Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
67A.6905,
67C.408
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
67A.6905(3) requires the
Education and Labor Cabinet to promulgate administrative regulations governing
elections for exclusive representatives of police officers and firefighter
personnel, firefighters, or corrections personnel employed by urban-county
governments. KRS
67C.408(3) requires the
Cabinet to promulgate administrative regulations governing elections for
exclusive representatives of police officers employed by consolidated local
governments. This administrative regulation establishes procedures for electing
and certifying exclusive representatives of police officers employed by
urban-county or consolidated local governments and firefighter personnel,
firefighters, or corrections personnel employed by urban-county
governments.
Section 1. Definitions.
(1) "Appropriate Collective Bargaining Unit"
means a group of police officers, firefighter personnel, firefighters, or
corrections personnel, as determined by the Cabinet considering the factors
outlined in KRS
67A.6905(2) and
KRS
67C.408(2), which is the
subject of a petition for election.
(2) "Commissioner" is defined in
KRS
67A.6901(1) and
67C.400(5).
(3) "Cross petition for election" means a
petition authorized by
KRS
67A.6905(1) or
67C.408(1)
seeking to intervene in a pending petition to elect an exclusive representative
of an appropriate collective bargaining unit.
(4) "Cross petitioner" means a person,
organization, or employer, authorized by
KRS
67A.6905(1) and
67C.408(1) to
request an election for an exclusive representative of an appropriate
collective bargaining unit, who files a cross petition for election.
(5) "Cabinet" is defined in
KRS
67A.6901(3) and
67C.400(1).
(6) "Exclusive representative" is defined in
KRS
67A.6901(4) and
67C.400(3).
(7) "Labor Organization" is defined in
KRS
67A.6901(7) and
67C.400(2).
(8) "Notice of Election" means a notice
prepared by the Cabinetcontaining the details of an election for an exclusive
representative, including the appropriate collective bargaining unit; voting
eligibility criteria; date, hours, method, and location of the election; sample
ballot; and effect of the vote.
(9)
"Petition for election" means a petition authorized by
KRS
67A.6905(1) or
67C.408(1)
requesting an election for an exclusive representative of an appropriate
collective bargaining unit.
(10)
"Petitioner" means a person, group, organization, or employer, authorized by
KRS
67A.6905(1) and
67C.408(1) to
request an election for an exclusive representative of an appropriate
collective bargaining unit, who files a petition for election.
Section 2. Petition for Election.
(1) An original and three (3) copies of a
petition for election shall be filed with the Cabinet and shall include the
following:
(a) The petitioner's name, address,
and affiliation, if any, along with the name and telephone number of the
petitioner's principal representative;
(b) The name and address of the urban-county
or consolidated local government employer, if the employer is not the
petitioner, along with the name and telephone number of the employer's
principal representative;
(c) A
description of the claimed appropriate collective bargaining unit specifying
the following:
1. The classifications of
employees included and excluded;
2.
The approximate number of employees;
3. The interests the employees have in common
regarding wages, hours, and other working conditions; and
4. The history of collective bargaining among
employees;
(d) The name
and address of any known labor organization that represents police officers,
firefighter personnel, firefighters, or corrections personnel in the claimed
appropriate collective bargaining unit;
(e) A clear and concise statement setting
forth the issues raised by the petition, including the proof required by
KRS
67A.6905(1)(a) through (b)
or 67C.408(1)(a) through
(b);
(f) Any other relevant facts; and
(g) The petitioner's signature and a
declaration, under penalty of perjury, by the person signing the petition that
the contents of the petition are true and correct to the best of the person's
knowledge.
(2) The party
filing a petition, cross petition, or other document permitted or required by
this administrative regulation shall serve a copy on all affected
parties.
(3) Within five (5) days
of the date a petition for election is filed, the Cabinet shall notify in
writing any affected party identified in the petition.
Section 3. Cross Petition for Election.
