The National Labor Relations Board (NLRB) recently finalized the "Fair Choice-Employee Voice" rule, rescinding an employer-friendly, Trump administration rule governing union election procedures. The new rule, decided on a divided 2-1 vote, largely mirrors the Notice of Proposed Rulemaking issued by the NLRB in November 2022 that aligns with the Biden administration's pro-union approach to collective bargaining. The NLRB's latest decision denotes a marked shift in labor relations. It effectively reinstates the NLRB's pre-2020 union election procedures, which impose hurdles for employers and unhappy employees to oppose, replace or decertify unions.
The 2020 precursor to the new rule adopted three key amendments to pre-existing union election regulations:
- It allowed regional directors to process union election petitions while "blocking charges" are pending. Blocking charges are unfair labor practice charges alleging that an employer tainted a union vote by coercing the employees to vote a particular way.
- It limited the application of the "voluntary-recognition" doctrine. The voluntary-recognition doctrine protects unions from removal for a "reasonable time" when the employer has already recognized the union as the exclusive bargaining agent.
- It required unions in the construction industry to present "positive evidence of majority employee support," rather than contractually memorializing an intent to recognize the union.
Once the new rule takes effect, regional directors may continue the practice of pausing union elections while blocking charges are pending. A party who asserts blocking charges against an employer must offer affirmative evidence of coercion and make witnesses available to support the charge. The litmus test is whether the alleged coercion undermines workers' ability to select their bargaining representative free of interference or whether the employer has engaged in conduct that is "inherently inconsistent with the petition itself." The election may proceed only after the NLRB determines whether the blocking charge is merited. Merits aside, this component of the rule could provide unions with considerable leverage to delay representation elections that they may be unlikely to win and use the additional time to campaign for bargaining unit support.
The new rule also restores the scope of the voluntary-recognition doctrine. This means employers (or competing unions) are prohibited from seeking to decertify a union for a "reasonable time" after the employer recognizes the union. Under the 2020 rule, the voluntary-recognition bar would only apply if an employer notified its employees of their right to file a decertification or election petition within 45 days of union recognition.
The NLRB's latest rule incorporates the voluntary-recognition framework the NLRB adopted in its 2011 Lamons Gasket decision. Lamons Gasket establishes a "reasonable time" as no less than six months and no more than one year from the date of the parties' first bargaining session.
In most industries, a showing of "majority support" among voting employees is required to form a union. Notably, Section 8(f) of the National Labor Relations Act (NLRA) authorizes the formation of unions in the construction industry, even when the union fails to garner support from a majority of the workforce. In Staunton Fuel & Material Inc., the NLRB interpreted Section 8(f) to allow construction industry employers to recognize unions by entering into a written agreement with the union. The 2020 rule reversed Staunton Fuel by requiring additional evidence to show "majority support" beyond a written agreement, but the current rule revives Staunton Fuel and establishes that unions in the construction industry are subject to the same voluntary recognition procedures for unions in all other industries—including the six-month bar on filing decertification petitions.
In light of the Supreme Court's recent holding in Loper Bright Enterprises v. Raimondo, it remains to be seen whether the current interpretation of Sections 8(f) and 9(a) will withstand federal judicial review. Prior to Loper Bright, federal courts applied the longstanding Chevron doctrine, which required courts to defer to federal agencies' reasonable interpretations of ambiguous statutes. Under Chevron, federal courts were permitted to independently interpret statutory ambiguities only if an agency's interpretation was proven to be arbitrary and capricious or unsupported by substantial evidence under the Administrative Procedures Act. Loper Bright reversed Chevron and enables federal courts to interpret ambiguous statutes without deferring to federal agencies, including the NLRB.
The "Fair Choice-Employee Voice" rule will be published in the Federal Register on Aug. 1, 2024. The rule will only apply to petitions filed after Sept. 30, 2024.
Employers should proactively monitor and adjust their collective bargaining practices to comply with the new rule. Specifically, employers should refrain from conduct that could potentially result in the filing of blocking charges when petitioning to decertify an existing union. Additionally, employers in the construction industry should carefully consider the risks of recognizing a labor union by written agreement as opposed to ordinary union election procedures.
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