As the National Labor Relations Board moves toward resuming manual elections during the COVID-19 pandemic, the Board's Final Election Protection Rule will take effect on July 31, 2020. The Board's Notice of Proposed Rulemaking (NPRM) detailed in our August 12, 2019 Insight proposed three amendments to the Board's representation regulations with the goal of better protecting employees' statutory right of free choice on questions concerning representation.1 Specifically, the Board's Final Rule amends the Board's Rules and Regulations on blocking charges, the voluntary recognition bar, and the proof of majority support specific to the construction industry.
First, the Final Rule addresses the Board's previous policy on "blocking charges," i.e., unfair labor practice charges filed (sometimes repeatedly) by a party to a representation proceeding that allege conduct that would interfere with employee free choice if the election proceeded. Blocking charges occur most often where a union is facing a decertification petition and is expecting to lose the employee-driven election. In response, it is common for a union to file ULP charges against the employer and then claim that the election cannot go forward until the charge is resolved, because allegedly there is doubt regarding the ability of employees to make a free and fair choice about representation.
While blocking the election is discretionary, the Board normally holds the decertification petition in abeyance pending determination of the ULP charge. Elections are often delayed by months or even years, thereby affecting employees' statutory right to accept or reject union representation. As the Board noted in the NPRM, it "is inclined to believe, subject to comments, that the current blocking charge policy impedes, rather than protects, employee free choice."2
Whereas the NPRM proposed a vote-and-impound procedure for all cases involving blocking charges, the Final Rule implements this procedure only where the ULP alleges: (1) violations of Section 8(a)(1) and 8(a)(2)2 or Section 8(b)(1)(A)3 of the Act that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition; or (2) that an employer has dominated a union in violation of Section 8(a)(2) and seeks to disestablish a bargaining relationship. The Final Rule provides that the ballots will be impounded for up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed, or if a complaint has not issued, before the conclusion of the election. If a complaint issues within the 60-day post-election period, then the ballots shall continue to be impounded until there is a final determination regarding the charge and its effect, if any, on the election petition. If the charge is withdrawn or dismissed or the 60-day period expires without a complaint issuing, then the Region will "promptly" open and count the ballots. The Board will not extend the 60-day period, even if ULP charges are filed serially.
For all other types of unfair labor practice charges, the final rule—unlike the proposed rule—provides that the ballots will be promptly opened and counted at the conclusion of the election, rather than temporarily impounded. For example, on the Final Rule's face, a ULP charge that the employer orchestrated a decertification petition triggers an impound, but a ULP charge that an employer made an unlawful unilateral change in employees' terms and conditions of employment does not. The major takeaway is that filing a blocking-charge request will not delay the election, but may delay the vote count. However, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
Voluntary Recognition Bar
Voluntary recognition occurs where an employer opts to recognize a union based on the union's showing of majority support, but without requiring a secret-ballot election. While voluntary recognition is indisputably lawful, there is an accompanying issue of how long employees must wait before challenging the majority status of a voluntarily recognized union. The Final Rule returns to the standard set forth in Dana Corp., 351 NLRB 434 (2007) concerning the bar to the processing of an election petition after an employer voluntarily recognizes a union. Under the Final Rule's procedures, voluntary recognition will not bar the processing of an election petition unless: (1) the employer and/or union notify a regional office that recognition was granted; (2) the employer posts a notice provided by the regional office that informs employees recognition has been granted and they have a right to file a petition within a 45-day window; and (3) 45 days pass after the posting without a properly supported petition being filed. The Final Rule adopts the NPRM in substantial part except, among other minor changes, the Final Rule: clarifies that the employer "and/or" union must notify the Region of recognition; specifies that the employer must post the notice "in conspicuous places, including all places where notices to employees are customarily posted"; adds a requirement that the employer distribute the notice to unit employees electronically if that is how the employer customarily communicates; and sets forth the wording of the notice. In its response to public comments, the Board reiterated its preference for the election process over voluntary recognition in order to support employees' free choice.
Proof of Section 9(a) Recognition in the Construction Industry
Finally, the Final Rule concerns the application of Section 8(f) to the construction industry. NLRA Section 8(f) permits a construction industry employer and union to maintain so-called project-based collective bargaining agreements absent a showing of majority support, otherwise required under Section 9(a) for most other employers. The Final Rule overrules the Board's decision in Staunton Fuel & Material, Inc., 335 NLRB 717, 719-720 (2001), which permitted a Section 8(f) collective bargaining relationship to "convert" into a 9(a) relationship based on contract language alone, without any showing of majority support, and thereby providing the contract bar to a decertification or rival union's petition—a hefty consequence for employees who may never have supported the union. The Final Rule returns to the Board's earlier decisions, which required "positive evidence" of contemporaneous majority support to establish a 9(a) relationship. Unlike the NPRM, the Final Rule applies prospectively, only to voluntary recognition extended or CBAs signed on or after the effective date of the Rule.
The Election Protection Rule, among other recent rulemakings including the Final Election Rule and Joint Employer Final Rule, is part of the current Board's effort to take a more fair and balanced approach in its role. The AFL-CIO, however, has sued the NLRB to stop implementation of representation case procedures involving its blocking charge policy, the voluntary recognition bar doctrine, and its rule regarding Section 9(a) recognition in the construction industry.4 Please stayed tuned for further developments.
1 NLRB, Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, 84 Fed. Reg. 39,930, 39,937 (Aug. 12, 2019).
2 Section 8(a)(2) of the Act makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." An employer that violates Section 8(a)(2) also derivatively violates Section 8(a)(1).
3 Section 8(b)(1)(A) of the Act makes it unlawful for a labor organization to restrain or coerce employees in the exercise of their Section 7 rights, for example, by threatening violence to coerce employees into voting for union representation.
4 AFL-CIO v. National Labor Relations Board, 20-CV-01909.
Originally published by Littler Mendelson, July 2020
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