In 
Haag Drug Co., 169 NLRB 877 (1968), the Board stated that Section 9(b) 
directs the Board to ``assure employees the fullest freedom in 
exercising the rights guaranteed by this Act'' and, absent sufficient 
evidence to destroy the separate identity of the single location, the 
employees' ``fullest freedom'' is maximized by treating the single 
location unit as normally constituting the appropriate unit.
    We recognize, however, that the statutory goal of assuring 
employees their fullest freedom in exercising their rights is tempered 
by the Board's desire not to unduly fragment an employer's workforce. 
Although we continue to believe that a rule is desirable, in view of 
the concerns of some commentators about the potential for fragmentation 
of an employer's workforce, we solicit comments addressing any 
available empirical evidence regarding the feasibility of bargaining as 
reflected in the relative success (or lack thereof) of administering 
contracts, transfers, etc., in workforces which are partially or 
completely organized by location versus those workforces which are 
organized on a multi-location basis. We invite these comments as to 
each of the specific elements of the rule outlined in Section III.B. of 
this proposed rule.
    In sum, we believe the net effect on Board law of this proposed 
rule is that its results will largely be consistent with our current 
treatment of single location cases and, hence, not a significant 
departure from current law, although more rationally explained and more 
widely disseminated and understood. We believe, therefore, that the 
arguments for retention of the current adjudicatory approach appear to 
underestimate the benefits of the proposed rule, while overstating its 
practical impact on the substantive result in most routine single 
location cases. -

B. Support for Rulemaking

    All five unions which submitted comments reiterated the reasons 
mentioned in the ANPR supporting the decision to promulgate a rule or 
rules. The AFL (C-33) and ACTWU (C-8) also cited reasoning from the 
Board's health care rulemaking: that case by case analysis should be 
abandoned in favor of administrative rulemaking where an industry is 
susceptible to rules of general applicability; that courts and 
academics have long favored use of the Board's rulemaking powers 
because the current method is inefficient; that several state labor 
boards determine bargaining units by rules; and that by codifying its 
jurisprudence in this area, the Board can make its processes more 
understandable.
    The AFL noted that the health care rulemaking has met with well 
deserved praise from commentators and the Administrative Conference of 
the United States. This praise should encourage the Board to continue 
to move away from ``Talmudist'' methods of adjudging the 
appropriateness of bargaining units and from making it difficult for 
the outside world to know which factors, if any, are crucial. The AFL 
contends that rulemaking on single location units is a particularly 
appropriate next step.

C. Conclusion

    The Board believes that a rule will be of service to the public and 
the labor bar to set forth more clearly the decisive factors in most 
single location cases. Moreover, the public and the labor bar will 
know, in advance, which facts and factors are critical for most single 
location cases. Members of the labor bar will be better able to advise 
their clients about which issues should or should not be litigated. 
Parties will not have to engage in drawn out litigation to determine if 
a unit is appropriate; in many cases, simple application of the rule 
will tell them.
    Knowing in advance what facts are determinative will eliminate much 
of the confusion and uncertainty inherent in the current approach. We 
believe much of the current litigation is driven either by parties' 
attempts to persuade the Board that facts and factors exist in support 
of a particular result, or by the mistaken belief as to which facts or 
factors are critical for finding a single location unit appropriate. 
This litigation exists despite the fact that, in the majority of cases, 
requested single location units are found appropriate. Through this 
proposed rule, we intend to define those facts and factors which will 
be determinative. It no longer will be necessary in most cases to 
persuade the Board that certain facts exist and then for the parties to 
place their interpretation of those facts before the Board, not knowing 
which facts or factors will be deemed determinative.
    We believe, therefore, that the proposed rule will cut litigation 
costs and the time currently and unnecessarily expended by the parties 
and the Board in most single location cases. The Board and its Regional 
Directors should have fewer and hopefully shorter transcripts to read 
and decisions to write. Knowing in advance which facts are necessary to 
support a single location finding, the parties can concentrate their 
resources on the election or collective bargaining if the unit is 
appropriate under the rule.
    We also anticipate that the proposed rule may lead to more 
stipulated election agreements. Currently, parties seeking to reach a 
stipulated election agreement for a single facility unit must negotiate 
over a number of often unclear and little understood factors. The 
proposed rule, however, codifies what will in most cases establish the 
appropriateness of a single facility unit and uses only a few 
reasonably clear factors. Because the parties will be better able to 
understand this area of the law, they will be in a better position to 
negotiate a stipulated election agreement; they will no longer need to 
waste time and effort in disputing what we have determined are 
essentially immaterial factors.
    The parameters of the proposed rule, however, are not designed to 
decide every case involving single location units, only the large 
percentage of cases that are neither close nor novel. When the 
parameters of the proposed rule are met and there are no novel issues, 
litigation will be unnecessary. When, however, the parameters are not 
met, the rule will not apply. Furthermore, even if the proposed 
parameters are met, 

[[Page 50150]]
extraordinary circumstances may be shown to exist, and cases will be 
adjudicated. It is only these unusual close cases which will benefit 
from and, absent stipulation, receive adjudication.

III. The Proposed Rule

A. Scope

1. Generally
    The ANPR stated that the Board proposed promulgating a rule, or 
rules, to govern single location units in the retail, manufacturing, 
and trucking industries. The rationale for these three industries was 
that ``large groups of cases have centered'' on them, that factors 
considered in these cases are well-settled, and that the outcomes of 
single facility cases are reasonably predictable.--------
    Many commentators opposed grouping all employers of a single 
industry under one rule, and others, particularly the trucking 
industry, objected to grouping their industry with retail and 
manufacturing. (ATA, C-13; NAM, C-12; NRF, C-32; SAIA, C-9; Con-Way 
Southern Express, C-26; Viking Freight System, et al., C-30). These 
comments generally asserted that industries and employers are too 
diverse to be covered by a single rule. They also contended that it 
would be difficult to define coverage of employers under a rule or 
rules, presumably because of the common and overlapping functions and 
services of employers. None of the commentators opposing a single rule, 
however, offered thoughts on how the Board could structure separate 
rules covering separate industries.
    The AFL (C-33) and IBT (C-21), on the other hand, contended that a 
single rule is preferable to three separate rules for the three 
industries mentioned in the ANPR. The AFL contended that if the 
justification for the rule in the three industries is the large number 
of cases centered on them, there would seem to be no reason to 
distinguish among them for purposes of a rule. Moreover, the AFL 
contended that there was no reason to exclude non-trucking portions of 
the transportation industry from the rule.
2. Industries Covered
    a. Reasons. The Board's original intention for this rulemaking was 
to limit the coverage to these three industries because it was our 
belief that the bulk of the single location cases fell into these 
categories. Although we approached the coverage issue from a quasi-
statistical point of view, commentators representing unions, industry, 
and policy organizations approached this as a practical issue. While 
industry, policy organization, and trade association commentators 
generally thought any rulemaking was inappropriate, and union 
commentators thought rulemaking was appropriate, each discussed the 
problem of covering so many diverse employers under rules. All pointed 
to the difficulty of classifying industries and then determining which 
employers fall under a particular industrial category. All emphasized 
that many industries, particularly the transportation industry, are 
becoming difficult to categorize as they provide an array of services 
beyond their nominal industrial classification.\4\

