The NLRB implements its Fair Choice – Employee Voice Final Rule – Effective September 30, 2020
On the 26th of July 2024, the National Labor Relations Board (the “Board”) released its Fair Choice-Employee Voice Final Rule (“Final Rule”) which rescinds three amendments made to the Board Rules and Regulations in April 2020.[1] These amendments affect the Board’s handling of petitions and ultimately make it easier to maintain union recognition. The Board has revived many policies from before 2020 with the final rule.
The Final Rule touches on three areas of the Board’s processing of petitions for elections: 1) revival of the blocking charge to delay elections – the Final Rule permits regional directors to delay representation and decertification elections upon a filing and resolution of an unfair labor practice charge (“ULP”) upon request by the party who filed the ULP; 2) return to an immediate voluntary recognition bar – the Final Rule removes the 45-day window so employees will no longer be able to request an election to challenge an employer’s recent voluntary recognition of a union; and 3) relationships in the construction industry – the Final Rule makes it easier for construction industry unions to become the exclusive bargaining representative for construction employees based only on contractual language.
According to the Board, the Final Rule “better protects employees’ statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.” Board member Marvin Kaplan dissented from the measure. The final rule takes effect September 30, 2024, and applies only to petitions filed after that date.
The Blocking Charge to Delay Elections
Under the Final Rule, the Board has revived its pre-2020 “blocking charge policy,” which allows regional directors to delay an election, including a decertification election, when ULP charges are pending for alleged conduct that interferes with employee free choice in an election or that is inherently inconsistent with the election petition itself. The April 2020 amendment was rescinded and provided for a “vote-and-impound” regulation. This allowed an election to be held regardless of any pending blocking charges, but the votes were impounded until the merits were determined.
The Board’s blocking charges policy has been revived, allowing regional directors to delay an election if a party files an ULP and requests that the election be blocked. This is provided the request comes with adequate proof, witnesses can be made available promptly, and there are no other exceptions. Delaying or blocking an election is beneficial to unions who can file unfounded charges to block the election and continue their organizing campaign during the delay. During this pause, which could take up to a year to adjudicate the merits of the ULP charge, employers must continue to refrain from making changes to the terms and conditions of its employees employment, including wage increases or performance-based bonus payouts, for fear of drawing additional ULP charges.
Immediate Voluntary Recognition Bar
The Final Rule also eliminates the 45-day window that allowed employees who may not have supported union recognition, to challenge an employer’s voluntary recognition of a union that claimed majority support. The National Labor Relations Act (NLRA) allows employers to recognize a union voluntarily based on a union’s claim that it has majority support from its employees, without holding an election. Cemex also requires that employers request a secret ballot vote to challenge the union’s demands for voluntary recognition. Failure to do so could result in a bargaining agreement. After voluntary recognition, the union is the exclusive representative of employees and the employer must bargain with the union. In Keller Plastics, 157 NLRB 583, the Board ruled that an employer’s lawful recognition of a union barred both the employer and employees from challenging its representative status for a “reasonable period of time”. The theory behind the immediate voluntary recognition ban is that once a legitimate bargaining relationship has been established, it should be allowed to continue without interruption and given a chance to succeed. In 2007, the Board re-examined the doctrine, and in Dana Corporation 351 NLRB434 (2007), it eliminated the requirement for immediate recognition. In Dana, the Board held that no voluntary recognition bar could exist until the affected employees were notified of the employer’s voluntary acknowledgement and given 45 days to file an election petition in order to challenge the union’s majority in a secret ballot election conducted by the Board. If no election petition is filed or if the union wins the election, challenges to the union majority are prohibited for a minimum of one year. The “contract bar” will kick in if, during the immediate bar period of six to one year, a contract is signed. This will prevent a challenge against the union for a period of three years. As a result, employees would be locked into representation for four years because they had no opportunity to weigh in on the issue of union representation at the time of voluntary recognition.
The April 2020 amendments to the Rules and Regulations overruled Lamons Gasket and reverted back to the Dana holding, reinstating the 45-day period of time where employees could request a Board-conducted election after voluntary recognition to test majority support.
