[Federal Register Volume 91, Number 56 (Tuesday, March 24, 2026)]
[Rules and Regulations]
[Pages 13933-13949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-05721]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 91, No. 56 / Tuesday, March 24, 2026 / Rules
and Regulations
[[Page 13933]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2421, 2422, 2426, and 2429
Meaning of Terms as Used in This Subchapter; Representation
Proceedings; National Consultation Rights and Consultation Rights on
Government-wide Rules or Regulations; Miscellaneous and General
Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Labor Relations Authority (FLRA) intends to revise
the regulations governing representation proceedings, as well as other
related regulations, so as to provide parties in most cases with
decisions from the Authority on all consequential issues in
representation proceedings. Further, these changes will optimize the
FLRA's workforce by streamlining the decision-making process in
representation proceedings, consistent with E.O. 14,210. The FLRA finds
that this interim final rule is not a substantive rule. Certain parts
of this interim final rule concern interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice. Other parts of this interim final rule concern minor or
technical changes for which good cause exists to make notice and
comment unnecessary.
DATES: This interim final rule is effective on April 23, 2026. Comments
will be accepted if received by April 23, 2026.
ADDRESSES: You may send comments, which must include the caption
``Representation Proceedings,'' by emailing [email protected].
Include ``Representation Proceedings'' in the subject line of the
message.
If you require an alternative means to comment, please
contact Erica Balkum, Chief, Case Intake and Publication, at (771) 444-
5805, Monday through Friday (except federal holidays), between 9:00
a.m. and 5:00 p.m. ET.
FOR FURTHER INFORMATION CONTACT: Thomas Tso, Solicitor, at
[email protected] or at (771) 444-5779.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Service Labor-Management Relations Statute (the
Statute), 5 U.S.C. 7101-7135, grants the Authority the power and
responsibility to ``determine the appropriateness of units,'' id.
7105(a)(2)(A); ``supervise or conduct elections'' and ``otherwise
administer the provisions . . . [of the Statute] relating to the
according of exclusive recognition,'' id. 7105(a)(2)(B); ``prescribe
criteria and resolve issues relating to the granting of national
consultation rights,'' id. 7105(a)(2)(C); ``prescribe criteria relating
to the granting of consultation rights with respect to conditions of
employment,'' id. 7105(a)(2)(F); and ``take such other actions as are
necessary and appropriate to effectively administer [the Statute],''
id. 7105(a)(2)(I). From 1979 until 1983, the Authority exercised those
powers directly. But since 1983, the Authority has delegated to
Regional Directors (RDs) its power and responsibility to determine
whether a group of employees is an appropriate bargaining unit, to
conduct investigations and to provide for hearings in representation
matters, to determine whether a question of representation exists and
to direct an election, and to supervise or conduct secret ballot
elections and certify the results thereof. See id. 7105(e)(1);
Amendment to Memo. Describing the Authority & Assigned Responsibilities
of the General Counsel of the FLRA, 48 FR 28814 (June 23, 1983)
(amending memorandum so as to delegate authority and responsibility to
RDs in representation cases); Processing of Cases; General
Requirements, 48 FR 40189 (Sept. 6, 1983) (revising regulations to
implement the amendment to the memorandum). The Authority established a
process to review the actions of RDs in those areas of delegated
responsibility. See 5 U.S.C. 7105(f); Processing of Cases; General
Requirements, 48 FR at 40190-95 (establishing Sec. 7105(f) appeals
process).
The delegation of authority to the RDs appears in section I.C. of a
memorandum published as Appendix B to 5 CFR Chapter XIV. An amendment
to section I.C. of Appendix B--published elsewhere in this issue of the
Federal Register--will be effective on the date on which this interim
final rule is effective.
The associated regulations appear in 5 CFR part 2421, which defines
certain terms used in other regulations; parts 2422 and 2426, which,
respectively, govern the processing of representation cases and
consultation-rights cases by the Authority and the RDs; and part 2429,
which establishes miscellaneous and general requirements for parties in
cases before the Authority and the RDs. To simplify the discussion of
these regulations, in the SUPPLEMENTARY INFORMATION only, both
representation and consultation-rights cases will be referred to as
``representation matters.''
Under the current regulations, the Authority may review RDs'
initial decisions in representation matters if an appeal is filed with
the Authority. (Although the Authority's regulations refer to this
appeal as an ``application for review,'' again for simplicity in the
SUPPLEMENTARY INFORMATION only, ``appeal'' is sometimes used instead of
``application for review.'') However, the scope of the Authority's
review is limited to the grounds set forth at 5 CFR 2422.31(c), and
parties generally may not raise issues for review that they did not
already present to the RD. In addition, under the existing process, in
a representation matter that is appealed to the Authority, the parties
must make their arguments twice--once to the RD before an initial
decision, and again to the Authority on appeal of that decision.
After reexamination of its practices, the FLRA finds that the
memorandum of delegated authorities and responsibilities to the RDs,
and the related regulations governing representation matters, merit
revision. The FLRA envisions a streamlined process in which
representation matters are resolved through the collaborative efforts
of the regional offices and the Authority--rather than a strict
separation of an initial decision by an RD, followed by a possible
appeal to, and potentially duplicative decision by, the Authority.
In this new process, parties will continue filing all
representation petitions with the regional offices, who will begin
processing those petitions.
[[Page 13934]]
When the processing of a case requires the exercise of one of the
Authority's statutory responsibilities under Sec. 7105(a) of the
Statute, the Authority will make any determinations under Sec.
7105(a)(2) that are required for the subsequent disposition of the
case. Some representation matters may require the involvement of the
Authority at several points in a case, whereas others may require a
decision from the Authority only at the case's conclusion--such as when
a decision and order issues.
Identifying the points within a case that require a decision by the
Authority will be based on case-by-case considerations, but will always
include the determinations specified in 5 U.S.C. 7105(e)(1). In the new
process--after consultation with the regional offices--the Authority
will: ``determine whether a group of employees is an appropriate
unit,'' 5 U.S.C. 7105(e)(1)(A); authorize the regional offices or
Authority staff to conduct all investigations and hearings, see id.
7105(e)(1)(B); ``determine whether a question of representation exists
and . . . direct an election,'' id. 7105(e)(1)(C); and authorize the
regional offices or Authority staff to ``supervise or conduct
elections,'' after which the Authority will ``certify the results
thereof,'' id. 7105(e)(1)(D).
Because the Authority will be performing these statutory functions
itself, rather than delegating them to the RDs, an appeals process will
no longer be necessary under Sec. 7105(f) (except in no-quorum
situations, which are addressed separately). In addition, parties will
benefit from review by the Authority on all issues of importance in
representation matters, without the parties needing to make their
arguments twice, and without the need to file an appeal of an initial
decision.
While the locus of ultimate decision-making will rest with the
Authority, the Authority and regional offices will work collaboratively
to resolve representation matters. For example, the Authority will
consider the views of the regional offices when making decisions. As a
result, the collective insights and experience of the regional offices
and the Authority will shape the decisions that parties receive.
The FLRA anticipates that the regional offices will continue to
conduct most investigations and hearings in representation matters
after receiving the Authority's authorization, but Authority staff may
also be assigned those duties as needed, consistent with Sec. 7105(d)
of the Statute. Further, the FLRA intends, in most cases, for the
regional offices to continue conducting elections with the Authority's
authorization, but the Authority will make decisions on election
agreements and directions of election. Whereas, in most elections, the
regional offices will continue to tally ballots and make determinations
on election observers, the Authority will certify the results of
elections. The Authority will address determinative challenged ballots
in elections, and will decide all election objections concerning either
the election process itself, or conduct that may have otherwise
improperly affected the results of the election.
The FLRA recognizes, however, that this new process will not
function as intended if the Authority loses a quorum--that is, in the
event that the Authority has one or zero Members. This circumstance is
a ``special and temporary'' condition. See United States v. Arthrex,
Inc., 594 U.S. 1, 22 (2021) (citing United States v. Eaton, 169 U.S.
331, 343 (1898)). Consequently, the Authority is maintaining the
current two-layered structure of initial decision and potential appeal
only for representation matters that arise when the Authority lacks a
quorum. In this way, the loss of an Authority quorum will not prevent
parties from having their representation matters addressed.
Parties involved in representation matters that arise when the
Authority lacks a quorum will have the right to file an appeal of an
RD's action under 5 U.S.C. 7105(f), but that appeal can be addressed
only when an Authority quorum is restored. See FDIC, 68 FLRA 260, 262
(2015) (finding that the Authority has sixty days while having a quorum
to ``undertake to grant review of [an] RD's decision,'' or else ``the
RD's decision bec[o]me[s] `the action of the Authority''' (quoting 5
U.S.C. 7105(f))), vacating on reconsideration, 67 FLRA 430 (2014).
So that parties do not need to read through all the regulations to
find the rules that apply only to matters that arise when the Authority
lacks a quorum, the Authority has collected all of these special rules
into their own sections in parts 2422 and 2426.
To implement the new process for representation matters, the FLRA
must revise its regulations. Further, the FLRA is amending some
regulations to make explicit how they operate. These changes, including
those that make explicit the operation of some regulations, are set
forth in this document.
In addition, the Authority must revoke its current delegation to
the RDs in representation matters, and adopt a new delegation that is
tailored to representation matters that arise when the Authority lacks
a quorum. To accomplish those purposes, as previously stated, an
amendment to section I.C. of Appendix B to 5 CFR Chapter XIV--published
elsewhere in this issue of the Federal Register--will be effective on
the date on which this interim final rule is effective.
The FLRA is also currently reexamining the manner in which it
adjudicates unfair labor practices (ULPs), including who will hold
hearings and draft recommended decisions in ULP cases. Nevertheless,
the FLRA anticipates that those topics could be the subject of separate
rulemaking. Accordingly, some of the regulations in parts 2421 and 2429
that concern administrative law judges (ALJs) and ULPs are left
unchanged at this time because they could be addressed in future
rulemaking, if necessary. There are two regulations concerning ALJs and
ULPs that are being revised in this rulemaking because those
regulations appear in part 2422, which primarily concerns
representation matters. But all other changes concerning ALJs and ULPs
will await possible future rulemaking.
The section below explains each change to the regulations in
greater detail. The explanation of the amendment to section I.C. of
Appendix B to 5 CFR Chapter XIV appears in the separate document
published elsewhere in this issue of the Federal Register concerning
that amendment.
II. Interim Rule and Analysis
Almost all of the explanations below assume that the Authority is
functioning with a quorum, and the explanations should be read with
that assumption in mind. But for regulations that apply only to
representation matters that arise when the Authority lacks a quorum--
that is, when the Authority has one or zero Members--see the
discussions under Sec. Sec. 2422.35 and 2426.21.
PART 2421
Section 2421.6 Regional Director
Section 2421.6 adds a sentence to the definition of ``Regional
Director.'' This additional sentence explicitly reflects that when an
RD acts to process representation matters on the Authority's behalf,
the RD acts pursuant to an assignment of duties from the Authority
under 5 U.S.C. 7105(d). Section 7105(d) allows the Authority to
``delegate to officers and employees . . . authority to perform such
duties . . . as may be necessary.'' 5 U.S.C. 7105(d).
Section 2421.20 Election agreement
``FLRA'' replaces ``Regional Director'' as the entity approving an
election
[[Page 13935]]
agreement to reflect that, while RDs will continue processing petitions
that prompt elections and RDs will continue assisting parties in
drafting election agreements, the Authority will make all final
decisions on approving election agreements.
Section 2421.23 FLRA
Section 2421.23 adds a new definition of ``FLRA'' that applies only
to Sec. 2421.20 and parts 2422 and 2426. This definition explains
that, as a matter of agency organization, the use of ``FLRA'' in these
places could indicate the involvement of employees or officials from
either the Authority (including Members) or the regional offices
(including RDs), or a combination of the two. Parties should generally
file all documents with the appropriate RD, and parties will be
informed in the course of their specific cases if they must file their
documents with, or serve their documents on the Authority--instead of,
or in addition to--the regional office (or RD). The one exception is
motions for reconsideration under Sec. 2429.17, which must always be
filed directly with the Authority.
PART 2422
Section 2422.3 What information should you include in your petition?
