On August 12, 2019, the National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking (“NPRM”) putting forth three amendments to the representation election regulations regarding blocking charges, voluntary recognition bar, and construction industry recognition.  In announcing the proposed rulemaking, Board Chairman John F. Ring stated:

There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections.  We believe that the changes we propose today further the goal of protecting this vital freedom.  Our proposals are, however, subject to comment, and we look forward to reviewing the public’s input with an open mind.

(1)  Replace Blocking Charge Policy with a Vote-and-Impound Procedure

Currently, a union can block an election to decertify the union by filing an unfair labor practice (“ULP”) charge.  Typically, the Board will not move forward with a decertification petition until the ULP is resolved, which can significantly delay the election.  In fact, as the Board noted, the current practice could “preclude holding the petitioned-for election for months, even years, if at all.”  This delay could have significant adverse impacts on employees’ rights to decertify a union and the NPRM acknowledged that the Board “is inclined to believe, subject to comments, that the current blocking charge policy impedes, rather than protects, employee free choice.”

Therefore, the NPRM proposes a vote-and-impound procedure under which an election could still proceed even when a ULP charge has been filed.  If the ULP charge has not been resolved prior to the election, the ballots would remain impounded until the Board makes a final determination on the ULP charge.

(2)  Modification of Voluntary Recognition Bar

Voluntary recognition occurs where an employer recognizes a union based on the union’s showing of majority support, but without requiring a secret-ballot election.  Under the current voluntary recognition bar doctrine, an employer’s voluntary recognition of a union prevents the company’s employees from holding a secret ballot election to decertify the union from anywhere between one to four years after the union has been recognized.

The second proposed amendment would change the current voluntary recognition bar policy by re-establishing a rule from Dana Corp., 351 NLRB 434 (2007), in which (1) employees must be given notice that their employer has voluntarily recognized a union and (2) the employees have a 45-day period within which they can file an election petition.

(3)  Modified Requirements for Proof of Section 9(a) Recognition in the Construction Industry

Under Section 8(f) of the National Labor Relations Act (“NLRA”), parties in the construction industry can establish a collective bargaining relationship without any evidence of majority support.  This is an exception to Section 9(a), which requires majority support to establish a collective bargaining relationship in other industries.  Currently, an initial bargaining relationship under Section 8(f) may become a Section 9(a) relationship at any time after the hiring of employees if the employer and union execute a contract with the prescribed Section 9(a) recognition language.  In other words, a union and employer could potentially enter into a contract stating that the union will serve as the employees’ exclusive bargaining representative without the union establishing any proof of majority status or going through an NLRB election.

The third proposed amendment provides that contract language alone cannot establish a Section 9(a) relationship.  Rather, extrinsic evidence that a majority of employees wish to be represented by the union is required to prove the establishment of a Section 9(a) relationship.  Such evidence would be in the form of employee signatures on union authorization cards or a petition, that the union unequivocally demanded recognition and the employer accepted it, “based on a contemporaneous showing of support from a majority of employees in an appropriate unit.”

Public Comments

Comments on the proposed rule must be submitted no later than 11:59 p.m. ET on October 11, 2019, through http://regulations.gov or by mail or hand delivery to:

Roxanne Rothschild

Executive Secretary

National Labor Relations Board

1015 Half Street S.E.

Washington, D.C. 20570-0001

The rulemaking docket RIN is 3142-AA16.  Responses to comments that are submitted may be filed by October 25, 2019.