[
Home ] [
Decisions ] [
Search ] [
Site Map ]
REPRESENTATION PETITIONS AND PROCEEDINGS
As part of the overall responsibility of administering the labor relations program for all Federal employees, only the FLRA may certify a labor organization to act as the exclusive representative of an appropriate unit of employees for collective bargaining or, thereafter, amend a certification or clarify matters relating to employee representation. The Office of the General Counsel (OGC), through its seven Regional Offices, processes representation petitions and conducts union elections. The three-member Authority resolves appeals of Regional Director Decisions and Orders in representation cases concerning union elections and bargaining unit determinations.
FAQs
What are the purposes for which a representation petition may be filed?
Is it possible to narrow and resolve issues raised by a petition before a petition is filed?
Are meetings held to narrow an resolve issues held after a petition is filed?
When must a request to intervene or a cross-petition be filed?
What must an employing agency submit to intervene in a representation proceeding?
After a representation petition is filed, what happens next?
What happens after the Regional Director has investigated the petition?
What happens after investigation and/or a hearing that the Regional Director has ordered?
If a party disagrees with the Regional Director's Decision and Order, what can a party do?
How are employees notified that there is going to be an election?
Who should you contact if you have additional questions pertaining to representation issues?
When is it necessary to file a representation petition?
Under section 7102 of the Statute, each employee has the right to "form, join or assist any labor organization" and section 7111 provides for agency recognition of labor organizations that have been chosen by a majority of employees in an appropriate unit. If employees want a labor organization to represent them in labor relations matters, a representation petition form (FLRA FORM 21) is filed with a Regional Office. Once recognition has been granted, a petition is used to clarify or amend the recognition as necessary, e.g., agency reorganization. This form prompts the Regional Office to begin representation proceedings.
In order to assure that employees have the fullest freedom in exercising their rights under the Statute, the employees who are eligible to vote in a representation election must share a "clear and identifiable community of interest" and the unit must promote effective dealings with, and efficiency of the operations of, the agency involved. Such a unit is called an "appropriate unit." The Regional Director makes appropriate unit determinations.
What are the purposes for which a representation petition may be filed?
Pursuant to section 2422.1(a) and 2422.2(a) and (b) and (c):
A representation petition may be filed to request:
an election to determine if employees in an appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative
a determination of eligibility for dues allotment in an appropriate unit without an exclusive representative
an election to determine if employees in a unit no longer wish to be represented for the purpose of collective bargaining by an exclusive representative
to seek clarification or amendment of a recognition or certification then in effect and/or any other matter relating to representation
to consolidate two or more units, with or without an election, in an agency and for which a labor organization is the exclusive representative
Where should you file the petition?
Petitions are filed with the Regional Director for the Region in which the unit or employees affected by the issue raised in the petition are located. If the unit(s) or employees are located in two or more of the seven regions, the petition is filed with the Regional Director for the region in which the headquarters of the agency or activity is located. See Section 2422.5(a) of the Regulations.
What is a showing of interest and when is it required?
A showing of interest means any of the following: evidence of membership in a labor organization; employees' signed and dated authorization cards or petitions authorizing a labor organization to represent them for purposes of exclusive recognition; allotment of dues forms executed by an employee and the labor organization's authorized official; current dues records; an existing or recently expired agreement; current exclusive recognition or certification; employees' signed and dated petitions or cards indicating that they no longer desire to be represented by the currently recognized or certified labor organization; or cards indicating a desire that an election be held on a proposed consolidation of units; or other evidence approved by the Authority.
The requirement that a showing of interest be made serves an administrative purpose to help avoid unnecessary expenditure of time and funds where there is no reasonable assurance that a genuine representation issue exists.
A petition described under ## 1, 2, or 3, above, in the answer to the first question, must be accompanied by a showing of interest. See Section 2422.1(a)(3).
What is an adequate showing of interest?
You must submit with the petition a showing of interest of not less than 30% of the employees in the unit involved in the petition and include an alphabetical list of the names constituting the showing of interest. See Section 2422.3(c) of the Regulations and section 7111(b)(1)(A) of the Statute.
