Round 1: NLRB Issues First Set of Proposed Rule Changes to Election Procedures
On August 12, 2019, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rule Making, which seeks to amend the NLRB’s current regulations regarding union election procedures. The proposed rules are the first in a planned series of changes to the representation process. The changes are aimed at improving protections for employee rights to freely choose whether they want to be represented by a union and to remove barriers to resolving representation questions.
The new proposed rules address three specific areas of current NLRB representation procedures:
- The so-called “blocking charge” rule.
- The “voluntary recognition bar.”
- Recognition procedures in the construction industry.
The first proposal would remove the NLRB’s current “blocking charge” rule. Under this policy, when a party (usually a union) files an unfair labor practice (ULP) charge alleging that the opponent has coerced or limited the employees’ ability to freely and fairly decide on union representation, an NLRB-conducted representation election is blocked. The election (most typically a decertification election) can be delayed indefinitely pending conclusion (including potential litigation) of the charge.
Under the proposed amendment, the election would be held and the ballots impounded by the NLRB while the charge is resolved. Further, a pre-election charge of coercion would have to be supported by contemporaneous evidence in the form of a summary of anticipated witness testimony. Once the charge is resolved, and if there is no finding of a violation, the ballots would be counted.
The second proposal would amend the so-called “voluntary recognition bar.” Currently, if an employer voluntarily recognizes a union, election petitions, including those seeking to decertify the newly recognized union, are barred for a “reasonable” period of time, typically 6-12 months. If the employer and union then agree to a contract during that “reasonable” period, any challenge to the union’s status is barred for the life of the contract, up to a maximum of three years.
The NLRB now is proposing to reverse Obama-era precedent and return to the prior standard established during the Bush II Board. Under this standard, employers that voluntarily recognize a union are required to provide their employees with notice of that recognition and inform them that they have 45 days to challenge the recognized union’s status by filing an election petition with the NLRB. Only if the 45-day period runs without challenge will the recognized union become the bargaining agent of the employees.
The final proposal addresses the complex procedures applicable to the construction industry. Under current NLRB standards, employers in the construction industry can enter into pre-hire agreements with unions before they even have employees, much less employee support for the union. The proposed amendment would require a union to produce actual evidence that its recognition was based on majority support from the workforce, such as a petition or signed authorization cards. Without the required evidence, pre-hire agreements would not establish union recognition.
These three proposed changes are expected to be the first in a series of changes targeting the NLRB’s election and representation procedures. The proposed rules are now subject to public comment, and employers are encouraged to participate in the comment process. The deadline is currently set for September 11, 2019.
Ballard Spahr's Labor and Employment Group monitors changes in law and policy at the National Labor Relations Board and routinely assists clients in navigating and preparing for compliance with labor decisions and policy.
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