NLRB Issues New Rule Gutting Historic Blocking-Charge Policy and Inviting Attacks on Voluntary Recognition Bargaining Relationships
April 8, 2020 by Andrew BakerThe NLRB has issued a new rule that makes significant changes in the legal landscape for unions pursuing recognition both through the NLRB election process and via voluntary recognition. The new rule effectively guts the NLRB’s historic blocking policy, exposes all new voluntary recognition bargaining relationships to decertification petitions, and makes it easier for construction employers to withdraw recognition following voluntary recognition. The new rule goes into effect July 31, 2020.
“Blocking” policy nearly abolished
The Board’s new rule all but eliminates the Board’s long-standing blocking charge policy under which allegations of serious unfair labor practices that render a fair election impossible would block the conduct of an election until the unlawful conduct was remedied.
First, the new blocking policy applies to an extremely narrow range of unfair labor practice charges. The new rule provides that only charges “that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, or … that allege an employer has dominated a union in violation of section 8(a)(2) and seek to disestablish a bargaining relationship” may “block” an election.
Second, even when an election is “blocked” under this new rule, the election will still go forward, and the Board will simply impound the ballots for up to 60 days (and continuing if a complaint issues within that period).
Voluntary recognition faces new challenge
The new rule includes a return to a Bush Board doctrine (subsequently overruled by the Obama Board) that immediately opens to decertification challenge all bargaining relationships achieved through voluntary recognition. The new rule provides that voluntary recognition is protected from a decertification petition after recognition, and even during the term of a first contract, unless the employer posts a notice informing employees of the recognition and of their right to file a petition for an election to determine if they wish to be represented. Employees have 45 days to file such a petition. If no such petition is filed, only then will the recognition serve to bar a subsequent decert petition.
New proof-of-majority standard on conversion of 8(f) to 9(a) bargaining relationships in the construction industry
Finally, overruling a 2011 Board decision, the new rule provides that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support. Collective bargaining agreement language, standing alone, will not be sufficient to provide the showing of majority support.”
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