As anticipated, the National Labor Relations Board (NLRB) rescinded its April 1, 2020 Election Protection Rule, replacing it with the so-called “Fair Choice-Employee Voice Final Rule” on July 26, 2024.

The final version largely follows the Board’s proposed rule that it unveiled in November 2022. The new rule is scheduled to be published in the Federal Register on August 1, taking effect 60 days later on September 30, 2024. The Final Rule will apply to petitions filed after September 30, 2024.

Blocking Charges

A “blocking charge” is an unfair labor practice charge filed by a party to a representation proceeding alleging that conduct by the other party would interfere with employee free choice if the election were to proceed. Under the current 2020 rule, representation elections are to move forward even where such unfair labor practice charges are pending. Certification of election results is delayed pending resolution of the unfair labor practice charge, but employees still have the ability to vote.

The most recent Final Rule returns to the Board’s pre-2020 approach. Regional Directors will once again have authority to delay an election when a party to the representation proceeding requests that its unfair labor practice charge block an election, provided the request is supported by an adequate offer of proof, the party agrees to promptly make its witnesses available and no exception is applicable. Explaining this change, the Board asserted that the current rule requires employees to vote in a “coercive atmosphere” that interferes with a free election. Member Marvin Kaplan dissented, noting that the change will permit unions once again to delay decertification elections unfairly by filing meritless blocking charges while seeking to rebuild support.

Back to the Immediate Voluntary Recognition Bar

Voluntary recognition occurs where an employer recognizes a union based on the union’s claim to have majority support, without requiring a secret-ballot election. Voluntary recognitions raise a related issue: how long must employees wait before challenging the majority status of a voluntarily recognized union? This period is known as the “voluntary recognition bar,” during which unions are protected from removal as the bargaining representative. The Board’s position on how long such challenges are barred has seesawed over the years. Under the current 2020 rule, there is no voluntary recognition bar unless: (1) the employer and union notify a regional office that recognition was granted; (2) employees in the bargaining unit received notice of the voluntary recognition and of their right to file a decertification petition or support the certification of a rival union within 45 days of receiving notice; and (3) 45 days pass from the date of notice without the filing of a valid petition. This rule revived the standard adopted by the Board in Dana Corp., 351 NLRB 434 (2007), which had been overturned by Lamons Gasket Co., 357 NLRB 739 (2011).

Under the latest rule, the 2011 standard articulated in Lamons is revived. The rule eliminates the 45-day notice period procedures and returns to an immediate voluntary recognition bar. Employees will be barred from filing a decertification petition for a minimum of six months and a maximum of one year from the date of the parties’ first bargaining session. This will be followed by a “contract bar” of up to three years if the parties execute a collective bargaining agreement.

Union Recognition in the Construction Industry

In response to the unique characteristics of the construction industry, Section 8(f) of the National Labor Relations Act (NLRA) provides a limited exception to the requirement under Section 9(a) that a majority of employees must support a union in order for the union to be recognized as their collective bargaining representative. Under Section 8(f), a construction employer and a union can enter into a pre-hire agreement that establishes the union as the exclusive collective-bargaining representative, even where the union does not have the support of a majority of the construction employer’s employees under Section 9(a). Under the current 2020 rule, parties cannot rely solely on contractual language to prove the union is still employees’ chosen representative. The rule prevented situations where contract language alone, without any additional showing of majority support for the union, would provide a “contract bar” to a decertification or rival union’s petition. The 2020 rule also required “positive evidence,” separate from pre-existing contract language, of ongoing majority support for the union.

The Final Rule reinstates the Board’s decision in Staunton Fuel & Material, Inc., 335 NLRB 717 (2001), which established a low bar for demonstrating majority union employee support in the construction industry. Under Staunton Fuel, proof of a 9(a) collective bargaining relationship in the construction industry may be shown by contract language alone, provided that the contract,

“unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 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.’”

In reverting to this approach, the Board stated it seeks to provide construction employers with the opportunity to use voluntary recognition as a mechanism for cementing the bargaining relationship without facing the extra burden of producing “positive evidence” that non-construction employers do not face when proving continued majority support.

Key Takeaways

Employers should reevaluate labor relations strategy based on changes to these rules. With the roll-back of the 2020 rule, employers should consider stepping up efforts to educate employees on their rights during organizing campaigns, including the difficulties of the decertification process. Employees will now be faced with multiple hurdles should they wish to change unions or no longer be represented. Blocking charges could delay a decertification election, and the renewed voluntary recognition bar imposes longer time periods before action to remove a union can be taken. Unions will also be able to file blocking charges in RM petitions filed by management to test a union’s claimed majority status, which have increased in the wake of the Cemex decision.

Construction employers should be aware that contract language will wed them to a specific union representative if it is drafted as described in the rule. Construction companies should understand that their bargaining relationship could survive past a contract’s expiration based simply on contract language, without any further showing by the union of ongoing support.

The Board’s new rule may be ripe for challenge in court. On July 25, 2024, in one of several recent Court of Appeals rejections of Board action, the Eighth Circuit in NLRB v. Enright Seeding, Inc. vacated a Board decision that relied on Staunton Fuel and reiterated its and the D.C. Circuit’s disagreement with establishing majority support by contract language alone. This decision could bode well for efforts to challenge the Final Rule in federal court.

Littler will continue to follow these issues and report on significant developments.