The NLRB Releases Then Delays Final Rule Amending Its Union Election Procedures

Apr 22, 2020

On April 1, 2020, the National Labor Relations Board finalized a rule that will significantly impact how it handles future representation elections. The rule makes three amendments to the Board’s election bar policies.

The final rule amends the Board’s blocking-charge and voluntary election bar policies, and its contract bar policy with respect to the construction industry, all of which bar, for a period of time, the filing or processing of representation election petitions by employers, employees, or rival unions. Though the final rule has been officially published in the Federal Register, due to the ongoing COVID-19 pandemic, the rule’s effective date has been delayed to July 31, 2020.

Blocking Charges Will No Longer Delay an Election

The first portion of the NLRB’s rule focuses on its blocking-charge policy. Under the Board’s current policy, a union election may be paused indefinitely when an unfair labor practice charge and blocking-charge request are filed alleging that a party to the election illegally coerced employees to vote a certain way. Unions have often used a blocking-charge strategy to impact the timing of an election to its advantage.

In its rule, the Board noted that its current blocking-charge policy tends to preclude elections for months or even years. The Board further noted that the policy could be easily abused, as a party may file an unfair labor practice charge in hopes to delay or even cancel an election altogether. As such, the Board eliminated its current blocking-charge policy and adopted a “vote-and-impound” procedure, which will ensure that the filing of an unfair labor practice and blocking-charge request will not delay an election.

Under the new “vote-and-impound” procedure, if a certain type of unfair labor practice charge is filed, the Regional Director will proceed with the election but impound the ballots until the charge has been resolved. Specifically, if the unfair labor practice charge alleges violations Sections 8(a)(1) (i.e., an employer threatened to discipline or terminate employees if they voted for the union), 8(a)(2) (i.e., an employer dominated or controlled the union), or 8(b)(1)(A) (i.e., the union threatened employees to vote for the union) of the National Labor Relations Act (“NLRA”), or if the charge alleges that the employer has dominated the union and seeks to disestablish a bargaining relationship, the Regional Director will impound the ballots for up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed, or a complaint has not issued. If a complaint issues within this 60-day period, the ballots will remain impounded until the complaint is resolved. The 60-day period will not be extended, regardless of whether a party files multiple charges.

For all other categories of unfair labor practice charges, the ballots will be promptly opened and counted at the conclusion of the election. However, the Board noted that regardless of the type of unfair labor practice charge, certification of results will not issue until there is a final disposition of the charge and a determination of its effect, if any, on the election petition.

Voluntary Recognition By An Employer No Longer Immediately Bars the Filing of a Decertification Petition

The second portion of the NLRB’s final rule centers on the Board’s voluntary recognition bar, which prohibits challenges to whether a union has majority support for a “reasonable period of time” after the employer voluntarily recognizes the union. Typically, under this current policy, another party (employees or a rival union), are barred from filing a petition to decertify the incumbent union from anywhere from six months to one year after the date the union was voluntarily recognized.

The Board’s new standard creates a post-recognition window of 45 days in which employees or rival unions can file a decertification petition challenging the union’s majority support. The new standard applies prospectively. As such, the Board will only apply such standard to voluntary recognition that is given by an employer after this rule takes effect, on July 31, 2020, and to those collective bargaining agreements reached as a result of such voluntary recognition.

Voluntary Recognition By An Employer No Longer Immediately Bars the Filing of a Decertification Petition

In the last portion of its rule, which applies only to the construction industry, the Board revised its standard of proof for forming Section 9(a) collective bargaining relationships in the construction industry.

In the construction industry, under Section 8(f) of the NLRA, unions and employers may enter into pre-hire agreements to establish a collective bargaining relationship without proof that the union had the support of a majority of employees in the bargaining unit. However, a Section 8(f) bargaining relationship does not prevent other parties from filing election petitions for the same unit. Therefore, many parties to Section 8(f) relationships, and unions in particular, attempt to convert Section 8(f) bargaining relationships to Section 9(a) bargaining relationships.

Section 9(a) of the NLRA covers bargaining relationships that typically form after a majority of employees select a union to be their exclusive bargaining representative. Once a Section 9(a) collective bargaining relationship is formed and a contract has been executed, other parties are barred from filing election petitions during the life of the contract, up to a maximum time of three years, under the Board’s contract bar policy. Additionally, under the Board’s new standard, parties will also be barred from filing an election petition for a period of time after the 45 day post-recognition window has closed.

The Board’s new rule overturns prior Board Law, which held that a Section 8(f) bargaining relationship could be converted to a Section 9(a) bargaining relationship based solely on language in the parties’ collective bargaining agreement. Now, under the Board’s new rule, an employer and a union representing employees engaged in the construction industry can only establish a Section 9(a) bargaining relationship based on positive evidence that the union has majority support, not on contract language alone. That is, the majority of employees now have to affirmatively indicate that they do want the union to act as their legal representative for purposes of collective bargaining.

Again, this new rule applies prospectively. As such, the Board will only apply such standard to voluntary recognition that is given by an employer after this rule takes effect on July 31, 2020, and to those collective bargaining agreements reached as a result of such voluntary recognition.

If you have any questions regarding the above changes in Board law or need assistance with any related issues, feel free to contact Olivia Hochschwender or any other K|W|W attorney.