Section 2422.3(c) is amended to correct an inadvertent
typographical error. The current regulation refers to the U.S. Code,
but it should refer to the Code of Federal Regulations. Specifically,
the current regulation says that ``showing of interest'' is ``defined
at 5 U.S.C. 2421.16,'' but no such section exists. The reference should
be to ``5 CFR 2421.16,'' so this correction is adopted in the revised
paragraph (c).
Section 2422.4 What service requirements must you meet when filing a
petition or other documents?
Section 2422.4's heading is amended to clarify that, as a matter of
agency procedure, the section applies to not only petitions, but also
supporting documents. The wording of the section is amended to clarify
certain information that a party should not serve on other parties in
order to protect the identities of individuals engaged in specified
protected activities. ``Application for review'' is removed from the
list of documents covered by the section because applications for
review are no longer necessary. A separate regulation--Sec.
2422.35(f)--addresses service requirements for applications for review
in representation matters that arise when the Authority lacks a quorum.
Section 2422.5 Where do you file petitions?
Section 2422.5(c) is amended to clarify, as a matter of agency
procedure, how an RD will determine when a petition is deemed filed
based on whether the filing is electronic or by facsimile or other
method, the time and date on which the filing is received, and whether
a petition is received on a business day or during the region's
business hours.
Section 2422.6 How are parties notified of the filing of a petition?
Section 2422.6(a) is amended to state explicitly that, although the
RD makes reasonable efforts to identify or notify parties affected by
the issues raised in a petition, parties have their own, independent
notification and service obligations that they must satisfy. The
regulations have never suggested that the RD's reasonable efforts
relieve a party of its own notification and service obligations.
Section 2422.7 Will an activity or agency post a notice of filing of a
petition?
Section 2422.7(a) is amended to replace ``Regional Director'' with
``FLRA'' to account for the possibility that the Authority may direct
the posting of notices.
Section 2422.9 How is the adequacy of a showing of interest determined?
Section 2422.9(b) replaces ``Regional Director'' in all the places
it appears with ``FLRA'' to account for the Authority approving all
investigations, and the Authority issuing all decisions and orders in
such cases. The possibility of an appeal is deleted because appeals are
no longer necessary. However, it remains true that a determination on
the adequacy of a showing of interest is not subject to collateral or
direct challenge to the RD or the Authority.
Section 2422.10 How do you challenge the validity of a showing of
interest?
Section 2422.10(b) is amended to replace ``Regional Director'' with
``FLRA'' to account for the Authority potentially challenging the
validity of a showing of interest.
Section 2422.10(e) replaces ``Regional Director'' in all the places
it appears with ``FLRA'' to account for the Authority approving all
investigations, and the Authority issuing all decisions and orders in
such cases. The possibility of an appeal is deleted because appeals are
no longer necessary. However, it remains true that a determination on
the validity of a showing of interest is not subject to collateral or
direct challenge to the RD or the Authority.
Section 2422.12 What circumstances does the FLRA consider to determine
whether your petition is timely filed?
Section 2422.12's heading is amended to replace ``Region'' with
``FLRA'' to account for the possibility of the Authority making
determinations regarding the timeliness of a petition.
The regulations have always contemplated that the general term
``election'' may cover a ``decertification election,'' where
appropriate. Paragraphs (a), (b), (c), (d), (e), (g), and (h) are
amended to reflect where, in the provisions governing the various bars
to petitions seeking elections, ``election'' includes a
``decertification election.'' This matter was raised and settled in
NASA, Goddard Space Flight Center, Wallops Island, Virginia, 67 FLRA
670, 676-77 (2014) (Wallops Island). See id. at 677 (referring to ``the
plain wording of Sec. 2422.12(d)''). Although that decision concerned
only the ``contract bar,'' the decision's rationale applies equally to
other sections of Sec. 2422.12 with the same ``plain wording.'' See
U.S. Dep't of the Interior, Nat'l Park Serv., Blue Ridge Parkway, N.C.,
73 FLRA 526, 530-31 (2023) (Blue Ridge) (applying Wallops Island to the
``certification bar''). The FLRA wants to make explicit in these
regulations when the term ``election,'' as a matter of plain wording,
includes a ``decertification election'' so as to avoid confusion on
this point. However, the clarification that ``election'' includes a
``decertification election'' does not preclude the Authority from
making case-specific determinations in future representation matters
about how other regulations that refer to elections apply to
decertification elections.
Section 2422.12(b) is further amended to reflect Blue Ridge's
holding that ``Sec. 2422.12(b) . . . applies--and has applied--to
petitions filed within twelve months of a consolidation certification,
regardless of whether the Authority conducted an election before
issuing the certification.'' Id. at 532 (emphasis added) (footnote
omitted).
Section 2422.13 How are issues raised by your petition resolved?
Section 2422.13(a) is amended to replace ``a representative of the
appropriate Regional Office'' with ``an FLRA representative'' to
account for the possibility that the Authority may participate in
meetings before a representation petition is filed. The choice about
which officers or employees will participate in any such meeting lies
exclusively with the FLRA.
[[Page 13936]]
Section 2422.13(b) is amended to replace ``Regional Director'' with
``FLRA'' to account for the possibility of the Authority requiring
parties to meet to narrow and resolve issues after a petition is filed.
Section 2422.14 What is the effect of your withdrawal or the FLRA's
dismissal of a petition?
Section 2422.14's heading is amended to replace ``Regional
Director'' with ``FLRA'' to account for the Authority dismissing
petitions.
Paragraphs (a)(1) and (b) are amended to clarify where ``election''
includes a ``decertification election,'' for substantially similar
reasons as those discussed in connection with Sec. 2422.12 above.
Elsewhere in Sec. 2422.14, ``FLRA'' replaces ``Regional Director''
to account for the change in the internal decision-making structure in
the new process for representation matters. However, ``Regional
Director'' is purposely maintained where it first appears in Sec.
2422.14(b) because the FLRA anticipates that parties will always submit
withdrawal requests to an RD.
Paragraph (a)(1) is further amended to make clear that the
reference to ``another petition'' plainly means ``another petition from
you''--that is, the same party that withdraws a timely filed petition,
or whose timely filed petition the FLRA dismisses, within the meaning
of Sec. 2422.14(a)(1). This procedural clarification reflects that the
rule is not intended to allow one party's withdrawn or dismissed
petition to render another party's petition untimely within the meaning
of Sec. 2422.14(a)(1).
Paragraph (a)(1)(ii) is amended to remove the possibility of an
appeal as a consequence of the revocation of the current delegation to
the RDs in representation matters, and paragraph (a)(1)(iii) is deleted
for the same reason.
Section 2422.15 Do parties have a duty to provide information and
cooperate after a petition is filed?
Section 2422.15 is amended so that ``FLRA'' replaces ``Regional
Director'' to account for the change in the internal decision-making
structure in the new process for representation matters. However,
``Regional Director'' is purposely maintained where it appeared (before
revisions) for the second time in Sec. 2422.15(b) because the FLRA
anticipates that parties will always submit alphabetized lists of
employees to an RD.
Section 2422.16 May parties enter into election agreements, and if they
do not, will the FLRA direct an election?
Section 2422.16's heading, and paragraphs (b) and (c), replace
``Regional Director'' with ``FLRA'' because the Authority will now
decide directions of elections and decide whether to conduct hearings.
The Authority will also issue decisions and orders. When the Authority
decides a hearing is warranted, the Authority will most often authorize
regional office staff to conduct those hearings, although Authority
staff may also conduct hearings.
Section 2422.17 What are a Notice of Hearing and prehearing conference?
In Sec. 2422.17, paragraphs (a) and (b) are amended so that
``FLRA'' replaces ``Regional Director'' to account for the change in
the internal decision-making structure in the new process for
representation matters.
Paragraph (d) is deleted because it refers to appeals, which are no
longer necessary.
Section 2422.18 What is the purpose of a representation hearing and
what procedures are followed?
Section 2422.18(c) is amended so that the ``FLRA assigns a Hearing
Officer,'' rather than the ``Regional Director appoints a Hearing
Officer,'' to account for the change in the internal decision-making
structure in the new process for representation matters. In Sec.
2422.18(d), the phrase ``working hours'' is changed to its equivalent
term, ``business hours,'' to be consistent with other uses of
``business hours'' in this part of the regulations.
Section 2422.19 When is it appropriate for a party to file a motion at
a representation hearing?
Section 2422.19 is amended so that ``FLRA'' replaces ``Regional
Director'' to account for the change in the internal decision-making
structure in the new process for representation matters.
In Sec. 2422.19(a), the sentence ``The Regional Director or
Hearing Officer may treat challenges and other filings referenced in
other sections of this subpart as a motion'' is deleted because
regulatory authorization is not procedurally required to treat
challenges or other filings as motions, and the provision already
places full discretion for this determination with the FLRA. This
deletion should not change the way hearings are conducted.
In Sec. 2422.19(b), the sentence ``The Regional Director may rule
on the motion or refer the motion to the Hearing Officer'' is deleted
because the process for deciding motions or referring them to a Hearing
Officer need not be specified in regulation, and the provision already
places full discretion for this determination with the FLRA. This
deletion should not change the way hearings are conducted.
In Sec. 2422.19(c), the sentence ``When appropriate, the Hearing
Officer will rule on motions made at the hearing or referred to the
Hearing Officer by the Regional Director'' is deleted because this
matter need not be specified in regulation, and the provision already
places full discretion for this determination with the FLRA. This
deletion should not change the way hearings are conducted.
Section 2422.20 What rights do parties have at a hearing?
Section 2422.20(d) is amended so that ``FLRA'' replaces ``Regional
Director'' to account for the change in the internal decision-making
structure in the new process for representation matters. Section
2422.20(d) is further amended so that parties will now be provided the
opportunity to file reply briefs as a matter of course, without
requesting permission first. Parties will have ten days from another
party's filing of an initial brief to file a reply brief. In each case,
parties will be notified whether to file their briefs with the Hearing
Officer, the RD, or the Authority. The requirement to file multiple
copies of briefs is eliminated.
Section 2422.21 What are the duties and powers of the Hearing Officer?
Section 2422.21(a) is amended to delete the sentence ``The Hearing
Officer may make recommendations on the record to the Regional
Director.'' This matter need not be specified in regulation, as the
determination is committed fully to the FLRA's discretion.
Section 2422.21(b) is amended so that ``FLRA'' replaces ``Regional
Director'' to account for the change in the internal decision-making
structure in the new process for representation matters.
Section 2422.23 What election procedures are followed?
In Sec. 2422.23, paragraph (a); paragraph (b); paragraph (c);
paragraph (e)'s last sentence; paragraph (f)'s last sentence; paragraph
(g)'s last sentence; and paragraph (h)(5) are amended so that ``FLRA''
replaces ``Regional Director'' to account for the change in the
internal decision-making structure in the new process for
representation matters. However, ``Regional Director'' is purposely
maintained in the following paragraphs for the following reasons:
[[Page 13937]]
the first two places it appears in Sec. 2422.23(e) because parties are
still expected to file withdrawal requests with an RD; the first
sentence of Sec. 2422.23(f) because parties are still expected to file
disclaimers of interest with an RD; the first sentence of Sec.
2422.23(g) because parties are still expected to file withdrawal
requests with an RD; those paragraphs of Sec. 2422.23(h) where it
appears (except for (h)(5)) because the FLRA intends for RDs to handle
most matters concerning election observers in order to prevent delays
to elections. However, ``FLRA'' has replaced ``Regional Director'' in
Sec. 2422.23(h)(5) because the Authority will decide any formal
objections that are filed in accordance with Sec. 2422.23(h)(4).
Section 2422.23(h)(5) is further amended to remove the reference to an
application for review because appeals are no longer necessary.
Section 2422.24 What are challenged ballots?
Section 2422.24 is amended so that ``FLRA'' replaces ``Regional
Director'' and ``Region'' because the Authority may challenge voter
eligibility, for good cause, under Sec. 2422.24(a); and because the
Authority may be involved in addressing challenged ballots under Sec.
2422.24(b). The Authority will always be involved in addressing
determinative challenged ballots.
Section 2422.25 When does the FLRA tally the ballots?
