NLRB Issues “Election Protection” Final Rule

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On April 1, 2020, the National Labor Relations Board issued its anticipated “Election Protection” final rule. (Last August, the Board issued the Notice of Proposed Rulemaking, which we discussed here.) The final rule differs in some respects from the proposed rule. But the issuance of the final rule will unquestionably be viewed positively by employers. The final rule is now scheduled to become effective on July 31, 2020.

The final rule amends representation case (“R Case”) regulations in three ways:

  • Blocking Charges: The final rule institutes a vote-and-impound procedure only in certain cases. Specifically, impoundment is required where unfair labor practice charges, filed by the party seeking to block the election, allege: (a) violations of 8(a)(1) or (2), or 8(b)(1)(A) of the National Labor Relations Act that challenge the circumstances surrounding the petition or showing of interest in support of the petition; or (b) that an employer has dominated a union in violation of Section 8(a)(2) and seeks to disestablish a bargaining relationship. For all other cases, ballots will be opened and counted, rather than impounded. Regardless of the nature of the charge, the certification of results (or certification of representative) shall be withheld until there is a final disposition of the charge and its effect, if any, on the election.  These changes represent a substantial improvement in the Board’s blocking charge policy. Previously, unions or pro-union employees could, in many cases, block a decertification petition from proceeding to an election by filing a charge that claims to create doubt as to the validity of the petition or employees’ ability to make a free and fair choice about continued representation. Now, the Board will proceed to an election even after a blocking charge is filed. The process will allow for employees to cast their vote on representation close in time to when the petition is filed.
  • Voluntary Recognition Bar: The final rule re-establishes the notice posting requirement and 45-day open period for filing an election petition following an employer’s grant of voluntary recognition to a union. The Board reasoned that this process accords with the Board’s and courts’ preference for resolving questions concerning representation through a Board-conducted secret-ballot election. Prior to the final rule, an employee or rival union would be precluded from filing a petition following the grant of recognition for at least six (6) months and generally no more than 12 months. But where the employer and union reached an agreement during that voluntary recognition bar period, employees and rival unions may be precluded from filing a petition for up to an additional three (3) years.  Thus, where an employer voluntarily recognizes a union, the employer or union must notify the NLRB Regional Office in that jurisdiction. The Regional Office will then send a Board notice to be posted by the employer – and, where appropriate, distributed electronically. Employees or a rival union will have a 45-day open period from the posting of the notice during which an election petition may be filed. If a petition is timely filed, the Regional Office will process the petition; if no petition is timely filed, the recognition bar shall apply for a period of no less than six (6) months and generally no more than 12 months. Additionally, an election petition filed during the 45-day open period will be processed even where the employer and union have reached a collective-bargaining agreement. Notably, the final rule’s provisions are applicable to voluntary recognition extended on or after the rule’s effective date.
  • Proof of Majority-Based Recognition in the Construction Industry: Section 8(f) of the NLRA allows construction employers to recognize a union even in the absence of majority support. In many cases, this recognition may occur before the employer has hired any employees (i.e., “pre-hire agreements”). This is an exception to the majority-based requirement for establishing a bargaining relationship mandated by Section 9(a) of the Act applicable to non-construction employers. When an 8(f) agreement expires, the employer is under no duty to continue bargaining with that union – which, of course, is not true of a 9(a) relationship for non-construction employers. Prior to the final rule, employers and unions could “convert” the 8(f) relationship to a 9(a) relationship by contract language alone – and without any evidence of a contemporaneous showing of majority support. Consequently, construction employees would be precluded from filing a petition for up to an additional three years by the Board’s contract bar doctrine.  Under the final rule, employers and unions representing construction-industry employees can only establish a Section 9(a) bargaining relationship based on positive evidence – rather than contract language alone – of employees’ majority support for the union. The final rule prevents construction employees from being “locked in,” by contract language alone, to several years of union representation where a union may have never had evidence of majority support.

The Board’s final rule removes unnecessary barriers to fair and prompt resolution of questions concerning representation. Blocking charges will no longer delay elections indefinitely. Employees and rival unions will be able to file a petition in the weeks following voluntary recognition, which will trigger the preferred secret-ballot election to determine whether the union has majority support. Finally, construction employers and unions cannot convert an 8(f) bargaining relationship to a 9(a) relationship – and the contract bar principles that come with it – absent evidence of majority support of the union.