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National Labor Relations Board Announces Another Proposed Rule Regarding Representation Elections

On Tuesday, July 28, 2020 the National Labor Relations Board (NLRB or “the Board”) published a Notice of Proposed Rulemaking in the National Federal Register. With its latest foray into rulemaking, the Board is looking to make two amendments to the current rules governing representation elections held under the National Labor Relations Act.  Both these amendments are subject to public comment for sixty days following the published notice.

This is the third set of amendments the NLRB has made to the election rules in the past twelve months.  In December 2019, the Board issued a proposed rule that would make sweeping changes to election rules and processes by eliminating many of the quickie election rules issued in 2015.  As you may have seen, a federal judge blocked implementation of some of those rules, holding they failed to comply with the APA by circumventing the notice-and-comment procedure.  The Board has since appealed that order, and implemented the rules that were unaffected by the order.  The Board also announced changes to the Board’s blocking charge policy, timing and notice requirements attendant to voluntary recognition, and 9(a) recognition in the construction industry in April.  Implementation of those rules was delayed until July 31 due to COVID-19.

The first amendment announced on July 28 seeks to eliminate the Board’s requirement that employers provide available personal email addresses and home and cell phone numbers of all eligible voters to the Regional Director.  The Board believes that the current requirement does not protect employees’ privacy interests, and eliminating this rule would better advance these important privacy interests.

The second amendment seeks to provide absentee ballots to employees currently on military leave.  In light of congressional policies that protect service members’ employment rights and provide them with the opportunity to vote in federal elections, the Board believes it should seek to accommodate service members during representation elections.  Additionally, the Board believes it can do so without impeding the resolution of these elections.

These two most recent proposed changes to NLRB representation election rules will not only protect employee privacy, but will also bolster enfranchisement for workers who are out of the workplace on military leave when an election occurs.  We will certainly track the progress of this most recent round of proposed rules and will keep you posted of any significant updates.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 211

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About this Author

Steven Porzio, Proskauer, labor attorney, employment lawyer,
Associate

Steven Porzio is an associate in the Labor & Employment Law Department and a member of both the Labor-Management Relations Group and Employment Law Counseling & Training Group. Steve assists both unionized and union-free clients with a full-range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and...

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Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.

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Samantha Shear Labor Employment Attorney
Associate

Samantha Shear is an associate in the New Orleans office and a member of the Labor and Employment Department. Samantha graduated cum laude from Tulane Law School where she spent two years as a member of the Judge John R. Brown moot court team. She served as coach of the moot court team one year, leading her team to win multiple awards for excellence in oral advocacy.

Prior to law school, Samantha worked as a freelance journalist for music publications.

Education

  • Tulane University Law School, J.D., 2018

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