Advisory Opinions and Declaratory Orders Regarding Board Jurisdiction

29 C.F.R. Part ..., Subpart I
in effectEffective: 2024-07-01

29 C.F.R. § 102.98 Petition for advisory opinion; who may file; where to file.

Whenever an agency or court of any State or territory is in doubt whether the Board would assert jurisdiction over the parties in a proceeding pending before such agency or court, the agency or court may file a petition with the Board for an advisory opinion on whether the Board would decline to assert jurisdiction over the parties before the agency or the court (1) on the basis of its current standards, or (2) because the employing enterprise is not within the jurisdiction of the National Labor Relations Act.

29 C.F.R. § 102.99 Contents of petition for advisory opinion.

(a) A petition for an advisory opinion, when filed by an agency or court of a State or territory, must allege the following: (1) The name of the agency or court. (2) The names of the parties to the proceeding and the docket number. (3) The nature of the proceeding, and the need for the Board's opinion on the jurisdictional issue to the proceeding. (4) The general nature of the business involved in the proceeding and, where appropriate, the nature of and details concerning the employing enterprise. (5) The findings of the agency or court or, in the absence of findings, a statement of the evidence relating to the commerce operations of such business and, where appropriate, to the nature of the employing enterprise. (b) The petition or request must be submitted to the Board in Washington, DC.

29 C.F.R. § 102.100 Notice of petition; service of petition.

Upon the filing of a petition, the petitioner must simultaneously serve, in the manner provided by § 102.5(g), a copy of the petition on all parties to the proceeding and on the Director of the Board's Regional Office having jurisdiction over the territorial area in which such agency or court is located. A statement of service must be filed with the petition as provided by § 102.5(h).

29 C.F.R. § 102.101 Response to petition; service of response.

Any party served with such petition may, within 14 days after service thereof, respond to the petition, admitting or denying its allegations. The response must be filed with the Board in Washington, DC. The response must simultaneously be served on all other parties to the proceeding, and a statement of service must be filed in accordance with the provisions of § 102.5(h).

29 C.F.R. § 102.102 Intervention.

Any person desiring to intervene must file a motion for intervention, stating the grounds upon which such person claims to have an interest in the petition. The motion must be filed with the Board in Washington, DC.

29 C.F.R. § 102.103 Proceedings before the Board; briefs; advisory opinions.

The Board will thereupon proceed, upon the petition, responses, and submission of briefs, to determine whether, on the facts before it, the commerce operations of the employer involved are such that the Board would or would not assert jurisdiction. Such determination will be in the form of an advisory opinion and will be served on the parties. No briefs may be filed except upon special permission of the Board.

29 C.F.R. § 102.104 Withdrawal of petition.

The petitioner may withdraw the petition at any time prior to issuance of the Board's advisory opinion.

29 C.F.R. § 102.105 Petitions for declaratory orders; who may file; where to file; withdrawal.

Whenever both an unfair labor practice charge and a representation case relating to the same employer are contemporaneously on file in a Regional Office of the Board, and the General Counsel entertains doubt whether the Board would assert jurisdiction over the employer involved, the General Counsel may file a petition with the Board for a declaratory order disposing of the jurisdictional issue in the case. Such petition may be withdrawn at any time prior to the issuance of the Board's order.

29 C.F.R. § 102.106 Contents of petition for declaratory order.

(a) A petition for a declaratory order must allege the following: (1) The name of the employer. (2) The general nature of the employer's business. (3) The case numbers of the unfair labor practice and representation cases. (4) The commerce data relating to the operations of such business. (5) Whether any proceeding involving the same subject matter is pending before an agency or court of a State or territory. (b) The petition must be filed with the Board in Washington, DC.

29 C.F.R. § 102.107 Notice of petition; service of petition.

Upon filing a petition, the General Counsel will simultaneously serve a copy thereof on all parties and must file a statement of service as provided by § 102.5(h).

29 C.F.R. § 102.108 Response to petition; service of response.

Any party to the representation or unfair labor practice case may, within 14 days after service, respond to the petition, admitting or denying its allegations. The response must be filed with the Board in Washington, DC. The response must be served on the General Counsel and all other parties, and a statement of service must be filed as provided by § 102.5(h).

29 C.F.R. § 102.109 Intervention.

Any person desiring to intervene must file a motion for intervention, stating the grounds upon which such person claims to have an interest in the petition. The motion must be filed with the Board in Washington, DC.

29 C.F.R. § 102.110 Proceedings before the Board; briefs; declaratory orders.

The Board will proceed, upon the petition, responses, and submission of briefs, to determine whether, on the facts before it, the commerce operations of the employer involved are such that the Board would or would not assert jurisdiction over the employer. Such determination will be made by a declaratory order, with like effect as in the case of other orders of the Board, and will be served on the parties. Any party desiring to file a brief must file the brief with the Board in Washington, DC, with a statement that copies are being served simultaneously on the other parties.

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