[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82131-82133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33668]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Special Procedural Rules With Respect to Representation Cases 
Governing Periods When the National Labor Relations Board Lacks a 
Quorum of Members

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board (the Board or the NLRB) is 
revising its rules governing the processing of representation cases 
during periods when the Board lacks a quorum of Members. This revision 
is being adopted to facilitate, insofar as it is possible, the normal 
functioning of the Agency when the number of Board Members falls below 
three, the number required to establish a quorum of the Board. See 29 
U.S.C. 153(b); New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). The 
effect of the revision is to enable the Agency to process some 
representation cases to the certification of a representative or the 
certification of the results of the election, while deferring Board 
consideration of parties' requests for review until a quorum has been 
restored.

DATES: Effective December 30, 2011.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, 1099 14th Street NW., Room 
11600, Washington, DC 20570. Telephone (202) 273-1067 (this is not a 
toll-free number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The National Labor Relations Board is 
revising its rule requiring the automatic impoundment of ballots in 
representation cases when a party files a request for review. This 
rules revision is an addendum to the Board's December 14, 2011 rules 
revisions,

[[Page 82132]]

which added a new Subpart X to the NLRB's Rules and Regulations (29 CFR 
102.178-102.181; see 76 FR 77699). The December 14 revisions covered 
the consideration of certain pleadings in unfair labor practice cases 
that require a quorum of Board Members for final action, during periods 
when the number of Board members falls below three, the number required 
to establish a quorum of the Board. See 29 U.S.C. 153(b); New Process 
Steel v. NLRB, 130 S.Ct. 2635 (2010). In representation cases, final 
action on requests for review by the Board also requires a three-member 
quorum. The instant rule revision, which adds 29 CFR 102.182 to the 
NLRB's Rules and Regulations, is being adopted to facilitate, as far as 
possible, the expeditious processing by the Agency of representation 
cases during periods in which the Board lacks a quorum. No Notice of 
Proposed Rulemaking (NPRM) is required with respect to this rules 
revision, as it falls under the Administrative Procedure Act's 
exception to the NPRM requirement for regulatory actions involving 
agency organization, procedure, or practice. See 5 U.S.C. 553. In 
addition, the Agency finds that notice and comment would be 
impracticable within the meaning of 5 U.S.C. 5553(b)(3)(B) before the 
Board loses a quorum on January 3, 2012, as now appears possible.
    At present, the NLRB's Rules and Regulations provide only for the 
adjudication of representation cases and the issuance of decisions on 
review by the Board when it is composed of three or more members, which 
constitutes the Congressionally-designated quorum of the Board. In New 
Process Steel v. NLRB, supra, 130 S. Ct. 2635, the Supreme Court held 
that Congress empowered the Board to delegate its powers to no fewer 
than three members, and that, to maintain a valid quorum, a membership 
of three must be maintained. Id. at 2640. It can be anticipated that, 
from time to time, the number of individuals appointed by the President 
and confirmed by Congress to serve as members of the Board may fall 
below three. Current Section 102.67(b) of the NLRB's Rules and 
Regulations requires that all ballots cast in a representation election 
be impounded whenever the Board has not acted on a pending request for 
review, thus halting the processing of the representation case at the 
end of the voting, but before the ballots are counted. During periods 
when the Board lacks a quorum, the effect of the current rule would be 
to withhold information concerning the results of the election from 
employees and employers, who are usually eager to know the results, 
until the Board regains a quorum and rules on the request for review. 
The investigation and adjudication of objections and determinative 
challenges would be delayed during the same period. And in all 
likelihood the request for review would ultimately be denied, as are 
about 85% of requests for review currently filed. If the request for 
review is denied, the delay of the tally and any ensuing proceedings 
would have served no purpose whatsoever.
    The Board has determined that the purposes of the National Labor 
Relations Act will best be served, and the Board's Congressional 
mandate will best be carried out, if its rules are revised to suspend, 
during any period the Board lacks a quorum, the second proviso of 
Section 102.67(b) of the NLRB's Rules and Regulations. Section 
102.67(b) provides that a decision by the Regional Director upon the 
record shall set forth his findings, conclusions, and order or 
direction. The decision of the Regional Director shall be final: 
Provided, however, that within 14 days after service thereof any party 
may file a request for review with the Board in Washington, DC. The 
Regional Director shall schedule and conduct any election directed by 
the decision notwithstanding that a request for review has been filed 
with or granted by the Board. The filing of such a request shall not, 
unless otherwise ordered by the Board, operate as a stay of the 
election or any other action taken or directed by the Regional 
Director: Provided, however, that if a pending request for review has 
not been ruled upon or has been granted ballots whose validity might be 
affected by the final Board decision shall be segregated in an 
appropriate manner, and all ballots shall be impounded and remain 
unopened pending such decision.
    Thus, suspension of the automatic impoundment of ballots during 
periods in which the Board lacks a quorum will permit Regional 
Directors promptly to tally the ballots cast by bargaining unit 
employees. The Board anticipates that the suspension of the automatic 
impoundment of ballots will serve the interests of the public and the 
parties in the speedy resolution of representation cases by avoiding 
extended and unnecessary delays in the tally of ballots. In addition, 
the Board anticipates that, in some cases the prompt tallying of 
ballots and recording the results of the election will cause parties to 
determine that it is unnecessary to pursue a request for review. In 
such cases, the choice of the bargaining unit employees will be 
effectuated expeditiously. Thus, the instant rules revision will 
provide the parties the opportunity to pursue numerous representation 
cases through to certification, while deferring consideration of 
requests for review by the Board until a quorum has been restored. The 
rules revision expressly preserves the Board's authority, based on a 
properly filed request for review, to revise or revoke any 
certification issued by a regional director. Member Brian E. Hayes 
voted against the rules revision.

