The Biden National Labor Relations Board has been very busy trying to undue the work of the Trump Board ever since Jennifer Abruzzo took over as NLRB General Counsel. In the latest maneuver, on November 3rd, the Board issued a proposed rule, signaling a departure from a 2020 rule issued by the Trump-era Board. If adopted, the rule would (1) allow unions to strategically use blocking charge rules to delay representation and decertification elections; (2) revert to use of the “voluntary-recognition bar” doctrine; and (3) alter majority support requirements for unions representing employees in the construction industry.

Blocking Charges

The proposed rule would make it more difficult for employees that are dissatisfied with their unions to use the decertification process to vote the union out. Historically, the Board had a “blocking” charge rule which permitted parties (typically, unions) to file unfair labor practice charges alleging that the employer illegally interfered with the decertification process, to automatically block/stop/suspend representation and decertification elections pending the outcome of the agency’s investigation.

In 2020, the Trump appointed Board adopted a rule requiring decertification votes to proceed in their ordinary course (i.e., elections can proceed despite pending unfair labor practice charges). Specifically, the 2020 rule requires that regional directors “immediately open and count the ballots, except in a limited subset of cases.” Therefore, in some cases the ballots are promptly counted and in others, the ballots are impounded until the agency reaches a resolution on the charge. In all cases, certification of the results does not occur until there is a final disposition on the charge. 

However, the Board’s new proposal would again allow the strategic use of blocking charges by unions to delay decertification elections they are likely to lose.

Voluntary Recognition Standard

The proposed rule also allows the Board to revert to using the Lamons Gasket Co., 357 NLRB 934 (2011) voluntary recognition standard. This would make it much easier for unions to be certified without interference if employers voluntarily recognize the union via card check.  

Prior to 2020, a union could obtain representative status under voluntary employer recognition by demonstrating a showing of majority support, often via signed authorization cards. Employees who subsequently chose to file a decertification petition could not do so for an undefined “reasonable period” of time after an employer voluntarily recognized a union. In effect, an employer’s voluntary recognition barred the processing of an election petition. In 2020, under the Trump NLRB, the rule changed to require employers to post a notice of recognition informing employees that they have the right to file a decertification petition within 45 days, thereby allowing for workers to petition for a decertification election up to 45 days before the employer officially recognizes the union. 

However, the Board’s current action would resurrect the immediate voluntary recognition bar and remove this 45-day decertification window for voluntary recognition cases. The Board noted that under the 2020 rule, a small percentage of election petitions actually resulted in the ousting of recognized unions, therefore suggesting that voluntary recognition serves the policies of the Act (i.e., employee free choice).

Construction Industry Unionization

Finally, the proposed rule would return to the use of the voluntary recognition standard for unionization in the construction industry as reflected in Casale Industries, 311 NLRB 951 (1993) and Staunton Fuel, 335 NLRB 717 (2001).

Currently, the 2020 rule permits election challenges to the representative status of unions representing construction industry employees, despite undisputed evidence of the union’s majority support found in the language of collective bargaining agreements. 

However, the Board explained its preliminary view that the 2020 rule provided for uncertainty and unpredictability in labor relations for the construction industry. The proposed rule would therefore bar challenges to a union’s majority representation status when 6 months have passed following union recognition, as established in Casale Industries. Further, the rule would reinstate the 2001 decision in Staunton Fuel, which established a low threshold for demonstrating majority union employee support. Under the proposed rule, a union can become a duly authorized representative based on evidence of sufficiently detailed collective bargaining language, making it much easier for unions in the construction industry to prove majority support.

Comments on this proposed rule must be received by the NLRB before January 3, 2023. Comments should be submitted either electronically to regulations.gov, or by mail or hand-delivery to Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. 

CDF will continue to monitor this development and provide readers with any necessary updates.