National Labor Relations Board Releases Notice of Proposed Rulemaking

On Friday August 9, 2019, the National Labor Relations Board (NLRB or Board) issued its first planned, updated set of regulations regarding union election procedures. A majority of three of the four Board members issued a lengthy proposed rule (113 pages) effective for publication in the Federal Register on August 12, 2019, that, if approved, would modify three segments of Board election processes.

The rule would modify and address certain aspects of the Board's election processes, including: 1) “blocking charges;” 2) voluntary recognition bar; and 3) certain collective bargaining relationships involving employers in the construction industry.
 

1. Blocking Charges

A “blocking charge” is an unfair labor practice charge filed during the course of representation proceedings that pauses those proceedings. The current blocking charge policy allows a party, generally a union, and most frequently in response to a decertification petition (RD petition), to indefinitely block an election by alleging acts or practices that cast doubt on validity of the election petition or the ability of employees to make free and fair choices as concerns representation.

The Board's proposed rule would replace the current policy with a "vote-and-impound" procedure whereby an election will not be blocked by pending unfair labor practice charges and instead, ballots cast in such an election will be taken, and held, by the Board until the charges are resolved.
 

2. Voluntary Recognition Bar

The voluntary recognition bar prohibits challenges to a union’s majority status (such as by a secret ballot election) for a "reasonable period of time" after a union is voluntarily recognized by an employer without an election.

In 2011, the NLRB in Lamons Gasket Co., 357 NLRB No. 72 (2011), defined a "reasonable period" as six months to one year. Lamons Gasket overruled the NLRB's prior case of Dana Corp., 351 NLRB 434 (2007), which held, that in order for the recognition bar to apply, notice of the voluntary recognition must be given and workers or rival unions must be allowed a 45-day post-recognition window to file a petition for decertification or rival representation.

The Board's proposed rule would return to the standard set out in Dana Corp.
 

3. Standard of Proof for Forming Section 9(a) Collective Bargaining Relationships in the Construction Industry

Section 9(a) of the National Labor Relations Act (NLRA) establishes the representation and collective bargaining requirements when a union is selected by a majority of employees as their representative. In Section 9(a) relationships, the parties have a duty to bargain in good faith over the terms of a contract as well as a duty to bargain over the terms of a new contract once the agreement expires. Section 9(a) agreements also enjoy a 3-year “contract bar” prohibited employee or rival union petitions for election. However, under Section 8(f), construction industry employers and unions may agree to be parties to a collective bargaining agreement without consulting employees or without the employer even having any covered employees at the time of the agreement. These “pre-hire” agreements are particular to the construction industry and are presumed to be covered by Section 8(f). An agreement established under Section 8(f) may be terminated upon its expiration, and there is no duty to bargain for a new agreement. 

In its decision in Staunton Fuel & Material, 335 NLRB 717 (2001), the Board held that a construction industry, presumptively 8(f), agreement could become a Section 9(a) agreement based solely on the language of the contract, without an election or without any actual evidence of majority support from covered employees. According to the Staunton Fuel Board, this conversion could occur “where the language unequivocally indicates that (1) the union requested recognition as the majority or Section 9(a) representative of unit employees; (2) the employer recognized the union as the majority or Section 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support.” The holding in Staunton Fuel was subsequently disagreed with by the Court of Appeals for the District of Columbia in Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003); however, the Board continued to adhere to its principles.

The Board's proposed rule would “overrule Staunton Fuel, [] adopt the D.C. Circuit’s position that contract language alone cannot create a 9(a) bargaining relationship in the construction industry, and [] incorporate the requirement of extrinsic proof of contemporaneous majority support . . . .”
 
The board's proposals are now open for comment and accessible on the Federal Register. Public comments are invited on all aspects of the proposed rules and should be submitted within sixty days after publication in the Federal Register (August 12, 2019).

For more information, contact Cameron Ritsema or another member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.