    \4\ This was vividly illustrated by the responses of some 
trucking industry commentators who persuasively contended that 
``there is no such thing as the trucking industry,'' stating that 
the so-called trucking industry is evolving into much broader areas 
such as the ``delivery'' or ``transportation'' industry. 
(MotorFreight, C-35 at 3; Emery Air Freight, C-36 at 3.). The Board 
itself has addressed this same problem in recent cases involving 
segments of the package handling industry. See United Parcel 
Services, 318 NLRB No. 97 (Aug. 25, 1995), and Federal Express, 317 
NLRB No. 175 (July 17, 1995); see also, International Longshoremen's 
Association, 266 NLRB 230 (1983), where in a similar vein the Board, 
inter alia, struggled with the appropriate characterization of 
containerization in the shipping industry (whether more like 
trucking or more like shipping) with regard to the lawfulness of the 
alleged work preservation objectives of the International 
Longshoremen's Association.
---------------------------------------------------------------------------

    The AFL suggested that the solution to these questions of 
categorization was to broaden coverage of the rules, while the 
industry, policy organization, and trade association commentators 
generally offered no specific suggestions on how to classify industries 
and employers. The LPA (C-19), however, although opposed to rulemaking 
in this area, suggested that if the Board does decide to adopt rules, 
``[i]t would not be wise to formulate rules specifically tailored to 
each industry.'' The LPA apparently was concerned that industry-
specific rules might lead to ``ever more narrow rules,'' presumably in 
other areas. The LPA thought any rule adopted should be as broad as 
possible.
    The commentators' responses regarding the practical difficulty of 
attempting to narrow the scope of coverage reminded us that the Board's 
current approach generally does not provide for separate standards, or 
``rules,'' for separate industries. With the few exceptions discussed 
below, the Board treats all industries the same with regard to single 
location units and applies the same standards. The Board applies the 
single location presumption to analyze the appropriateness of requested 
single location units, and considers the same factors relevant in 
determining whether the presumption has been rebutted. When the 
standard has been cited in trucking cases, the Board has cited and 
applied the same standard applied in retail cases. See Bowie Hall 
Trucking, 290 NLRB 41 (1988), citing Sol's, 272 NLRB 621 (1984). When 
the standard has been cited in retail cases, the Board has cited and 
applied the same standard applied in trucking industry cases. Globe 
Furniture Rentals, 298 NLRB 288 (1990), citing Dayton Transport Corp., 
270 NLRB 1114 (1984). The standard cited, therefore, is the same 
regardless of the industry. See Esco Corp., 298 NLRB 837 (1990), in 
which the Board relied on cases from the manufacturing, retail drug 
store, retail apparel shop, and trucking industries; Haag Drug Co., 
supra 169 NLRB at 878, in which the Board applied the presumption to 
retail chains, noting that the single location factors are no different 
from those applied to manufacturing or insurance industries.
    Because the Board currently applies the same single location 
standards to most industries, we have concluded it does not make sense 
to change that practice and have different rules for different 
industries. We, therefore, in response to the comments, propose that 
the scope of the rule apply to all industries to which the Board 
currently applies the single location presumption. Besides conforming 
to the current practice, this coverage will be, practically speaking, 
simpler and easier to administer. Even were we to attempt to define 
industrial classifications of employers, the comments concerning the 
changing functions and services of employers indicate to us that in 
many instances we would still encounter difficulty, and parties may 
well have to resort to litigation to determine which set of rules 
apply. We also believe that a broad based rule will avoid the 
possibility of inconsistent findings based on different rules. Finally, 
even for cases that do not involve single location units, as for 
example cases involving unit placement or composition, the Board 
generally has applied the same community of interest standards without 
regard to the industries involved. Having a single rule for all 
industries for single location issues would be consistent with that 
approach as well.
    b. Excepted industries. As indicated, we propose a few narrow 
exceptions to coverage under the rule, although as discussed below, we 
specifically invite comments on other exemptions from the rule and 
supporting reasons. The proposed exceptions involve industries or 
segments thereof as to which the single facility presumption has not 
been applied. Thus, public utilities would be excluded from coverage 
because in that industry the Board has traditionally 