Is it possible to narrow and resolve issues raised by a petition before a petition is filed?
Yes. All parties affected by the representation issues that may be raised in a petition are encouraged to meet prior to the filing of a petition to discuss their interests and to narrow and resolve the issues. If requested by all parties, a representative of the appropriate Regional Office will participate in these meetings. For example, parties have requested that Regional Office staff meet with them to discuss representation issues that may arise as a result of a reorganization of the agency. See Section 2422.13(a) of the Regulations.
What happens after a representation petition is filed?
After a petition is filed, the Regional Director notifies any labor organization, agency, or activity that the parties have identified as being affected by issues raised by the petition, that a petition has been filed. The Regional Director also will make a reasonable effort to notify any other party affected by the issues raised by the petition. See Section 2422.6(a).
When appropriate, the Regional Director may also direct the agency or activity to post notices of the filing of the petition.
Are meetings held to narrow an resolve issues held after a petition is filed?
Yes. After a petition is filed, a Regional Director may require all affected parties to meet to narrow and resolve the issues raised in the petition, e.g., to clarify the purpose of the petition; to obtain facts to clarify the petition; to prepare for a hearing. See Section 2422.13(b) of the Regulations.
The parties can also enter into a joint stipulation of the facts that address all appropriate unit issues in lieu of a hearing. See Section 2422.20(b) of the Regulations. In such cases, if the stipulation is adequate, the Regional Director reviews the record and issues a Decision and Order.
Once a representation petition is filed, how can another labor organization or agency become involved in the proceeding?
A labor organization or an agency may file a request to intervene or a cross-petition with the Regional Director or the Hearing Officer before a hearing opens. See Section 2422.8(b) of the Regulations. A cross-petition is a petition which involves any employees in a unit covered by a pending representation.
When must a request to intervene or a cross-petition be filed?
A request to intervene and a cross-petition, accompanied by any necessary showing of interest, must be submitted in writing and filed with the Regional Director or Hearing Officer before the hearing opens. See Section 2422.8(b) of the Regulations.
If no hearing is held, the request and filing must occur prior to the Regional Director's decision on the matter.
Does an incumbent exclusive representative need to submit any particular documents to intervene once a petition has been filed?
An incumbent exclusive representative is the labor organization that is the current exclusive representative of all of the employees in the unit sought by the petition. An incumbent exclusive representative will be considered a party in any representation proceeding raising issues that affect employees the incumbent represents, unless it serves the Regional Director with a written disclaimer of any representation interest in the claimed unit. See Section 2422.8(d) of the Regulations. Although not required, an incumbent exclusive representative should submit a copy of the contract or certification.
What must a request to intervene include if it is filed by a labor organization that is not the incumbent exclusive representative ?
Under Section 2422.8(c) of the Regulations, except for incumbent exclusive representatives, in addition to a statement that it has complied with section 7111(e) of the Statute (that is, that it has submitted to the Region and the agency involved a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives) a labor organization must include one of the following:
a showing of interest of 10% or more of the employees in the unit covered by a petition seeking an election, with an alphabetical list of the names of the employees constituting the showing of interest; or
a current or recently expired collective bargaining agreement covering any of the employees in the unit affected by issues raised in the petition; or
evidence that it is or was, prior to a reorganization, the recognized or certified exclusive representative of any of the employees affected by issues raised in the petition.
What must an employing agency submit to intervene in a representation proceeding?
Nothing. An employing agency or activity will be considered a party if any of its employees are affected by issues raised in the petition. See Section 2422.8(e) of the Regulations.
Any other agency or activity seeking to intervene must submit evidence that one or more employees of the agency or activity may be affected by issues raised in the petition. See Section 2422.8(f) of the Regulations.
After a representation petition is filed, what happens next?