The Final Rule codifies the traditional voluntary-recognition bar as refined in Lamons Gasket. According to the Board, its observations of the experience under the voluntary recognition rule and the data “seem
to show that voluntary recognition almost always reflects employee free choice accurately.” The Board further opined that the April 2020 Amendment’s notice-and-election procedure had a reasonable tendency to “undermine employee free choice (as reflected in the lawful designation of the voluntarily recognized union) and to interfere with effective collective bargaining.”
Under the Final Rule, the voluntary-recognition bar prevents employees from filing for decertification for a minimum of six months and a maximum of one year from the date of the first bargaining session, and removes the 45-day window for the employees in the minority to be able to seek an election to challenge the representation. After this voluntary-recognition bar of six months to a year, if the parties execute a collective bargaining agreement, employees cannot petition for decertification for three years after the agreement has been executed.
Construction Industry Relationships[]Lastly, the Final Rule eases the standard required for a union in the construction industry to demonstrate majority support for a 9(a) collective bargaining relationship. According to Section 9(a), a union has to have majority support from the employees of a bargaining unit in order to be recognized as an exclusive collective bargaining agent. As a rule, employers cannot bargain with a Union that does not have the majority support. In the construction industry, Section 8(f), of the NLRA, allows for a limited exception. A construction employer and a labor union can enter into a pre hire agreement establishing the union’s exclusive bargaining representation even if majority support is not present. For a Section 8(f) relationship to become a Section 9(a) relationship, the union must demonstrate a clear showing of majority support from the unit employees, much like unions representing employees in non-construction industries.
The Board, in Staunton Fuel, 335 NLRB 717 (2001) held that a construction industry union could prove Section 9(a) recognition based only on the language in a collective bargaining agreement, without additional supporting evidence of majority support, if the contract indicated that (1) the union requested recognition as the majority representative of unit employees; (2) the employer recognized the union; and (3) the employer’s recognition was based on the union showing or offering to show evidence of its majority support. The April 2020 amendments overruled Staunton Fuel, requiring actual evidence of a union’s majority support, beyond the contract’s language, at the time of Section 9(a), if they wanted to rely on the Board’s voluntary recognition or contractual bar in response a challenge to the presumption that majority support. The Final Rule allows construction unions to prove a 9(a), collective bargaining relationship using contract language if it states that the union has requested recognition as the majority representative for unit employees, the employer has recognized the union and the employer’s acceptance was based upon the union presenting or offering evidence of its majority. The Board partly justified this change because of the Board’s failure to follow proper procedures and lack of notice of the changes during the comment period prior to publishing the April 2020 amendments.
Dissent and Potential Legal Challenge
Board Member Kaplan issued a dissent critiquing the Final Rule, stating that the 2020 Rule made “well-advised changes” to the NLRA, and that the Final Rule is “unnecessary and counterproductive.” He also noted that “in the wake of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 144 S.Ct. It is unclear to what extent reviewing court’s must give deference to
decisions to repeal the 2020 Rule in favor of a new rule.
Key Takeaways
The Board is continuing to make it easier for unions to be recognized and to maintain that recognition regardless of the evidence of majority support or of employee choice. Due to the Board’s recent changes including this Final Rule, and decisions like Cemex, employers should continue to be proactive in educating managers and supervisors about employee rights, and educating employees on the realities associated with selecting a union to represent them exclusively. Employers in the construction industry should be extra careful when entering into pre-hire agreements and agreements with unions. They should also understand the implications of any representative language that may appear in these pre-hire agreements that purport to establish a 9(a) relationship. Employers in the construction industry should take extra care when entering into pre-hire agreements and agreements with unions and to understand the implications of any representative language that may appear in these pre-hire agreements that purport to establish a 9(a) relationship.
We will continue to monitor any new developments with respect to this Final Rule.
FOOTNOTES[the majority’s] The Final Rule affects the following sections of the Board’s Rules and Regulations: 29 CFR SS 103.20, 103.21, and 103.22.