[[Page 50151]]
regarded a system-wide utility unit to be the ``optimal unit.'' See, 
e.g., New England Telephone and Telegraph, 280 NLRB 162 (1986). 
Likewise, crews on ocean-going vessels would be excluded, as the 
presumptively appropriate unit there historically has been found to be 
``fleet-wide'' (which is different from employer-wide). See, e.g., 
Moore--McCormack Lines, Inc., 139 NLRB 796 (1962). The Board proposes 
that employers primarily engaged in the construction industry will be 
excluded from coverage under the rule because identifying the 
``location'' in a construction case would frequently be difficult and 
require litigation. Construction industry employers typically have 
several ongoing construction projects at different locations, each of 
which could be considered a separate site or location. Also, the 
separate projects are usually of short duration. Thus, the single 
facility presumption is not readily applicable to that industry.-------
-
    As we noted above, although we believe a rule with broad scope is 
desirable, the Board is open to comments on whether other industries 
should be excluded. Although several comments to the ANPR argued that a 
single rule would fail to take account of the uniqueness and diversity 
of particular industries or employers, we believe that none of these 
commentators demonstrated this uniqueness or diversity in any 
persuasive manner. Indeed, none suggested a specific rule for their 
industry. We hope commentators who argue for an exception will justify 
why an industry which currently is subject to a uniform standard under 
adjudication nevertheless should not be subject to a uniform standard 
under a rule.
    Several trucking industry commentators pointed out that unlike 
retail and manufacturing, requested single location units in this 
industry must be evaluated differently because drivers are mobile while 
employees in other industries remain relatively fixed in one location. 
(SAIA, C-9; Con-Way Southern Express, C-26; Viking Freight, et al., C-
30.) We are cognizant of this concern and invite more specific 
commentary about the ambulatory nature of this industry, and whether 
and in what manner the final rule should take account of that 
difference.
    c. Summary. Having a single rule and broadening the coverage of the 
rule to most industries is consistent with the Board's handling of 
single location cases by adjudication. Under adjudication, the Board 
generally has applied the same factors to all industries. By a single 
rule, the Board will avoid the possibility of confusion caused by 
different industry rules, and by the inconsistent results that might 
follow. Having a single rule also will be consistent with the goals of 
creating clear and uniform standards, reducing litigation, and 
processing these cases more efficiently.
3. Applicability to Board Cases
    The ANPR stated that the proposed rulemaking would be applicable to 
``initial organizing petitions.'' We have, however, modified the 
applicability of the rule in two respects. First, the proposed rule 
substitutes ``unrepresented'' for initial organizing to avoid possible 
confusion over the language ``initial organizing.'' We believe this 
better expresses our original intention in the ANPR of applying the 
rule to locations where the employees currently are not represented for 
collective bargaining. Thus, if a union previously but unsuccessfully 
attempted to ``organize'' the location separately or as part of a 
larger bargaining unit, the rule would still apply to any subsequent 
petition the union might file for a single location unit, provided the 
employees are not represented. The same would be true where other 
locations of the employer are already represented, including those 
separately represented on a multi-location basis.
    Second, although the rule in the ANPR applied to representation 
petitions seeking an election (RC and RM petitions), we propose that it 
be applicable to any other type of Board case in which the issue of a 
single location unit involving unrepresented employees arises. We 
believe this approach is necessary to avoid potentially inconsistent 
treatment between single location cases arising under all election 
petitions (except decertification petitions), and those arising in 
unfair labor practice cases. See, e.g. Gissel bargaining unit cases, 
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The rule also would 
apply in cases presenting an accretion issue, since a group of 
separately located employees cannot be accreted if they can be 
considered a separate appropriate unit. See, Compact Video Services, 
284 NLRB 117, 119 (1987); Gitano Distribution Center, 308 NLRB 1172 
(1992). The applicable Board law in these cases would be the rule, 
unless extraordinary circumstances could be established.
    The proposed rule, however, is subject to a number of limitations: 
1. As the rule is limited to requested single facility units, it could 
not be invoked to defeat a request for a broader unit; in such 
situations the single facility unit presumption is inapplicable. See, 
NLRB v. Carson Cable, 795 F.2d 879 (9th Cir. 1986); Capitol Coors Co., 
309 NLRB 322 (1992). Thus, the rule will have no bearing on petitions 
for broader units. 2. The rule will not apply to petitions filed under 
General Box Co., 82 NLRB 678 (1949), in which a voluntarily recognized 
union seeks an election for the benefit of certification. Such an 
election would involve employees currently represented, albeit through 
voluntary recognition. 3. As proposed, the rule does not address the 
question of the appropriate unit within a facility: that is, the 
proposed rule does not preclude units that are less than wall-to-wall 
at the facility requested. Our current case law does not require a 
wall-to-wall unit if the unit is otherwise appropriate.\5\ 4. Although 
there were comments urging the Board to apply the rule more broadly to 
decertification petitions (NRW, C-16), the Board has long held that the 
appropriate unit for decertification elections must be coextensive with 
either the unit previously certified or the one recognized as the 
collective bargaining unit. Delta Mills, 287 NLRB 367, 368 (1987); 
Campbell Soup Co., 111 NLRB 234 (1955). The Board applied this 
principle in the Health Care Rulemaking as well. See Collective-
Bargaining in the Health Care Industry, Second Notice of Proposed 
Rulemaking, 53 FR 33900, 33930 (1988), reprinted at 284 NLRB 1528, 1570 
(1988); North Country Regional Hospital, 310 NLRB 559 (1993). We see no 
reason to depart from well-established Board precedent, and thus, the 
proposed rule will not apply to decertification petitions.\6\

    \5\ Moreover, as with the Health Care Rule, this rule does not 
prevent the parties from stipulating to a different unit.
    \6\ This also follows from the fact that decertification 
elections are by their nature conducted in units already 
represented, whereas the rule applies only to requested units of 
unrepresented employees.
---------------------------------------------------------------------------

4. Summary and Conclusions
    The scope of the rule as originally proposed would be revised, 
therefore, to make it applicable to all industries under the Board's 
jurisdiction, except the construction industry, public utilities, and 
the maritime industry with respect to ocean-going crews. The rule would 
apply to all Board cases in which an issue is whether a single location 
unit of unrepresented employees constitutes a separate appropriate 
unit. This would include election petitions, unit clarification 
petitions, and unfair labor practice cases. The rule could not be used 
to defeat broader units sought by a petitioner or other employee 

[[Page 50152]]
representatives. The rule would not apply to decertification petitions.
    We believe that we have excluded all those industries to which the 
Board does not apply the single facility presumption or that are not 
appropriate for this rule. As indicated above, however, the Board 
invites comments from other industries or employers which seek to 
justify exclusion from the rule. Moreover, as indicated, while the 
scope of this rule is broad and covers most industries under the 
Board's jurisdiction, if novel issues arise with regard to a particular 
industry, and extraordinary circumstances are established, the rule 
will not apply and the case will be litigated by adjudication.

B. Content of the Proposed Rule

1. Factors Recited in Prior Single Location Cases
    a. Introduction. The Board's recent decision J&L Plate, 310 NLRB 
429 (1993), set forth a large number of factors ostensibly applied in 
single location cases:

    A single plant or store unit is presumptively appropriate unless 
it has been so effectively merged into a comprehensive unit, or is 
so functionally integrated, that it has lost its separate identity. 
Dixie Belle Mills, 139 NLRB 629, 631 (1962). To determine if the 
presumption has been rebutted, the Board looks to such factors such 
as central control over daily operations and labor relations, 
including the extent of local autonomy; similarity of skills, 
functions and working conditions; degree of employee interchange; 
distance between locations; and bargaining history, if any. Esco 
Corp., 298 NLRB 837, 839 (1990).