Section 2422.25's heading, and paragraphs (a) and (b), are amended
so that ``FLRA'' replaces ``Regional Director'' and ``Region'' because
the Authority may tally ballots or serve the tally of ballots in some
elections.
Section 2422.26 How are objections to the election processed?
In Sec. 2422.26, paragraphs (a) and (b) maintain the use of
``Regional Director'' rather than ``FLRA'' because the FLRA intends for
parties to continue filing election objections and supporting evidence
with the regional offices.
Paragraph (a) is amended to eliminate the requirement for filing
duplicate copies of objections.
Section 2422.27 How does the FLRA address determinative challenged
ballots and objections?
Section 2422.27's heading, and paragraphs (a) and (c), replace
``Regional Director'' and ``Region'' with ``FLRA'' to account for the
Authority approving all investigations, and taking appropriate action
on determinative challenged ballots and objections.
Paragraph (d), concerning consolidated hearings, is deleted. As
discussed in greater detail earlier, the FLRA is reexamining the manner
in which it adjudicates unfair labor practices (ULPs), and this
paragraph concerns hearings about both determinative challenged ballots
and ULPs. Whether to provide this type of hearing is committed fully to
the FLRA's discretion. If necessary, the FLRA will revisit this topic
in future rulemaking, once the reexamination of ULP adjudication is
complete. Paragraph (e) is deleted for similar reasons because it
concerns filing exceptions to a recommended decision that resolves ULP
allegations.
Section 2422.28 When is a runoff election required?
Section 2422.28(a) replaces ``Regional Director'' with ``FLRA'' to
account for the Authority ruling on all objections to elections and
determinative challenged ballots.
Section 2422.29 How does the FLRA address an inconclusive election?
Section 2422.29's heading--and paragraphs (a)(4), (b), (c), and
(d)--replace ``Regional Director'' and ``Region'' with ``FLRA'' to
account for the Authority's involvement in elections and the
certification of results.
Section 2422.30 When does the FLRA investigate a petition, issue a
Notice of Hearing, take action, and issue a Decision and Order?
Section 2422.30's heading--and paragraphs (a), (b), and (c)--
replace ``Regional Director'' with ``FLRA'' because the Authority will
approve all investigations and hearings, as well as direct all
elections, approve all election agreements, and issue all decisions and
orders, in furtherance of its responsibilities under Sec. 7105(a)(2)
of the Statute.
Paragraphs (d) and (e) are deleted because they concern appeals,
which are no longer necessary. The substance of paragraphs (d) and (e)
is being transferred to the new Sec. 2422.35, which will address how
the new delegation of authority for representation proceedings applies
when the Authority lacks a quorum. The specifics of those transferred
provisions will be discussed in the analysis of Sec. 2422.35 below.
Section 2422.31 [Reserved]
Section 2422.31 is currently titled ``When do you file an
application for review of a Regional Director Decision and Order?''
Because applications for review are no longer necessary, the heading
and text of this section are being deleted, and the section is
reserved. However, the substance of many of this section's provisions
are being transferred to the new Sec. 2422.35, which will address how
the new delegation of authority for representation proceedings applies
when the Authority lacks a quorum. The specifics of those transferred
provisions will be discussed in the analysis of Sec. 2422.35 below.
Section 2422.32 When does the FLRA issue a certification or a
revocation of certification?
Section 2422.32's heading, and paragraphs (a) and (b), replace
``Regional Director'' and ``Region'' with ``FLRA'' because the
Authority will be taking appropriate action on all certifications,
addressing election objections and determinative challenged ballots,
issuing decisions and orders, and revoking recognitions or
certifications.
Paragraph (a)(2) is further amended to delete certain wording
because RDs will no longer be issuing decisions and orders that may
``become the action of the Authority.''
Paragraph (b)(2) is further amended to make explicit that the FLRA
will not revoke a recognition or certification due to a substantial
change in the character and scope of a unit that renders the unit no
longer appropriate, unless a party first files a petition that gives
rise to a representation proceeding concerning that unit. This
amendment merely codifies existing procedural practice in the
regulation.
Section 2422.33 Relief Under Part 2423 of This Chapter
Section 2422.33 is amended to remove the reference to consolidated
hearings, for the same reasons stated earlier in connection with Sec.
2422.27(d).
Section 2422.34 What are the parties' rights and obligations when a
representation proceeding is pending?
Section 2422.34 is amended to clarify its operation and reformat
certain citations.
The existing wording of Sec. 2422.34(a) is amended, and
redesignated as Sec. 2422.34(a)(1), to make explicit that the
reference to the period ``when a representation proceeding is pending''
means when such a proceeding is pending ``before the FLRA.'' This
amendment makes explicit that the section does not apply when a
representation matter has been appealed to court, or raised in any
other forum over which the FLRA lacks jurisdiction. Further, the newly
designated Sec. 2422.34(a)(1) is amended so that it is
[[Page 13938]]
subject to the clarification that appears in newly created Sec.
2422.34(a)(2).
Section 2422.34(a)(2) makes explicit that the principles set forth
in 5 CFR 2429.17--concerning motions for reconsideration--apply to the
operation of Sec. 2422.34. Thus, the filing of a motion for
reconsideration or stay does not relieve the parties of their
obligations to comply with a final decision or order of the Authority,
unless so ordered by the Authority. For example, Sec. 2422.34 does not
require parties to maintain existing recognitions, follow the terms and
conditions of existing collective-bargaining agreements, or fulfill
other representational and bargaining responsibilities, when a final
decision or order of the Authority permits or directs the parties to do
otherwise--even when a party files a motion for reconsideration or stay
of that final decision or order. In addition, this amendment makes
explicit that, if a final decision or order of the Authority issues, or
directs the issuance of, a certification, then the parties are required
to act consistent with that certification, even if a party filed a
motion for reconsideration or stay of the final decision or order.
Section 2422.34(b) is amended to change citation formatting. The
statutory cites in Sec. 2422.34(b) are being rewritten as ``3 U.S.C.
431(d)(2), and 5 U.S.C. 7103(a)(2), 7112(b), and 7112(c).'' However,
these are the same cites that appeared before, in a different format.
Section 2422.35 How do representation proceedings change when the
Authority lacks a quorum?
This newly created section addresses how the FLRA's new delegation
of authority for processing representation matters will apply in
proceedings that arise when the Authority lacks a quorum. The Authority
lacks a quorum when it has one or zero Members. See 5 U.S.C. 7104(a)
(``The Federal Labor Relations Authority is composed of three members .
. . .''), (d) (``A vacancy in the Authority shall not impair the right
of the remaining members to exercise all of the powers of the
Authority.''). The FLRA has determined that, in order to avoid delay in
the processing of representation matters when the Authority lacks a
quorum, under such special and temporary circumstances, RDs are
delegated the power and responsibility to process representation
matters under 5 U.S.C. 7105(e)(1). But parties involved in
representation matters that arise when the Authority lacks a quorum
will have the right to file an appeal of an RD's action under 5 U.S.C.
7105(f). That appeal can be addressed only when an Authority quorum is
restored, however. Almost all of the provisions of this section closely
resemble the regulations that govern the current two-layered structure
of RD initial decisions and potential Authority review.
Section 2422.35(a) explains that the section applies to
representation matters that arise when the Authority lacks a quorum,
and it explains that the Authority lacks a quorum when it has one or
zero Members. Further, paragraph (a) explains that the section is
intended to operate in a manner consistent with the newly adopted
section I.C. of Appendix B to 5 CFR Chapter IV. That appendix is
titled, ``Memorandum Describing the Authority and Assigned
Responsibilities of the General Counsel of the Federal Labor Relations
Authority,'' and newly adopted section I.C. concerns case handling in
representation matters that arise when the Authority lacks a quorum.
Section 2422.35(b) replaces Sec. 2422.14(a) in representation
matters that arise when the Authority lacks a quorum. Note that Sec.
2422.14(b) and (c) will still apply to representation matters that
arise when the Authority lacks a quorum.
Section 2422.35(b)(2) explains the circumstances under which the
withdrawal or dismissal of a petition less than sixty days before a
contract expiration will render a later filed petition untimely, and
paragraphs (b)(2)(i) through (b)(2)(iv) provide the four possible
actions that could trigger the running of the ninety-day period of
untimeliness discussed in (b)(2). Unlike the actions described in Sec.
2422.14(a)(1), those set forth in Sec. 2422.35(b)(2) account for the
possibility of appeals because appeals will be available for
representation matters that arise when the Authority lacks a quorum.
Thus, the circumstances described in Sec. 2422.35(b)(2) are similar to
those described in Sec. 2422.14(a)(1)'s procedural rule, but the
circumstances in Sec. 2422.35(b)(2) are adapted to a no-quorum
situation.
Section 2422.35(c) is intended to have the same effect as current
Sec. 2422.17(d)--which is being deleted.
Section 2422.35(d) is intended to have the same effect as current
Sec. 2422.30(d)--which is being deleted.
Section 2422.35(e) is intended to have the same effect as current
Sec. 2422.30(e)--which is being deleted. But the FLRA has determined,
as a matter of procedure, that the first sentence--providing that ``all
material submitted to, and considered by, the Regional Director during
an investigation becomes part of the record''--will not be limited to
cases ``when there has not been a hearing,'' as it was limited in
current Sec. 2422.30(e). The introductory description has been changed
from ``Contents of the Record'' to ``Contents of the record for
appeal'' for clarity.
Section 2422.35(f) is intended to have the same effect as current
Sec. 2422.31(a)--which is being deleted.
Section 2422.35(g) is intended to have the same effect as current
Sec. 2422.31(b)--which is being deleted. However, the introductory
description has been changed from ``Contents'' to ``Contents of the
Application for Review'' for clarity. Note that, just as current Sec.
2422.31(b) does, Sec. 2422.35(g) will prohibit an application from
``rais[ing] any issue or rely[ing] on any facts not timely presented to
the Hearing Officer or Regional Director.''
Section 2422.35(h) is intended to have the same effect as current
Sec. 2422.31(c)--which is being deleted.
With one exception, Sec. 2422.35(i) (concerning oppositions to
applications to review) is intended to have the same effect as current
Sec. 2422.31(d)--which is being deleted. The exception is that the
FLRA is adding a new procedural prohibition to Sec. 2422.35(i) that
does not appear in current Sec. 2422.31(d). Under Sec. 2422.35(i), an
opposition ``may not raise any issue or rely on any facts not timely
presented to the Hearing Officer or Regional Director.'' This
prohibition is intended to mirror a restriction that applies to
applications for review. The effect of this prohibition is currently
achieved through the application of 5 CFR 2429.5 to oppositions, but as
will be discussed later in connection with that section, the FLRA is
revising Sec. 2429.5 so that it will no longer apply to matters not
previously presented to a Hearing Officer or Regional Director. Thus,
as applied to oppositions, the FLRA is relocating this prohibition from
Sec. 2429.5 to Sec. 2422.35(i).
Section 2422.35(j) is intended to have the same effect as current
Sec. 2422.31(e)--which is being deleted--but two clarifications are
provided. In the first clarification, Sec. 2422.35(j)(2), which is
modeled after current Sec. 2422.31(e)(2), states that the sixty-day
period during which the Authority must undertake to grant review of an
RD's decision and order--in order to prevent the RD's action from
becoming the action of the Authority by operation of law--runs only
while the Authority has a quorum. See FDIC, 68 FLRA at 262 (finding
that the Authority has sixty days while having a quorum to ``undertake
to grant review of [an] RD's decision,'' or else ``the RD's decision
bec[o]me[s] `the action of the Authority''' (quoting 5 U.S.C.
7105(f))). In the second
[[Page 13939]]
clarification, Sec. 2422.35(j)(3), which is modeled after current
Sec. 2422.31(e)(3), explains that when an application for review is
filed while the Authority lacks a quorum, the Authority cannot resolve
the application for review until it has a quorum.
Section 2422.35(k) is intended to have the same effect as current
Sec. 2422.31(f)--which is being deleted--but one clarification is
adopted. For clarity, whereas Sec. 2422.31(f)'s second sentence says,
``Neither filing nor granting an application for review will stay any
action ordered by the Regional Director unless specifically ordered by
the Authority,'' Sec. 2422.35(k)'s second sentence says, ``Neither a
party filing, nor the Authority granting, an application for review
will stay any action ordered by the Regional Director unless
specifically ordered by the Authority.''
