Published
November 09, 2022
On Thursday, November 3, 2022, the National Labor Relations Board (NLRB) announced a Notice of Proposed Rulemaking (NPRM) regarding election-blocking charges, voluntary recognition, and collective bargaining relationships in the construction industry. The proposed “Fair Choice and Employee Voice” rule is the latest effort by the current NLRB majority to unwind the work of the prior Board majority and rescind the final rule that majority adopted on April 1, 2020.
The revised 2020 blocking charge policy implemented either a vote-and-count or a vote-and-impound procedure, meaning that pending unfair labor practice charges (ULPs) would not block a representation election from occurring until the charges alleging coercive conduct are adjudicated.
The current proposal would return the status quo ante whereby a union can file ULPs alleging election interference to delay an election it fears it may be losing.
The voluntary recognition bar under the 2020 final rule reinstated the holding of Dana Corp., 351 NLRB 434 (2007). In that case, the Board determined that in order for voluntary recognition under Section 9(a) of the National Labor Relations Act (NLRA) to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees would have to receive notice that voluntary recognition has been granted and be given a 45-day period to file an election petition.
The current proposal would eliminate the required notice-and-election procedure triggered by an employer’s voluntary recognition of a union based on signature cards purporting to demonstrate employee support of union representation (i.e., card check).
Lastly, the 2020 regulation specified that in the construction industry, where bargaining relationships established under Section 8(f) of the NLRA cannot bar petitions for a Board election, proof of a Section 9(a) relationship would require positive evidence of majority employee support and could not be based on contract language alone.
The current proposal would allow a collective-bargaining agreement to serve as sufficient evidence that voluntary recognition was based on Section 9(a) of the Act, and it would restore a six-month limitation period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a).
Comments on the NLRB’s proposal are due January 3, 2023.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