    --------The suggested rule in the ANPR would find a requested 
single location unit an appropriate unit where: (a) A given number of 
employees were employed; (b) no other facility of the employer was 
located within a specified distance; and (c) a supervisor under the Act 
was located on the site, presumably to oversee the operation of the 
facility requested. A showing of extraordinary circumstances would 
render the rule inapplicable, and refer the case to adjudication, such 
as where a set percentage of the employees in the unit sought performed 
work at another location for a set percentage of the time. -
    In proposing the content of the rule, we have set forth those 
factors which in our experience have significantly affected the outcome 
of single location cases under adjudication. The Board noted in the 
ANPR that several factors, while cited and theoretically considered in 
single location cases, seldom have made a difference in the outcome. It 
would be difficult to prove which factors cited in hundreds of cases 
were, in fact, determinative. Nonetheless, part of rulemaking involves 
an effort to simplify, codify, and predetermine results by attempting 
to isolate the more significant factors. Discussed below are our 
reasons for selecting those factors which we believe should be (and for 
the most part, have been) most material to deciding single location 
cases, and an explanation of the evidence necessary to support the 
existence of those factors under the proposed rule. -
    Many commentators argued that the Board should retain all the 
factors historically said to be considered under adjudication. In the 
ANPR, we stated that most of these factors, while cited and 
``considered,'' usually are not determinative and that only a handful 
of factors have had an important impact and effect on the outcome of 
single location cases. In our view, the factors of geographic distance, 
temporary employee interchange, and local autonomy as measured by a 
statutory supervisor on the site for a regular and substantial period 
are almost always material in single location cases. Factors such as 
functional integration, centralized control, common skills, permanent 
transfers, and bargaining history, while frequently mentioned, have for 
the most part not been material factors in deciding single location 
cases. Although not a current factor in single location cases, we 
propose that for the reasons stated below, the units granted under the 
rule should be limited to locations with a minimum number of employees. 
At this time we propose to adhere to 15 employees provided in the ANPR 
as the minimum size of a unit but are undecided whether this number of 
employees is too large or too small and request comments on the 
appropriate number.
    b. Non-material factors.
    1. Introduction. The factors which we have decided are not 
substantially material to requested single location units are generally 
relevant and material to community of interest issues and to other unit 
scope issues; they are particularly relevant and material to requested 
multi-facility units. We believe it is largely because of this 
relevancy to unit scope issues that the Board has traditionally, but 
nominally, included these factors in analyzing the appropriateness of 
single facility units. It does not, however, necessarily follow that 
because these factors are material to finding multi-facility units 
appropriate that they are also material to finding single facility 
units inappropriate. Any reasonably complex business enterprise has a 
multitude of potentially appropriate units. And a union is not required 
to seek the most appropriate unit but only an appropriate unit. P. 
Ballentine & Sons, 141 NLRB 1103 (1963). Although these factors may be 
material to deciding other unit scope issues, we find for the reasons 
discussed below that they are largely not material to deciding whether 
a requested single location unit is an appropriate unit. ----
    2. Functional integration. -The general standard for single 
location cases states that a single plant is presumptively appropriate 
``unless it has so effectively merged into a comprehensive unit, or is 
so functionally integrated that it has lost its separate identity.'' 
J&L Plate, supra. Functional integration, therefore, is generally 
stated to be relevant to any unit scope issue, including the 
appropriateness of a single location unit. When applied, however, 
functional integration has been largely subsumed by the specific 
factors upon which the rule we now propose relies--geographic 
separation, lack of significant temporary interchange, and local 
autonomy. To the extent that other aspects of functional integration 
exist, we believe they are largely immaterial to determining the 
appropriateness of single location cases. -
    There have been Board decisions which have purported to rely, in 
part, on specific evidence of ``plant integration,'' citing the use of 
similar machinery, the transfer of machinery and materials between 
plants, and in general, collaboration of two or more plants to produce 
a common product. See, e.g., Beaverite Products, 229 NLRB 369 (1977); 
Kent Plastics Corp., 183 NLRB 612 (1970); and Kendall Co., 181 NLRB 
1130 (1970). Other cases have recited evidence of the ``continuous 
flow'' of production or the ``single order flow process'' to find that 
there is integration. See, Unelco Electronics, 199 NLRB 1254 (1972); 
Neodata Product Distribution, 312 NLRB 987 (1993). In virtually all 
these cases, however, integration was supported by evidence of 
significant employee interchange, limited distance between plants, or 
limited local autonomy. Moreover, in many instances the Board has found 
that evidence of ``plant integration'' or the coordinated processing of 
orders was insufficient to rebut the single facility presumption in the 
absence of the critical factors of significant interchange, close 
geographic proximity, or too limited local autonomy. See Courier 
Dispatch Group, 311 NLRB 728, 731 (1993); J&L Plate, supra; Hegins 
Corporation, 255 NLRB 1236 (1981); Penn Color, 249 NLRB 1117 (1980); 
Black & Decker Manufacturing, 147 NLRB 825, 828 (1964). -

[[Page 50153]]

    Functional integration then, seems to be less significant as a 
separate factor than as another way of stating the conclusion that the 
evidence demonstrates that the single location has merged into the more 
comprehensive, or multi-facility unit. Thus, while a few Board 
decisions conclude that the single facility presumption has been 
rebutted because the single plant is ``highly integrated'' with other 
facilities, this conclusion is generally based on the more specific 
factors we propose now should be in the rule. In our view, it would be 
expected that plants that are so integrated as to rebut the presumption 
are close together, have significant interchange, and have little local 
autonomy. -
    Few would disagree that today most companies with more than one 
location are more or less functionally integrated in one form or 
another. Production may be integrated in the sense that different parts 
of the company's products are manufactured in different plants, and 
then shipped from one to another to be assembled. Records, orders, and 
other information may be integrated via computers or other means of 
direct communication. We believe, however, that product, 
administrative, or operational integration does not have any necessary 
or direct impact on the employees' relationship with their counterparts 
at other locations, absent evidence of the separate supporting factors 
we have included in the rule. See, Penn Color, 249 NLRB at 1119; Black 
& Decker Manufacturing, 147 NLRB at 828. The more significant principle 
in determining whether a single location unit is appropriate is not 
whether there is functional integration, but whether employees in the 
group sought have lost their ``separate identity.'' Our conclusion 
that, absent extraordinary circumstances, functional integration is 
immaterial to finding the single location unit appropriate is 
consistent with this standard. ----
    3. Centralized control. -Few businesses today with more than one 
location fail to maintain centralized control over the conduct of 
operations. In virtually all single location cases, this factor is 
essentially presumed and does not affect the Board's determinations. 
Centralized control over operations is a matter of good business 
practice and does not, in our view, affect the community of interest 
between employees at different locations. As with functional 
integration, although Board decisions may cite an employer's ``highly 
centralized operations'' as evidence supporting the multi-facility 
unit, it is our sense that other, more critical factors usually affect 
the outcome of the case. See Courier Dispatch Group, 311 NLRB 728, 731, 
in which the Board, while acknowledging the employer's centralized 
administrative and operational functions, nevertheless affirmed the 
Regional Director's finding that the employer had failed to rebut the 
single facility unit presumption, noting in particular the lack of 
significant employee interchange. Accord: Haag Drug Co., 167 NLRB at 
878. Moreover, even though personnel decisions ultimately may be 
decided at an employer's headquarters, that does not preclude the 
existence of sufficient local autonomy to support a single facility 
unit. See J&L Plate, 310 NLRB 429, in which personnel policies, as in 
most cases, were centrally determined but the single location unit was 
found appropriate as there were local autonomy, minimal interchange, 
and, as might be expected, separate functions performed at each plant.
    4. Common skills, functions, and working ------conditions. Although 
common skills, functions, and working conditions among locations are 
often recited by the Board as factors to be considered in determining 
whether the single facility presumption has been rebutted, they seldom 
are relied on by the Board to find a requested separate unit 
appropriate. Logically, these factors may be relevant to show that 
there is a potential for interchanging employees from location to 
location; employees could not easily be interchanged if their skills 
were not similar. It is, however, the actual extent of temporary 
interchange, not its potential, that is material to determining whether 
the group of employees sought has retained a separate identity. We do 
not believe that, merely because employees at more than one location 
perform the same work, and use the same skills, employees necessarily 
lose their separate identity. Moreover, some businesses, including most 
chain stores, many warehouse and distribution facilities, and some 
manufacturers, operate with geographically dispersed but substantially 
identical facilities in which employee skills, functions, and working 
conditions would predictably be essentially identical. Yet, this does 
not mean that such facilities must be combined into a broader unit 
merely because of this factor.
    5. Permanent transfers. We tentatively conclude that the factor of 
permanent transfers is immaterial to the appropriateness of a single 
location unit. Unlike temporary interchange, permanent transfers do not 
seem to us to demonstrate any continuing link between the employees at 
different locations. Even where the Board has stated it has considered 
permanent interchange supportive of a multi-facility unit, it is the 
temporary interchange which we think has proved significant in the 
Board's findings. See, Sol's, 272 NLRB 621, 623 (1984). Moreover, the 
Board recently stated in Red Lobster, 300 NLRB 908, 911 (1990), that 
permanent transfers are a ``less significant indication of actual 
interchange.'' Accord: J&L Plate, 310 NLRB at 430. Frequently, 
permanent transfers are voluntary or occur for the convenience of the 
employee involved and do not in any significant manner facilitate or 
foster a common identity among employees at two or more facilities. 
See, e.g., Lipman's, A Division of Dayton--Hudson Corp., 227 NLRB 1436, 
1438 (1977).
    6. Bargaining history. Bargaining history is given substantial 
weight to support the continued appropriateness of an existing unit; 
the Board is reluctant to disturb an established unit that is not 
repugnant to the Act or does not clearly contravene established Board 
policy. Washington Post Co., 254 NLRB 168 (1981). See also Batesville 
Casket Co., 283 NLRB 795 (1987), in which the Board declined to clarify 
an existing two-company existing unit that had been in existence 
without substantial changes for many years. Cf. Rock-Tenn Co., 274 NLRB 
772 (1985). Although bargaining history has been cited as a relevant 
factor in determining the appropriateness of a single facility unit, we 
believe it is, for the most part, immaterial to cases covered by the 
proposed rule.
    In cases involving petitions to represent single facility units the 
proposed rule applies only to unrepresented employees. Thus, there 
would be no immediate, current bargaining history affecting the 
requested employees, and the rule would not be disruptive of existing 
collective-bargaining units. Also the rule would not apply to petitions 
seeking to sever a group of employees from a larger group of currently 
represented employees, as for example, existing multi-facility units. 
Compare, e.g., Kaiser Foundation Hospitals, 312 NLRB 933 (1993).
    Past bargaining history affecting currently unrepresented employees 
may be material in showing that a multi-facility unit is appropriate, 
and to that extent, may have some limited bearing on the 
appropriateness of a requested single facility unit. In those cases, 
however, we believe that the factors deemed significant by the rule--
geographic separation, local autonomy, and lack of significant 
interchange--

