The National Labor Relations Board (the Board) issued a final rule on July 26, 2024, rolling back several Trump-era amendments to representation case rules. The rule, dubbed the “Fair Choice-Employee Voice Final Rule” makes three significant changes: (1) it restores the NLRB’s previous “blocking charge” policy; (2) it reinstates a six-month minimum voluntary recognition bar during which time a voluntarily recognized union’s status as majority representative cannot be challenged; and (3) returns to the Board’s pre-2020 approach to voluntary recognition in the construction industry.

The final rule comes two years after the Board issued its Notice of Proposed Rulemaking (NPRM). The 2022 NPRM sought to roll back policy changes issued by the Trump Board in 2020. The final rule will take effect on September 30, 2024.

Restoration of Blocking Charge Policy. The rule reinstates the prior policy allowing a regional director to delay the processing of an election petition at the request of a party that has filed an unfair labor practice charge and an adequate offer of proof in support of the charge allegations. In virtually every case, the “blocking charge” is filed by a union after a decertification petition has been filed.

Under the 2020 rule, regional directors would hold an election even if a blocking charge had been filed. The results of the election, however, would not be certified until after the blocking charge had been fully investigated. The Board stated that the 2020 rule required “regional directors to conduct, and employees to vote in, an election in a coercive atmosphere that interferes with employee free choice.”

Many employers should now expect unions to quickly file charges soon after a decertification petition is filed. Such charges will now block an election from being held during the pendency of the investigation which, in some cases, could be many months (or more than one year).

Return of the Voluntary Recognition Bar. Now, when an employer voluntarily recognizes a union as its employees’ bargaining representative based on the union’s showing that it is supported by a majority of employees, there will be no election challenging the union’s status for a “reasonable period of time” not less than six months. This rule eliminates the 2020 rule providing for a 45-day window after voluntary recognition for employees to file a petition seeking an NLRB-administered election.

The signing of union authorization cards is not always the most reliable indicator of overall employee support for a union. Under the previous rule, employees could put the union’s support to the test in an NLRB election – although such elections were very rare. Now, a voluntarily recognized union will be protected for at least six months, and, if a collective bargaining agreement is negotiated during that period, up to an additional three years on top of the voluntary recognition bar.

Return to Staunton Fuel Standard in Construction Industry. Last, the final rule returns to the Board’s pre-2020 approach to voluntary recognition in the construction industry. This policy includes restoring a six-month bar to an election petition challenging a construction employer’s voluntary recognition of a union. In addition, the final rule returns to the Board’s Staunton Fuel standard that permitted voluntary recognition in the construction industry through no more than language in a collective bargaining agreement bestowing voluntary recognition on the union pursuant to Section 9(a) of the NLRA – the section of the law that provides for the formation of bargaining relationships.

NLRB Rolls Back Trump Board Representation Case Policies

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The National Labor Relations Board (the Board) issued a final rule on July 26, 2024, rolling back several Trump-era amendments to representation case rules. The rule, dubbed the “Fair Choice-Employee Voice Final Rule” makes three significant changes: (1) it restores the NLRB’s previous “blocking charge” policy; (2) it reinstates a six-month minimum voluntary recognition bar during which time a voluntarily recognized union’s status as majority representative cannot be challenged; and (3) returns to the Board’s pre-2020 approach to voluntary recognition in the construction industry.

The final rule comes two years after the Board issued its Notice of Proposed Rulemaking (NPRM). The 2022 NPRM sought to roll back policy changes issued by the Trump Board in 2020. The final rule will take effect on September 30, 2024.

Restoration of Blocking Charge Policy. The rule reinstates the prior policy allowing a regional director to delay the processing of an election petition at the request of a party that has filed an unfair labor practice charge and an adequate offer of proof in support of the charge allegations. In virtually every case, the “blocking charge” is filed by a union after a decertification petition has been filed.

Under the 2020 rule, regional directors would hold an election even if a blocking charge had been filed. The results of the election, however, would not be certified until after the blocking charge had been fully investigated. The Board stated that the 2020 rule required “regional directors to conduct, and employees to vote in, an election in a coercive atmosphere that interferes with employee free choice.”

Many employers should now expect unions to quickly file charges soon after a decertification petition is filed. Such charges will now block an election from being held during the pendency of the investigation which, in some cases, could be many months (or more than one year).

Return of the Voluntary Recognition Bar. Now, when an employer voluntarily recognizes a union as its employees’ bargaining representative based on the union’s showing that it is supported by a majority of employees, there will be no election challenging the union’s status for a “reasonable period of time” not less than six months. This rule eliminates the 2020 rule providing for a 45-day window after voluntary recognition for employees to file a petition seeking an NLRB-administered election.

The signing of union authorization cards is not always the most reliable indicator of overall employee support for a union. Under the previous rule, employees could put the union’s support to the test in an NLRB election – although such elections were very rare. Now, a voluntarily recognized union will be protected for at least six months, and, if a collective bargaining agreement is negotiated during that period, up to an additional three years on top of the voluntary recognition bar.

Return to Staunton Fuel Standard in Construction Industry. Last, the final rule returns to the Board’s pre-2020 approach to voluntary recognition in the construction industry. This policy includes restoring a six-month bar to an election petition challenging a construction employer’s voluntary recognition of a union. In addition, the final rule returns to the Board’s Staunton Fuel standard that permitted voluntary recognition in the construction industry through no more than language in a collective bargaining agreement bestowing voluntary recognition on the union pursuant to Section 9(a) of the NLRA – the section of the law that provides for the formation of bargaining relationships.