After the representation petition is filed, the Regional Director investigates the petition and any other matter deemed necessary. The parties are required, during this investigation, to furnish the Regional Director all information concerning the parties, issues and agreements raised in or affected by the petition and to serve the parties with any information provided. See Section 2422.15 of the Regulations.
What happens after the Regional Director has investigated the petition?
In a petition for an election, if the parties agree to appropriateness of the unit, they may enter into an election agreement subject to the approval of the Regional Director. See Section 2422.16 of the Regulations.
In any petition, if after an investigation, there is a material issue of fact or there is reasonable cause to believe a question concerning unit appropriateness exists, the Regional Director may issue a notice of hearing. See Section 2422.30(b) of the Regulations.
What information is in a notice of hearing?
The notice of hearing advises the parties about the hearing, the issues raised in the petition, and establishes a date for a prehearing conference. See Section 2422.17 of the Regulations.
What happens at the prehearing conference?
The purpose of a prehearing conference, which is conducted by the Hearing Officer, is to fully discuss, narrow and resolve issues set forth in the notification of the prehearing conference. All parties must participate in the prehearing conference.
What is the purpose of a hearing?
Unlike a ULP hearing, a representation hearing is investigatory, not adversarial. The sole purpose is to develop a full and complete record of relevant and material facts upon which a Regional Director will rely in issuing a Decision and Order. See Section 2422.18(a) of the Regulations.
Hearings are conducted by a Hearing Officer who is appointed by the Regional Director. The Hearing Officer's job is to ensure that all relevant and material facts concerning the matters at issue have been addressed by the parties on the record and that the record contains evidence on these matters. See Section 2422.21(a). All hearings are open to the public unless otherwise ordered by the Hearing Officer. Unlike ULP hearings, there is no burden of proof, with the exception of proceedings on objections to elections. Formal rules of evidence do not apply at the hearings. See Section 2422.18(b) of the Regulations.
What rights do parties have at a representation hearing?
Parties at a hearing have the following rights:
To appear in person or by a representative
To examine and cross-examine witnesses
To introduce into the record relevant evidence
To present oral argument at the close of the hearing
To file a brief with the Regional Director within 30 days from the close of the hearing
See Section 2422.20 of the Regulations.
What happens after investigation and/or a hearing that the Regional Director has ordered?
The Regional Director resolves the matter in dispute and, when appropriate, directs an election or approves an election agreement, or issues a Decision and Order. See Section 2422.30 of the Regulations.
If a party disagrees with the Regional Director's Decision and Order, what can a party do?
A party that disagrees with a Regional Director's Decision and Order and seeks to appeal that determination must file an application for review with the Authority within 60 days of the Regional Director's Decision and Order. This time limit for filing may not be extended or waived. See Section 2422.31(a). For additional information about applications for review and representation proceedings, see the Authority's discussion of representation matters.
What happens when all parties agree to an election?
The parties are encouraged to enter into a voluntary election agreement. These agreements concern the details and procedures of a representation election in an appropriate unit. See Section 2422.16(a) of the Regulations. If the parties are unable to agree on procedural matters -- the eligibility period (the payroll period during which an employee must be in an employment status with an agency or activity to be eligible to vote in a representation election), method of election, dates, hours, locations of the election -- the Regional Director decides the election procedure and issues a Direction of Election without prejudice to the rights of a party to file objections to the procedural conduct of the election. The parties have an opportunity to have a hearing on any non-procedural matters. See Section 2422.16(c) of the Regulations.
How are employees notified that there is going to be an election?
The Regional Director issues a Notice of Election. This Notice is posted by the activity/agency in places where notices are customarily posted and distributed in a manner by which notices are normally distributed. The notice describes the election procedures -- the appropriate unit, the eligibility period, dates and hours and locations of the election, a sample ballot, and the effect of the vote. See Section 2422.23(b) of the Regulations.
How is the balloting conducted?
The Regional Director, through Regional Office agents, conducts all elections by secret ballot. Depending upon the circumstances, elections are accomplished either by manual balloting, mail balloting, or a combination of both methods. Whatever method is used, the Regional Office agents are responsible for ensuring the integrity of the secret-ballot process for the duration of the election. The agents are responsible for ensuring that employees are given the opportunity to vote ballots without interference, restraint, or coercion.
