Proposed New NLRB Election Procedures Could Make it Easier for Employees to Reject, Vote Unions Out

On August 9, 2019, the National Labor Relations Board (Board) announced a series of proposed new rules that, if implemented, will make it easier for employees to reject unionization or vote a union out. The proposed changes seek to modify how the Board processes union election procedures affecting three specific areas:

• The so-called blocking charge policy
• The voluntary recognition bar standard
• Collective bargaining relationships in the construction industry

Three members of the Board proposed the amendments, with the Board’s only Democrat member dissenting. The proposed amendments come just about five years after the Obama-era Board issued regulations that overhauled the union election process. The Board plans on issuing additional amendments to union election procedures in the future and believes that these changes will better protect employees’ rights to choose whether to be represented by a union.

The first proposal concerns the Board’s so-called blocking charge policy. Under this policy, a party can block a Board-conducted secret ballot election by filing an unfair labor practice charge alleging that the other party has been coercing employees in their ability to make a free and fair choice about wanting to be represented by a union.

Most frequently, unions file these charges to block an election to decertify the union and can effectively delay holding an election for months, if not years. The proposed rule would eliminate this delay by adopting a “vote-and-impound procedure” whereby the election would be held, employees would vote and ballots would be impounded until there is a final determination concerning the charges.

The second proposal would change the Board’s current policy barring the filing of an election petition “for a reasonable time” after an employer voluntarily recognizes a union. Presently, if an employer voluntarily recognizes a union as its employees’ collective bargaining representative (no election held, no voting by employees), employees cannot file a petition for a Board-conducted election to vote the union out unless at least six months to a year has elapsed since the company and the union first held a bargaining session.

This standard is outlined in a 2011 board decision called Lamons Gasket which overruled Dana Corp., 351 NLRB 434 (2007). The proposed rule would return the election procedure to the Dana Corp. standard by requiring that employees be notified when their employers have voluntarily recognized a union and allowing a 45-day window for employees to file a decertification petition.

Finally, the third proposed amendment would change the standard that unions must meet to form so-called Section 9(a) collective bargaining relationships in the construction industry. Section 8(f) of the National Labor Relations Act (Act) allows an employer and a union in the construction industry to enter into a collective bargaining agreement without first establishing that the union has the support of a majority of employees.

This is an exception to the general rule established in Section 9(a) of the Act that a union must show majority support to be a bargaining representative. The significance between the union’s status under Section 8(f) and 9(a) is that the 8(f) bargaining relationship can be terminated by either party on the expiration of the collective-bargaining agreement while the 9(a) relationship continues after the expiration of a contract, unless and until the union is shown to have lost majority support.

Under current board policy, a Section 8(f) relationship can be converted to 9(a) simply by having the parties enter into a written agreement that states that the union requested recognition, the employer recognized the union, and the union showed or offered to show evidence that it had majority support from employees. Notably, employees are barred from filing a petition to vote a union out during the first three years of a contract’s term. The proposed rule would require that to establish a Section 9(a) relationship the union must have “extrinsic evidence” to demonstrate that recognition was based on a contemporaneous showing of majority employee support.

The Board majority views the proposed rules as providing better protection for employees’ rights to freely choose whether they want to be represented by a union and as removing barriers to fairly and quickly resolving representation questions by Board-conducted secret ballot elections. The dissenting Board member views the proposed rules as undermining employee rights and unions in general. Final rules will be published once a period for public comment is over.