On August 12, 2019, the National Labor Relations Board published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing three amendments to the representation election regulations located at 29 CFR part 103.
1. Blocking Charge Policy: This proposed amendment would establish a vote-and-impound procedure for processing representation petitions when a party has requested blocking the election based on a pending unfair labor practice charge.
Majority Appendix A analyzes data regarding petitions that proceeded to an election in FY 2016, FY 2017, and FY 2018, similar to the study done by Professor Samuel Estreicher. See Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, 5 FIU L. Rev. 361, 369-370 (2010).
In consultation with the Board’s Office of the Chief Information Officer, the Board obtained the spreadsheets in Majority Appendix B to ascertain the number of petitions that were blocked (and for how many days) prior to the holding of an election in Fiscal Years 2016, 2017, and 2018 and the total number of pending petitions that remained blocked and for which no election had been held as of December 31, 2018.
This document includes Member McFerran’s attempt to assemble and analyze a reliable list of the FY 2016- and FY 2017-filed RD, RC, and RM petitions that were blocked pursuant to the blocking charge policy, independent of the data relied upon by her colleagues or provided to the public in the past. It also includes charts from the agency’s website showing the numbers of petitions filed during those two fiscal years and a comparison of the total RD, RC, and RM petitions filed during 12-year period with the Majority’s asserted number of blocked petitions pending as of December 31, 2018.
2. Voluntary Recognition Bar: This proposed amendment would modify the current recognition bar policy by reestablishing a notice requirement and 45-day open period for filing an election petition following an employer’s voluntary recognition of a labor organization as employees’ majority-supported exclusive collective-bargaining representative under Section 9(a).
3. Section 9(a) Recognition in the Construction Industry: This proposed amendment would state that in order to prove the establishment of a Section 9(a) relationship in the construction industry and the existence of a contract bar to an election, extrinsic evidence is required to demonstrate that recognition was based on a contemporaneous showing of majority employee support.
The Federal Register publication of the NPRM regarding the Election Protection Rule can be found here. The NPRM can also be found on the Federal Register's website under Document Number 2019-17105.
Comments may be submitted through http://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. The rulemaking docket RIN is 3142-AA16. Comments must be submitted by 11:59 pm ET on October 11, 2019 in order to be considered. Responses to comments that are submitted may be filed no later than 11:59 pm ET on October 25, 2019.
Current Rules & Regulations regarding the representation election regulations.
Press Release (August 9, 2019)