§ 103.20 - Election procedures and blocking charges.

§ 103.20 Election procedures and blocking charges.

Cross Reference

Link to an amendment published at 89 FR 63026, Aug. 1, 2024.

(a) Whenever any party to a representation proceeding files an unfair labor practice charge together with a request that the charge it block the processing of the petition to the election process, or whenever any party to a representation proceeding requests that its previously filed unfair labor practice charge block the election processfurther processing of the petition, 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 processing of a petition 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 electionthe regional director determines that the party's offer of proof describes evidence that, if proven, would interfere with employee free choice in an election, the regional director shall, absent special circumstances, hold the petition in abeyance and notify the parties of this determination.

(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director shall impound the ballots for up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed prior to the conclusion of the election.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 If the charge is withdrawn or dismissed at any time during that 60-day period, or if the 60-day period ends without a complaint issuing, then the ballots shall be promptly opened and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

the regional director determines that the party's offer of proof describes evidence that, if proven, would be inherently inconsistent with the petition itself, the regional director shall, absent special circumstances, hold the petition in abeyance and notify the parties of this determination; in appropriate circumstances, the regional director should dismiss the petition subject to reinstatement and notify the parties of this determination.

(d) If the regional director determines that the party's offer of proof does not describe evidence that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director shall continue to process the petition and conduct the election where appropriate.

(e) If, after holding a petition in abeyance, the regional director determines that special circumstances have arisen or that employee free choice is possible notwithstanding the pendency of the unfair labor practices, the regional director may resume processing the petition.

(f) If, upon completion of investigation of the charge, the regional director determines that the charge lacks merit and is to be dismissed, absent withdrawal, the regional director shall resume processing the petition, provided that resumption of processing is otherwise appropriate.

(g) Upon final disposition of a charge that the regional director initially determined had merit, the regional director shall resume processing a petition that was held in abeyance due to the pendency of the charge, provided that resumption of processing is otherwise appropriate.

(h) The provisions of this section are intended to be severable. If any paragraph of this section is held to be unlawful, the remaining paragraphs of this section not deemed unlawful are intended to remain in effect to the fullest extent permitted by law.

[89 FR 63026, Aug. 1, 2024]