Section 2422.35(l) is intended to have the same effect as current
Sec. 2422.31(g)--which is being deleted--but one additional procedural
requirement is mentioned. The procedural requirement is that a party
filing a brief under Sec. 2422.35(l) ``must serve a copy on the
Regional Director and all other parties, and must also file a statement
of service with the Authority.'' The same procedural requirement is
mentioned in Sec. 2422.35(f) concerning filing an application for
review, and in Sec. 2422.35(i) concerning filing an opposition.
Section 2422.35(m) explains that the provisions governing the
service and processing of papers in Sec. 2429.12(a), (b), and (c) will
apply to RDs' decisions and orders in representation matters that arise
when the Authority lacks a quorum. As will be discussed later in
connection with Sec. 2429.12, the FLRA is revising that section so
that it will no longer explicitly refer to RDs' decisions and orders.
However, through the operation of Sec. 2422.35(m), Sec. 2429.12(a),
(b), and (c) will apply to RDs' decisions and orders in representation
matters that arise when the Authority lacks a quorum.
Section 2422.35(n) replaces Sec. 2422.32(a) in representation
matters that arise when the Authority lacks a quorum. Note that Sec.
2422.32(b) will still apply to representation matters that arise when
the Authority lacks a quorum.
Section 2422.35(n)(1) is intended to have the same effect as
current Sec. 2422.32(a)(1). Within Sec. 2422.35, paragraphs (n)(2)
and (3) are intended to have the same effect as similar wording in
current Sec. 2422.32(a)(2), except that current Sec. 2422.32(a)(2)'s
reference to 5 CFR 2422.31(e) is replaced with a reference to new
section Sec. 2422.35(j). Because current Sec. 2422.32(a)(2) describes
two different circumstances, those circumstances were divided into two
new paragraphs: Sec. 2422.35(n)(2) and (3).
PART 2426
Section 2426.2 Requests; Petition and Procedures for Determination of
Eligibility for National Consultation Rights
Section 2426.2(b) currently says that consultation-rights issues
will be referred ``to the Authority'' for determination. The phrase
``to the Authority'' is deleted because, in instances where the
Authority lacks a quorum, this determination will be made in the first
instance by an RD, just as occurs under the current process. However,
in instances where the Authority has a quorum, the Authority will make
this determination under the new process.
Section 2426.2(b)(2) changes ``Authority'' to ``FLRA'' to conform
to the new definition of ``FLRA'' added in Sec. 2421.23.
Paragraphs (b)(2)(i), (b)(2)(iv), and (b)(2)(v) are updated to
require the petitioner to provide email addresses.
Section 2426.2(b)(3)(ii) is amended to eliminate the need to file
multiple copies.
Section 2426.2(b)(3)(vii) changes ``Regional Director'' to ``FLRA''
to account for the Authority approving all investigations, issuing all
decisions and orders, and determining whether hearings are warranted.
The paragraph is further amended to delete the reference to appeals
because appeals are no longer necessary. The final sentence of
(b)(3)(vii) is further amended to correct the citations to other
regulations in the subchapter because those citations have been
incorrect since revised representation regulations took effect in 1996.
Section 2426.12 Requests; Petition and Procedures for Determination of
Eligibility for Consultation Rights on Government-Wide Rules or
Regulations
Section 2426.12(b) currently says that consultation-rights issues
will be referred ``to the Authority'' for determination. The phrase
``to the Authority'' is deleted because, in instances when the
Authority lacks a quorum, this determination will be made in the first
instance by an RD, just as occurs under the current process. However,
in instances where the Authority has a quorum, the Authority will make
this determination under the new process.
Section 2426.12(b)(2) changes ``Authority'' to ``FLRA'' to conform
to the new definition of ``FLRA'' added in Sec. 2421.23.
Paragraphs (b)(2)(i), (b)(2)(iv), and (b)(2)(v) are updated to
require the petitioner to provide email addresses.
Section 2426.12(b)(3)(ii) is amended to eliminate the need for
multiple copies.
Section 2426.12(b)(3)(vii) changes ``Regional Director'' to
``FLRA'' to account for the Authority approving all investigations,
issuing all decisions and orders, and determining whether hearings are
warranted. The paragraph is further amended to delete the reference to
appeals because appeals are no longer necessary. The final sentence of
(b)(3)(vii) is further amended to correct the citations to other
regulations in the subchapter because those citations have been
incorrect since revised representation regulations took effect in 1996.
Subpart C--Consultation Rights When the Authority Lacks a Quorum
Section 2426.21 Changes When the Authority Lacks a Quorum
This newly created section, within a newly created subpart,
addresses how the FLRA's new delegation of authority for processing
representation matters will apply in proceedings that arise when the
Authority lacks a quorum, but this section is specific to consultation-
rights cases. The Authority lacks a quorum when it has one or zero
Members. The FLRA has determined that, in order to avoid delay in the
processing of representation matters when the Authority lacks a quorum,
under such special and temporary circumstances, RDs are delegated the
power and responsibility to process representation matters under 5
U.S.C. 7105(e)(1). But parties involved in representation matters that
arise when the Authority lacks a quorum will have the right to file an
appeal of an RD's action under 5 U.S.C. 7105(f). That appeal can be
addressed only when an Authority quorum is restored, however. Almost
all of the provisions of this section closely resemble the regulations
that govern the current two-layered structure of RD initial decisions
and potential Authority review.
Section 2426.21(a) explains that the section applies to
representation matters that arise when the Authority lacks a quorum,
and it explains that the Authority lacks a quorum when it has one or
zero Members. Further, paragraph (a) explains that the section is
intended to operate in a manner consistent with the newly adopted
[[Page 13940]]
section I.C. of Appendix B to 5 CFR Chapter IV. That appendix is
titled, ``Memorandum Describing the Authority and Assigned
Responsibilities of the General Counsel of the Federal Labor Relations
Authority,'' and newly adopted section I.C. concerns case handling in
representation matters that arise when the Authority lacks a quorum.
Section 2426.21(b) replaces current Sec. 2426.2(b)(3)(vii) in
representation matters that arise when the Authority lacks a quorum.
Note that the remaining paragraphs of Sec. 2426.2(b), as well as Sec.
2426.2(a), will still apply to representation matters that arise when
the Authority lacks a quorum.
Further, Sec. 2426.21(b) is intended to have the same effect as
current Sec. 2426.2(b)(3)(vii) (before the revisions discussed in this
document). However, Sec. 2426.21(b) changes citations to other
regulations in the subchapter because the relevant provisions are being
relocated as part of this interim final rule, or because the citations
currently in Sec. 2426.2(b)(3)(vii) have been incorrect since revised
representation regulations took effect in 1996.
Section 2426.21(c) is intended to have the same effect as current
Sec. 2426.12(b)(3)(vii) (before the revisions discussed in this
document). However, Sec. 2426.21(c) changes citations to other
regulations in the subchapter because the relevant provisions are being
relocated as part of this interim final rule, or because the citations
currently in Sec. 2426.12(b)(3)(vii) have been incorrect since revised
representation regulations took effect in 1996.
PART 2429
Section 2429.2 Transfer and Consolidation of Cases
Section 2429.2 replaces ``Regional Director'' with ``the FLRA'' to
allow for the possibility that the Authority will be consolidating or
transferring cases.
Section 2429.5 Matters Not Previously Presented; Official Notice
Section 2429.5 is amended so that it no longer applies to matters
not previously presented to a ``Regional Director'' or ``Hearing
Officer.'' This general regulation is not needed to enforce its
prohibitions in representation matters because the same prohibitions
have been incorporated into the more-specific regulations that govern
applications for review and oppositions (in representation matters that
arise when the Authority lacks a quorum)--new Sec. 2422.35(g) and (i),
respectively.
Section 2429.7 Subpoenas
Within Sec. 2429.7, paragraphs (c) and (e)(1) are amended to make
explicit that those procedural provisions concerning subpoenas in
representation matters arising under part 2422 also apply to
representation matters arising under part 2426.
Section 2429.12 Service of Process and Papers by the Authority
Section 2429.12(a) is amended to remove a reference to ``decisions
and orders of Regional Directors'' because the Authority will issue
decisions and orders. However, as discussed earlier in connection with
new Sec. 2422.35(m), Sec. 2422.35(m) makes Sec. 2429.12(a), (b), and
(c) applicable to RDs' decisions and orders in representation matters
that arise when the Authority lacks a quorum.
Section 2429.22 Additional Time for Filing With the FLRA if You Are
Filing in Response to a Document That Has Been Served on You by First-
Class Mail or Commercial Delivery
Section 2429.22(c) is amended to change the citation in
``applications for review filed under 5 CFR 2422.31'' so that the
citation now refers to ``applications for review filed under 5 CFR
2422.35.'' New Sec. 2422.35 will contain the provisions governing
applications for review in representation matters that arise when the
Authority lacks a quorum.
Section 2429.24 Place and Method of Filing; Acknowledgement
Within Sec. 2429.24, paragraphs (f)(1) and (2) are amended so that
their citations refer to the correct paragraphs after the changes in
this document take effect.
Paragraphs (f)(7) and (9) change ``Agency statement'' and ``Agency
replies'' to ``Agencies' statements'' and ``Agencies' replies'' for
grammatical correctness.
III. Procedural Issues and Regulatory Review
The FLRA finds that this interim final rule is not a substantive
rule. Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979) (citing 5
U.S.C. 553(b), (d)) (stating that a substantive or legislative rule is
one that ``affect[s] individual rights or obligations'' (quoting Morton
v. Ruiz, 415 U.S. 199, 232 (1974) (internal quotations marks omitted)).
The FLRA finds that the revisions in this interim final rule are
excepted from 5 U.S.C. 553's requirements for notice and comment as
``interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice,'' 5 U.S.C. 553(b)(A), or
because ``good cause'' applies, id. 553(b)(B). The revisions necessary
to reflect a changed delegation of authority to perform defined duties
within the FLRA are rules of ``agency organization.'' Id. 553(b)(A).
Similarly, the revisions that alter the manner in which parties present
their positions to the FLRA are rules of ``agency . . . procedure.''
Id. Further, Sec. 553 provides an exception from notice and comment if
an agency finds good cause that notice and comment are ``unnecessary.''
Id. 553(b)(B). The FLRA has determined that certain revisions are
merely minor or technical changes, and ``good cause'' for an exception
under Sec. 553(b)(B) exists. Such revisions primarily correct
inadvertent errors and omissions, and make minor wording changes to
improve clarity and consistency. These technical revisions do not
impose any new material requirements or increase compliance
obligations.
Nevertheless, the FLRA will accept comments on this interim final
rule.
Executive Order 12,866
Pursuant to E.O. 12,866 (``Regulatory Planning and Review''), as
amended by E.O. 14,215, a determination must be made whether a
regulatory action is significant and therefore subject to review by the
Office of Management and Budget (OMB) in accordance with the
requirements of the Executive Order.
E.O. 13,563 (``Improving Regulation and Regulatory Review'')
supplements and reaffirms the principles, structures, and definitions
governing contemporary regulatory review established in E.O. 12,866.
This interim final rule was drafted and reviewed in accordance with
E.O. 12,866 and E.O. 13,563. OMB has determined that this interim final
rule is not a ``significant regulatory action'' as defined in section
3(f)(1) of E.O. 12,866. This interim final rule will reduce the burden
on parties to brief issues twice before obtaining a decision from the
Authority and reduce prior limitations on parties seeking review.
Moreover, the majority of this interim final rule deals with ``agency
organization, management, or personnel matters'' and, therefore, E.O.
12,866 would not apply.
E.O. 14,192 (``Unleashing Prosperity Through Deregulation'')
requires that any new incremental costs associated with new regulations
shall, to the extent permitted by law, be offset by the elimination of
existing costs associated with at least 10 prior regulations. This
interim final rule is expected to be a deregulatory action for purposes
of E.O. 14,192. This interim final rule is also not significant under
E.O. 12,866.
