Even in times like these, the National Labor Relations Board continues to operate and dole out rulemaking decisions that further change the manner and procedures of union elections. The Board has been quite busy changing its union election rules and, as previously blogged about here, it enacted a new rule on December 13, 2019 that significantly revised election rules previously modified by the Obama-era Board in 2015. The Board has since delayed implementation of these changes until May 30, 2020 due to the coronavirus outbreak.

On March 31, 2020, the NLRB finalized another new rule, published in the Federal Register on April 1, that further amends certain aspects of union election procedures.

Elimination of “Blocking Charges”

The new rule does away with the Board’s often-criticized blocking charge policy, which usually placed elections on hold indefinitely pending the final resolution of certain Unfair Labor Practice (ULP) charges related to a filed election petition. These types of ULP charges typically created doubt as to the validity of an election petition or the ability of employees to make a free and fair choice in the election. Instead, the Board’s new policy concerning ULP charges in this context calls for either (1) a vote-and-count or (2) a vote-and-impound procedure. The former involves a process where ballots are opened and counted notwithstanding pending ULP charges, and the latter calls for the NLRB seizing ballots until charges are resolved. The NLRB advises that the chosen procedure will depend on the nature of the ULP charges but, regardless of severity, the Board noted that a certification (of either results or representative) would not issue until there was a final disposition of the charges.

Changes to Rules of Voluntary Recognition

The new rule also modified the Board’s voluntary recognition standard, outlined in the 2011 Lamons Gasket decision, which prohibited challenges to a union’s majority support for a “reasonable period of time” (six months to a year) after a union was recognized by an employer. The amendment returns the voluntary recognition rule to the process described in the Board’s 2007 Dana Corp decision, which held that unit employees must receive notice of a voluntary recognition and allowed employees or rival unions a 45-day post-recognition period for filing a decertification petition. Parties must follow this process for voluntary recognition to bar a subsequent representation petition, or for a post-recognition CBA to bar a petition up to three years from the date of the CBA.

Higher Threshold to Convert Section 8(f) Agreements to Section 9(a) Relationships

Finally, the new rule changes the standard of proof for forming a Section 9(a) bargaining relationship in the construction industry. Under Section 9(a) of the Act, a union becomes the employees’ bargaining representative only after a majority of employees show support for union representation in an NLRB-conducted election. In the construction industry, however, employers and unions may set terms and conditions of employment in a contract absent employee majority support under Section 8(f). But, there is a catch with Section 8(f) agreements: they are not as strong as those created under Section 9(a), e.g., those contracts cannot bar petitions for a Board election. As a result, parties sometimes attempted to create a Section 9(a) bargaining relationship via their contract language.

Here, the Board’s new rule rejects this method and overturns its 2001 Staunton Fuel & Material decision, which held that a Section 8(f) agreement could transition into a Section 9(a) relationship solely based on the language of the parties' CBA. The new policy requires positive evidence showing that a union demanded recognition as the majority-supported bargaining representative of employees, and that the employer accepted this demand based on a contemporaneous showing of majority support from these employees. Accordingly, a favorable Section 9(a) bargaining relationship in the construction industry can no longer be borne out of solely contract language.

Conclusion

Overall, this new rule further clarifies and unencumbers election procedures and allows for quicker challenges to a union’s majority status in a workplace after voluntary recognition is granted. The Board’s five-member panel currently consists of three Republican appointees and, as such, employers should expect to continue to see management-friendly policies and decisions.