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NLRB Publishes Notice of Proposed Rulemaking to Rescind and Replace 2020 Final Rule NLRB Publishes Notice of Proposed Rulemaking to Rescind and Replace 2020 Final Rule

NLRB Publishes Notice of Proposed Rulemaking to Rescind and Replace 2020 Final Rule

On November 4, 2022, the National Labor Relations Board (the “Board”), published a Notice of Proposed Rulemaking, which proposes to rescind and replace a final rule that a previous iteration of the Board implemented in April of 2020 involving the governance of blocking charges, the voluntary-recognition bar doctrine, and elements required to prove majority support of labor organizations representing employees in the construction industry.

Specifically, the April 2020 Rule:

1)  Limited the Board’s blocking charge policy, under which Regional Directors had the authority to delay processing election petitions in the face of pending unfair labor practice charges alleging that conduct interfered with employee free choice in an election proceeding or conduct inconsistent with the petition for election itself. Under the April 2020 Rule, Regional Directors generally must conduct an election, even when blocking charge(s) are filed.

PROPOSAL 1: The Board proposes to reinstate the prior blocking-charge policy, which would enable a party to indefinitely block an election by filing an unfair labor practice charge. 

2)  Changed the voluntary-recognition bar doctrine, which allowed a union, after being voluntarily recognized by an employer, to represent employees for a certain period of time without being subject to challenge. The April 2020 Rule steered away from Lamons Gasket Co., 357 NLRB 934 (2011), and returned to the approach taken previously by the Board in Dana Corp., 351 NLRB 434 (2007). Under the April 2020 Rule, neither an employer's voluntary recognition of a union, nor the first collective-bargaining agreement executed by the parties after recognition, will bar the processing of a subsequent election petition unless certain conditions are met.

PROPOSAL 2: The Board proposes to return to Lamons Gasket, which provided that an employer’s voluntary recognition of a union barred the filing of an election petition for a period of time, up to a year, after the first bargaining session between the parties.

3)  Altered the Staunton Fuel & Material, 335 NLRB 717 (2001), doctrine, which defined the minimum requirements for what must be stated in a written recognition agreement or contract clause in order for it to serve as sufficient evidence that a union representing employees in the construction industry has attained NLRA Section 9(a) status without an election. The rule specifically provided: “Collective-bargaining agreement language, standing alone, will not be sufficient to provide the showing of majority support.”

PROPOSAL 3: The Board proposes to return to the voluntary-recognition and contract bar application in the construction industry which would allow a union to convert a Section 8(f) agreement into a Section 9(a) agreement through contract language alone, without a showing of affirmative evidence of majority support.

Chairman Lauren McFerran was joined by Board Members Gwynne A. Wilcox and David M. Prouty in proposing the new rule. Board Members Marvin E. Kaplan and John F. Ring dissented.

Should the proposed amendments become effective, the state of the law as described within the April 2020 Rule would be returned to that which existed prior to the April 2020 Rule’s adoption. The Board has extended the comment period for commenting on the proposed new rules until February 2, 2023. Public comments replying to comments submitted during the initial comment period must be received by the Board on or before February 16, 2023. Comments may be submitted by utilizing the hyperlink, above.

If you have questions, please contact Cameron Ritsema or another member of Ice Miller's Workplace Solutions Practice 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.
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