[[Page 50154]]
would outweigh any recent, but extinguished, bargaining history.
    In a few situations, however, bargaining history may play a 
material role in determining the appropriateness of a single-facility 
unit. In Joseph E. Seagram & Sons, 83 NLRB 167 (1943), the Board stated 
that it would require one group of employees to organize on a multi-
plant basis whenever other classifications of employees of the employer 
had organized themselves on that basis. The Board deemed controlling 
the overall bargaining pattern in these circumstances. In a later case, 
Seagram, 101 NLRB 101 (1952), the Board modified this holding and 
concluded that although the bargaining history of one group of 
employees was ``persuasive,'' it would not necessarily control the 
bargaining pattern for every other group of unorganized employees. 
After considering the circumstances, the Board in the second Seagram 
case found the petitioned-for employees could constitute an appropriate 
unit. Accordingly, if an employer can demonstrate that other 
classifications of its employees currently are organized largely or 
exclusively on a multi-plant basis, we could arguably consider that as 
an extraordinary circumstance. The Board may wish to weigh the 
significance of that bargaining history, and hence, the appropriateness 
of the unit sought would be decided by adjudication and not under the 
rule. We solicit comments concerning these issues.
    7. Conclusion. Our overall experience has been that these ``non-
material'' factors have not been determinative in deciding single 
location cases, but, at best, have been used as secondary, bolstering 
rationale. Although these factors may be relevant to the extent that 
they show a requested broader unit to be appropriate, they will not, 
under the rule, be considered controlling to establish that a single 
location unit is or is not an appropriate unit.
    c. Material factors. 1. Introduction. In setting forth the contents 
of the proposed rule, we reiterate that we have tried to formulate a 
clear and relatively straightforward rule for determining whether a 
single location unit is appropriate. Although prior Board decisions 
were used as guides for establishing material factors, the Board also 
was guided by which factors it believes are objective and easily 
ascertainable. We believe the factors chosen are consistent with these 
goals, but emphasize again that the rule is a proposal only.
    The rule suggested in the ANPR incorporated the factors of 
interchange, geographic distance, local autonomy, and number of 
employees in the unit. Below are described in greater detail the 
reasons the Board believes these factors are material and why the rule 
has been drafted in this manner. Virtually none of the industry, policy 
organization, or trade association commentators commented on the 
factors or the language that was proposed as part of the rule. The 
Board expects with the publication of this Notice, however, that more 
comments will be forthcoming on the contents. As stated at several 
points in this document, this is merely a proposed rule. Comments are 
invited as to what should and should not be in the rule, consistent 
with our goals for this rulemaking.
    2. Temporary employee interchange. In our opinion, no other factor 
is more commonly determinative for or against the appropriateness of a 
requested single location unit than temporary employee interchange. 
Very few cases have been decided without an evaluation of this factor. 
See, Executive Resources Associates, 301 NLRB 400 (1991), in which the 
Board noted that the lack of significant interchange of the employees 
in the requested single facility is a ``strong indicator'' that the 
employees enjoy a separate community of interest; Spring City Knitting 
Mills v. NLRB, 647 F.2d 1011, 1015 (9th Cir. 1981), stating that 
interchange is a ``critical factor'' in determining if employees share 
a community of interest. The presence or absence of temporary 
interchange is one of the clearest reflections of whether there is 
likely to be common or separate identity between two or more locations. 
The more that employees from one facility work at a second facility and 
with its employees, the greater will be their common interests in the 
working conditions of both plants.
    Because evidence regarding the level of interchange usually is in 
the possession of the employer, we have drafted the proposed rule so 
that this element need not be established for the rule to apply, but 
rather the employer must prove it, in effect, as an affirmative 
defense. Thus, if the level of interchange exceeded a particular level, 
it would be an extraordinary circumstance, the rule would be 
inapplicable, and the case would be decided by adjudication. As 
described more fully in the section describing extraordinary 
circumstances (Section IV), the employer would have to demonstrate 
affirmatively, first by an offer of proof and then by supporting 
evidence, that the level of interchange involves 10 percent or more of 
the employees at the requested location for 10 percent or more of the 
employees' time. It would be presumed to be below 10 percent unless the 
contrary is shown.
    We propose measuring interchange by percentage so that the relative 
amount of interchange can be compared uniformly. Requiring that 
interchange be judged both as to the relative number of employees and 
the relative amount of time they spend at the second facility is, we 
think, a more precise measurement of interchange. In a slight 
modification of the rule suggested in the ANPR, we have added a time 
frame of the one preceding year for measuring the interchange, with the 
year running from the date the petition is filed for election cases, 
and from the date a bargaining obligation would arise for unfair labor 
practice proceedings.
    Our use of the 10 percent threshold arises from our view that, for 
interchange to be an extraordinary circumstance, it must be at a level 
greater than de minimis. We propose 10 percent, but are open to 
suggestions of alternative levels or measurements. The IBT (C-21) 
contended that the 10 percent threshold was too low and should be 
increased to 25 percent to be more consistent with Board precedent, but 
cited no cases for this assertion. We encourage comments on this 
alternative as well as on the entire method of judging interchange in 
the proposed rule. For example, the time employees spend at another 
location could be measured as percentage of the overall number of work 
hours at the requested location. Or, there could be one measure for the 
relative number of employees transferring and another measure for the 
amount of time the employees spend away from the requested facility. 
The interchange also could be measured by the number and frequency of 
employees transferring into the requested facility.
    We reiterate that a level of interchange which exceeds the proposed 
level would not necessarily mean that the unit is inappropriate but 
only means that the case be decided by adjudication. The Board has not 
set a standard percentage in prior cases.\7\ If there is to be a rule, 
however, there must be a standard against which the amount of 
interchange is judged, and we specifically invite suggestions and 
comments on how best to set forth a reasonable, clear, and workable 
standard.

