NLRB Issues Notice of Proposed Rulemaking Amending Election Procedures

By Nelson Cary and Lauren Sanders

On August 12, 2019, the NLRB published a Notice of Proposed Rulemaking in the Federal Register regarding election procedures that the NLRB majority contends is essential to preserving employees’ right to free choice of representation.

The proposed rule contain three changes to current NLRB election regulations:

• First, it replaces the current blocking charge policy with a vote-and-impound procedure. That is, under the amended regulations, a union election would not be blocked by a pending unfair labor practice charge.  Instead, the ballots would be impounded until the charge was resolved.
• Second, it overrules Dana Corp, 351 N.L.R.B. 434 (2007). For voluntary recognition and for a post-recognition agreement to have a contract-bar effect, (1) the unit employees would need to be notified that voluntary recognition had been granted and (2) there would be a 45-day open period during which an election petition could be filed.
• Third, in the construction industry, it requires affirmative evidence of majority employee support to prove a Section 9(a) relationship.  Contract language alone would not be sufficient proof.

The only Democrat on the NLRB, Member Lauren McFerran, dissented from the proposed amendments.  In her opinion, the majority’s amendments, if implemented, would not protect employee free choice of representation.  Further, she believes that the majority’s proposal appears “arbitrary,” fails to meet even minimal standards of reasoned decision making, relies on faulty premises, does not ask critical questions, and fails to analyze data and agency experience.

Whether these proposed amendments are ultimately implemented is, at best, uncertain.  The proposal is subject to public comments during the public comment period, which currently extends until October 11, 2019.  Following the public comment period, the NLRB will review the comments received and make any necessary charges to develop a final amended election rule.  While it does not appear that any comments have been submitted at this time, the NLRB’s proposed joint employer rule alone prompted 29,000 comments, suggesting that this proposal could also receive significant public attention.

Regardless, the proposed amendments to the election procedures is more evidence that the NLRB, under Chairman Ring’s leadership, is moving (or attempting to move) towards more rulemaking, rather than relying on case adjudication, to set precedent.  As we previously reported, Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions.