NLRB proposes rescinding newly released election rules

On November 4, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking (NPRM) seeking to rescind the “voter protection” rule issued April 1, 2020 and reinstate prior protocols, including holding the treatment. a pending election petition if a union files an unfair labor practice (ULP) charge – often referred to as a “blocking charge” – alleging employer interference in the election process. The proposed rule would also provide a mechanism for employees and/or competing labor organizations to challenge an employer’s voluntary recognition of a bargaining representative. A majority of the current Board supports the proposed rule for its protection of employee representation rights. The net effect of the rule, however, may prolong the process of electing representation and discourage voluntary recognition by an employer of a bargaining representative when that representative presents evidence that a majority of the employer’s employees support a such voluntary recognition.

April 1, 2020, rule

The final rule released on April 1, 2020 provides an expedited route for processing election petitions and protecting voluntary recognition. Specifically, the NLRB said the rule:

• “allows representation elections to proceed despite pending unfair labor practice charges alleging [employer interference] with the free choice of the employee”;

• “allows the representativeness of a union to be challenged which has been voluntarily recognized…before there has been a reasonable period for collective bargaining”; and

• “allows electoral challenges to the long-established representative status of unions representing construction industry employees, despite unchallenged evidence of the union’s majority support in detailed language in a collective agreement making it clear that the employer has voluntarily recognized the union on the basis of majority support.”

November 4, 2022, proposed rule

The proposed rule, which the NLRB called the “Fair Choice and Employee Voice” rule, has three parts, each overriding a corresponding part of the April 2020 rule.

Go back to the “blocking fee” policy

The proposed rule would reinstate the NLRB’s long-established “blocking fee” policy. If passed, unions could delay representation and decertification elections indefinitely while a ULP is investigated and litigated. The proposed rule would require employers to refrain from changing terms and conditions of employment during the “locked-in” period. Restoring blocking indictment procedures potentially provides leverage for unions to delay elections, especially in situations where a union believes employees might vote against union representation.

Elimination of the notification and election procedure

According to the NLRB, “the proposed rule would eliminate the required notification and election process triggered by an employer’s voluntary recognition of a union based on majority support among employees.” Under the current rule, an employer’s voluntary recognition will not prevent an election petition from being processed unless (1) the employer and the union notify a regional office of the NLRB of the voluntary recognition; 2° the employer posts a notice of recognition informing the employees of their right to file a competing trade union petition or dismissal for a period of forty-five days; and (3) no motion is filed within that forty-five day period. The proposed rule would reinstate the prohibition on immediate voluntary recognition, meaning that employees who may not be aware of a union’s organization will no longer be entitled to notice of voluntary recognition or time to challenge voluntary recognition.

Restoration of the voluntary recognition process in the construction industry

The proposed rule would restore the voluntary recognition process in the construction industry, including “the reinstatement of a six-month statute of limitations for campaign petitions challenging a construction employer’s voluntary recognition of a union under section 9(a)” of the National Labor Relations Act (NLRA). A significant change would be that “sufficiently detailed wording in a collective agreement [could] constitute sufficient evidence that the voluntary recognition was based on Article 9(a) of the [NLRA].” Another possibility is that a union could obtain voluntary recognition as an employee representative in bargaining under Article 9(a), which protects the union’s long-term representation status. This would be a major change for employers in the construction industry accustomed to operating under Article 8(f) “pre-employment” agreements in which the representative status of a union does not survive the expiration of the contract.

Next steps

Comments on the proposed rule must be submitted no later than January 3, 2023, with responses to such comments submitted no later than January 17, 2023. If the proposed rule is adopted, the NLRB will likely finalize the rule shortly after the reviews and comments. period ends.