The National Labor Relations Board (NLRB or Board) has proposed three new rules relating to union election procedures. The proposed new rules would modify the Board’s policies governing the processes for adjudicating so-called “blocking charges” and for employers to voluntarily recognize unions. The Board believes that the proposed rules would better protect employees’ right to freely and fairly choose whether to be represented by a union.
Blocking Charge Policy: The Board’s first proposed rule change relates to “blocking charges.” A “blocking charge” is an unfair labor practice charge that claims a party to a union election unlawfully coerced workers regarding their vote. Under the Board’s current policy, a “blocking charge” delays the election until the charge has been resolved by the Board. The proposed new rule would replace this policy with a “vote-and-impound” system in which the election would go forward as planned despite the filing of a “blocking charge,” but the ballots would be seized by the Board and held without being counted until the “blocking charge” has been resolved.
Voluntary Recognition Bar: The Board’s second proposed rule change relates to what is known as the “voluntary recognition bar.” The current version of the “voluntary recognition bar” prohibits employees from challenging an employer’s voluntary recognition of a union (without a vote by the represented employees) for at least six months. The proposed new rule would reinstate the Board’s previous policy on this issue, adopted in Dana Corp., 351 NLRB 434 (2007), which gave employees a period of 45 days after they receive notice of a voluntarily recognized union to challenge the union’s representation by filing a petition for a decertification election.
Section 9(a) Recognition in the Construction Industry: The Board’s third proposed rule change concerns the voluntary recognition of a union (again, without a vote by the represented employees) by employers in the construction industry. The National Labor Relations Act allows an employer and a construction industry union to enter into what is known as a “pre-hire agreement.” Pre-hire agreements govern the employment of represented employees without the union having first been certified through an election or recognized by a showing of majority support.
Currently, the Board allows such a relationship to be converted into a formal collective bargaining relationship, like any non-construction industry collective bargaining relationship, merely by entering into another agreement and without any showing that the union in fact enjoys the support of a majority of the represented employees. The proposed new rule would require the union to provide positive evidence of majority employee support for the union.
These situations don’t come up all that often, so the impact of these proposed rules, if enacted, would be limited. Advocates for the proposed rules will argue that holding secret-ballot elections in a timely manner is one of the most important functions that the NLRB performs. Opponents will assert that the proposed rules were designed by the Republican-led NLRB to destabilize existing collective bargaining relationships and weaken unions.
The process for enacting new regulations is lengthy and uncertain. Once enacted, the regulations may face court challenges. We will keep you posted.
For information on how to submit public comments on these proposed rules click here.