[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Proposed Rules]
[Pages 10199-10201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2767]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Parts 101 and 102


Joint Petitions for Certification Consenting to an Election

AGENCY: National Labor Relations Board (NLRB)

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 National Labor Relations Act, the National 
Labor Relations Board (NLRB) is proposing to adopt a rule that would 
authorize a petition for a prompt NLRB election to be jointly filed by 
a labor organization and an employer. The following proposal is offered 
to provide initial focus for public comment. The public is nevertheless 
encouraged to suggest alternatives.

DATES: All written comments must be received on or before March 27, 
2008.

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 20570-0001. 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, e-mail address 
[email protected].

SUPPLEMENTARY INFORMATION: Section 102.62 of the Board's Rules and 
Regulations currently provides three kinds of ``consent'' election 
procedures. Under Sec.  102.62(a) and (b), 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 post-
election disputes will be resolved with finality by the Regional 
Director. Under Sec.  102.62(b), post-election disputes are resolved 
pursuant to Sec.  102.69 of the Board's Rules and Regulations, with the 
parties retaining the right to file exceptions or requests for review 
with the Board. Under Sec.  102.62(c), the parties can agree to the 
conduct of an election with disputed pre-election and post-election 
matters to be resolved with finality by the Regional Director.
    The current proposal for revision of the Board's Rules and 
Regulations would create a new, voluntary procedure whereby a labor 
organization and an employer could file jointly a petition for 
certification consenting to an election. The petition will provide the 
date on which the parties have agreed for an election, not to exceed 28 
days from the date of the filing of the petition, and the place and 
hours on which the parties have agreed for an election. In addition, 
the petition will provide a description of the bargaining unit that the 
parties claim to be appropriate, the payroll period for eligibility to 
vote in the election, and the full names and addresses of employees 
eligible to vote in the election. If the petition lacks any necessary 
information, the Regional Director will so advise the parties and 
request that the petition be corrected.
    No showing of interest is required to be filed with the petition. 
If it appears to the Regional Director that the information provided on 
the petition is accurate and sufficient and that the bargaining unit 
description is appropriate on its face and not contrary to any 
statutory provision, the petition will be docketed. Within 3 days of 
the docketing of the petition, the Regional Director will advise the 
parties of his/her approval of their request for an election. The 
parties' agreement as to the date, place, and hours of the election 
will be approved by the Regional Director, absent extraordinary 
circumstances.
    Also within 3 days of the docketing of the petition, the Regional 
Director will send to the employer official NLRB notices, informing 
employees that the joint petition for certification has been filed and 
specifying the date, place, and hours of the election. These notices 
must be posted by the employer in conspicuous places where notices to 
employees are customarily posted and must remain posted through the 
election. Failure to post these notices as required shall be grounds 
for setting aside the election whenever proper and timely objections 
are filed under the provisions of Sec.  102.69(a). In addition to these 
notices, the employer must also post copies of the Board's official 
Notice of Election in conspicuous places at least 3 full working days 
prior to 12:01 a.m. of the day of the election, as required under Sec.  
103.20 of the Board's Rules and Regulations.
    Any motions to intervene may be filed with the Regional Director in 
accordance with Sec.  102.65 of the Board's Rules and Regulations, 
except that any such motion must be filed within 14 days from the 
docketing of the petition. The Board's traditional intervention 
policies regarding levels of intervention and the intervenor's 
corresponding

[[Page 10200]]

rights to appear on the ballot, seek a different unit either in scope 
or composition, or insist on a hearing, will be applicable.
    Unfair labor practice charges, including those alleging Section 
8(a)(2) or Section 8(a)(5) violations of the National Labor Relations 
Act, will not serve to block the election or cause the ballots cast in 
the election to be impounded, but will be handled in conjunction with 
any post-election proceedings. All election and post-election matters 
will be resolved with finality by the Regional Director. Except as 
outlined above, the Board's traditional election rules and policies 
will apply, including those relating to withdrawal or dismissal of the 
petition.
    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 therefore 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 of the 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 101.17 is amended by adding a new second sentence and a 
new sentence to the end of the section to read as follows:


Sec.  101.17  Initiation of representation cases and petitions for 
clarification and amendment.

    * * * In addition, a petition for certification consenting to an 
election may be filed jointly by a labor organization and an employer. 
* * * If a petition for certification consenting to an election is 
filed jointly by a labor organization and an employer, no evidence of 
representation is required to be filed.
    3. Section 101.18(a) is amended by adding a new sentence at the end 
to read as follows:


Sec.  101.18  Investigation of petition.

    (a) * * * In the case of a petition for certification consenting to 
an election filed jointly by a labor organization and an employer, the 
bargaining unit description, if appropriate on its face and not 
contrary to any statutory provision, will be deemed to constitute an 
appropriate unit and there will be no investigation of the evidence of 
representation, which is not required to be filed.
* * * * *
    4. Section 101.19 is amended by adding a new sentence to the end of 
the introductory text and adding a new paragraph (d) to read as 
follows:


Sec.  101.19  Consent adjustments before formal hearing.

