Friday, July 26, 2024: NLRB Announced Final Union Election Protection Rule Rescinding Trump-Era Rule
New Rule Slated to Take Effect on September 30
Rule Focuses on Three Key Policies
In a press release, the National Labor Relations Board (“NLRB”) announced its Final Rule to revise the representation election procedures located at 29 CFR §103 with a focus on amendments it issued on April 1, 2020. Slated to take effect on September 30, 2024, the Final Rule revises the representation election procedures located at 29 CFR §103 with a focus on amendments it issued on April 1, 2020. The Final Rule rescinds and replaces the 2020 amendments to the Board’s Rules governing “blocking charges” and the “voluntary-recognition bar doctrine” and rescinds the amendment governing proof of majority support for labor organizations representing employees in the construction industry.
Although the NLRB announced the Final Rule on Friday, its official publication is not scheduled until the August 1st edition of the Federal Register. The Board will only apply the new Rule to cases filed after the September 30 effective date.
Chairman Lauren M. McFerran (D) was joined by Board Members Gwynne A. Wilcox (D) and David M. Prouty (D) in issuing the Final Rule. Board Member Marvin E. Kaplan (R) dissented, according to the press release.
Three Key Policies
The Final Rule contains three parts, each rescinding a corresponding portion of the Board’s current Rule issued in April 2020, and effective July 31, 2020 (the “2020 Rule”). The preamble section of the Final Rule Notice ends, and the text of the finalized regulations begins, on pdf page 236 of the pre-publication version.
Part 1: Blocking Charge Policy
First, the new Rule returns to the Board’s previously established “blocking charge” policy as most recently reflected in a 2014 Final Rule. NLRB Regional Directors (RDs) will again have the discretion to hold a representation petition in abeyance (to “block” it) when a related unfair labor practice (“ULP”) charge is pending.
The current 2020 Rule limits the circumstances in which RDs could block petitions in the face of pending ULP charges. Such elections must go forward, and the votes will either be counted or impounded, depending on the nature of the charge. Prior to the 2020 Rule, unions routinely filed ULP charges related to the election (“blocking charges”) to pause elections they were likely to lose or to delay decertification bids by workers.
Part 2: Voluntary-Recognition Bar
Under Section 9(a) of the National Labor Relations Act (“NLRA”), an employer’s obligation to collectively bargain is triggered by: (a) a union victory in an NLRB-conducted secret ballot election among employees; or (b) the employer’s voluntary recognition of the labor organization based on a review of union authorization cards signed by a majority of employees. The voluntary-recognition bar doctrine allows a union – after an employer has voluntarily and lawfully recognized it – to represent employees for a “reasonable” period of time without being subject to challenge. In other words, the voluntary recognition bar blocks petitions to decertify unions empowered through voluntary recognition for a certain time period.
The current 2020 Rule provides that unions are only protected from challenge if they notify the NLRB of their recognition and the employer posts a notice alerting workers to their right to file for a decertification election within 45 days of posting. According to the NLRB, under this current Rule, employees rarely file election petitions to oust recognized unions, suggesting that voluntary recognition almost always accurately reflects employee free choice. Thus, the new Final Rule eliminates the required notice-and-election procedure triggered by an employer’s voluntary recognition of a union based on a showing of majority support among employees. The Final Rule provides an immediate recognition bar that lasts a minimum of six months and a maximum of one year, from the date of the parties’ first bargaining session. This voluntary recognition bar will prevent challenges to the status of a newly recognized union until a reasonable period for collective bargaining has passed, the Board stated.
Part 3: Section 9(a) Recognition in the Construction Industry
Due to the nature of the work involved, construction industry employers can, under Section 8(f) of the NLRA, choose to recognize a union without any showing of majority support by employees. Thus, the NLRA allows the construction industry an exemption to Section 9(a). These 8(f) unions may attain full status through an election or voluntary recognition based on majority support.
Prior to the current 2020 Rule, workers had a six-month window following recognition to challenge voluntarily recognized construction unions. The current Rule allows the Board to evaluate a construction industry union’s purported recognition at any time that an election petition is filed. It also requires that a union invoking the removal bar point to more than the language of the applicable collective-bargaining agreement to prove majority support.
The new Final Rule will return to the Board’s prior approach of a six-month limitations period for election petitions challenging a construction employer’s voluntary recognition of a union (as established in Casale Industries, 311 NLRB 951 (1993)). It will also include the principle (established in Staunton Fuel & Material, 335 NLRB 717 (2001)) that sufficiently detailed language in a collective-bargaining agreement can serve as sufficient evidence that voluntary recognition was based on Section 9(a) of the Act.
How We Got Here
The NLRB published its proposed version of the Rule on November 4, 2022 (see our story here). After an extension, the comment period concluded on February 2, 2023, with 110 comments submitted. The Board addresses these comments throughout the preamble contained in pages 1-236 of the pre-publication version of the Final Rule.
The Spring 2024 Regulatory Agenda set a September 2024 target date for publication of the Final Rule. Thus, the agency is slightly ahead of schedule.
Changes from Proposed Version
The Final Rule is identical to the Proposed Rule, but with two additional provisions. (See pages 117-118 of the pre-publication version of the Final Rule.) First, Section 103.21(e), acknowledges (but does not codify) the current case law addressing the application of the voluntary recognition bar when two or more unions are vying to represent employees. Second, Section 103.21(g), codified the Board’s view that the paragraphs of Section 103.21 are intended to be severable. The Board’s two actions – rescission of the 2020 rule and adoption of a new rule – are intended to be separate and severable. This portion of the Final Rule addressing voluntary recognition, in turn, is intended to be severable from the other portions of the final rule rescinding and replacing the portions of the 2020 Rule that addressed the blocking charge policy and rescinding the portion of the 2020 Rule that addressed proof of majority support for labor organizations representing employees in the construction industry.