NLRB’s Fair Choice-Employee Voice Rule Restores Policies To Foster Employees’ Free Choice of Representatives

At the end of July, the National Labor Relations Board (NLRB) adopted a Final Rule called the Fair Choice-Employee Voice Rule to overturn three Trump-era policies that had encouraged employer interference and delay in employee organizing and destabilized bargaining relationships in the construction industry. Willig, Williams & Davidson published an article in 2019 explaining those policies when they were first proposed as rules. In their place, the new Rule has restored longstanding policies designed to protect employee choice of representatives.

First, the Rule reinstated the decades-old “blocking charge” policy, which allows the NLRB to pause union elections while the agency investigates and remedies charges of retaliation, surveillance, election interference or other coercive conduct that would restrain employees in casting a vote in a free and fair election. Further, where the Board finds more serious interference, like coercive signature gathering, bad faith bargaining with the existing union, or fraud, the Region can dismiss an election petition outright.

The second policy restored by the Rule guarantees a protected period for bargaining after an employer voluntarily recognizes the choice of a majority of their employees to be represented by a union. The Rule eliminates a 45-day window of time for a small minority of employees to challenge that recognition, and there will be an insulated period of at least six months, and up to a year, for the new relationship to develop and for the parties to bargain a first contract without worrying about attempts to remove or replace the voluntarily recognized union.

Finally, the Fair Choice-Employee Voice Rule creates better parity between construction unions and other unions. Because of the contingent and temporary nature of construction work, construction employers have long operated under different rules that, in many cases, provide fewer union protections than in the rest of the private sector. The new Rule lets construction unions more readily establish and maintain a traditional representation relationship, which provides greater stability for bargaining.

These new policies will go into effect on September 30, 2024. The experienced labor attorneys at Willig, Williams, & Davidson’s labor attorneys are ready to answer questions and help our clients navigate and take advantage of these restored protections.