[[Page 13941]]
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Chairman of the FLRA has determined that this
interim final rule will not have a significant impact on a substantial
number of small entities, because this interim final rule applies only
to federal agencies, federal employees, and labor organizations
representing those employees.
Executive Order 13,132, Federalism
The FLRA is an independent regulatory agency, and as such, is not
subject to the requirements of E.O. 13,132.
This interim final rule will not have substantial direct effects on
the states, on the relationship between the national government and the
states, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O.
13,132, this interim final rule does not have sufficient federalism
implications to warrant preparation of a federalism assessment.
Executive Order 12,988, Civil Justice Reform
This interim final rule meets the applicable standard set forth in
section 3(a) and (b)(2) of Executive Order 12,988.
Executive Order 13,175, Consultation and Coordination With Indian
Tribal Governments
This interim final rule does not have tribal implications under
E.O. 13,175, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the federal
government and Indian tribes, or on the distribution of power and
responsibilities between the federal government and Indian tribes.
Executive Order 14,294, Overcriminalization of Federal Regulations
E.O. 14,294 requires agencies promulgating regulations with
criminal regulatory offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. This interim final rule
does not impose a criminal regulatory penalty and is thus exempt from
E.O. 14,924's requirements.
Unfunded Mandates Reform Act of 1995
This interim final rule will not result in the expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 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.
Small Business Regulatory Enforcement Fairness Act of 1996
This action is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This
interim final rule will not result in an annual effect on the economy
of $100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act of 1995
The amended regulations contain no additional information
collection or record-keeping requirements under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
List of Subjects
5 CFR Part 2421
Federal employees, Labor management relations, Administrative
practice and procedure, Meaning of Terms as Used in This Subchapter,
Federal Labor Relations Authority.
5 CFR Part 2422
Federal employees, Labor management relations, Administrative
practice and procedure, Representation Proceedings, Federal Labor
Relations Authority.
5 CFR Part 2426
Federal employees, Labor management relations, Administrative
practice and procedure, National Consultation Rights and Consultation
Rights on Government-wide Rules or Regulations, Federal Labor Relations
Authority.
5 CFR Part 2429
Federal employees, Labor management relations, Administrative
practice and procedure, Miscellaneous and General Requirements, Federal
Labor Relations Authority.
For the reasons stated in the preamble, the Federal Labor Relations
Authority amends 5 CFR parts 2421, 2422, 2426, and 2429 as follows:
PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER
0
1. The authority citation for part 2421 continues to read as follows:
Authority: 3 U.S.C. 431; 5 U.S.C. 7134.
0
2. Revise Sec. 2421.6 to read as follows:
Sec. 2421.6 Regional Director.
Regional Director means the Director of a region of the Authority
with geographical boundaries as fixed by the Authority. When used in
parts 2422 and 2426 of this subchapter, a Regional Director performs
duties on behalf of the Authority, consistent with the Authority's
assignment of those duties under 5 U.S.C. 7105(d).
0
3. Revise Sec. 2421.20 to read as follows:
Sec. 2421.20 Election agreement.
Election agreement means an agreement under part 2422 of this
subchapter signed by all the parties, and approved by the FLRA,
concerning the details and procedures of a representation election in
an appropriate unit.
0
4. Add Sec. 2421.23 to read as follows:
Sec. 2421.23 FLRA.
When used in Sec. 2421.20 and in parts 2422 and 2426 of this
subchapter, the term FLRA means employees or officials of the Authority
(including Members of the Authority) or of the Office of the General
Counsel (including Regional Directors).
PART 2422--REPRESENTATION PROCEEDINGS
0
5. The authority citation for part 2422 continues to read as follows:
Authority: 3 U.S.C. 431; 5 U.S.C. 7134.
0
6. Amend Sec. 2422.3 by revising paragraph (c) to read as follows:
Sec. 2422.3 What information should you include in your petition?
* * * * *
(c) Showing of interest supporting a representation petition
(defined at 5 CFR 2421.16). When filing a petition requiring a showing
of interest, you must:
(1) So indicate on the petition form;
(2) Submit with the petition a showing of interest of not less than
thirty percent (30%) of the employees in the unit involved in the
petition; and
(3) Include an alphabetical list of the names constituting the
showing of interest.
* * * * *
0
7. Revise Sec. 2422.4 to read as follows:
[[Page 13942]]
Sec. 2422.4 What service requirements must you meet when filing a
petition or other documents?
You must serve every petition, motion, brief, request, challenge,
or written objection--as well as all supporting documentation--on all
parties affected by issues raised in the filing. But the service should
not include any of the following: a showing of interest; evidence
supporting challenges to the validity of a showing of interest;
evidence supporting objections to an election; the names of voters or
attendees at an election to effectuate a merger or change in
affiliation; or other evidence that would reveal the identity of an
employee engaged in an election proceeding. You must submit a statement
of service to the Regional Director.
0
8. Amend Sec. 2422.5 by revising paragraph (c) to read as follows:
Sec. 2422.5 Where do you file petitions?
* * * * *
(c) Date of filing. When a Regional Director receives a petition,
it is deemed filed, subject to the following conditions. A petition
received electronically or by facsimile on a business day--even if it
is received outside a Region's business hours--is deemed filed on the
day on which it is received (either by the Regional Office fax machine
or by the eFiling system), using the local time in the Region where it
is filed. A petition received electronically or by facsimile on a non-
business day is deemed filed on the next business day after it is
received (either by the Regional Office fax machine or by the eFiling
system), using the local time in the Region where it is filed. When a
Region receives a petition by any other method during its business
hours, it is deemed filed that day. But when a Region receives a
petition by any other method after the close of the business day, or on
a non-business day, it will be deemed filed on the next business day
after it is received. The business hours for each of the Regional
Offices are set forth at https://www.flra.gov.
0
9. Amend Sec. 2422.6 by revising paragraph (a) to read as follows:
Sec. 2422.6 How are parties notified of the filing of a petition?
(a) Notification to parties. After you file a petition, the
Regional Director will notify any labor organization, agency, or
activity identified as being affected by issues raised by the petition,
that a petition has been filed. The Regional Director will also make
reasonable efforts to identify and notify any other party affected by
the issues raised by the petition. However, the Regional Director's
reasonable efforts do not relieve you of your own notification and
service obligations.
* * * * *
0
10. Amend Sec. 2422.7 by revising paragraph (a) to read as follows:
Sec. 2422.7 Will an activity or agency post a notice of filing of a
petition?
(a) Posting notice of petition. After you file a petition, when
appropriate, the FLRA will direct the agency or activity to post copies
of a notice to all employees in places where notices are normally
posted for the employees affected by issues raised in the petition and/
or distribute copies of a notice in a manner by which notices are
normally distributed.
* * * * *
0
11. Amend Sec. 2422.9 by revising paragraph (b) to read as follows:
Sec. 2422.9 How is the adequacy of a showing of interest determined?
* * * * *
(b) FLRA investigation of showing of interest and Decision and
Order. The FLRA will conduct an investigation if deemed appropriate. An
FLRA determination that the showing of interest is adequate is not
subject to collateral or direct attack. If the FLRA determines that a
showing of interest is inadequate, then the FLRA will issue a Decision
and Order dismissing the petition, or denying the request to intervene.
0
12. Amend Sec. 2422.10 by revising paragraphs (b) and (e) to read as
follows:
Sec. 2422.10 How do you challenge the validity of a showing of
interest?
* * * * *
(b) Validity challenge. The FLRA or any party may challenge the
validity of a showing of interest.
* * * * *
(e) FLRA investigation and Decision and Order. The FLRA will
conduct an investigation if deemed appropriate. An FLRA determination
that a showing of interest is valid is not subject to collateral or
direct attack. If the FLRA finds that the showing of interest is not
valid, the FLRA will issue a Decision and Order dismissing the
petition, or denying the request to intervene.
0
13. Amend Sec. 2422.12 by revising the section heading and paragraphs
(a) through (e), (g), and (h) to read as follows:
Sec. 2422.12 What circumstances does the FLRA consider to determine
whether your petition is timely filed?
(a) Election bar. Where there is no certified exclusive
representative, a petition seeking an election will not be considered
timely if filed within twelve (12) months of a valid election,
including a decertification election, involving the same unit or a
subdivision of the same unit.
(b) Certification bar. Where there is a certified exclusive
representative of employees, a petition seeking an election, including
a decertification election, will not be considered timely if filed
within twelve (12) months after the certification--with or without an
election--of the exclusive representative of the employees in an
appropriate unit. If a collective bargaining agreement covering the
claimed unit is pending agency head review under 5 U.S.C. 7114(c) or is
in effect, paragraphs (c), (d), or (e) of this section apply.
(c) Bar during 5 U.S.C. 7114(c) agency head review. A petition
seeking an election, including a decertification election, will not be
considered timely if filed during the period of agency head review
under 5 U.S.C. 7114(c). This bar expires upon either the passage of
thirty (30) days absent agency head action, or upon the date of any
timely agency head action.
(d) Contract bar where the contract is for three (3) years or less.
Where a collective bargaining agreement is in effect covering the
claimed unit and has a term of three (3) years or less from the date it
became effective, a petition seeking an election, including a
decertification election, will be considered timely if filed not more
than one hundred and five (105) and not less than sixty (60) days
before the expiration of the agreement.
(e) Contract bar where the contract is for more than three (3)
years. Where a collective bargaining agreement is in effect covering
the claimed unit and has a term of more than three (3) years from the
date on which it became effective, a petition seeking an election,
including a decertification election, will be considered timely if
filed not more than one hundred and five (105) and not less than sixty
(60) days before the expiration of the initial three (3) year period,
and any time after the expiration of the initial three (3) year period.
* * * * *
(g) Premature extension. Where a collective bargaining agreement
with a term of three (3) years or less has been extended before sixty
(60) days before its expiration date, the extension will not serve as a
basis for dismissal of a petition seeking an election, including a
decertification election, filed in accordance with this section.
(h) Contract requirements. Collective bargaining agreements,
including agreements that go into effect under 5
[[Page 13943]]
U.S.C. 7114(c) and those that automatically renew without further
action by the parties, are not a bar to a petition seeking an election,
including a decertification election, under this section unless a clear
effective date, renewal date where applicable, duration, and
termination date are ascertainable from the agreement and relevant
accompanying documentation.
0
14. Revise Sec. 2422.13 to read as follows:
Sec. 2422.13 How are issues raised by your petition resolved?
(a) Meetings before filing a representation petition. All parties
affected by the representation issues that may be raised in a petition
are encouraged to meet before the filing of the petition to discuss
their interests and narrow and resolve the issues. If requested by all
parties, an FLRA representative will participate in these meetings.
(b) Meetings to narrow and resolve the issues after the petition is
filed. The FLRA may require all affected parties to meet to narrow and
resolve the issues raised in the petition.
0
15. Amend Sec. 2422.14 by revising the section heading and paragraphs
(a) and (b) to read as follows:
Sec. 2422.14 What is the effect of your withdrawal or the FLRA's
dismissal of a petition?
(a) Withdrawal/dismissal less than sixty (60) days before contract
expiration. (1) If you withdraw a timely filed petition seeking an
election, including a decertification election, or the FLRA dismisses
the petition less than sixty (60) days before the existing agreement
between the incumbent exclusive representative and the agency or
activity expires, or any time after the agreement expires, another
petition from you that seeks an election will not be considered timely
if filed within a ninety (90) day period beginning with either:
(i) The date on which the FLRA approves the withdrawal; or
(ii) The date on which the FLRA dismisses the petition.
(2) Other pending petitions that have been timely filed under this
part will continue to be processed.
(b) Withdrawal by petitioner. If you submit a withdrawal request
for a petition seeking an election, including a decertification
election, that the Regional Director receives after the Notice of
Hearing issues or after approval of an election agreement, whichever
occurs first, you will be barred from filing another petition seeking
an election for the same unit or any subdivision of the unit for six
(6) months from the date on which the FLRA approves the withdrawal.
* * * * *
0
16. Revise Sec. 2422.15 to read as follows:
Sec. 2422.15 Do parties have a duty to provide information and
cooperate after a petition is filed?
(a) Relevant information. After you file a petition, all parties
must, upon request of the FLRA, provide the FLRA and serve all parties
affected by issues raised in the petition with information concerning
parties, issues, and agreements raised in or affected by the petition.
