Monday, February 28, 2005
National Labor Relations Board has revised its rules to create, effective
March 1, 2005, a new
representation case procedure:
the “Full Consent Election” Agreement.
Under the new procedure,
parties can agree that disputed pre-election and post-election issues will be
resolved with finality by a Regional Director with no appeal to the Board.
new rule permits parties to enter
into a voluntary agreement waiving their right to Board review and designating
the Regional Director to serve as the final authority in their case to resolve
disputes arising during the period from the filing of a representation
petition to the issuance of a certification of representative or certification
of results. After a hearing, the
Regional Director issues a final decision and certification with the same
force and effect, in that case, as if issued by the Board.
As adopted, Section 102.62(c) provides:
a petition has been duly filed, the employer and any individual or labor
organizations representing a substantial number of the employees involved may,
with the approval of the Regional Director, enter into an agreement providing
for a hearing pursuant to sections 102.63, 102.64, 102.65, 102.66 and 102.67
to resolve any issue necessary to resolve the question concerning
representation. Upon the
conclusion of such a hearing, the Regional Director shall issue a Decision.
The rulings and determinations by the Regional Director thereunder
shall be final, with the same force and effect, in that case, as if issued by
the Board. Any election ordered
by the Regional Director shall be conducted under the direction and
supervision of the Regional Director. The method of conducting such consent
election shall be consistent with the method followed by the Regional Director
in conducting elections pursuant to sections 102.69 and 102.70, except that
the rulings and determinations by the Regional Director of the results thereof
shall be final, and the Regional Director shall issue to the parties a
certification of the results of the election, including certifications of
representative where appropriate, with the same force and effect, in that
case, as if issued by the Board, provided further that rulings or
determinations by the Regional Director in respect to any amendment of such
certification shall also be final.
new procedure presents a third
voluntary method of informal
adjustment for parties to choose. Previously,
the Board made available to parties two types of consent procedures through
which representation issues can be resolved without recourse to formal
procedures – the “Stipulated Election” Agreement and the
“Consent Election” Agreement.
“Stipulated Election” Agreement – Under Section
102.62 (b), the parties decide that no pre-election hearing is necessary to
resolve disputed issues necessary to conduct an election.
Post-election challenges are decided by the Regional Director but can
go to the Board on exceptions.
“Consent Election” Agreement -- Under Section 102.62
(a), the parties stipulate to election details and authorize the Regional
Director to decide with finality post-election objections and challenged
ballot issues after a hearing. (The
“Full Consent Election” Agreement makes both pre- and post-election
issues subject to final disposition by the Regional Director.)
announcing the rules change, NLRB Chairman Robert J. Battista and General
Counsel Arthur F. Rosenfeld stated:
The new procedure is
designed to offer the parties the ability to have a secret ballot
Board-conducted representation election and still be able to expedite the
resolution of all questions concerning representation.
This is accomplished by allowing the parties to call upon the Board’s
Regional Directors to provide neutral, expert and prompt decision-making which
follows settled representation case law and the National Labor Relations Act.
For those who wish to waive their right to appeal to the Board, the
procedure provides yet another option available to the parties to fairly
determine the wishes of the employees as to whether or not they desire to be
represented by a union.
Additional information concerning the new “Full Consent Election”
Agreement can be obtained at www.nlrb.gov,
by contacting the Information Officer in any Regional Office directly, or by
calling the NLRB toll-free information number: 1-866-667-NLRB (TTY number