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.