NLRB Proposes Rulemaking to Protect Employee Free Choice
August 19, 2019
By: Benjamin J. Wilson
The National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking on August 12, 2019, proposing changes to Part 103 of its Rules and Regulations. These amendments to Part 103 are aimed towards better protecting employees’ statutory right of free choice on issues regarding representation.
Specifically, the proposed amendments include:
1. Replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but rather the ballots would be “impounded” until those charges are resolved.
2. Reinstating the Dana notice (Dana Corp., 351 NLRB 434 (2007)) and open-period procedures. For voluntary recognition under Section 9 of the NLRA to bar a subsequent representation petition, employees must receive notice that recognition has been granted and a 45-day open period to file an election petition.
3. In the construction industry, requiring positive evidence of majority employee support and solely relying on contractual language in order to transition a Section 8(f) bargaining relationship to a Section 9(a) bargaining relationship, overruling Staunton Fuel, 335 NLRB 717 (2001).
Chairman John Ring, and Board Members Marvin Kaplan and William Emanuel joined in proposing these amendments, with Member Lauren McFerran dissenting. In proposing these amendments, the NLRB stated that the current structure “constitute[s] an overbroad and inappropriate limitation 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.”
These new amendments are summarized below.
The current blocking charge policy permits a party, usually the union, to block an election by filing one or more unfair labor practice (ULP) charges. Practically speaking, the filing of a ULP charge indefinitely delays a decertification election. The blocking charge policy is not a part of the rules and regulations.
The vote-and-impound procedure, however, would allow the election to proceed regardless of whether a ULP charge is filed. Rather than delaying the election, the election would go forward if the charge is not resolved in time. Instead, the ballots from the election would be “impounded” until the Board makes a final decision regarding the ULP charge. Thus, by allowing the election to proceed, the Board stated that the vote-and-impound procedure would better protect the employees’ free choice than the current blocking charge policy.
The Dana Rule
A return to the Dana Rule would overturn Obama-era precedent established in Lamons Gasket, Co., 357 NLRB 739 (2011). In Lamons Gasket, the NLRB reinstated the “immediate voluntary recognition election bar,” which required a “reasonable period” of time to pass before a union’s representation could be challenged. A “reasonable period” was defined as no less than six months, but no more than one year.
In Dana Corp., the NLRB had held that employees who were represented by a union pursuant to a voluntary recognition agreement could reject that representation through a secret ballot election within a 45-day period and after receiving notice. Similar to the blocking charge, this immediate voluntary recognition bar was not set forth in the NLRB’s Rules and Regulations.
The NLRB stated its belief that a return to the Dana Rule better protects employees’ free choice by “ensur[ing] that employee free choice has not been impaired by a process that is less reliable than Board elections.”
Positive Evidence of Majority Support for a Union in the Construction Industry
This amendment would require actual positive evidence of majority support in order to convert a Section8(f) bargaining relationship into a Section 9(a) bargaining relationship. The amendment would also serve to overrule Staunton Fuel, 355 NLRB 717 (2001).
In Staunton Fuel, the NLRB held that a construction union could prove a Section 9(a) relationship by simply executing a collective bargaining agreement with an employer. There was no requirement to provide evidence beyond the language of the contract.
In its Notice of Proposed Rulemaking, the NLRB stated that overruling Staunton Fuel with this proposed amendment will restore protections of free choice in the construction industry by showing “that a union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representatives in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit.”
Importantly, these proposed rules are still subject to notice and comment requirements. Employers are encouraged to submit comments here on the proposed changes. The comment period is open until October 11, 2019. These proposed changes are good news for employers. Employers with questions regarding these changes, or union representation and elections generally, should contact a member of our Labor and Employment Practice Group.