NLRB Proposes Changes to Representation Election Procedures

On Aug. 12, the National Labor Relations Board published a Notice of Proposed Rulemaking titled Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, which proposes amendments to the representation election regulations.

“The board believes, subject to comments, that the proposed amendments would better protect employees’ statutory right of free choice on questions concerning representation,” the NLRB said in a news release.

The board majority is proposing three amendments:

• Blocking Charge Policy: Replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.

• Voluntary Recognition Bar: Returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the National Labor Relations Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.

• Section 9(a) Recognition in the Construction Industry: In the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

ABC’s general counsel, Littler Mendelson P.C., published an analysis with more information on the NLRB proposal.

The NLRB is soliciting feedback on the proposed rule, and the deadline for submitting comments is Oct. 11, 2019. ABC will continue to keep members informed of any developments about this proposal in Newsline.