The National Labor Relations Board (NLRB or Board) on August 1 published a new rule addressing three distinct situations affecting employees’ rights to decide whether they want union representation (New Rule). The New Rule rescinds the Board’s 2020 Election Protection Rule (2020 Rule) and gives labor unions greater leverage and rights by eliminating opportunities for employees to vote and make their own choice on collective representation. The New Rule, called the “Fair Choice-Employee Voice Rule,” closely tracks the proposed rule announced in November 2022 and is scheduled to go into effect September 30, 2024.
RETURN OF THE “BLOCKING CHARGE”
The New Rule reinstates the Board’s traditional and controversial “blocking charge” policy, which permits certain unfair labor practice (ULP) charges to “block” a Board-scheduled election. Frequently used in the context of a decertification petition filed by employees to remove an existing union representative, the blocking charge policy creates an incentive for impacted unions to file ULP charges to block, or at least delay, the vote. Based on the ULP, NLRB regional offices will halt the election while the charge is investigated, often delaying an election for months or years until the ULP allegations are resolved. The 2020 Rule established special procedures allowing elections to move forward in many cases while the NLRB investigates the alleged misconduct.
Prior to the 2020 Rule, there were many examples of unions utilizing blocking charges as a tactic to delay or prevent a decertification election. As Member Kaplan pointed out in his dissent, the New Rule “incentivizes the filing of meritless or frivolous charges, particularly in the decertification context where employees are seeking to rid themselves of their incumbent union representative.”
THE VOLUNTARY RECOGNITION BAR
The New Rule restores the “voluntary recognition bar” that applies when an employer agrees to a union’s demand for recognition (presumably based on card check or a private election) without a secret ballot election conducted by the NLRB. Under the voluntary recognition bar, once the employer recognizes the union, there is an immediate bar to holding any employee vote regarding unionization for a “reasonable period”—ranging from six months to a year—until the employer and recognized union attempt to negotiate an initial collective bargaining agreement.
The 2020 Rule had codified the requirements of Dana Corp., which provided employees a 45-day period after receiving notice of the voluntary recognition to file a petition for an election. The Board overruled Dana Corp. in Lamons Gasket Co., and Lamons Gasket is effectively reinstated by the New Rule.
The New Rule abolishes the 45-day window for employees to petition for an election following an employer’s recognition of a union without a secret ballot election. This change is particularly significant given the NLRB’s recent holding in Cemex Construction Materials Pacific LLC that incentives, if not requires, employer recognition of unions based on a claim of majority support without NLRB secret ballot elections. In Cemex,[1] the Board held that employers commit an unfair labor practice if they fail to recognize a union based on a claim of majority support unless the employer, within 14 days, files an election petition. The New Rule removes the option for employees to challenge a voluntary recognition via filing an employee-sponsored petition—at least for six to 12 months.
RECOGNITION IN THE CONSTRUCTION INDUSTRY
The New Rule also restores union-favorable treatment for “pre-hire” agreements in the construction industry, allowing employers and unions to agree to convert temporary or time-limited Section 8(f) agreements to an indefinite Section 9(a) relationship without a showing of majority support among affected employees. Because of the unique needs of the construction industry (especially the need for contractors to have certainty regarding costs before bidding for particular contracts), Section 8(f) permits construction industry employers to enter into “pre-hire” agreements without any showing of employee majority support, and often before the employer has hired any employees. These types of pre-hire agreements are governed by principles that substantially differ from conventional collective bargaining agreements, which require majority support under Section 9(a).
After the NLRB’s vacillation on this issue in recent years, the New Rule again allows contract language, standing alone, to support majority status under Section 9(a), even if a majority of employees never expressed support for the union. Ignoring judicial criticism that the 2020 Rule sought to address, the Board once again will permit unions and employers to bind construction industry employees covered by a temporary pre-hire agreement to indefinite Section 9(a) representation by the union.
Notably, on July 25, 2024, the Eighth Circuit rejected the same pre-hire policy contained in the New Rule, joining the DC Circuit’s disagreement with the Board’s position that contract language alone can establish majority support.[2] This aspect of the New Rule likely will see an immediate legal challenge.
PRACTICAL IMPLICATIONS
As the NLRB continues its sustained overhaul of federal labor law to make union organizing easier at the expense of employee options to avoid or remove union representation, employers involved with voluntary recognition scenarios, decertification efforts, and construction industry relationships should reexamine their labor relations strategy. Employees should understand that once a union is in place, it now will be more difficult to replace or remove the union, regardless of the circumstances.
Employers in the construction industry, in particular, should review their collective bargaining agreements closely for any potential language that the current NLRB would find creates a Section 9(a) agreement. Construction industry employers also should use caution in bargaining where unions insist on language that might create Section 9(a) obligations that require indefinite union recognition beyond the defined length of the agreement.
[1] See our August 27, 2023 LawFlash, New NLRB Rules Favor Mandatory Union Recognition & Limit Employee Voting in Secret-Ballot Elections.
[2] NLRB v. Enright Seeding Inc., No. 22-2848, 2024 BL 254450 (8th Cir. July 25, 2024); see also Nova Plumbing Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003).
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