    \7\ The Ninth Circuit, however, has characterized levels of 
interchange of 10% and 8% as ``relatively low'' in cases enforcing 
Board orders to bargain in which the single facility was found 
appropriate. See, Spring City Knitting Co. v. NLRB, 647 F.2d 1011 
(1981) and cases cited therein.
---------------------------------------------------------------------------

    3. Geographical separation.-We also propose that the rule take 
account of distance between facilities. As 

[[Page 50155]]
proposed, the rule requires that no other facility \8\ be within one 
mile of the proposed unit. Although distance is not as significant a 
factor as interchange in single location decisions, we believe that 
where the facilities are a mile or more apart, there is sufficient 
separation to justify a separate unit, if the other factors are met. 
Although the AFL-CIO (C-33) and the International Federation of 
Professional and Technical Engineers (PTE, C-22) argued that 
interchange should be the only factor considered in single location 
cases, considering both the level of interchange and the distance 
between locations ensures that there is neither significant actual 
interchange nor an immediate potential for interchange. Although we 
recognize that there are Board decisions in which there has been 
significant interchange despite the distance of 1 mile that we propose 
here, or conversely, lack of interchange where the distance between 
facilities is less than a mile, we are satisfied that where both 
standards are met, a separate facility unit will be appropriate, absent 
extraordinary circumstances.

    \8\ The Board received virtually no comments on the issue of 
whether, and how, the Board should define whether a location is, in 
fact, a single or separate location. After carefully considering the 
scope of this rulemaking, we have decided that this issue should at 
the present time be left to litigation and the rule will not apply 
to this issue.
---------------------------------------------------------------------------

    Although a trucking industry commentator contended that geography 
is an unreliable guide in that industry (MotorFreight, C-35), this is 
only one factor, and the factor of interchange will help determine if 
distance is significant. Another commentator noted that with today's 
communication technology, distance should not be a determinative 
factor. (NAM, C-12.) Access to communications, however, would not 
necessarily negate the possibility of employees having a separate 
identity at a separate location.
    Other comments contend that reliance on geography will run afoul of 
the prohibition of Section 9(c)(5) of the National Labor Relations Act 
that ``the extent to which the employees have organized shall not be 
controlling.'' (Strauss, C-1; USCC, C-7, NAM, C-12; IMRA, C-41.) 
Contrary to this argument, the rule does not place determinative weight 
on extent of organization, but contains several objective factors, none 
of which is controlling. Moreover, geographical separation may or may 
not be related to the extent of organization, but, regardless, the 
factors are not the same.
    As to our proposed distance of one mile between locations for the 
rule to apply, although single location units have been found 
appropriate where the distance between locations is less than a mile, 
the line for applicability must be drawn somewhere. There is no 
logically compelling ascertainable optimum distance for a rule since 
single location decisions do not precisely correlate with mileage. 
Moreover, although the rule applies to locations a mile or more apart, 
that does not mean locations less than a mile apart cannot be 
appropriate units. Those units may be found appropriate by 
adjudication, but we are not sufficiently sure of their appropriateness 
to render them automatically acceptable under the rule. For example, 
although many retail chains locate their stores less than a mile apart, 
a single store unit may be found appropriate. See Haag Drug Co., 169 
NLRB 877 (1968); Sav-on Drugs, 138 NLRB 1032 (1962). We do not intend 
for the rule to affect such Board precedent but only that such cases 
must be resolved through adjudication.
    4. Local autonomy. The suggested rule in the ANPR incorporated 
local autonomy by requiring that the single location have a statutory 
supervisor on the site. Although the AFL and PTE contended that this 
factor is unnecessary, requiring some level of local control is 
consistent with the Board's traditional treatment of this factor as 
significant in single location decisions. See Executive Resources, 301 
NLRB at 402, in which the Board noted that local authority in the form 
of separate supervision was an ``important'' factor demonstrating that 
the employees enjoy a separate community of interest; see also Haag 
Drug, 169 NLRB at 878, in which the Board pointed out the 
``significance'' of local autonomy in determining if a single location 
unit is appropriate. We continue to believe that the rule must 
incorporate evidence of local autonomy in some meaningful way to insure 
that there is some degree of independence and control at the requested 
location apart from other facilities. We are inclined to adhere to the 
requirement that a statutory supervisor be present at the requested 
location. Among other reasons, the Section 2(11) standards for 
determining supervisory status are generally known and understood.
    Board decisions have evaluated local autonomy by an open-ended 
inquiry of the authority of local managers versus central managers. The 
full range of their authority is often litigated in an effort to 
determine the relative scope of local autonomy. See, e.g., Red Lobster, 
300 NLRB at 912, in which the Board cited and distinguished seven Board 
decisions in evaluating the authority of local managers versus central 
managers. Although Board decisions have detailed the extent of local 
authority of local managers, virtually all of these managers have been 
statutory supervisors. Rather than analyze the relative scope of each 
manager's authority, we believe that if a local manager has sufficient 
authority to be a statutory supervisor, this is sufficient evidence of 
local autonomy for purposes of unit appropriateness under the rule. Any 
greater inquiry would perpetuate what we believe is wasteful litigation 
and unnecessary use of the Board's resources. The purpose of including 
this factor in the rule is to insure some level of local independence 
from other locations; it is not an attempt to draw fine lines about the 
relative authority of local versus central managers. Our inclination, 
then, is to find that it is sufficient to establish local autonomy if 
the local individual is a statutory supervisor under any of the 
indicia.
    Yet, we do have some reservations. We are concerned about whether 
requiring that a statutory supervisor be present is a better approach 
for the rule than the current open-ended approach of examining the full 
range of supervisory authority. Will requiring that a statutory 
supervisor be present result in more disputes about whether an 
individual is a statutory supervisor? Is it likely that the parties 
will stipulate in most cases as to the status of a local supervisor, or 
will the Regional Director have to decide the supervisory status of the 
local person in charge before determining whether the rule applies? 
Will requiring a statutory supervisor result in greater litigation than 
the open-ended approach now in use? The Board invites comments on 
whether this approach to deciding local autonomy will constitute a 
satisfactory method of determining whether this element of the rule 
exists, or whether, on the other hand, it will unnecessarily complicate 
the rule.
    We also propose to modify slightly the language requiring that a 
local supervisor be on the site of the requested unit. We have added 
the requirement that the supervisor be present on the site for a 
regular and substantial period. This does not mean that a statutory 
supervisor need be present on each and every shift. Our purpose is to 
require that the supervisor have more than a casual and sporadic 
relationship to the requested location. In most cases this will mean 
that his or her supervisory authority will primarily be over the 
employees in the requested unit.
    5. Minimum unit size. The rule as set forth in the ANPR applies 
only to requested units of 15 or more unit employees. It is our 
intention that a unit 

