The National Labor Relations Board (NLRB) has not often enacted rules pursuant to the Administrative Procedures Act, preferring that the Board’s legislative policies be established in individualized rulings. But recent actions indicate a break with that tradition.
Earlier this month, the Board proposed regulations targeting three areas of current policy that govern the filing and processing of union election petitions. According to the majority statement, the “proposed amendments will better protect employees’ right offree choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a board-conducted secret ballot election.”
Eliminate election blocking charge
The first proposal will amend the NLRB policy that permits unions to block an election indefinitely by alleging an employer’s unlawful conduct could affect the ability of employees to vote freely. The effect of this policy has been to delay votes — sometimes for years — and thus deprive workers of their right to vote. To remedy this concern, the amendment requires that the election be held regardless of a pending charge, impounding ballots until the unfair labor practice charge is resolved.
Modify voluntary recognition bar
A second proposal would amend the NLRB “voluntary bar” standard, which allows employers to voluntarily recognize a union, immediately barring employees from questioning the union’s representative status for a “reasonable period.” The amendment permits employees to petition to decertify the voluntarily recognized union within 45 days of the recognition. In absence of a petition, or if the recognized union wins a subsequent election, a bar to challenging the union’s representation would go into effect for at least a year.
Require proof of support for Section 9(a) recognition in construction industry
Section 9(a) governs most bargaining relationships, but a special provision, Section 8(f) allows unions and businesses in the construction industry to negotiate agreements without actually holding a vote. However, Section 8(f) agreements do not have the three-year election bar that Section 9(a) agreements do. Current NLRB law allows unions and employers to convert an 8(f) relationship to a 9(a) relationship merely by reciting language in the collective bargaining agreement that the union requested recognition as the Section 9(a) representative. The amendment requires the union to have evidence of majority employee support before conversion to a Section 9(a) relationship.
These three proposals are the first of many expected to follow. The current NLRB wants to mitigate what it perceives to be pro-labor excesses from the Obama-era Board and prevent a return to those policies when Democrats regain control. Meanwhile, if you have any questions or concerns about these and other NLRB policies, let us know. We’re happy to help.