(b) Inclusions and exclusions. After you file a petition seeking an
election, the FLRA may direct the agency or activity to provide the
Regional Director and all parties affected by issues raised in the
petition with a current alphabetized list of employees and job
classifications included in and/or excluded from the existing or
claimed unit affected by issues raised in the petition.
(c) Cooperation. All parties are required to cooperate in every
aspect of the representation process. This obligation includes
cooperating fully with the FLRA, submitting all required and requested
information, and participating in prehearing conferences and hearings.
The FLRA may take appropriate action, including dismissal of the
petition or denial of intervention, if parties fail to cooperate in the
representation process.
0
17. Amend Sec. 2422.16 by revising the section heading and paragraphs
(b) and (c) to read as follows:
Sec. 2422.16 May parties enter into election agreements, and if they
do not, will the FLRA direct an election?
* * * * *
(b) FLRA directed election. If the parties are unable to agree on
procedural matters, specifically, the eligibility period, method of
election, dates, hours, or locations of the election, the FLRA will
decide election procedures and issue a Direction of Election, without
prejudice to the rights of a party to file objections to the procedural
conduct of the election.
(c) Opportunity for a hearing. Before directing an election, the
FLRA will provide affected parties an opportunity for a hearing on non-
procedural matters, and then may:
(1) Issue a Decision and Order; or
(2) If there are no questions regarding unit appropriateness, issue
a Direction of Election without a Decision and Order.
* * * * *
0
18. Amend Sec. 2422.17 by revising the section heading and paragraphs
(a) and (b), and removing paragraph (d) to read as follows:
Sec. 2422.17 What are a Notice of Hearing and prehearing conference?
(a) Purpose of a Notice of Hearing. The FLRA may issue a Notice of
Hearing involving any issues raised in the petition.
(b) Contents. The Notice of Hearing will advise affected parties
about the hearing. The FLRA will also notify affected parties of the
issues raised in the petition and establish a date for the prehearing
conference.
* * * * *
0
19. Amend Sec. 2422.18 by revising paragraphs (c) and (d) to read as
follows:
Sec. 2422.18 What is the purpose of a representation hearing and what
procedures are followed?
* * * * *
(c) Hearing Officer. The FLRA assigns a Hearing Officer to conduct
a hearing. Another Hearing Officer may be substituted for the presiding
Hearing Officer at any time.
(d) Transcript. An official reporter will make the official
transcript of the hearing. Copies of the official transcript may be
examined in the appropriate Regional Office during normal business
hours. Parties should contact the official hearing reporter to purchase
copies of the official transcript.
0
20. Revise Sec. 2422.19 to read as follows:
Sec. 2422.19 When is it appropriate for a party to file a motion at a
representation hearing?
(a) Purpose of a motion. After the FLRA issues a Notice of Hearing
in a representation proceeding, a party who seeks a ruling, an order,
or relief must do so by filing or raising a motion stating the ruling,
order, or relief sought and the grounds in support.
(b) Prehearing motions. Parties must file prehearing motions in
writing with the FLRA. Any response must be filed with the FLRA within
five (5) days after service of the motion.
(c) Motions made at the hearing. During the hearing, parties may
make oral motions on the record to the Hearing Officer unless required
to be in writing. Responses may be oral on the record or in writing,
but must be provided before the hearing closes, absent permission of
the Hearing Officer.
(d) Posthearing motions. Parties must file motions made after the
hearing
[[Page 13944]]
closes in writing with the FLRA. Any response to a posthearing motion
must be filed with the FLRA within five (5) days after service of the
motion.
0
21. Amend Sec. 2422.20 by revising paragraph (d) to read as follows:
Sec. 2422.20 What rights do parties have at a hearing?
* * * * *
(d) Briefs. A party will be given an opportunity to file briefs
with the FLRA.
(1) A party must file an initial brief with the FLRA within thirty
(30) days from the close of the hearing.
(2) Within ten (10) days from a party's filing of an initial brief,
any other party may file with the FLRA a reply brief concerning the
initial brief.
(3) A request for an extension of time to file a brief must be in
writing and must be received by the FLRA no later than five (5) days
before the date the brief is due.
0
22. Revise Sec. 2422.21 to read as follows:
Sec. 2422.21 What are the duties and powers of the Hearing Officer?
(a) Duties of the Hearing Officer. The Hearing Officer receives
evidence and inquires fully into the relevant and material facts
concerning the matters that are the subject of the hearing.
(b) Powers of the Hearing Officer. After the FLRA assigns a case to
a Hearing Officer and before the close of the hearing, the Hearing
Officer may take any action necessary to schedule, conduct, continue,
control, and regulate the hearing, including ruling on motions when
appropriate.
0
23. Amend Sec. 2422.23 by revising paragraphs (a) through (c) and (e)
through (h) to read as follows:
Sec. 2422.23 What election procedures are followed?
(a) FLRA conducts or supervises election. The FLRA will decide to
either conduct or supervise the election. In supervised elections,
agencies will perform all acts as specified in the election agreement
or Direction of Election.
(b) Notice of Election. Before the election, the activity posts a
Notice of Election, prepared by the FLRA. The notice is posted in
places where notices to employees are customarily posted and/or
distributed in a manner by which notices are normally distributed. The
Notice of Election contains the details and procedures of the election,
including the appropriate unit; the eligibility period; the date(s),
hour(s), and location(s) of the election; a sample ballot; and the
effect of the vote.
(c) Sample ballot. The reproduction of any document that claims to
be a copy of the official ballot and that suggests either directly or
indirectly to employees that the FLRA endorses a particular choice in
the election may constitute grounds for setting aside an election if
objections are filed under Sec. 2422.26.
* * * * *
(e) Intervenor withdraws from ballot. When two or more labor
organizations are included as choices in an election, an intervening
labor organization may, before the approval of an election agreement or
before the Direction of Election, file a written request with the
Regional Director to remove its name from the ballot. If the Regional
Director does not receive the request before the approval of an
election agreement or before the Direction of Election, the intervening
labor organization will remain on the ballot, unless the parties and
the FLRA agree otherwise.
(f) Incumbent withdrawal from ballot in an election to decertify an
incumbent representative. When there is no intervening labor
organization, an election to decertify an incumbent exclusive
representative is not held if the incumbent provides the Regional
Director with a written disclaimer of any representational interest in
the unit. When there is an intervenor, an election is held if the
intervening labor organization proffers a thirty percent (30%) showing
of interest within the time period established by the FLRA.
(g) Petitioner withdraws from ballot in an election. When there is
no intervening labor organization, an election is not held if the
petitioner provides the Regional Director with a written request to
withdraw the petition. When there is an intervenor, an election is held
if the intervening labor organization presents a thirty percent (30%)
showing of interest within the time period established by the FLRA.
(h) Observers. Subject to the Regional Director's approval, all
parties may select representatives to observe at the polling
location(s).
(1) A party who wants to name observers must file a written request
with specific names with the Regional Director. This request must be
filed at least fifteen (15) days before an election. The Regional
Director may grant an extension of time to file a request for named
observers for good cause where a party requests an extension or on the
Regional Director's own motion. The request must name and identify the
observers requested.
(2) An agency or activity may use as its observers any employees
who are not eligible to vote in the election, except:
(i) Supervisors or management officials;
(ii) Employees who have any official connection with any of the
labor organizations involved; or
(iii) Non-employees of the Federal government.
(3) A labor organization may use as its observers any employees
eligible to vote in the election, except:
(i) Employees on leave without pay status who are working for the
labor organization involved; or
(ii) Employees who hold an elected office in the labor
organization.
(4) Within five (5) days after service of the request for
observers, any party that objects must file an objection with the
Regional Director that states the reasons.
(5) The FLRA's ruling on requests for and objections to observers
is final and binding.
0
24. Revise Sec. 2422.24 to read as follows:
Sec. 2422.24 What are challenged ballots?
(a) Filing challenges. A party or the FLRA may, for good cause,
challenge the eligibility of any person to participate in the election.
(b) Challenged ballot procedure. An individual whose eligibility to
vote is in dispute will be given the opportunity to vote a challenged
ballot. If the parties and the FLRA are unable to resolve the
challenged ballot(s) before the tally of ballots, then the FLRA will
impound and preserve the unresolved challenged ballot(s) until the FLRA
makes a determination, if necessary.
0
25. Amend Sec. 2422.25 by revising the section heading and paragraphs
(a) and (b) to read as follows:
Sec. 2422.25 When does the FLRA tally the ballots?
(a) Tallying the ballots. When the election is concluded, the FLRA
will tally the ballots.
(b) Service of the tally. When the tally is completed, the FLRA
will serve the tally of ballots on the parties in accordance with the
election agreement or direction of election.
* * * * *
0
26. Amend Sec. 2422.26 by revising paragraph (a) to read as follows:
Sec. 2422.26 How are objections to the election processed?
(a) Filing objections to the election. Any party may file
objections to the procedural conduct of the election or to conduct that
may have improperly affected the results of the election. A party must
file an objection and the Regional Director must receive it within five
(5) days after the tally of ballots has been served. Any objections
must be timely regardless of whether the
[[Page 13945]]
challenged ballots are sufficient in number to affect the results of
the election. The objections must be supported by clear and concise
reasons.
* * * * *
0
27. Amend Sec. 2422.27 by revising the section heading and paragraphs
(a) and (c), and removing paragraphs (d) and (e) to read as follows:
Sec. 2422.27 How does the FLRA address determinative challenged
ballots and objections?
(a) Investigation. The FLRA investigates objections and/or
determinative challenged ballots that are sufficient in number to
affect the results of the election.
* * * * *
(c) FLRA action. After investigation, the FLRA takes appropriate
action consistent with Sec. 2422.30.
0
28. Amend Sec. 2422.28 by revising paragraph (a) to read as follows:
Sec. 2422.28 When is a runoff election required?
(a) When a runoff may be held. A runoff election is required in an
election involving at least three (3) choices, one of which is ``no
union'' or ``neither,'' when no choice receives a majority of the valid
ballots cast. However, a runoff may not be held until the FLRA has
ruled on objections to the election and determinative challenged
ballots.
* * * * *
0
29. Revise Sec. 2422.29 to read as follows:
Sec. 2422.29 How does the FLRA address an inconclusive election?
(a) Inconclusive elections. An inconclusive election is one where
challenged ballots are not sufficient to affect the outcome of the
election and one of the following occurs:
(1) The ballot provides for at least three (3) choices, one of
which is ``no union'' or ``neither,'' and the votes are equally
divided; or
(2) The ballot provides for at least three (3) choices, the choice
receiving the highest number of votes does not receive a majority, and
at least two other choices receive the next highest and same number of
votes; or
(3) When a runoff ballot provides for a choice between two labor
organizations and results in the votes being equally divided; or
(4) When the FLRA determines that there have been significant
procedural irregularities.
(b) Eligibility to vote in a rerun election. The FLRA uses the
latest payroll period to determine eligibility to vote in a rerun
election.
(c) Ballot. If the FLRA determines that the election is
inconclusive, then the election will be rerun with all the choices that
appeared on the original ballot.
(d) Number of reruns. There will be only one rerun of an
inconclusive election. If the rerun results in another inconclusive
election, then the tally of ballots will show a majority of valid
ballots has not been cast for any choice, and the FLRA will issue a
certification of results. If necessary, a runoff may be held when an
original election is rerun.
0
30. Revise Sec. 2422.30 to read as follows:
Sec. 2422.30 When does the FLRA investigate a petition, issue a
Notice of Hearing, take action, and issue a Decision and Order?
(a) FLRA investigation. The FLRA will investigate the petition and
any other matter as the FLRA deems necessary.
(b) FLRA Notice of Hearing. The FLRA will issue a Notice of Hearing
to inquire into any matter about which a material issue of fact exists,
and any time there is reasonable cause to believe a question exists
regarding unit appropriateness.
(c) FLRA action. After investigation or hearing, the FLRA can
direct an election, or approve an election agreement, or issue a
Decision and Order.
Sec. 2422.31 [Removed and Reserved]
0
31. Remove and reserve Sec. 2422.31.
0
32. Revise Sec. 2422.32 to read as follows:
Sec. 2422.32 When does the FLRA issue a certification or a
revocation of certification?