Can a party challenge the eligibility of a person to vote?
Yes. A party or the Regional Director, for good cause, may challenge the eligibility of any person to participate in the election prior to the employee voting. In this instance, the individual who is the subject of the challenge is given the opportunity to vote a challenged ballot. Any ballots that are unresolved before the tally of the ballots are impounded and preserved until a determination can be made, if necessary, by the Regional Director.
What are the choices that appear on the ballot?
Voters are given the opportunity to choose:
which of the labor organizations on the ballot the employees wish to have represent them; or
not to be represented by a labor organization (e.g., "no union" or "neither")
How is it decided who wins an election?
The choice that receives a majority of the votes cast in the election wins the election. See Section 2422.25(c) of the Regulations.
When would the results of an election be unclear?
The results of an election would be unclear if the election is inconclusive. That is, where the challenged ballots are not sufficient in number to affect the outcome of the election in certain situations, for example, if the ballot has at least three choices, one of which is "no union" or "neither" and the votes are equally divided. See section 2422.29(a) of the Regulations.
What happens if the result of an election is inconclusive where there are three choices none of which receives a majority of the votes cast?
In an election involving at least three choices and none of the choices receives a majority of the valid votes cast, a runoff election will be conducted between the two choices receiving the highest number of votes. See Section 2422.28 of the Regulations.
For example, in an election where 500 people voted and assuming no challenged ballots, if labor organization A receives 125 votes cast, labor organization B receives 240 votes cast, and "no union" receives 135 votes cast, there will be a runoff election between the two choices "labor organization B" and "no union." If labor organization B receives a majority of the valid votes cast in the runoff election it is certified as the exclusive representative.
Are there certain situations that may bar or preclude an election from being conducted in a petitioned-for unit?
Yes, the following situations bar an election from being conducted in a petition-for unit:
Election Bar -- No election will be conducted if a valid election has been conducted in the unit in the preceding 12 calendar months.
Certification Bar -- No election will be conducted if the FLRA has certified a labor organization as the exclusive representative of employees in the appropriate unit within the previous 12 calendar months. If a signed and dated agreement covering the claimed unit has been entered into, the contract bar rules would apply.
Contract Bar -- No election can be held if there is a collective bargaining agreement covering any employees in the claimed units, unless
the collective bargaining agreement has been in effect for more than three years, or
the petition for exclusive recognition is filed 60-105 days before the expiration date of the agreement.
and the date of the agreement must be clear and unambiguous.
Who should you contact if you have additional questions pertaining to representation issues?
As assigned by each Regional Director, Regional Representation Specialists (RRS), along with the Regional Office Agents, deliver OGC representation services within their respective Regions. The RRS coordinates the day-to-day delivery of such services his/her Regional Office and is available to field public inquiries concerning representation matters. The following chart lists each of the seven RRSs. Visit the Regional Office page for the address of each of the Regions.
|
REGION |
REG. REP. SPECIALIST |
TEL. # |
|
|
Atlanta |
Vacant | 404-331-5212 | |
| Boston | Carol Blackburn | 617-424-5731, x19 | cblackburn@flra.gov |
| Chicago | Andrea Kaden | 312-886-3465, x14 | akaden@flra.gov |
| Dallas | Shannon Rivers | 214-767-6266, x17 | srivers@flra.gov |
| Denver | Barry Fields | 303-844-5226, x21 | bfields@flra.gov |
| San Francisco | Robert Bodnar | 404-331-5212, x19 | rbodnar@flra.gov |
| Washington | Vacant | 202-428-6700 |
For additional information/guidance concerning representation matters, consult the General Counsel's Certification Checklist which assists unions and agencies in determining if their current certification properly identifies the bargaining unit and the union and agency to the collective bargaining relationship, i.e., whether or not you need to file a petition to clarify a unit.