[Federal Register Volume 69, Number 143 (Tuesday, July 27, 2004)]
[Proposed Rules]
[Pages 44612-44613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17095]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 69, No. 143 / Tuesday, July 27, 2004 / 
Proposed Rules  

[[Page 44612]]



NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101 and 102


Proposed Rules Governing Consent-Election Agreements

July 22, 2004
AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: As part of its ongoing efforts to address the needs of 
employers, individuals and labor organizations and to further the 
fundamental purposes of the Act, the National Labor Relations Board 
(NLRB) is proposing to revise its rules to provide a mechanism to have 
preelection disputes decided with finality by the Regional Director.

DATES: All comments must be received on or before August 26, 2004.

ADDRESSES: All written comments should be sent to the Office of the 
Executive Secretary, National Labor Relations Board, 1099 14th Street, 
NW, Room 11600, Washington, DC 20570. The comments should 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: Lester A. Heltzer, Executive 
Secretary, Telephone: (202) 273-1067.

SUPPLEMENTARY INFORMATION: Section 102.62 of the Board's Rules and 
Regulations currently provides two kinds of ``consent'' election 
procedures. Under both procedures, the parties must stipulate with 
respect to jurisdictional facts, labor organization status, appropriate 
unit description, and classifications of employees included and 
excluded. The parties must also agree to the time, place and other 
election details. Under Sec.  102.62(a), the parties agree that 
postelection disputes will be resolved with finality by the Regional 
Director. Under Sec.  102.62(b), postelection disputes are resolved 
pursuant to Sec.  102.69, with the parties retaining the right to file 
exceptions or requests for review with the Board. The current proposal 
for revision of the Board's Rules and Regulations would create a new, 
voluntary procedure whereby the parties could agree to the conduct of 
an election with disputed preelection and postelection matters to be 
resolved with finality by the Regional Director.
    The proposal would also amend Sec.  102.62(a) to provide that the 
decision of the Regional Director in a postelection proceeding would 
have the same force and effect as that of the Board ``in that case.'' 
The addition of this language would make it clear that the Regional 
Director's decision will not be regarded as Board precedent in future 
cases. Identical language is present in the proposed Sec.  102.62(c).
    In addition to revisions to Sec.  102.62 of the Board's Rules and 
Regulations, also proposed are revisions to the Statements of 
Procedures, Sec. Sec.  101.19 and 101.28, to reflect the revisions to 
Sec.  102.62 in the description of Board processing of union 
deauthorization elections (Sec.  101.28) and all other elections (Sec.  
101.19).
    Under the proposed new procedures, after the filing of a petition 
supported by the requisite showing of interest, an employer and 
individual or labor organization can voluntarily enter into an 
agreement under which the Regional Director will resolve with finality 
disputed pre- and postelection issues and issue a certification of 
representative or results. If the parties voluntarily agree to utilize 
this new procedure they will be assured of a more expeditious and final 
resolution of their question concerning representation by a Regional 
Director, who will act in a neutral, expert, and conclusive fashion.
    Although the Agency has decided to give notice of proposed 
rulemaking with respect to these rule changes, the changes involve 
rules of agency organization, procedure or practice and thus no notice 
of proposed rulemaking is required under section 553 of the 
Administrative Procedure Act (5 U.S.C. 553). Accordingly, the 
Regulatory Flexibility Act (5 U.S.C. 601), does not apply to these rule 
changes.

List of Subjects in 29 CFR Parts 101 and 102

    Administrative practice and procedure, Labor management relations.

    For the reasons set forth above, the NLRB proposes to amend 29 CFR 
Parts 101 and 102 as follows:

PART 101--STATEMENTS OF PROCEDURES

    1. The authority citation for 29 CFR part 101 continues to read as 
follows:

    Authority: Section 6 National Labor Relations Act, as amended 
(29 U.S.C. 151, 156), and sec. 55(a) of the Administrative Procedure 
Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 
2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).

    2. Section 101.19 is amended by revising the introductory text and 
adding paragraph (c) to read as follows:


Sec.  101.19  Consent adjustments before formal hearing.

    The Board has devised and makes available to the parties three 
types of informal consent procedures through which representation 
issues can be resolved without recourse to formal procedures. These 
informal arrangements are commonly referred to as consent-election 
agreement followed by Regional Director's determination, stipulated 
election agreement followed by Board certification, and full consent 
agreement, in which the parties agree that all pre- and postelection 
disputes will be resolved with finality by the Regional Director. Forms 
for use in these informal procedures are available in the Regional 
Offices.
* * * * *
    (c) The full consent-election agreement followed by the Regional 
Director's determination of representatives is another method of 
informal adjustment of representation cases.
    (1) Under these terms the parties agree that if they are unable to 
informally resolve disputes arising with respect to the appropriate 
unit and other issues pertaining to the resolution of the question 
concerning representation; the payroll period to be used as the basis 
of eligibility to vote in an election, the place, date, and hours of 
balloting, or other details of the election, those issues will be 
presented to, and decided with finality by the Regional Director after 
a hearing conducted in a manner consistent with the procedures set 
forth in Sec.  101.20.
    (2) Upon the close of the hearing, the entire record in the case is 
forwarded to the Regional Director. The hearing

