On April 1, 2020, the National Labor Relations Board (NLRB or the Board) made various amendments to its rules and regulations governing blocking charges, the voluntary-recognition bar doctrine, and proof of majority support for labor organizations representing employers in the construction industry. The 2020 Rule became effective on July 31, 2020. The NLRB is rescinding the final three amendments to its rules and regulations made by the April 2020 Rule, election rules put into place by former President Trump. The new Rule will become effective on September 30, 2024.

Blocking Policies

The new Rule restores the Board’s blocking policies and eliminates the Trump-era blocking policies. The new Rule states that board officials are allowed to delay processing election petitions if there are allegations that the employer has engaged in serious misconduct such that the misconduct would undermine an employee’s free choice in an election. Now, regional directors can allow the election to proceed and wait to certify the results after a ruling on whether the employer’s bad conduct impacted the vote in most cases.

Parties requesting that an election petition be blocked will be required to provide an offer of proof and make any witnesses available. The regional director will have the discretion to pause the vote until the director can assess whether there is merit to the misconduct claims and, if so, whether the misconduct interfered with a worker’s ability to choose their representative freely or that it is “inherently inconsistent with the petition itself.”

Employer’s Voluntary Recognition of the Union

What if the employer wants to recognize the union voluntarily? Under the previous rule, employers had to notify workers of their right to file a decertification petition or to request an election with another labor organization within 45 days. Under the new Rule, voluntary recognition is a legitimate process under the National Labor Relations Act (NLRA) and forcing a union to prove its majority status in an election after the employer has already recognized the union “better protects workers’ choice of their bargaining representative.”

The new Rule also changes details for an employer to recognize a union voluntarily when there is more than one union claiming to be the employees’ representative.

The Construction Industry

The construction industry has always had a unique position when it comes to union elections due to how it is structured. Under Section 8(f) of the NLRA, employers may recognize construction industry unions without a showing of majority support from the workforce. Instead, a construction union could take on the status of a union representing the workforce if they could demonstrate some evidence of majority support. In one decision, the Board imposed a six-month period under which a union’s recognition could be challenged. In another decision, the Board previously held that a relationship between the employer and employee could be established through certain language in a written agreement between the employer and the union. The new Rule eliminates the waiting period and also does not require additional evidence to establish the relationship between the employer and the union.