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The NLRB Proposes Rule Tweaks for Union Elections

September 5, 2019

For some time now, there has been speculation about the National Labor Relations Board (the “Board”) revising its union representation election rules that were adopted in 2015. While not addressing those rules, on August 12, 2019, the Board published new proposed rules for public comment that could change the Board’s union representation election process in three important ways. Public comments must be submitted by October 11, 2019.

First, the Board proposes revising its blocking charge policy. Currently, a party can delay a union election indefinitely by filing an unfair labor practice charge. Typically, unions have taken advantage of this policy to delay elections. To combat abuse of the blocking charge policy, the proposed rule would establish a vote-and-impound procedure. Under this procedure, the Board election would be held, regardless of any pending unfair labor charge, and the votes would be impounded until the charge is resolved.

Second, the Board proposes revising the voluntary recognition bar. Employers can voluntarily recognize a union without an election. Currently, voluntary recognition will bar any employee decertification petition or another union’s election petition for a reasonable period until the employer and union have attempted to negotiate a labor agreement. The proposed rule would still allow for a voluntary recognition bar provided that the employer and union give written notice informing the Board that the union has been voluntarily recognized. Additionally, the employer must post a notice informing its employees that they have a 45 day period in which a decertification or another union election petition can be filed.

Finally, in its third proposed rule, the Board plans to heighten the standard for establishing that a construction industry agreement is a conventional Section 9(a) collective bargaining agreement (“CBA”). Section 8(f) of the National Labor Relations Act allows an employer and union in the construction industry to enter into a CBA, also known as a pre-hire agreement, without the union first establishing that it represents a majority of the employees. Such agreements create no contract bar and the bargaining relationship with the union can cease when those agreements expire. In contrast, when a non-construction industry CBA, also referred to as a Section 9(a) agreement, expires, an employer still has an obligation to recognize and bargain with the union. In Staunton Fuel & Material, 335 NLRB 717 (2001), the Board held that certain language in a CBA standing alone could be sufficient to establish that a construction industry agreement had been converted into a Section 9(a) agreement even though there was no evidence that a majority of the employees supported the union. In that situation, the construction industry employer would be obligated to continue recognizing the union after the CBA expires. The proposed rule would overrule the Staunton Fuel decision and require the union to have evidence of majority employee support and cannot be based on contract language alone.

We will update you after the comment period is closed and the Board acts on these proposed changes. For more information on these proposed changes or the Board, please contact one of Honigman’s Labor and Employment attorneys.