[[Page 44613]]

officer also transmits an analysis of the issues and the evidence, but 
makes no recommendations as to resolution of the issues. All parties 
may file briefs with the Regional Director within 7 days after the 
close of the hearing. The parties may also request to be heard orally. 
After review of the entire case, the Regional Director issues a final 
decision, either dismissing the petition or directing that an election 
be held. In the latter event, the election is conducted under the 
supervision of the Regional Director in the manner already described in 
this section.
    (3) All matters arising after the election, including determinative 
challenged ballots and objections to the conduct of the election shall 
be processed in a manner consistent with paragraphs (a)(4), (5), and 
(6) of this section.
    3. Section 101.28 is revised to read as follows:


Sec.  101.28  Consent agreements providing for election.

    (a) The Board makes available to the parties three types of 
informal consent procedures through which authorization issues can be 
resolved without resort to formal procedures. These informal agreements 
are commonly referred to as consent-election agreement followed by 
Regional Director's determination, stipulated election agreement 
followed by Board certification, and full consent-election agreement 
providing for the Regional Director's determination of both pre- and 
postelection matters. Forms for use in these informal procedures are 
available in the Regional Offices.
    (b) The procedures to be used in connection with a consent-election 
agreement providing for the Regional Director's determination, a 
stipulated election agreement providing for Board certification, and 
the full consent-election agreement providing for the Regional 
Director's determination of both pre- and postelection matters are the 
same as those already described in subpart C of this part in connection 
with similar agreements in representation cases under section 9(c) of 
the Act, except that no provision is made for runoff elections.

PART 102--RULES AND REGULATIONS, SERIES 8

    4. The authority citation for 29 CFR part 102 continues to read as 
follows:

    Authority: Section 6, National Labor Relations Act, as amended 
(29 U.S.C. 151, 156). Section 102.117(c) also issued under Section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and section 552a(j) and (k) of the Privacy Act (5 
U.S.C. 552a(j) and (k). Sections 102.143 through 102.155 also issued 
under Section 504(c)(1) of the Equal Access to Justice Act, as 
amended (5 U.S.C. 504(c)(1)).

    5. Section 102.62 is amended by revising paragraph (a) and adding 
paragraph (c) to read as follows:


Sec.  102.62  Consent-election agreements.

    (a) Where a petition has been duly filed, the employer and any 
individual or labor organizations representing a substantial number of 
employees involved may, with the approval of the Regional Director, 
enter into a consent-election agreement leading to a determination by 
the Regional Director of the facts ascertained after such consent 
election. Such agreement shall include a description of the appropriate 
unit, the time and place of holding the election, and the payroll 
period to be used in determining what employees within the appropriate 
unit shall be eligible to vote. Such consent election shall be 
conducted under the direction and supervision of the Regional Director. 
The method of conducting such consent election shall be consistent with 
the method followed by the Regional Director in conducting elections 
pursuant to Sec. Sec.  102.69 and 102.70 except that the rulings and 
determinations by the Regional Director of the results thereof shall be 
final, and the Regional Director shall issue to the parties a 
certification of the results of the election, including certifications 
of representative where appropriate, with the same force and effect, in 
that case, as if issued by the Board, provided further that rulings or 
determinations by the Regional Director in respect to any amendment of 
such certification shall also be final.
* * * * *
    (c) Where a petition has been duly filed, the employer and any 
individual or labor organizations representing a substantial number of 
the employees involved may, with the approval of the Regional Director, 
enter into an agreement providing for a hearing pursuant to Sec. Sec.  
102.63, 102.64, 102.65, 102.66 and 102.67 to resolve any issue 
necessary to resolve the question concerning representation. Upon the 
conclusion of such a hearing, the Regional Director shall issue a 
Decision. The rulings and determinations by the Regional Director 
thereunder shall be final, with the same force and effect, in that 
case, as if issued by the Board. Any election ordered by the Regional 
Director shall be conducted under the direction and supervision of the 
Regional Director. The method of conducting such consent election shall 
be consistent with the method followed by the Regional Director in 
conducting elections pursuant to Sec. Sec.  102.69 and 102.70, except 
that the rulings and determinations by the Regional Director of the 
results thereof shall be final, and the Regional Director shall issue 
to the parties a certification of the results of the election, 
including certifications of representative where appropriate, with the 
same force and effect, in that case, as if issued by the Board, 
provided further that rulings or determinations by the Regional 
Director in respect to any amendment of such certification shall also 
be final.

    Dated in Washington, DC, on July 22, 2004.

    By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 04-17095 Filed 7-26-04; 8:45 am]
BILLING CODE 7545-01-P