United States: National Labor Relations Board Proposes Three New Rules Regarding Employee Free Choice And Union Elections

Last Updated: August 19 2019
Article by William J. Kishman

Earlier this week, the National Labor Relations Board announced that it is proposing three new changes to its rules, all of which concern the procedures for unions to represent certain workers. If these changes are implemented, they could create significant consequences when employees are attempting to decertify a labor union, when an employer has voluntarily decided to recognize a union, and for unions in the construction industry that are not supported by a majority of employees. Once again, the NLRB is attempting to make these changes through formal rulemaking, rather than by issuing written decisions, which could make it more difficult for future versions of the NLRB to overturn the changes.

First, the NLRB proposed changing its policy when employees have sought an election and a party has filed an unfair labor practice charge. As the law currently stands, the NLRB will not hold certain types of elections if an unfair labor practice charge is pending and that ULP charge questions either the validity of the underlying election petition, or whether employees can freely and fairly decide how to vote in the election. This "Blocking Charge Policy" often allows unions to delay decertification elections (or outright prevent them) by filing ULP charges. The NLRB now proposes to replace this Blocking Charge Policy with a procedure that allows the underlying election to occur, but then impounds the employees' ballots until the Board resolves the ULP charge at issue. If this new procedure becomes effective, it will allow employees to cast votes at the time the law typically allows, and will make it more difficult for unions to avoid decertification elections.

The NLRB also proposed a new rule that will apply when an employer has voluntarily decided to recognize a labor union. As background, in 2007, a Republican-majority NLRB addressed what will occur when an employer voluntarily agreed to recognize a labor union but the employees wished to contest the decision. Under this 2007-implemented standard, the NLRB required the employer to notify its employees of the voluntary recognition. At that point, if the employees wished to contest the employer's decision (by showing that a majority of them did not support the union at issue), they would receive 45 days to file an election petition. Unless the employees filed a petition during that 45-day window and the union subsequently lost an election, no party could challenge the union's right to represent the employees for a period of at least one year (and longer if the employer then entered into a collective bargaining agreement). This 2007 rule made it less difficult for employees to "oust" a union whom the majority of the employees did not support. In 2011, however, a Democrat-majority NLRB overruled this rule and returned to the prior standard (which made the one-year voluntary election bar effective immediately after the employer voluntarily recognized the union).

The NLRB now proposes returning to the 2007 procedure. Thus, if the proposed rule becomes effective, an employer must formally notify employees after it has voluntarily recognized a labor union, and the employees will receive 45 days to seek an election that could prevent the employer from recognizing the union. If this new rule becomes effective, it will become an important consideration for any employer that is considering whether to voluntarily recognize a union (or whether to voluntarily recognize one union over another).

Finally, the NLRB proposed a change that will affect parties in the construction industry. As background, the National Labor Relations Act imposes a different standard on construction employers for when they may voluntarily recognize unions, and when they must continue bargaining with those unions. It is generally unlawful for an employer to recognize (and bargain with) a union that does not have the support of most of the employees in the bargaining unit at issue. However, in the construction industry, the NLRA creates an exception that allows an employer to voluntarily recognize a union that is supported by just a minority of the employees at issue. If an employer invokes this exception and voluntarily recognizes such a "minority union" then, at default, the employer may stop recognizing that union at any time. (Conversely, outside the construction industry, an employer generally may not stop recognizing a union unless it has been properly shown that the union lost majority support.)

As one last nuance, a minority union can convert its tenuous status into a more established status by taking certain steps. For example, if a minority union presents evidence that a majority of the employees support it, then the union can obtain the same rights as a union outside the construction industry. In 2001, the NLRB created another route for a minority union to obtain more established status in the construction industry, i.e., by allowing this to occur if the parties execute a contract in a way that meets certain procedural requirements.

The NLRB is now proposing to remove this second route, and prevent a minority union in the construction industry from obtaining more established status merely through a contract. If this change is implemented, then an employer in the construction industry generally may cease to bargain with a minority union, unless the union actually presents adequate evidence that a majority of the employees support it. The NLRB has characterized this proposed change as another measure designed to protect employees' free choice and ensure that unions actually have employees' support.

Any party who wishes to comment on the proposed changes may do so at the following website: https://www.regulations.gov/comment?D=NLRB-2019-0001-0001. We will report on any future developments regarding these proposed rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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