The National Labor Relations Board (NLRB) has issued another union-friendly final rule. The Fair Choice-Employee Voice Final Rule (Final Rule), scheduled to become effective September 30, 2024, resurrects three procedural tools that have historically allowed unions to win or retain representation rights: (1) blocking charges, (2) the voluntary recognition bar, and (3) parity for the construction industry. This Final Rule, like other final rules the NLRB has issued in the last three years, rescinds many of the rules promulgated by the NLRB in February 2020 (2020 Rules). The Final Rule is expected to pave the road for unions to become or remain employees' bargaining representatives, without participating in a secret ballot election.
Return of Blocking Charges
A "blocking charge" is an unfair labor practice charge filed by a party to a representation proceeding alleging that the other party engaged in behavior that interferes with employees' free choice if an election were to proceed. Since the 2020 Rules, Regional Directors can move forward with the election even if unfair labor practice charges are pending. The results of the election are delayed pending the region's investigation and resolution of the unfair labor practice charges.
Come September 30, the traditional and somewhat controversial "blocking charge" policy returns. Regional Directors will have the authority to delay or "block" an election if an alleged unfair labor practice is sufficiently serious to interfere with a fair election. In order to successfully delay or block an election, the party filing the unfair labor practice charge must, among other things: (1) request the delay or suspension of the election, (2) proffer proof of the alleged unfair labor practice, (3) agree to produce its witnesses promptly upon request, and (4) establish that none of the blocking charge exceptions apply. Under the NLRB's 2020 Rules, the Regional Directors were required to administer elections, even while an unfair labor practice charge was pending. Now, however, unions may use the Final Rule to delay or prevent a decertification election, making it even harder for employees to remove a union representative.
Voluntary Recognition Bar
When a union seeks an employer's voluntary recognition as the bargaining representative for a unit of employees, the employer may do so based on a showing of the union's majority status without a secret ballot election. Should the now-represented employees wish to remove a union that has been recognized as their exclusive bargaining agent, they must vote and win a decertification election. The Final Rule restores the "voluntary recognition bar," which prevents any employee vote regarding unionization for a "reasonable period" of time—ranging from six months to a year—until the employer and recognized union attempt to negotiate an initial collective bargaining agreement after the union is voluntarily recognized. Under the 2020 Rules there was only a 45-day window following voluntary recognition to file a petition for election, which the Final Rule has now eliminated.
For all voluntary recognitions that occur on or after September 30, employees will be barred from filing a decertification petition for at least six months from the date of the parties' first bargaining session, which could be many months after a union has been voluntarily recognized. And if the parties execute a collective bargaining agreement, the employees will be forced to wait an additional three years beyond the expiration of the voluntary recognition bar due to the "contract bar."
Parity for the Construction Industry
Section 8(f) of the National Labor Relations Act (NLRA) permits construction employers and unions to enter into pre-hire agreements to aid with the commonplace practice of costing out and bidding for jobs. These pre-hire agreements establish a construction union as the exclusive collective-bargaining representative for the agreed-upon job(s), even where the union does not have the support of a majority of the construction employer's employees. Instead of requiring proof of majority support like other unions need to show under Section 9(a) of the NLRA, the union representative is only required to provide "positive evidence," separate from preexisting contract language, of continued majority support for the union.
The Final Rule reinstates a previous rule permitting contract language, and contract language alone, to support majority status under Section 9(a) of the NLRA, even if a majority of employees never expressed support for the union. The Final Rule allows construction industry employees to be bound to a union based upon temporary pre-hire agreements alone, with no "positive evidence" requirement.
Implications of the Final Rule
The NLRB's rollback of the 2020 Rules is creating new hurdles for employers and employees alike. Employees seeking to change unions or decertify their present union will face significant hurdles. It is reasonable to presume that unions will use blocking charges to delay decertification elections, and the voluntary recognition bar adds at least a six-month waiting period before employees may seek removal of their union. Construction employers must understand that the pre-hire agreements with the union representative will marry them to a specific union representative beyond the contract's expiration if the contract fails to specify the termination of the employer-union relationship. We anticipate the Final Rule to be challenged in court, especially considering that 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.