(1) A crosspetition for election shall be
filed within fifteen (15) days of the date the petition for election is filed
with the Cabinet.
(2) A
crosspetition for election shall be in the same form and contain the same
information required of a petition for election outlined in Section 2 of this
administrative regulation.
(3)
Within five (5) days of the date a cross petition for election is filed, the
Cabinet shall notify in writing any affected party identified in the cross
petition for election.
Section
4. Duty to Furnish Information and Cooperate.
(1) After a petition and any cross petition
are filed, the Cabinet may direct the petitioner, cross petitioner, or any
other affected party to submit additional information the Cabinet deems
relevant to an investigation of the issues raised by the petition or cross
petition, as required by
KRS
67A.6905(1) and
67C.408(1).
(2) In determining the appropriate collective
bargaining unit, as required by
KRS
67A.6905(2) and
67C.408(2), the
Cabinet may direct the urban-county or consolidated local government employer
to furnish a current, alphabetized list of employees and job classifications
included or excluded from the appropriate collective bargaining unit claimed in
the petition.
(3) All affected
parties shall cooperate with the Cabinet and each other in every aspect of the
election process. This obligation includes submitting all required and
requested information, making a good faith effort to agree on procedural
matters, and participating fully in conferences. Failure to cooperate may
result in the Cabinett taking appropriate action, including dismissing a
petition or denying intervention.
Section 5. Election Determination and
Notification.
(1) Within forty-five (45) days
of the date a petition for election is filed, the Cabinet shall evaluate the
petition and any cross petition to determine whether it meets the requirements
of Section 2(1) of this administrative regulation. The Cabinet may extend the
time for evaluation up to thirty (30) days if it requests additional
information from the petitioner, cross petitioner, or any other affected party,
as outlined in Section 4 of this administrative regulation.
(2) If the Cabinet determines that a petition
is valid, it shall establish the appropriate collective bargaining unit,
including voter eligibility, and notify in writing all affected parties that an
election shall be held. If the Cabinet determines that a petition is invalid,
the petition shall be dismissed.
(3) If the Cabinet determines that a cross
petition for election is valid, it shall notify in writing all affected parties
that the cross petitioner shall be allowed to intervene. If the Cabinet
determines that a cross petition is invalid, the cross petition shall be
dismissed, and the cross petitioner shall not be allowed to
intervene.
(4) Parties shall make a
good faith effort to enter into agreements on the procedural conduct of the
election, including the date, hours, method, and location. If the parties
cannot agree, the Cabinet shall determine the details of the
election.
(5) Within fifteen (15)
days of the date the Cabinet notifies the parties in writing whether the
petition and any cross petition are valid, it shall issue a notice of
election.
(6) At least ten (10)
days prior to the date of the election, the affected urban-county or
consolidated local government employer shall either post the notice of election
in a conspicuous place available to all affected employees or distribute the
notice to all affected employees in a manner by which employment notices are
normally distributed.
Section
6. Election Procedures.
(1) The
Cabinet shall supervise all elections.
(2) Voting shall be by secret
ballot.
(3) The cost of printing
and mailing ballots, if any, shall be borne equally by those whose names appear
on the ballot.
(4) The petitioner
shall appear first on the ballot. Cross petitioners shall appear in rank
according to the date and time the Cabinet receives each cross petition. "No
representative" or "none" shall be last on the ballot.
(5) If there is no pending cross petition, a
petitioner may withdraw its request for an election at any time by filing a
notice in writing with the Cabinet. If there is a valid cross petition, an
election shall be held; however, either the petitioner or cross petitioner may
remove its name from the ballot at any time prior to the date the election is
held.
(6) Parties may choose equal
numbers of observers to represent them at all polling locations, if elections
are held on site, and at the ballot counting, subject to the Cabinet's
approval. Observers for the employer shall not be supervisors of any employees
in the affected collective bargaining unit.