Executive Order 12866

    The regulatory review provisions of Executive Order 12866 do not 
apply to independent regulatory agencies. However, even if they did, 
the proposed changes in the Board's rules would not be classified as 
``significant rules'' under Section 6 of Executive Order 12866, because 
they will not result in (1) an annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic or foreign markets. Accordingly, no regulatory 
impact assessment is required.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for procedural 
rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.) pertaining to regulatory flexibility analysis do not apply to 
these rules. However, even if the Regulatory Flexibility Act were to 
apply, the NLRB certifies that these rules will not have a significant 
economic impact on a substantial number of small business entities as 
they merely provide parties with avenues for expeditiously resolving 
certain representation cases before the Board.

[[Page 82133]]

Paperwork Reduction Act

    These rules are not subject to Section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501) since they do not contain any new 
information collection requirements.

Small Business Regulatory Enforcement Fairness Act

    Because these rules relate to Agency procedure and practice and 
merely modify the Agency's internal processing of ballots in 
representation cases, the Board has determined that the Congressional 
review provisions of the Small Business Regulatory Enforcement Fairness 
Act (5 U.S.C. 801) do not apply.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure; Labor-management relations.

    Accordingly, the Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. 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 also issued under Section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)). 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)).

Subpart X--Special Procedures When the Board Lacks a Quorum

0
2. Add Sec.  102.182 to subpart X to read as follows:


Sec.  102.182  Representation Cases Should Be Processed to 
Certification.

    During any period when the Board lacks a quorum, the second proviso 
of Sec.  102.67(b) regarding the automatic impounding of ballots shall 
be suspended. To the extent practicable, all representation cases 
should continue to be processed and the appropriate certification 
should be issued by the Regional Director notwithstanding the pendency 
of a request for review, subject to revision or revocation by the Board 
pursuant to a request for review filed in accordance with this subpart.

    Signed in Washington, DC, on December 28, 2011.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2011-33668 Filed 12-29-11; 8:45 am]
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