NLRB Finalizes More Changes to Union Representation Rules

On April 1, 2020, the National Labor Relations Board (NLRB or Board) published a final rule that significantly amended its Rules and Regulations governing union representation procedures.  The amendments address three hot-button representation case issues:

1. Blocking Charge Policy: The final rule provides that ballots will be promptly opened and counted at the conclusion of an election, even where there is an unfair labor practice charge pending that alleges discrimination or coercion by an employer against employees because of their support for a union. Only when a charge alleges that the employer has assisted or dominated a union in violation of Section 8(a)(2) of the National Labor Relations Act (the Act), or when the charge challenges the circumstances surrounding the petition or showing of interest in support of the petition, will the Board impound ballots for up to 60 days. The Board defended the rule, explaining that unions too often attempt to delay elections by filing frivolous unfair labor practice charges, robbing employees of their right to free choice.
   
   
2. Voluntary Recognition Bar: The amendment provides for an open period of 45 days following voluntary recognition during which election petitions can be filed and processed. Currently, the Board imposes an immediate election bar following an employer’s voluntary recognition of a union, which can last a minimum of six months. The amendment overrules Lamons Gasket Co., 357 NLRB 739 (2011), and returns to the rule set forth in Dana Corp., 351 NLRB 434 (2007). The Board justified the change, noting that the preferred method for determining whether a union has majority support is through a Board-conducted secret ballot election.
   
   
3. Section 9(a) Recognition in the Construction Industry: In the construction industry, employers and unions may enter into prehire agreements under Section 8(f) of the Act, even where there is no showing of majority support for the union by the employees. By contrast, in a traditional 9(a) relationship, unions must demonstrate majority support before they can represent employees.  Under the new rule, conversion from a Section 8(f) relationship to a Section 9(a) relationship will require unions to give “positive evidence” of a contemporaneous showing of majority support at the time they seek the conversion. Currently, bargaining relationships can be converted from Section 8(f) to 9(a) based on contract language alone, without evidence of contemporaneous majority support. See Staunton Fuel, 335 NLRB 717 (2001). The move away from Staunton Fuel is significant because upon expiration of a prehire agreement, employers have no continuing bargaining obligations. By contrast, with a Section 9(a) relationship, certain bargaining obligations attach following contract expiration. The Board defended the change, arguing that the current law under Staunton Fuel focuses too much on the intent of employers and unions, rather than the desires of employees.
   

The changes were scheduled to become effective on June 1, 2020, but on April 8, the Board announced that it would postpone the effective date to July 31 due to COVID-19. The Board clarified that the portion of the rule applicable to the voluntary recognition bar will apply only to voluntary recognition extended on or after the effective date of the rule and to any collective bargaining agreement entered into on or after the date of such voluntary recognition.

The NLRB’s three Republican appointees voted in favor of the rule; the two Democratic seats on the Board are currently vacant.

In addition to these amendments, the Board published a separate rule on December 18, 2019, that scaled back the so-called “ambush election” rules passed in 2014 by the Obama Board. The rule was scheduled to become effective on April 16, 2020, but the AFL-CIO has challenged the rule in federal court.

Ballard Spahr’s Labor and Employment Group monitors changes in law and policy at the NLRB and routinely assists clients in navigating union election procedures.

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