NLRB proposes rulemaking on employee free choice

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The NLRB will publish a Notice of Proposed Rulemaking [Federal Register] on August 12, 2019, proposing three amendments to its Rules and Regulations that "would better protect employees’ statutory right of free choice on questions concerning representation."

Blocking Charge Policy: Replace 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: Return 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: 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).

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.