    * * * In addition, the labor organization and the employer may 
consent to an election by means of filing a joint petition for 
certification, as provided for in Sec.  102.60(b), Sec.  102.61(c), and 
Sec.  102.62(d).
* * * * *
    (d) A petition for certification consenting to an election filed 
jointly by a labor organization and an employer is another method of 
informal adjustment of representation cases.
    (1) The terms of the consent election, as specified on the 
petition, including the bargaining unit description, the payroll period 
to be used as a basis of eligibility to vote in the election, and the 
place, date, and hours of balloting, will be approved by the Regional 
Director, absent extraordinary circumstances, within 3 days of the 
docketing of the petition. Also within 3 days of the docketing of the 
petition, the Regional Director will send to the employer official NLRB 
notices, informing employees that the petition has been filed and 
specifying the date, place, and hours of the election. These notices 
must be posted by the employer in conspicuous places where notices to 
employees are customarily posted and must remain posted through the 
election.
    (2) The election will be conducted under the supervision of the 
Regional Director in the manner already described in this section. The 
filing of an unfair labor practice charge will not serve to block the 
election or cause the ballots cast in the election to be impounded, but 
will be handled in conjunction with any post-election proceedings in 
accordance with Sec.  102.69.
    (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.
    5. Section Sec.  102.60 is amended by adding a new second sentence 
to paragraph (a), redesignating paragraph (b) as (c), and adding a new 
paragraph (b) to read as follows:


Sec.  102.60  Petitions.

    (a) * * * A petition may also be filed jointly by a labor 
organization and an employer (see paragraph (b) of this section). * * *
    (b) Joint petition for certification consenting to an election; who 
may file; where to file; withdrawal.--A petition for certification 
consenting to an election may be filed jointly by a labor organization 
and an employer. Where applicable, the same procedures set forth in 
paragraph (a) of this section shall be followed.
    6. Section 102.61 is amended by redesignating paragraphs (c) 
through (e) as (d) through (f) and adding a new paragraph (c) to read 
as follows:


Sec.  102.61  Contents of petition for certification; contents of 
petition for decertification; contents of petition for clarification of 
bargaining unit; contents of petition for amendment of certification.

* * * * *
    (c) A petition for certification consenting to an election, when 
filed jointly by a labor organization and an employer, shall contain 
the following:
    (1) The name of the employer.
    (2) The address of the establishment involved.
    (3) The general nature of the employer's business.
    (4) Commerce information establishing that the employer's 
operations affect commerce within the meaning of the Act.
    (5) The name, the affiliation, if any, and the address of the labor 
organization.
    (6) A description of the bargaining unit that the parties claim to 
be appropriate.
    (7) The number of employees in the alleged appropriate unit.
    (8) The date on which the parties have agreed for an election, not 
to exceed 28 days from the date of the filing of the petition.
    (9) The place and hours on which the parties have agreed for an 
election.
    (10) The payroll period for eligibility to vote in the election.
    (11) The full names and addresses of employees eligible to vote in 
the election.
    (12) Any other relevant facts.
* * * * *

[[Page 10201]]

    7. Section 102.62 is amended by adding a new paragraph (d) to read 
as follows:


Sec.  102.62  Consent-election agreements.

* * * * *
    (d) Where a petition for certification consenting to an election 
has been duly filed jointly by a labor organization and an employer 
pursuant to Sec.  102.60(b) and 102.61(c), and it appears to the 
Regional Director that the information provided on the petition is 
accurate and sufficient and that the bargaining unit description is 
appropriate on its face and not contrary to any statutory provision, 
the petition will be docketed. Within 3 days of the docketing of the 
petition, the Regional Director will advise the parties of his/her 
approval of their request for an election. The parties' agreement as to 
the date, place, and hours of the election will be approved by the 
Regional Director, absent extraordinary circumstances. Also within 3 
days of the docketing of the petition, the Regional Director will send 
to the employer official NLRB notices, informing employees that the 
joint petition for certification has been filed and specifying the 
date, place, and hours of the election. These notices must be posted by 
the employer in conspicuous places where notices to employees are 
customarily posted and must remain posted through the election. Failure 
to post these notices as required herein shall be grounds for setting 
aside the election whenever proper and timely objections are filed 
under the provisions of Sec.  102.69(a). In addition to these notices, 
the employer must also post copies of the Board's official Notice of 
Election in conspicuous places at least 3 full working days prior to 
12:01 a.m. of the day of the election, as required under Sec.  103.20. 
Any motions to intervene may be filed with the Regional Director in 
accordance with Sec.  102.65, except that any such motion must be filed 
within 14 days from the docketing of the petition. The filing of an 
unfair labor practice charge will not serve to block the election or 
cause the ballots cast in the election to be impounded, but will be 
handled in conjunction with any post-election proceedings in accordance 
with Sec.  102.69. The election shall be conducted under the direction 
and supervision of the Regional Director. The method of conducting the 
election shall be consistent with the method followed by the Regional 
Director in conducting elections pursuant to 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 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: Washington, DC, February 11, 2008.

    By direction of the Board.

Lester A. Heltzer,
Executive Secretary.
[FR Doc. E8-2767 Filed 2-25-08; 8:45 am]
BILLING CODE 7545-01-P