NLRB Issues Proposed Rule Nixing Trump-Era Rule, Reinstating Protections for Union’s Representation Status

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In an expected move, the National Labor Relations Board (the Board) published a Notice of Proposed Rulemaking (NPRM) that would rescind a final rule issued in April 2020 (the 2020 Rule), which we discussed here. The proposed rule, titled the “Fair Choice and Employee Voice” rule, would enact policies that would insulate a union’s status as employees’ bargaining representative by (1) reviving “blocking charge” procedures, (2) reinstating an immediate “recognition bar,” and (3) allowing unions in the construction industry to obtain an enhanced representational status through contract language alone and without ever having to demonstrate support by a majority of the employees it represents.

  1. Return of the Blocking Charge

Prior to the 2020 Rule, a party could block an election indefinitely simply by filing an unfair labor practice charge with the NLRB. In most cases, these “blocking charges” would be filed by unions whose representation status was being challenged by a decertification petition. In such a case, employees would be deprived of the ability to vote on whether they desire continued union representation while the NLRB investigates the union’s charge.

The 2020 Rule largely eliminated the blocking charge. Under the 2020 Rule, regional directors are required to conduct a prompt election following the filing of a charge that would have previously blocked an election. Further, the ballots are opened and counted except in a limited subset of cases where ballots would be impounded for no more than 60 days. The impounded ballots would be counted unless the regional director issued a complaint within 60 days of the election.

The NPRM proposes to return to the blocking charge policy as it existed prior to the 2020 Rule. With NLRB GC Jennifer Abruzzo’s recent extension of timelines to investigate certain charges, the reinstatement of the pre-2020 blocking charge policy could leave employees waiting many months – and years, in some cases – to have their voices heard in an election.

  1. Immediate Recognition Bar

Under the 2020 Rule, following an employer’s voluntary recognition of a union, employers must post a notice advising employees that it has extended voluntary recognition to the union and employees would then have 45 days to petition the NLRB to conduct a secret-ballot election. If a petition was filed during this 45-day period, the NLRB would conduct an election to determine whether employees wanted union representation. The 2020 Rule effectively codified the Board’s 2007 decision in Dana Corp., 351 NLRB 334 (2007) – a case that was later overturned by the Obama Board in Lamons Gasket Co., 357 NLRB 934 (2011).

The NPRM would rescind the 2020 Rule and codify the Lamons Gasket holding. Thus, voluntary recognition would immediately bar an election petition for between six and 12 months from the date of the bargaining session. (And if a contract is reached during that period, thereby triggering a contract bar, employees could be waiting up to an additional three years before having even the opportunity to petition for an election.)

  1. No Requirement of Affirmative Evidence Establishing Majority Support to Convert Bargaining Relationships in Construction Industry

In the construction industry, Section 8(f) of the National Labor Relations Act (NLRA) allows employers and unions to establish a bargaining relationship – often referred to as “pre-hire” agreements – even without a showing that the union has majority support of the employees it will represent. Such 8(f) bargaining relationships last for the term of the parties’ contract, after which the parties may terminate the relationship or agree to extend the relationship. Outside the construction industry, however, union-employer bargaining relationships are established pursuant to Section 9(a) of the NLRA. These 9(a) bargaining relationships continue indefinitely until the union no longer has majority support of the bargaining unit. With 9(a) status comes broader protections for a union, including an irrebuttable presumption that it enjoys majority support during the term of the contract, and a rebuttable presumption of majority support at other times, including following expiration of the contract.

Prior to the 2020 Rule, under Staunton Fuel & Material, 335 NLRB 717 (2001), an employer and union could “convert” the 8(f) relationship to a 9(a) relationship through contract language alone stating that the union had majority support of employees. Unions routinely demanded such language in successor contracts. Thereafter, the union would enjoy the fruits of 9(a) status, meaning that the union would maintain its status as employees’ bargaining representative until it was established that the union was no longer supported by a majority of unit employees. The 2020 Rule overruled Staunton Fuel for representation case purposes and required positive evidence – rather than contract language alone – of employees’ majority support for an 8(f) relationship to be converted to a 9(a) relationship. The NPRM would return to the Board’s pre-2020 approach and permit conversions to a 9(a) relationship through nothing more than contract language. As a result, such contract language will provide bars to a subsequent petition for election by employees seeking to decertify the union or a rival union attempting to organize the same employees.

Republican Board Members John Ring and Marvin Kaplan dissented. Comments to the proposed rule must be received by the Board on or before January 17, 2023.

Employer Takeaways

This NPRM was foreshadowed in the NLRB’s Spring 2022 Rulemaking Agenda. But if the NPRM becomes a final rule, it will reinstate unnecessary barriers to prompt resolution of questions concerning representation. Blocking charges will again delay elections – and primarily decertification elections. Employees and rival unions will be unable to trigger a secret-ballot election to determine if the union does, in fact, enjoy majority support following the extension of voluntary recognition. Finally, construction industry unions and employers will again be able to convert an 8(f) bargaining relationship that was established without a showing of majority employee support to a 9(a) relationship – and the recognition and contract bar principles that come with it – without evidence of majority support of the union.

As always, we will keep you updated regarding developments related to this proposed rule.