(a) Each party shall file a written list of
its proposed observers with the Cabinet at least ten (10) days prior to an
election.
(b) Written objections to
observers, stating specific reasons, shall be filed with the Cabinet within
five (5) days after service of the list.
(c) The Cabinet's decisions on observers are
final and binding.
(7)
If the election is conducted on site, the following procedures shall apply:
(a) Polling locations shall be clearly
marked. A private area or booth shall be available at each location for voters
to mark their ballots in secret.
(b) The parties shall not distribute or post
campaign literature within twenty-five (25) feet of the entrance of any polling
site during polling hours.
(c)
Cameras, video equipment, and similar means of surveillance shall be prohibited
within the actual polling area while employees are voting.
(d) The Cabinet representative shall examine
the ballot boxes in the presence of the authorized observers immediately prior
to opening the polls. When the polls are opened, each ballot box shall be
sealed, except for one (1) opening on the top for voters to insert their
ballots.
(e) Employees shall
present appropriate identification to the Cabinett representative to vote. A
voter shall make a cross or check in the circle or block on the ballot
corresponding to the voter's choice. If the voter inadvertently spoils a
ballot, he or she may return the ballot to the Cabinet representative, who
shall give the voter another ballot. The spoiled ballot shall be placed in a
spoiled ballot envelope; the Cabinet representative shall seal the envelope;
the authorized observers shall initial the envelope; and the Cabinet
representative shall deposit the envelope in the ballot box.
(f) A voter shall fold his or her ballot so
that no part of its face is exposed and, after leaving the voting area or
booth, shall deposit the ballot in the ballot box.
(g) The Cabinet representative may privately
assist any voter who, due to physical or other disability, is unable to mark
his or her ballot.
(h) The Cabinet
representative or any authorized observer may challenge, for good cause, the
eligibility of any voter. The observer shall state the reason for the
challenge. The Cabinet representative shall challenge any voter whose name does
not appear on the eligibility list. A challenged voter shall be permitted to
vote in secret. The Cabinet representative shall place the challenged voter's
ballot in a challenged ballot envelope, seal the envelope, and mark the voter's
name and the reason for the challenge on the outside of the envelope. The
authorized observers shall initial the envelope, and the Cabinet representative
shall deposit the envelope in the ballot box.
(i) If the Cabinet representative stops the
election for any reason, he or she shall completely seal the ballot boxes in
the presence of the authorized observers. The ballot boxes shall remain in the
custody of the Cabinet representative until voting resumes.
(j) Upon conclusion of the voting, the
Cabinet representative shall completely seal the ballot boxes, which shall be
initialed by the authorized observers, and bring them to a predetermined
location. All ballot boxes shall be opened when they are going to be counted,
and the ballots shall be commingled for tallying.
(k) Ballots shall be tallied in accordance
with the procedure established in Section 7 of this administrative
regulation.
(8) If the
election is conducted by mail, the following procedures shall apply:
(a) The Cabinet shall mail a packet
containing a ballot; a ballot envelope; a pre-printed employee identification
label with signature line; a pre-addressed, stamped, return envelope; and
instructions to each eligible voter.
(b) The instructions shall advise the voter
to mark the ballot without identifying himself or herself; place the ballot in
the ballot envelope; seal the ballot envelope and place it in the return
envelope; seal the return envelope; place the preprinted employee
identification code label with signature line across the seal; sign the label;
and mail the envelope. The instructions shall also advise the voter of the date
by which ballots shall be received in order to be counted.
(c) Mail ballots shall remain unopened in
their return envelopes until the date set for tallying. On the date set for
tallying, the Cabinet representative and the authorized observers may challenge
any ballots prior to the opening of the return envelopes. The voter's name,
signature, and employee identification code on the label covering the outside
envelope seal shall be used to determine if the voter is an eligible employee.
Challenged ballots shall be handled in accordance with Section 7 (3) of this
administrative regulation.
