NLRB Proposes Rulemaking to Protect Employee Free Choice

WASHINGTON, DC — The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) on August 12, 2019, in the Federal Register proposing amendments to Part 103 of its Rules and Regulations. The Board believes, subject to comments, that the proposed amendments would better protect employees’ statutory right of free choice on questions concerning representation. As detailed in the NPRM, the Board majority is proposing three amendments: Blocking Charge Policy: The NPRM proposes 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: The NPRM proposes returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the 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: The NPRM proposes that 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). In announcing the proposed amendments, Board Chairman John F. Ring stated: “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom. Our proposals are, however, subject to comment, and we look forward to reviewing the public’s input with an open mind.”  Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in proposing the amendments. Board Member Lauren McFerran dissented. The NPRM, including majority and dissenting opinions, as well as relevant statistical appendices cited in those opinions, can be accessed on the Board’s public website. Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. Any person wishing to comment on any ongoing rulemaking by the National Labor Relations Board must do so in accordance with the applicable Notice of Proposed Rulemaking. Communications submitted in any other manner, including comments on this website, will not be considered by the Board.  Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.