(a) Certifications. The FLRA issues an appropriate certification
when:
(1) After an election, runoff, or rerun:
(i) No party files an objection or challenged ballots are not
determinative; or
(ii) The FLRA decides and resolves objections and determinative
challenged ballots; or
(2) The FLRA issues a Decision and Order requiring a certification.
(b) Revocations. Without prejudice to any rights and obligations
that may exist under the Statute, the FLRA revokes a recognition or
certification, as appropriate, and provides a written statement of
reasons when:
(1) An incumbent exclusive representative files, during a
representation proceeding, a disclaimer of any representational
interest in the unit; or
(2) A petition is filed and, due to a substantial change in the
character and scope of the unit, the unit is no longer appropriate and
an election is not warranted.
0
33. Revise Sec. 2422.33 to read as follows:
Sec. 2422.33 Relief under part 2423 of this chapter.
Remedial relief that was or could have been obtained as a result of
a motion, objection, or challenge filed or raised under this subpart,
may not be the basis for similar relief under part 2423 of this
chapter.
0
34. Revise Sec. 2422.34 to read as follows:
Sec. 2422.34 What are the parties' rights and obligations when a
representation proceeding is pending?
(a) Existing recognitions, agreements, and obligations under the
Statute. (1) Except for the circumstances described in paragraph (a)(2)
of this section, when a representation proceeding is pending before the
FLRA, parties must maintain existing recognitions, follow the terms and
conditions of existing collective bargaining agreements, and fulfill
all other representational and bargaining responsibilities under the
Statute.
(2) The filing of a motion for reconsideration or motion for a stay
does not relieve parties of their obligations to comply with a final
decision or order of the Authority, unless so ordered by the Authority.
(b) Unit status of individual employees. A party may take action
based on its position regarding the bargaining unit status of
individual employees, under 3 U.S.C. 431(d)(2), and 5 U.S.C.
7103(a)(2), 7112(b), and 7112(c), but its actions may be challenged,
reviewed, and remedied where appropriate.
0
35. Add Sec. 2422.35 to read as follows:
Sec. 2422.35 How do representation proceedings change when the
Authority lacks a quorum?
(a) When the Authority lacks a quorum. The Authority lacks a quorum
when the Authority has one or zero Members. The provisions of this
section apply to proceedings that arise when the Authority lacks a
quorum, consistent with section I.C. of appendix B to 5 CFR chapter
XIV.
(b) Withdrawal/dismissal of a petition less than sixty (60) days
before contract expiration. (1) Instead of Sec. 2422.14(a), this
paragraph (b) applies to proceedings that arise when the Authority
lacks a quorum.
(2) If you withdraw a timely filed petition seeking an election,
including a decertification election, or the FLRA dismisses the
petition less than sixty (60) days before the existing agreement
between the incumbent exclusive representative and the agency or
activity
[[Page 13946]]
expires, or any time after the agreement expires, another petition from
you that seeks an election will not be considered timely if filed
within a ninety (90) day period beginning with either:
(i) The date on which the FLRA approves the withdrawal; or
(ii) The date on which the Authority dismisses the petition; or
(iii) The date on which the Regional Director dismisses the
petition when the Authority does not receive an application for review;
or
(iv) The date on which the Authority rules on an application for
review.
(3) Other pending petitions that have been timely filed under this
part will continue to be processed.
(c) No interlocutory appeal of hearing determination. No party may
file an interlocutory appeal with the Authority concerning a Regional
Director's determination of whether to issue a Notice of Hearing.
(d) Appeal of Regional Director's Decision and Order. A party may
file with the Authority an application for review of a Regional
Director's Decision and Order.
(e) Contents of the record for appeal. All material submitted to,
and considered by, the Regional Director during an investigation
becomes part of the record. In addition, when a hearing has been held,
the transcript and all material entered in evidence, as well as any
posthearing briefs, become part of the record.
(f) Filing an application for review. A party must file an
application for review with the Authority within sixty (60) days of a
Regional Director's Decision and Order. The sixty (60) day time limit
under 5 U.S.C. 7105(f) may not be extended or waived. The filing party
must serve a copy on the Regional Director and all other parties, and
must also file a statement of service with the Authority.
(g) Contents of the application for review. An application for
review must be sufficient for the Authority to rule on the application
without looking at the record. However, the Authority may, in its
discretion, examine the record in evaluating the application. An
application must specify the matters and rulings to which exception is
taken, include a summary of evidence relating to any issue raised in
the application, and cite specific pages in the transcript if a hearing
was held. An application may not raise any issue or rely on any facts
not timely presented to the Hearing Officer or Regional Director.
(h) Review. The Authority may grant an application for review only
when the application demonstrates that review is warranted on one or
more of the following grounds:
(1) The decision raises an issue for which there is an absence of
precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director
has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error; or
(iii) Committed a clear and prejudicial error concerning a
substantial factual matter.
(i) Opposition. A party may file with the Authority an opposition
to an application for review within ten (10) days after the party is
served with the application. An opposition may not raise any issue or
rely on any facts not timely presented to the Hearing Officer or
Regional Director. The opposing party must serve a copy on the Regional
Director and all other parties, and must also file a statement of
service with the Authority.
(j) Regional Director's Decision and Order becomes the Authority's
action. A Decision and Order of a Regional Director becomes the action
of the Authority when:
(1) No party files an application for review with the Authority
within sixty (60) days after the date of the Regional Director's
Decision and Order; or
(2) A party files a timely application for review with the
Authority and, while the Authority has a quorum, the Authority does not
undertake to grant review of the Regional Director's Decision and Order
within sixty (60) days; or
(3) A party files a timely application for review with the
Authority and, after the Authority regains a quorum, the Authority
denies an application for review of the Regional Director's Decision
and Order.
(k) Authority grant of review and stay. The Authority may rule on
the issue(s) in an application for review in its order granting the
application for review. Neither a party filing, nor the Authority
granting, an application for review will stay any action ordered by the
Regional Director unless specifically ordered by the Authority.
(l) Briefs if review is granted. If the Authority does not rule on
the issue(s) in the application for review in its order granting
review, the Authority may, in its discretion, give the parties an
opportunity to file briefs. The briefs will be limited to the issue(s)
referenced in the Authority's order granting review. A party filing
such a brief must serve a copy on the Regional Director and all other
parties, and must also file a statement of service with the Authority.
(m) Service of process and Regional Directors' Decisions and
Orders. Decisions and Orders of Regional Directors are subject to the
requirements of Sec. 2429.12(a), (b), and (c) of this subchapter.
(n) Certifications. Instead of Sec. 2422.32(a), this paragraph (n)
applies to proceedings that arise when the Authority lacks a quorum.
The Regional Director issues an appropriate certification when:
(1) After an election, runoff, or rerun,
(i) No party files an objection or challenged ballots are not
determinative, or
(ii) The Regional Director decides and resolves objections and
determinative challenged ballots; or
(2) The Regional Director issues a Decision and Order requiring a
certification, and the Decision and Order becomes the action of the
Authority under paragraph (j) of this section; or
(3) The Authority directs the issuance of a certification.
PART 2426--NATIONAL CONSULTATION RIGHTS AND CONSULTATION RIGHTS ON
GOVERNMENT-WIDE RULES OR REGULATIONS
0
36. The authority citation for part 2426 continues to read as follows:
Authority: 5 U.S.C. 7134.
0
37. Amend Sec. 2426.2 by revising paragraph (b) to read as follows:
Sec. 2426.2 Requests; petition and procedures for determination of
eligibility for national consultation rights.
* * * * *
(b) Issues relating to a labor organization's eligibility for, or
continuation of, national consultation rights shall be referred for
determination as follows:
(1) A petition for determination of the eligibility of a labor
organization for national consultation rights under criteria set forth
in Sec. 2426.1 may be filed by a labor organization.
(2) A petition for determination of eligibility for national
consultation rights shall be submitted on a form prescribed by the FLRA
and shall set forth the following information:
(i) Name and affiliation, if any, of the petitioner and its
address, telephone number, and email address;
(ii) A statement that the petitioner has submitted to the agency or
the primary national subdivision and to the Assistant Secretary a
roster of its officers and representatives, a copy of its constitution
and bylaws, and a statement of its objectives;
[[Page 13947]]
(iii) A declaration by the person signing the petition, under the
penalties of the Criminal Code (18 U.S.C. 1001), that its contents are
true and correct to the best of such person's knowledge and belief;
(iv) The signature of the petitioner's representative, including
such person's title, telephone number, and email address;
(v) The name, address, telephone number, and email address of the
agency or primary national subdivision in which the petitioner seeks to
obtain or retain national consultation rights, and the persons to
contact and their titles, if known;
(vi) A showing that the petitioner holds adequate exclusive
recognition as required by Sec. 2426.1; and
(vii) A statement as appropriate:
(A) That such showing has been made to and rejected by the agency
or primary national subdivision, together with a statement of the
reasons for rejection, if any, offered by that agency or primary
national subdivision;
(B) That the agency or primary national subdivision has served
notice of its intent to terminate existing national consultation
rights, together with a statement of the reasons for termination; or
(C) That the agency or primary national subdivision has failed to
respond in writing to a request for national consultation rights made
under Sec. 2426.2(a) within fifteen (15) days after the date the
request is served on the agency or primary national subdivision.
(3) The following paragraphs (b)(3)(i) through (vii) of this
section govern petitions filed under this section:
(i) A petition for determination of eligibility for national
consultation rights shall be filed with the Regional Director for the
region wherein the headquarters of the agency or the agency's primary
national subdivision is located.
(ii) A statement of any other relevant facts and of all
correspondence shall be filed.
(iii) Copies of the petition together with the attachments referred
to in paragraph (b)(3)(ii) of this section shall be served by the
petitioner on all known interested parties, and a written statement of
such service shall be filed with the Regional Director.
(iv) A petition shall be filed within thirty (30) days after the
service of written notice by the agency or primary national subdivision
of its refusal to accord national consultation rights pursuant to a
request under Sec. 2426.2(a) or its intention to terminate existing
national consultation rights. If an agency or a primary national
subdivision fails to respond in writing to a request for national
consultation rights made under Sec. 2426.2(a) within fifteen (15) days
after the date the request is served on the agency or primary national
subdivision, a petition shall be filed within thirty (30) days after
the expiration of such fifteen (15) day period.
(v) If an agency or primary national subdivision wishes to
terminate national consultation rights, notice of its intention to do
so shall include a statement of its reasons and shall be served not
less than thirty (30) days prior to the intended termination date. A
labor organization, after receiving such notice, may file a petition
within the time period prescribed, and thereby cause to be stayed
further action by the agency or primary national subdivision pending
disposition of the petition. If no petition has been filed within the
provided time period, an agency or primary national subdivision may
terminate national consultation rights.
(vi) Within fifteen (15) days after the receipt of a copy of the
petition, the agency or primary national subdivision shall file a
response thereto with the Regional Director raising any matter which is
relevant to the petition.
(vii) The FLRA shall make such investigations as the FLRA deems
necessary and thereafter shall issue and serve on the parties a
Decision and Order with respect to the eligibility for national
consultation rights. The FLRA, if appropriate, may cause a Notice of
Hearing to be issued to all interested parties where substantial
factual issues exist warranting a hearing. Hearings shall be conducted
by a Hearing Officer in accordance with Sec. Sec. 2422.17 through
2422.22 of this subchapter, and after the close of the hearing, the
FLRA shall issue a Decision and Order in accordance with Sec. 2422.30
of this subchapter.
0
38. Amend Sec. 2426.12 by revising paragraph (b) to read as follows:
Sec. 2426.12 Requests; petition and procedures for determination of
eligibility for consultation rights on Government-wide rules or
regulations.
* * * * *
(b) Issues relating to a labor organization's eligibility for, or
continuation of, consultation rights on Government-wide rules or
regulations shall be referred for determination as follows:
(1) A petition for determination of the eligibility of a labor
organization for consultation rights under criteria set forth in Sec.
2426.11 may be filed by a labor organization.
