National Labor Relations Board Proposes Employer-Friendly Election Procedure Changes
On August 12, 2019, the National Labor Relations Board (the "Board") published a notice of proposed rulemaking, advocating changes to current union election procedures that the Board's majority calls "overbroad and inappropriate limitation[s] on the ability of employees to exercise their fundamental statutory right to the timely resolution of questions concerning representation through the preferred means of a Board-conducted secret ballot election."
The proposed modifications are intended to further the Board majority's goal of protecting employee free choice with respect to union representation by:
- Prohibiting unions from indefinitely postponing scheduled Board-conducted union elections by filing so-called "blocking charges";
- Allowing employees to contest a voluntarily recognized bargaining representative, and instead choose representation through a Board-conducted election, before barring their ability to do so for a period as long as four years; and
- Requiring evidence that a majority of affected employees support representation by a labor organization in order to establish a collective bargaining relationship in the construction industry.
The proposed rulemaking is welcome news for employers that have been hoping for a broad reversal of the union-friendly 2015 "quickie election" regulations since December 2017, when the current Board requested input on whether it should roll back the 2015 rules. In May 2019, the Board announced its intention to address the 2015 regulations through the incremental approach reflected in the August 12 proposed rulemaking.
The proposed changes appear to be the first step in the Board's "piecemeal" election rule strategy, which is expected to make it easier for employees to reject union representation attempts and unseat existing union representatives.
The National Labor Relations Act (the "Act") provides that a labor union may become the exclusive bargaining agent for a group of employees by being designated or selected by a majority of employees in the unit. 29 U.S.C. § 159(a). Most commonly, a union demonstrates majority support sufficient to become a unit's bargaining representative through the Board's formal secret ballot election procedures. Currently, if a party in a union representation or decertification case files an unfair labor practice charge alleging certain conduct interfering with employee free choice in a union election, the Board halts the election while it processes the allegations.
A union also may attain bargaining representative status without a Board-conducted election by securing an employer's voluntary recognition after demonstrating that it has the support of an un-coerced, unassisted majority of employees in the bargaining unit. Under the Board's current voluntary recognition bar policy, which is intended to give a voluntarily recognized union and employer time to meaningfully bargain a contract, a rival union may not challenge a voluntarily recognized union's majority support for at least six months after the date of the parties' first bargaining session.
Section 8(f) of the Act sets forth an exception to the majority support rule by allowing a construction industry employer and a union to establish a collective bargaining relationship in the absence of majority support. The Section 8(f) exception was intended to permit construction industry employers to secure a consistent, reliable source of labor for specific construction projects through "pre-hire" agreements with unions. In 2001, the Board ruled that a union in the construction industry may convert a pre-hire agreement with an employer to a full bargaining relationship if the parties voluntarily agree in a subsequent collective bargaining agreement that the union has majority support, even in the absence of any evidence of majority employee support. Staunton Fuel & Material, Inc., 335 NLRB 717, 719-20 (2001).
The proposed rulemaking would replace the current blocking charge process with a "vote-and-impound" procedure, allowing an election to occur as scheduled despite the filing of an unfair labor practice charge, and impounding the ballots until the unfair labor practice charge is resolved.
In support of the proposed modification, the Board majority echoed an oft-heard complaint that unions utilize the blocking charge policy as a stall tactic - and, in some cases, an unfair advantage - if they need more time before a scheduled Board election to campaign for employee support. In the majority's words, the current blocking charge policy "permits a party - almost invariably a union and most often in response to [a decertification] petition - to block an election indefinitely by filing unfair labor practice charges that allegedly create doubt as to the validity of the election petition or as to the ability of employees to make a free and fair choice concerning representation while the charges remain unresolved."
The majority also cited the large number of representation cases in which elections have been delayed "for months, or even years, if [they occur] at all," noting that at the end of 2018, there were 118 blocked petitions pending for an average of 893 days. In one such case, the delay lasted 4,491 days - more than 12 years.
Voluntary Recognition Bar
The proposed rule also would revert back to the Board's voluntary recognition bar policy as set forth in Dana Corp., 351 NLRB 434 (2007), such that the bar would apply only in cases in which employees in the bargaining unit are given notice of the recognition and afforded an immediate 45-day window to file a petition to decertify the voluntarily recognized union.
As justification for the proposed modification, the majority cited the "court- and Board-recognized statutory preference for resolving questions concerning representation through a Board-conducted secret-ballot election" as a more reliable reflection of employee choice with respect to union representation. The Board-conducted election process does not subject employees to the same group pressure and potential misinformation sometimes present in card-signing situations. Furthermore, unlike the voluntary recognition process, the Board election process involves certain safeguards, including post-election review procedures that may invalidate election results in cases of impermissible electioneering and other objectionable conduct.
According to the majority, the proposed modification reflects its deference to the Board-conducted election process, whereas the current policy "precludes the possibility of conducting a Board election contesting the initial non-electoral recognition of a union as a majority-supported exclusive bargaining representative for as many as four years."
Majority-Based Recognition In The Construction Industry
Finally, the proposal would discontinue the Board's policy of allowing construction industry unions to secure full bargaining rights solely based on contract language. Under the proposal, a union must have "extrinsic evidence" (e.g., employee-signed union authorization cards or a petition) demonstrating that a majority of employees - rather than just the union and the employer - chose to convert a pre-hire arrangement into a full bargaining relationship.
The proposed changes are subject to public comment, due by October 11, 2019. We will continue to monitor developments regarding these issues and provide updates as they become available.
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If you have any questions about the Board's proposed union election rule modifications, or any other labor relations issues, please contact one of our experienced labor attorneys, who regularly assist employers with all types of labor-management relations issues.