[[Page 50156]]
appropriate under the rule must contain a minimum number of employees, 
or likely eligible voters. The NAM (C-12) argued that in multi-location 
cases, the number of employees at a location has never been a factor, 
and would result in separating employees despite their strong community 
of interest. We agree that seldom has the number of employees been 
listed as a factor, but neither has the Board ever used rulemaking on 
this issue; we feel more comfortable finding a requested separate 
location unit automatically appropriate if it contains more than a mere 
handful of employees. The rule was limited to the relatively large 
number of 15 employees with the belief that the rule should not apply 
to very small units as these are more problematical and their 
appropriateness should be left to adjudication. For example, locations 
with a smaller number of employees may be more likely to be satellites 
of other locations that might not be appropriate separate from the main 
facility.\9\

    \9\ The rule would not apply if the unit did not contain the 
minimum number of employees at the requested location. With regard 
to situations where the unit contains a sufficient number of 
employees but another location is allegedly a satellite of the 
requested location, and by virtue of its very small size or other 
characteristics could not be represented separately from the 
requested unit, we would find this to be an extraordinary 
circumstance which would require the case be decided by 
adjudication. If the other location is so closely associated to the 
requested unit that it would constitute an accretion to that unit if 
it had been newly formed, then the petition would have to be decided 
under adjudication. Thus, in situations where it is established that 
there is a facility which is a satellite to the requested unit, the 
latent inappropriateness of this facility would be directly relevant 
to the separate appropriateness of the requested unit.
---------------------------------------------------------------------------

    Because the specific figure of 15 employees in the requested unit 
is not grounded on any mathematical rationale, we invite comments on 
possible alternatives to this proposed minimum number of employees. One 
possibility is for the Board to reduce the number to 6 or more 
employees, which would be consistent with the minimum requisite number 
of unit employees to which the health care rule applies. Collective 
Bargaining Units in the Health Care Industry, 54 FR 16336, 16341-42 
(1989), reprinted at 284 NLRB at 1580, 1589-90. There, the Board stated 
that petitions for 5 or fewer employees would be decided by 
adjudication. The Board noted that there was ``no ineluctable logic'' 
to the number five, but indicated it was concerned that units of 
smaller numbers of employees would be impractical in the health care 
industry and that the employees' concerns for a separate unit might be 
outweighed by concerns over disproportionate, unjustified costs, and 
undue proliferation of units. Id., 54 FR at 16342, reprinted at 284 
NLRB at 1588.
    Another alternative figure could be based on statistics from the 
Board's annual reports. Those reports contain a table analyzing the 
size of units in RM and RC representation elections for closed cases in 
each fiscal year. The statistics are not broken down for single 
location elections, however. The tables specify the number and relative 
percentage of all Board elections based on the sizes of the units the 
eligible employees voted in. The size of the various categories of 
units begins ``Under 10'' and increases in increments of 10. The Board 
does not maintain statistics for any smaller units. For fiscal year 
1992, 22.6% of all elections occurred in units of fewer than 10 
employees; and 20.8% of elections occurred in units of 10 to 19 
employees. Thus, 43.4% of all elections in fiscal year 1992 were in 
units of 19 or fewer eligible voters. 57 Ann. Rep. Appendices, Table 17 
(RC and RM Elections). For 1993, 19.6% of the elections were in units 
of 10 or fewer eligible voters; 20.5% were in units of 10 to 19 
eligible voters. 58 Ann. Rep., Appendices, Table 17. For fiscal year 
1994, the Board's preliminary statistics indicate that 19.7% of the 
elections were in units of 10 or fewer employees, and 19.5% were in 
units of 10 to 19 employees. Thus, it could be that a smaller number 
should be used as the threshold for the rule's applicability.
    Whatever figure ultimately is contained in the rule, smaller single 
location units will not be precluded from being found appropriate. 
Their appropriateness, however, will not be decided by application of 
the rule but rather by adjudication.
    d. Summary and tentative conclusions. We believe that when 
locations are geographically distant, interchange is minimal, a 
statutory supervisor is present, and the requested unit contains 15 or 
more employees, in most single location cases, the Board will find the 
requested single location unit appropriate; these factors also are 
clear and easily ascertainable. The proposed rule sets forth these 
factors as standards. We are open to comments on all these factors, as 
well as suggestions on possible alternative standards.
    This rulemaking is not an attempt to shoehorn all single location 
unit cases into decision by rulemaking; it is rather an attempt to 
decide the majority of routine single location cases in a more 
expeditious manner. Where the stated elements of the rule do not exist, 
or the cases otherwise present unusual or novel issues, the rule will 
not apply. As discussed in more detail in the next section on the 
extraordinary circumstances exception, the novel and unusual cases will 
fall outside the rule and will be decided by adjudication.
    Finally, we are aware of the paucity of empirical information on 
the feasibility or practicality of bargaining in single facility as 
opposed to multi-facility units. We specifically invite comments as to 
feasibility of bargaining in units based on these proposed elements or 
other elements.

IV. Extraordinary Circumstances Exception

    In order to ensure due process, the Board has included in the 
proposed rule an exception for ``extraordinary circumstances.'' Even 
when the rule otherwise applies, the extraordinary circumstances 
exception renders the rule inapplicable upon a showing of good cause, 
and allows for adjudication, or individual treatment of unique cases so 
as to avoid accidental or unjust application of the rule.\10\ While the 
petitioner or representative of the employees in the requested unit has 
the burden of establishing the elements of the rule, the party seeking 
to invoke the extraordinary circumstances exception has the burden of 
establishing, at first by an offer of proof and later, if appropriate, 
by the introduction of evidence, that the extraordinary circumstances 
exist. If the evidence proffered constitutes an extraordinary 
circumstance, the case will be decided by adjudication. As is true with 
the health care rule, see 53 FR at 33932, reprinted at 284 NLRB 1573, 
our intent is to construe the extraordinary circumstances exception 
narrowly, so that it does not provide an excuse, opportunity, or 
``loophole'' for redundant or unnecessary litigation and the 
concomitant delay that would ensue.