(2) A petition for determination of eligibility for consultation
rights shall be submitted on a form prescribed by the FLRA and shall
set forth the following information:
(i) Name and affiliation, if any, of the petitioner and its
address, telephone number, and email address;
(ii) A statement that the petitioner has submitted to the agency
and to the Assistant Secretary a roster of its officers and
representatives, a copy of its constitution and bylaws, and a statement
of its objectives;
(iii) A declaration by the person signing the petition, under the
penalties of the Criminal Code (18 U.S.C. 1001), that its contents are
true and correct to the best of such person's knowledge and belief;
(iv) The signature of the petitioner's representative, including
such person's title, telephone number, and email address;
(v) The name, address, telephone number, and email address of the
agency in which the petitioner seeks to obtain or retain consultation
rights on Government-wide rules or regulations, and the persons to
contact and their titles, if known;
(vi) A showing that the petitioner meets the criteria as required
by Sec. 2426.11; and
(vii) A statement, as appropriate:
(A) That such showing has been made to and rejected by the agency,
together with a statement of the reasons for rejection, if any, offered
by that agency;
(B) That the agency has served notice of its intent to terminate
existing consultation rights on Government-wide rules or regulations,
together with a statement of the reasons for termination; or
(C) That the agency has failed to respond in writing to a request
for consultation rights on Government-wide rules or regulations made
under Sec. 2426.12(a) within fifteen (15) days after the date the
request is served on the agency.
(3) The following paragraphs (b)(3)(i) through (vii) of this
section govern petitions filed under this section:
(i) A petition for determination of eligibility for consultation
rights on Government-wide rules or regulations shall be filed with the
Regional Director for the region wherein the headquarters of the agency
is located.
(ii) A statement of any other relevant facts and of all
correspondence shall be filed.
(iii) Copies of the petition together with the attachments referred
to in paragraph (b)(3)(ii) of this section shall be served by the
petitioner on the agency, and a written statement of such
[[Page 13948]]
service shall be filed with the Regional Director.
(iv) A petition shall be filed within thirty (30) days after the
service of written notice by the agency of its refusal to accord
consultation rights on Government-wide rules or regulations pursuant to
a request under Sec. 2426.12(a) or its intention to terminate such
existing consultation rights. If an agency fails to respond in writing
to a request for consultation rights on Government-wide rules or
regulations made under Sec. 2426.12(a) within fifteen (15) days after
the date the request is served on the agency, a petition shall be filed
within thirty (30) days after the expiration of such fifteen (15) day
period.
(v) If an agency wishes to terminate consultation rights on
Government-wide rules or regulations, notice of its intention to do so
shall be served not less than thirty (30) days prior to the intended
termination date. A labor organization, after receiving such notice,
may file a petition within the time period prescribed, and thereby
cause to be stayed further action by the agency pending disposition of
the petition. If no petition has been filed within the provided time
period, an agency may terminate such consultation rights.
(vi) Within fifteen (15) days after the receipt of a copy of the
petition, the agency shall file a response thereto with the Regional
Director raising any matter which is relevant to the petition.
(vii) The FLRA shall make such investigations as the FLRA deems
necessary and thereafter shall issue and serve on the parties a
Decision and Order with respect to the eligibility for consultation
rights. The FLRA, if appropriate, may cause a Notice of Hearing to be
issued where substantial factual issues exist warranting a hearing.
Hearings shall be conducted by a Hearing Officer in accordance with
Sec. Sec. 2422.17 through 2422.22 of this subchapter, and after the
close of the hearing, the FLRA shall issue a Decision and Order in
accordance with Sec. 2422.30 of this subchapter.
0
39. Add subpart C, consisting of Sec. 2426.21, to read as follows:
Subpart C--Consultation Rights When the Authority Lacks a Quorum
Sec. 2426.21 Changes when the Authority lacks a quorum.
(a) The Authority lacks a quorum when the Authority has one or zero
Members. The provisions of this section apply to proceedings that arise
when the Authority lacks a quorum, consistent with section I.C. of
appendix B to 5 CFR chapter XIV.
(b) Instead of Sec. 2426.2(b)(3)(vii), this paragraph (b) applies
to proceedings that arise when the Authority lacks a quorum. The
Regional Director shall make such investigations as the Regional
Director deems necessary and thereafter shall issue and serve on the
parties a Decision and Order with respect to the eligibility for
national consultation rights that shall be final: Provided, however,
that an application for review of the Regional Director's Decision and
Order may be filed with the Authority in accordance with the procedure
set forth in Sec. 2422.35 of this subchapter. A determination by the
Regional Director to issue a Notice of Hearing shall not be subject to
the filing of an application for review. The Regional Director, if
appropriate, may cause a Notice of Hearing to be issued to all
interested parties where substantial factual issues exist warranting a
hearing. Hearings shall be conducted by a Hearing Officer in accordance
with Sec. Sec. 2422.17 through 2422.22 of this subchapter, and after
the close of the hearing, the Regional Director shall issue a Decision
and Order in accordance with Sec. 2422.30 of this subchapter.
(c) Instead of Sec. 2426.12(b)(3)(vii), this paragraph (c) applies
to proceedings that arise when the Authority lacks a quorum. The
Regional Director shall make such investigations as the Regional
Director deems necessary and thereafter shall issue and serve on the
parties a Decision and Order with respect to the eligibility for
consultation rights that shall be final: Provided, however, that an
application for review of the Regional Director's Decision and Order
may be filed with the Authority in accordance with the procedure set
forth in Sec. 2422.35 of this subchapter. A determination by the
Regional Director to issue a Notice of Hearing shall not be subject to
the filing of an application for review. The Regional Director, if
appropriate, may cause a Notice of Hearing to be issued where
substantial factual issues exist warranting a hearing. Hearings shall
be conducted by a Hearing Officer in accordance with Sec. Sec. 2422.17
through 2422.22 of this subchapter, and after the close of the hearing,
the Regional Director shall issue a Decision and Order in accordance
with Sec. 2422.30 of this subchapter.
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
0
40. The authority citation for part 2429 continues to read as follows:
Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28
U.S.C. 2112(a).
0
41. Revise Sec. 2429.2 to read as follows:
Sec. 2429.2 Transfer and consolidation of cases.
In any matter arising pursuant to parts 2422, 2423, and 2426 of
this subchapter, whenever it appears necessary in order to effectuate
the purposes of the Federal Service Labor-Management Relations Statute
or to avoid unnecessary costs or delay, the FLRA may consolidate cases
or may transfer cases to another region, for the purpose of
investigation or consolidation with any proceedings which may have been
instituted in, or transferred to, such region.
0
42. Revise Sec. 2429.5 to read as follows:
Sec. 2429.5 Matters not previously presented; official notice.
The Authority will not consider any evidence, factual assertions,
arguments (including affirmative defenses), requested remedies, or
challenges to an awarded remedy that could have been, but were not,
presented in the proceedings before the Administrative Law Judge or
arbitrator. The Authority may, however, take official notice of such
matters as would be proper.
0
43. Amend Sec. 2429.7 by revising paragraphs (c) and (e)(1) to read as
follows:
Sec. 2429.7 Subpoenas.
* * * * *
(c) A request for a subpoena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Regional Director,
in proceedings arising under parts 2422 and 2426 of this subchapter, or
with the Authority, in proceedings arising under parts 2424 and 2425 of
this subchapter, not less than 10 days prior to the hearing, or with
the appropriate presiding official(s) during the hearing. Requests for
subpoenas made less than 10 days prior to the opening of the hearing
shall be granted on sufficient explanation of why the request was not
timely filed.
* * * * *
(e)(1) Any person served with a subpoena who does not intend to
comply, shall, within 5 days after the date of service of the subpoena
upon such person, petition in writing to revoke the subpoena. A copy of
any petition to revoke a subpoena shall be served on the party on whose
behalf the subpoena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Regional Director in proceedings arising under parts 2422 and 2426
of this subchapter, and with the Authority, in proceedings arising
under parts 2424 and 2425 of this
[[Page 13949]]
subchapter, for ruling. A petition to revoke a subpoena filed during
the hearing, and a written statement of service, shall be filed with
the appropriate presiding official(s).
* * * * *
0
44. Amend Sec. 2429.12 by revising paragraph (a) to read as follows:
Sec. 2429.12 Service of process and papers by the Authority.
(a) Methods of service. Notices of hearings, decisions and
recommended orders of Administrative Law Judges, decisions of the
Authority, complaints, amended complaints, withdrawals of complaints,
written rulings on motions, and all other papers required by this
subchapter to be issued by the Authority, the General Counsel, Regional
Directors, Hearing Officers, Administrative Law Judges, and Regional
Directors when not acting as a party under part 2423 of this
subchapter, shall be served personally, by first-class mail, by
facsimile transmission, by certified mail, or, as described in the
final sentence of this paragraph (a) with respect to documents issued
by the Authority, by electronic mail (``email''). Where facsimile
equipment is available, rulings on motions; information pertaining to
prehearing disclosure, conferences, orders, or hearing dates and
locations; information pertaining to subpoenas; and other similar or
time sensitive matters may be served by facsimile transmission. Where a
party using the FLRA's eFiling system has consented to electronic
service of documents issued by the Authority in a particular case, the
Authority shall serve documents on that party exclusively by email to
the email address provided by the party.
* * * * *
0
45. Amend Sec. 2429.22 by revising paragraph (c) to read as follows:
Sec. 2429.22 Additional time for filing with the FLRA if you are
filing in response to a document that has been served on you by first-
class mail or commercial delivery.
* * * * *
(c) Exception for applications for review filed under 5 CFR
2422.35. You do not get an additional 5 days to file an application for
review of a Regional Director's Decision and Order under 5 CFR 2422.35,
regardless of the method of service of that Decision and Order.
* * * * *
0
46. Amend Sec. 2429.24 by revising paragraphs (f)(1), (2), (7), and
(9) to read as follows:
Sec. 2429.24 Place and method of filing; acknowledgement.
* * * * *
(f) * * *
(1) Applications for review under 5 CFR 2422.35(f) through (h);
(2) Oppositions to applications for review under 5 CFR 2422.35(i);
* * * * *
(7) Agencies' statements of position under 5 CFR 2424.24;
* * * * *
(9) Agencies' replies under 5 CFR 2424.26;
* * * * *
By the Authority
Thomas Tso,
Solicitor.
Note: The following will not appear in the Code of Federal
Regulations.
Dissenting View of Member Anne Wagner
I support exploring revisions to the Federal Labor Relations
Authority's (FLRA's) representation regulations, largely along the
lines of those in today's rule (with exceptions noted below). However,
I do not agree that we should make revisions using interim final
rulemaking. Today's revisions reflect the biggest changes to the FLRA's
representation case processing in nearly 43 years. I believe that our
stakeholders deserve an opportunity to review and comment on proposed
regulations, and that we should consider such comments, before we make
such sweeping operational changes.
Using interim final rulemaking effectively tells our stakeholders
that, although we welcome their comments, we will not necessarily
consider them. In my view, this risks generating potentially undue
skepticism among our stakeholders, and raising the likelihood of
challenges. It also may weaken the end product. Comments on proposed
regulations often improve those regulations, including by raising
issues that the drafters have not considered. Absent a need for nearly
immediate implementation--which is not present here--I believe we
should engage in notice-and-comment rulemaking. I note, in this regard,
that the draft notice does not contain a detailed description of how
representation cases will be processed internally at the FLRA under the
new regulations--undoubtedly because we are still in the process of
making those determinations. That is another reason not to rush the
process.
As for the contents of the rule, in the context of cases that arise
when the Authority lacks a quorum (``no-quorum'' cases), I am not
inclined to continue the current practice of prohibiting parties from
raising issues that they did not raise before Regional Directors or
Hearing Officers. The revised regulations--correctly, in my view--do
not contain such a prohibition in representation cases that are
processed when the Authority has a quorum. It thus seems incongruous to
me to have such a prohibition in ``no-quorum'' cases. Therefore, I
disagree with the pertinent wording in sections 2422.35(g) (concerning
applications for review) and 2422.35(i) (concerning oppositions to such
applications).
For the above reasons, I dissent from the majority's action today.
[FR Doc. 2026-05721 Filed 3-23-26; 8:45 am]
BILLING CODE 7627-01-P