Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On November 3, 2022 the National Labor Relations Board issued a Notice of Proposed Rulemaking (NPRM) that, if adopted, would rescind a rule issued under the prior administration addressing blocking charges, voluntary recognition, and construction industry bargaining relationships. The proposed changes would generally favor unions and disadvantage employers.
The Current Rule
The Final Rule adopted by the Board on April 1, 2020:
- Allows representation elections to move forward, with impounded ballots, even where pending unfair labor practice charges arguably require a re-run election because of the employer’s allegedly coercive conduct;
- Permits challenge to the representation status of a union that an employer voluntarily recognized based on a showing of majority support even before a reasonable time for collective bargaining has elapsed; and
- In the construction industry, requires “positive evidence” of contemporaneous majority support to convert a project-based labor agreement into a traditional collective bargaining relationship.
The November 3, 2022 NPRM seeks to change the 2020 Final Rule in the following ways:
The Board would return to pre-April 2020 blocking charge policy by permitting regional directors to decline to process an election petition at the request of the party filing an unfair labor practice charge alleging conduct that would interfere with the laboratory conditions of an election and the free choice of the employees.
The Board explained its rationale for returning to prior precedent as follows:
By shielding employees from having to vote under coercive conditions, the historical blocking charge policy would seem to be more compatible with the policies of the Act and the Board's responsibility to provide laboratory conditions for ascertaining employee choice during Board-conducted elections. In short, we are inclined to believe, subject to comments, that it is the 80-year-old blocking charge policy, not the April 2020 final rule amendments requiring elections in all cases involving requests to block, that best protects employee free choice in the election process.
If adopted, the proposed rule would allow unions to delay a pending election by filing unfair labor practice charges with an allegation that employees cannot exercise their free choice under the alleged coercive conditions. This maneuver would enable a union to postpone an election it expected to lose and to gain added time to campaign. It could also delay decertification petitions filed by employees who want to remove the union that currently represents them.
Voluntary Recognition Bar
The Board also proposes to restore the prior “voluntary recognition bar” under which an employer that voluntary recognizes a union cannot withdraw such recognition, and employees cannot petition for decertification, until a minimum of six months to a maximum of one year from the first bargaining session to allow the collective bargaining process “a fair chance to succeed.”
The Board asserts that the 2020 Final Rule undermines the stability required to negotiate a first contract because it permits the employer to question the union’s right to represent the bargaining unit too quickly. In support of this proposed change, the Board states that there is “no evidence that voluntary recognition is suspect and thus there is nothing to outweigh the reasonable tendency of the current rule to undermine employee free choice (as reflected in the lawful designation of the voluntary recognized union) and to interfere with effective collective bargaining.” The NPRM states that federal labor policy favors voluntary recognition.1
The Board has invited comments on whether it should adopt a parallel rule to apply in the unfair labor practice setting, “prohibiting an employer—which otherwise would be privileged to withdraw recognition based on the union's loss of majority support—from withdrawing recognition from a voluntarily recognized union, before a reasonable period for collective bargaining has elapsed.” This approach would maintain a union in the workplace even where a majority of employees do not wish to be represented by it.
Proof of a Section 9(a) Recognition in the Construction Industry
Section 9 of the NLRA provides special rules for recognition of unions in the construction industry. According to Staunton Fuel & Material, 335 NLRB 717 (2011) and other Board decisions, unions and employers can install a union under Section 9 as the representative for the employees through contract language alone. The grant of Section 9(a) status to a union triggers the voluntary recognition bar and the contract bar into the employer-union relationship. The 2020 Final Rule required, in addition to contract language, that there be “positive evidence” of contemporaneous support of the union by a majority of employees. The current Board seeks to return to the “contract language alone” standard. The proposed rule would also restore a six-month limitation period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a). Detailed language in the collective bargaining agreement would be deemed to supply ample evidence that voluntary recognition was permitted by section 9(a) of the Act.
Through its latest rulemaking proposal the Board continues to support union organizing efforts, and indicates that the policy oscillation evident though Board adjudications is likely to become a fixture of the Board’s rulemaking efforts as well.
Comments to the Board on the proposed rule are due January 3, 2023.
1 By contrast, the 2020 Final Rule stated that the Board prefers the election process to voluntary recognition as the means for ascertaining employees’ free choice.