The National Labor Relations Board (NLRB) on April 1 released its final rule implementing changes to its representation election procedures, which it proposed in August 2019. The rule is one of several pursued by the Board’s current Republican majority, which is on a mission “to more effectively administer the National Labor Relations Act” (NLRA) and to further its purposes.
In its proposal, the Board sought to amend three of its lesser-known policies related to handling petitions for a representation election: so-called blocking charges, the voluntary recognition bar, and the contract bar, which is specific to the construction industry. After considering public comments, the Board adopted most of what it had originally proposed.
The NLRB’s previous blocking charge policy allowed a party in a representation case to file repeated unfair labor practice charges challenging the validity of a petition or alleging coercion of the employees voting. In such cases, the election would not take place until the allegations were resolved, a process that could delay the vote for months or years. The proposed rule would have required the vote to take place but the ballots impounded until the resolution of the charges. The final rule will require the election to proceed and ballots to be impounded except in cases challenging “the circumstances surrounding the petition or the showing of interest” required for an election or if an employer is alleged to have “dominated” a union, a violation of the NLRA.
Under the Board’s voluntary recognition bar policy, when an employer voluntarily recognizes a union that act ostensibly obviates the need for an election. The previous policy implemented in such cases an immediate six-month bar on filing a representation petition after bargaining began. This automatic bar deprived employees of their right to vote or to seek decertification of the union for up to four years.
The Board’s proposal observed that the policy ran counter to its own preference for secret ballot elections and therefore employers would be required to post a notice that it had recognized a union, and employees could challenge the employer’s recognition by seeking within 45 days an NLRB election in those instances. The final rule did not alter the essential element of that proposal, but it made several smaller changes such as the effective date of the new policy, how the NLRB would be notified of the recognition, and the manner by which an employer must provide its notice to employees (including by email), among other things.
The last major element of the NLRB’s final rule deals with the NLRA’s Section 8(f) provision for the construction industry under which an employer and a union may maintain a collective bargaining contract in the absence of majority support otherwise necessary under Section 9(a) for most employers. The final rule overruled a dubious 2001 decision in Staunton Fuel in which the Board decided that a union could seek to “convert” from an “8(f)” union to a “9(a)” union through contract language, regardless of demonstrated support from employees. That decision effectively eviscerated employees’ fundamental rights under the NLRA, and the final rule will now require “positive evidence” of employee support in these cases.
The NLRB’s election protection rule addresses three relatively unknown provisions of the NLRA involving the more fundamental principle that the law exists to protect workers’ right to choose for themselves whether to have union representation. Inasmuch as it reverses activist policies to the contrary, the current Board is taking another step in the right direction.
UPDATE: Due to the ongoing COVID-19 pandemic, the NLRB on April 8 announcedthat it would delay the effective date of this final rule to July 31, 2020. The previous effective date was May 31, 2020.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
