NLRB Targets Key Election Policies in Proposed Rulemaking

The National Labor Relations Board (NLRB) announced on August 9, 2019 a plan to significantly change three aspects of the Board’s election rules. This process will officially begin on Monday, August 12, 2019, when the agency’s Notice of Proposed Rulemaking is to be published in the Federal Register. Under what is known as “informal” rulemaking, the public will have 60 days to file comments on the proposed rule. The agency will then review those comments before issuing a final rule.

“NLRB Targets Key Election Policies in Proposed Rulemaking” post photo.

The first proposed change would modify the “blocking charge” policy, under which the NLRB will not hold a representation election where there is a pending unfair labor practice charge that alleges conduct casting doubt on the validity of the election petition or that may interfere with employees’ ability to freely exercise their right to choose whether to be represented.

Under the proposed rule, such a charge would no longer prevent the vote from going forward. Instead, the ballots would be “impounded” (that is, held by the Board but not counted) until a final determination of the pending unfair labor practice charge and its effect, if any, on the validity of the election petition or the fairness of the resulting election.

The second proposed change affects the presumption of majority support afforded to a union after an employer recognizes it as the bargaining representative on the basis of authorization cards or similar evidence—a so-called voluntary recognition. The proposed rule would allow employees to file a petition challenging voluntary recognition until (1) the employer and the union notify the NLRB of the voluntary recognition; (2) the employer posts an official NLRB notice informing employees of the voluntary recognition and that they have 45 days to file a decertification petition or a rival union petition; and (3) the 45-day period expires without a properly supported petition being filed—that is, a petition with signatures from at least 30% of the bargaining-unit employees. Absent compliance with this procedure, the union’s majority status would remain open to challenge, even if the union and the company signed a collective-bargaining agreement. The NLRB previously implemented this same procedure in the 2007 Dana Corp. decision, but rescinded it four years later in the Lamons Gasket case.

The third proposed change involves the majority status of unions in the construction industry. The current policy was set by the NLRB’s 2001 decision in Staunton Fuel & Material Inc., which held that a construction-industry bargaining relationship established under Section 8(f) of the National Labor Relations Act could become a standard Section 9(a) bargaining relationship, with the applicable presumptions of majority support, if the employer and union signed a written agreement that unequivocally states that the employer recognized the union as majority representative, and the employer’s recognition was based on the union’s having shown, or having offered to show, an evidentiary basis of its majority support. Under the proposed rule, a recognition agreement or collective-bargaining agreement will not bar an election petition from a rival union unless recognition was based on “a contemporaneous showing of support from a majority of employees in an appropriate unit.”

While the three changes announced today will not become final until the NLRB issues a final rule sometime after the end of the comment period, workers and the unions who support them should start preparing for them now. In particular, unions involved in organizing campaigns will have to consider the risks associated with seeking voluntary recognition from employers considering the new 45-day challenge window, and will have to be prepared to counteract the loss of support that will inevitably follow when employees are required to vote on union representation while subject to coercive anti-union conduct by resistant employers.

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