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e-CFR data is current as of January 19, 2021

Title 29Subtitle BChapter IPart 103 → Subpart B


Title 29: Labor
PART 103—OTHER RULES


Subpart B—Election Procedures


Contents
§103.20   Election procedures and blocking charges.
§103.21   Processing of petitions filed after voluntary recognition.
§103.22   Proof of majority-based bargaining relationship between employer and labor organization in the construction industry.

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§103.20   Election procedures and blocking charges.

(a) Whenever any party to a representation proceeding files an unfair labor practice charge together with a request that the charge block the election process, or whenever any party to a representation proceeding requests that its previously filed unfair labor practice charge block the election process, the party shall simultaneously file, but not serve on any other party, a written offer of proof in support of the charge. The offer of proof shall provide the names of the witnesses who will testify in support of the charge and a summary of each witness's anticipated testimony. The party seeking to block the election process shall also promptly make available to the regional director the witnesses identified in its offer of proof.

(b) If charges are filed alleging violations other than those described in paragraph (c) of this section, the ballots will be promptly opened and counted at the conclusion of the election.

(c) If charges are filed that allege violations of section 8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act and that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, or a charge is filed that alleges an employer has dominated a union in violation of section 8(a)(2) and seeks to disestablish a bargaining relationship, the regional director shall impound the ballots for up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed prior to the conclusion of the election. If a complaint issues with respect to the charge at any point prior to expiration of that 60-day post-election period, then the ballots shall continue to be impounded until there is a final determination regarding the charge and its effect, if any, on the election petition. If the charge is withdrawn or dismissed at any time during that 60-day period, or if the 60-day period ends without a complaint issuing, then the ballots shall be promptly opened and counted. The 60-day period will not be extended, even if more than one unfair labor practice charge is filed serially.

(d) For all charges described in paragraphs (b) or (c) of this section, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.

[85 FR 18399, Apr. 1, 2020]

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§103.21   Processing of petitions filed after voluntary recognition.

(a) An employer's voluntary recognition of a labor organization as exclusive bargaining representative of an appropriate unit of the employer's employees under section 9(a) of the Act, and the first collective-bargaining agreement executed by the parties on or after the date of such voluntary recognition, will not bar the processing of an election petition unless:

(1) The employer and/or the labor organization notifies the Regional Office that recognition has been granted;

(2) The employer posts, in conspicuous places, including all places where notices to employees are customarily posted, a notice of recognition (provided by the Regional Office) informing employees that recognition has been granted and that they have a right to file a petition during a 45-day “window period” beginning on the date the notice is posted;

(3) The employer distributes the notice described in paragraph (a)(2) of this section electronically to employees in the petitioned-for unit, if the employer customarily communicates with its employees electronically; and

(4) 45 days from the posting date pass without a properly supported petition being filed.

(5) The notice described in paragraph (a)(2) of this section shall state as follows:

Federal law gives employees the right to form, join, or assist a union and to choose not to engage in these protected activities.

An employer may lawfully recognize a union based on evidence (such as signed authorization cards) indicating that a majority of employees in an appropriate bargaining unit desire its representation, without an election supervised by the National Labor Relations Board.

Once an employer recognizes a union as the employees' exclusive bargaining representative, the employer has an obligation to bargain with the union in good faith in an attempt to reach a collective-bargaining agreement, and that obligation is not delayed or otherwise impacted by this notice.

The National Labor Relations Board is an agency of the United States Government and does not endorse any choice about whether employees should keep the recognized union, file a petition to certify the recognized union, file a petition to decertify the recognized union, or support or oppose a representation petition filed by another union.

[Employer] on [date] recognized [Union] as the employees' exclusive bargaining representative based on evidence indicating that a majority of employees in [described bargaining unit] desire its representation.

All employees, including those who previously signed cards in support of [Union], have the right to be represented by a union of their choice or by no union at all.

Within 45 days from the date of this notice, a petition supported by 30 percent or more of the unit employees may be filed with the National Labor Relations Board for a secret-ballot election to determine whether or not the unit employees wish to be represented by [Union], or 30 percent or more of the unit employees can support another union's filing of a petition to represent them.

Any properly supported petition filed within the 45-day window period will be processed according to the National Labor Relations Board's normal procedures.

A petition may be filed within the 45-day window period even if [Employer] and [Union] have already reached a collective-bargaining agreement.

If no petition is filed within the 45-day window period, the Union's status as the unit employees' exclusive bargaining representative will be insulated from challenge for a reasonable period of time, and if [Employer] and [Union] reach a collective-bargaining agreement during that insulated reasonable period, an election cannot be held for the duration of that collective-bargaining agreement, up to 3 years.

(b) This section shall be applicable to an employer's voluntary recognition on or after the effective date of this rule.

[85 FR 18399, Apr. 1, 2020]

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§103.22   Proof of majority-based bargaining relationship between employer and labor organization in the construction industry.

(a) A voluntary recognition or collective-bargaining agreement between an employer primarily engaged in the building and construction industry and a labor organization will not bar any election petition filed pursuant to section 9(c) or 9(e) of the Act absent positive evidence that the union unequivocally demanded recognition as the section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit. Collective-bargaining agreement language, standing alone, will not be sufficient to provide the showing of majority support.

(b) This section shall be applicable to an employer's voluntary recognition extended on or after the effective date of this rule and to any collective-bargaining agreement entered into on or after the date of voluntary recognition extended on or after the effective date of this rule.

[85 FR 18400, Apr. 1, 2020]

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