NLRB Issues Management-Friendly Proposed Rule to Revise Election Procedures


A majority National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking proposing three amendments to so-called “blocking charges,” the voluntary recognition bar, and recognition in the construction industry. The Board contends that these proposed amendments will better protect employees’ rights to choose whether or not to be represented. In effect, however, they are a continuation of the current Board’s retreat from the pro-union positions staked out by the Obama Board.

The first amendment would modify the Board’s blocking charge policy. Unions often file unfair labor practice charges that serve to block representation elections, particularly where the petition is filed by employees seeking to decertify the union. The election is blocked while the charge is processed. The current policy often allows unions to avoid an election for months or years, and, in some cases, an election is never held. The Board’s proposed rule would establish a vote-and-impound procedure when a party requests blocking the election based on a pending unfair labor practice charge. Rather than waiting for the charge to be resolved before a vote is held, the election would be held and the ballots would be impounded until the charge is resolved. In dissent, Member McFerran argued that the proposed rule will require employees to vote in “an atmosphere of collusion,” and, in some cases, will waste the agency’s limited resources by holding elections that will ultimately have to be rerun.

The proposed rule’s second amendment would modify the Board’s current voluntary recognition bar. The amendment would reinstate a notice requirement and 45-day open period for filing an election petition following an employer’s voluntary recognition of a union.  This would effectively reinstate the Board’s 2007 decision in Dana Corp., 351 NLRB 434 (2007), which created the notice requirements and open period, only to be overruled by the Obama Board’s decision in Lamon’s Gasket Co., 357 NLRB 739 (2011).  Under the proposed rule, for a voluntary recognition to bar a subsequent representation petition – and for a post-recognition collective-bargaining agreement to serve as a contract bar to a decertification or rival petition – employees must receive notice that voluntary recognition was granted, and a 45-day period within which to file an election petition.

Lastly, the Board proposed enhancing a union’s burden of proof to establish a bargaining relationship – a relationship under Section 9(a) of the National Labor Relations Act (NLRA) that can bar petitions for a Board election – with employers in the construction industry.  In the construction industry, collective bargaining relationships can be established under Section 8(f) of the NLRA.  These 8(f) bargaining relationships allow employers and unions to enter into agreements setting workers’ terms and conditions of employment even where a union has not demonstrated that it is supported by a majority of employees.  An 8(f) relationship, however, cannot bar a petition for election, including a decertification petition.  In Staunton Fuel, 337 NLRB 717 (2001), the Board held that the 8(f) relationship can be converted to a 9(a) relationship, thereby barring an election petition, based on contractual language alone and without extrinsic evidence that the union is supported by a majority of employees. The proposed rule would overrule Staunton Fuel and require unions to present extrinsic evidence that a 9(a) relationship was created based on a contemporaneous showing of majority employee support (e.g., authorization cards signed by a majority of employees).

The Board’s proposed amendments will roll back existing barriers to employees’ ability to rid themselves of a union that is not supported by a majority of employees. Public comments on the Board’s proposed rule are currently due on or before October 11, 2019, and may be submitted through the Federal Register website.