The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; (2) the voluntary recognition bar; and (3) certain collective bargaining relationships involving employers in the construction industry. This piecemeal approach is consistent with Board Chairman John Ring’s statements at the American Bar Association’s labor and employment conference last November and is part of the rule-making agenda the Board announced in May.
Under the Obama administration, the Board passed the “quickie” or “ambush” election rule, which significantly shortens the time between the date an election petition is filed with the NLRB and the date the election is held, requires preelection hearings to be held very shortly after the filing of a representation petition, and requires employers to provide union representatives with far more information on potential voters than in the past. These new procedures were derided by employers and business groups, which was most clearly evidenced in 2017 when the Board received over 7,000 responses to its invitation for comments on whether to roll back these changes.
In the Board’s Friday announcement, a three-member majority, over one Board member objection, said, “The board 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.” Chairman Ring added, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.” The Board’s lone Democrat, Lauren McFerran, objected to the proposed rule-making.
The Board announced a three-pronged approach to revising the rules. The first prong of Friday’s proposed rule addresses blocking charges – the pausing of a union election when an unfair labor practice (ULP) charge is filed alleging that a party to the election illegally coerced workers to vote a certain way. Unions often file blocking charges to delay decertification elections. The proposed rule will replace the existing policy with a “vote-and-impound” procedure: the election will proceed regardless of pending ULPs, but the ballots cast in the election will be held until the charges are resolved.
The second prong addresses the Board’s voluntary bar standard, which prohibits challenging a union’s claim of majority support for a “reasonable period of time” after the union is voluntarily recognized by an employer. Current Board law, as set forth in the 2011 Lamons Gasket decision, defines a “reasonable period” as six months to a year. The new proposal would return the standard to the previous 45-day post-recognition window for filing a decertification petition that had been the law under the Board’s 2007 Dana Corp. decision.
Third, the Board’s proposal addresses the standard of proof for forming section 9(a) collective bargaining relationships in the construction industry. Section 9(a) of the National Labor Relations Act (NLRA) covers the typical situation where a union gains representative status after a majority of workers in the workplace demonstrate support for the union. In the construction industry, however, collective bargaining relationships are presumed to be covered under section 8(f) of the NLRA. Under section 8(f), employers and unions agree to contract terms without actually holding a union vote.
The Board’s proposal would result in a significant change to this standard. A union would need “extrinsic evidence” that shows its recognition “was based on a contemporaneous showing of majority employee support,” according to the NLRB’s proposed rule, which said that such evidence can include employee signatures on union authorization cards or a petition. Currently, under the Board’s 2001 Staunton Fuel & Material case, a section 8(f) presumption can transition into a section 9(a) relationship based on language in the parties’ collective bargaining agreement that indicates a union requested and obtained recognition as a representative of the unit employees in the face of evidence – or an offer of evidence – demonstrating majority support. The NLRB explained that the proposed “contemporaneous evidence” standard is necessary since a section 9(a) bargaining relationship triggers a three-year contract bar during which election petitions cannot be processed.
The Board’s proposal is being published today for public comment. Thereafter, the Board may make further changes or issue the regulations as proposed.
Reed Smith’s labor attorneys will keep you apprised of further developments and are available to assist you with all of your labor needs.