    \10\ Single location cases may also be decided by adjudication 
if one of the elements of the rule is not present, e.g., the 
locations are less than one mile apart. This, however, is not an 
extraordinary circumstance, but a case to which the rule does not 
apply. In extraordinary circumstances, the rule on its face applies, 
but once extraordinary circumstances are established, the rule is 
inapplicable and the case is decided by adjudication.
---------------------------------------------------------------------------

    We have codified the definition of extraordinary circumstances in 
the rule, as well as the burden, so that it is clear what this 
provision means. One common misconception regarding this exception to 
the rule is evident from our experience with the health care rules. The 
Board decides first whether the proffered evidence is an extraordinary 
circumstance. But even where the Board finds that an extraordinary 
circumstance 

[[Page 50157]]
exists, this does not mean that the requested unit is ``excepted'' from 
being an appropriate unit. Rather, establishing extraordinary 
circumstances means that the case will be decided by adjudication and 
the requested unit may or may not be found appropriate.
    We have codified one specific extraordinary circumstance in the 
rule: where 10 per cent or more of the unit employees have temporarily 
transferred to other facilities of the employer 10 per cent or more of 
the time during the prior year. We also have requested comments on 
whether this proposed level of interchange is appropriate.
    The rule, however, also allows for other extraordinary 
circumstances. We have suggested some possibilities in this 
supplementary information. In Section III.B.1.b.6, we mentioned the 
possibility that a successful history of bargaining on a broader basis 
might be an extraordinary circumstance. Section III.B.1.c.5, footnote 
9, suggests treating the existence of a small satellite facility as an 
extraordinary circumstance. These, however, are merely suggestive of 
the type of situations that might raise an extraordinary circumstance. 
Invited comments may lead to our reassessing them.
    Although we have described possible extraordinary circumstances, 
there undoubtedly are others; obviously we cannot foresee all 
circumstances involving the appropriateness of a requested single 
facility unit. It is for this reason that we have included an 
extraordinary circumstances exception. To the extent that there is 
concern that by rulemaking we will preclude addressing unusual cases 
outside the routine cases, we believe this provision adequately 
addresses those concerns. We are not mandating any particular result by 
characterizing a circumstance as extraordinary, but are only requiring 
that it be decided by adjudication. In inviting comments, however, we 
emphasize that it is our intention to construe this provision narrowly.

V. Docket

    The docket is an organized and complete file of all the information 
submitted to or otherwise considered by the NLRB in the development of 
this proposed rulemaking. The principal purposes of the docket are: (1) 
To allow interested parties to identify and locate documents so they 
can participate effectively in the rulemaking process; and (2) to serve 
as the record in case of judicial review. The docket, including a 
verbatim transcript of any hearings that may be held, the exhibits, the 
written statements, and all comments submitted to the Board, is 
available for public inspection during normal working hours at the 
Office of the Executive Secretary in Washington, DC.

VI. Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act (5 U.S.C. 601, et 
seq.), the Board certifies that the proposed rule will not have a 
significant economic impact on small entities. Prior to this rule, 
parties before the Board were required to litigate the appropriateness 
of a single location unit if they could not reach agreement on the 
issue. On implementation of this rule, parties will no longer be 
required in every case involving this issue to engage in litigation to 
determine the appropriateness of units, thereby saving all the parties 
the expense of litigation before the Board and the courts in cases 
governed by the rule. To the extent that organization of employees for 
the purpose of collective bargaining will be fostered by this rule, 
thereby requiring small entities to bargain with unions, and that 
employees may thereby exercise rights under the National Labor 
Relations Act, as amended (29 U.S.C. 151, et seq.), the Board notes 
that such was and is Congress' purpose in enacting the Act.

VII. Statement of Member Cohen

    On June 1, 1994, the Board issued an Advance Notice of Proposed 
Rulemaking (ANPR) with respect to a rule concerning single-facility 
units. Although I had reservations about the wisdom and necessity for 
such a rule, I joined my colleagues in issuing the ANPR. I did so 
because public comment would serve to clarify the issues and to 
enlighten the Board's decision-making processes concerning these 
matters.
    The comments have now been received, and I have studied them 
carefully. Having done so, I am still not firmly persuaded that there 
is a need for a rule. Further, assuming arguendo that there is such a 
need, I have some reservations about the content of the rule proposed 
by my colleagues. However, I have decided to withhold final judgment on 
these matters, pending public response to the specific rule that is now 
being proposed. Accordingly, without necessarily endorsing all that my 
colleagues have said about the proposal, I join them in soliciting 
further public response to it.
    As I see it, the proposed rule departs from the multi-factorial 
approach described in J & L Plate, 310 NLRB 429 (1993). Concededly, 
that departure has the potential advantage of bringing greater clarity 
and expedition to the processing and disposition of these cases. In 
addition, it may reduce occasionally burdensome and expensive 
litigation. On the other hand, the current system has its own values. 
The relevant factors are well known, and they can be applied to 
accommodate the peculiarities of individual cases. The Board decisions, 
with rare exceptions, have been upheld by the courts. In addition, the 
stipulation rate remains high. Finally, even the litigated cases are 
usually resolved within a reasonably short period of time.
    To be sure, there is always room for improvement, and some cases 
linger far too long. As I see it, the issue before the Board is one of 
balance: whether the potential benefits of obtaining greater expedition 
and clarity under the proposed rule outweigh the potential risks of 
jeopardizing the precision, stability, and general judicial acceptance 
of the current approach. I welcome the public's experience and 
expertise concerning the resolution of this delicate balance.

List of Subjects in 29 CFR Part 103

    Administrative practice and procedure, Labor management relations.

Regulatory Text

    For the reasons set forth at 59 FR 28501 (June 2, 1994) as 
supplemented and modified by this Supplementary Information, 29 CFR 
Part 103 is proposed to be amended as follows:

PART 103--OTHER RULES

    1. The authority citation for 29 CFR Part 103 is revised to read as 
follows:

    Authority: 5 U.S.C. 553; 29 U.S.C.156.

    2. Section 103.40 is added to subpart C to read as follows:


Sec. 103.40  Appropriateness of single location units.

    (a) The rule in this section applies to all employers over which 
the Board asserts jurisdiction except: public utilities; employers 
engaged primarily in the construction industry; and employers in the 
maritime industry in regard to their ocean-going vessels.
    (b) An unrepresented single location unit shall, except in 
extraordinary circumstances, be found appropriate for the purposes of 
collective bargaining; Provided:
    (1) That 15 or more employees in the requested unit are employed at 
that location; and
    (2) That no other location of the employer is located within one 
mile of the requested location; and
    (3) That a supervisor within the meaning of Section 2(11) of the 
National Labor Relations Act is present at the 

[[Page 50158]]
requested location for a regular and substantial period.
    (c) Whenever a party, first through an offer of proof and then by 
supporting evidence, establishes that an extraordinary circumstance 
exists or where an employer falls outside the rule in this section, the 
Board shall determine the appropriateness of a requested single 
location unit by adjudication.
    (d) An extraordinary circumstance will be found to exist, inter 
alia, if 10 percent or more of the unit employees have been temporarily 
transferred to other facilities of the employer for 10 percent or more 
of their time during the 12 month period preceding the filing of a 
petition for an election or, where no petition for election has been 
filed during the 12 month period preceding either the demand for 
recognition or the time when a bargaining obligation would arise.

    Dated, Washington, DC, September 22, 1995.

    By Direction of the Board.

National Labor Relations Board.
John J. Toner,
Acting Executive Secretary.
[FR Doc. 95-24001 Filed 9-27-95; 8:45 am]
BILLING CODE 7545-01-U