(d) All
ballots that have not been challenged shall be removed from their return
envelopes and commingled prior to tallying. The ballots shall be tallied in
accordance with Section 7 of this administrative regulation.
Section 7. Tallying
Ballots.
(1) After all elections, the Cabinet
shall tally ballots in the presence of authorized observers.
(2) Ballots which are defaced, torn, or
marked in such a manner that they do not indicate the voter's clear intent
shall be void and not counted.
(3)
Challenged ballots shall be handled as follows:
(a) The Cabinet representative shall impound
the challenged ballots, which shall be considered only if they could be
determinative of the outcome of the election.
(b) If challenged ballots could affect the
outcome of the election, the Cabinet representative shall examine each
challenged ballot, consult the established eligibility criteria, and decide
whether the ballot is legitimate and shall be counted.
(4) Representation shall be determined by the
majority of the valid ballots cast.
(5) If there are only two (2) choices on the
ballot (one (1) labor organization and "no representation"), each of which
receives fifty (50) percent of the vote, the Cabinet shall certify that a
majority of the eligible employees have not manifested a desire to be
represented by the labor organization.
(6) If there are three (3) or more choices on
the ballot (two (2) or more labor organizations and "no representation") and no
choice receives a majority of the valid ballots cast, the Cabinett shall
conduct a runoff election between the two (2) choices that received the most
votes, as provided in
KRS
67A.6905(3),
67C.408(3), and
Section 8 of this administrative regulation.
(7) The Cabinet shall preserve and protect
all ballots and election records for at least sixty (60) days from the date
results of the election have been certified.
Section 8. Runoff Election.
(1) A runoff election prescribed in
KRS
67A.6905(3) or
67C.408(3)
shall not be held until the Cabinet or commissioner has ruled on any challenges
to ballots and objections to the election.
(2) In order to vote in a runoff election an
employee shall have been eligible to vote in the original election and still be
in the appropriate collective bargaining unit on the date of the runoff
election.
(3) The parties shall
follow the procedures in a runoff election established for elections in Section
6 of this administrative regulation.
Section 9. Certification of Election Results.
If challenged ballots are insufficient in number to affect the results, no
runoff election is to be held, and no timely objections are filed as provided
in Section 10 of this administrative regulation, the Cabinet shall promptly
certify the results of the election and notify all affected parties in
writing.
Section 10. Objections to
Election.
(1) Within five (5) days after
receiving the vote tally, any party to the election may file objections to the
conduct of the election.
(a) Objections shall
be in writing and contain a brief statement of facts upon which the objections
are based.
(b) An original of the
objections, containing the declaration required by Section 2(1)(g) of this
administrative regulation, and three (3) copies shall be filed with the
commissioner.
(c) The party filing
objections shall serve a copy of the objections upon each of the other parties
at the same time it files with the commissioner.
(2) Within ten (10) days after the objections
are filed, the objecting party shall submit to the commissioner, with copies
served upon all parties, a statement of material facts and issues, including a
summary of evidence supporting the objections.
(3) Within ten (10) days of the date the
statement of material facts and issues is filed with the commissioner, an
affected party may file a response.
(4) The commissioner or designated
representative shall promptly investigate the allegations, conduct a conference
with all affected parties, and issue a report within thirty (30) days of
receiving the statement of material facts and issues.
(a) If the commissioner finds reasonable
cause to believe that the election was not fairly and freely chosen by a
majority of the employees in the appropriate collective bargaining unit, he or
she shall order a new election and any other corrective action necessary to
insure the fairness of the election process.
(b) If the commissioner determines, upon
investigation, that the election was freely and fairly chosen by a majority of
the employees in the appropriate collective bargaining unit, he or she shall
certify the results of the election.
(c) The commissioner's findings regarding the
objections are final and binding.
STATUTORY AUTHORITY:
KRS
67A.6905(3),
67C.408(3)