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The First Rollout of Proposed Amendments to the NLRB’s Election Rules

Labor & Employment Publications

On August 9, 2019, the National Labor Relations Board (NLRB) issued the first of its planned series of highly anticipated proposed amendments to its union election procedures. These proposed amendments follow the NLRB’s request for public input in December 2017 regarding its highly controversial “quickie election” rules.

The proposed amendments target the following three areas: the NLRB’s processing of “blocking charges,” its voluntary recognition bar, and collective bargaining relationships in the construction industry. The Notice of Proposed Rulemaking, which can be found here, provides that the NLRB “believes, subject to comments, that the proposed amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret ballot election.”

Blocking Charges: A blocking charge is an unfair labor practice charge in which it is alleged that a party illegally coerced workers to vote a certain way in a union election. Under the current rule, when a blocking charge is filed, the election is postponed by the NLRB until the charge has been resolved. Historically, blocking charges largely have been filed by unions in an attempt to delay decertification elections. Under the proposed rule, if a blocking charge is filed, the NLRB would implement a vote-and-impound procedure, whereby the election would move forward, but the ballots cast in the election would be seized and impounded until the charge is resolved.

Voluntary Recognition Bar: The NLRB’s voluntary recognition bar serves to prohibit challenges related to a union’s majority support (such as the filing of a decertification petition) for a “reasonable period of time” after an employer has voluntarily recognized a union in the absence of an election. Under current, Obama-era NLRB precedent, a “reasonable period” has been defined as six (6) to twelve (12) months. See Lamons Gasket Co., 357 NLRB No. 72 (2011). The proposed amendment would codify the pre-Obama era standard, which only allowed a 45-day post-recognition window before a decertification petition could be filed by workers or a rival union.

Collective Bargaining Relationships in the Construction Industry: In the construction industry, there exists a presumption that bargaining relationships are covered under Section 8(f), rather than Section 9(a), of the National Labor Relations Act. Section 8(f) permits unions and employers in the construction industry to establish a collective bargaining relationship in the absence of evidence of majority support by the union—a clear exception to Section 9(a)’s majority status requirement. Under current precedent, this presumption under Section 8(f) may convert to a Section 9(a) relationship based solely on language in a collective bargaining agreement indicating that the union requested and obtained recognition. The proposed rule would amend this presumption with a more exacting standard that unions must satisfy to establish that Section 9(a) collective bargaining relationship. Specifically, the proposed amendment would require unions to have “extrinsic evidence showing its recognition was based on a contemporaneous showing of majority employee support.” Examples of such evidence would include employee signatures on authorization cards or a petition. In short, the proposed rule attempts to ensure that the workers themselves, rather than the union or the employer, chose to shift to a Section 9(a) bargaining relationship.

The NLRB’s stated aim behind each of these proposed amendments is to protect employee free choice. These proposed amendments to the NLRB’s election rules are subject to public comment, and we will continue to update you regarding the status of the NLRB’s proposed changes as its rulemaking process progresses.