March 31, 2020 NLRB Rule Further Overhauls Union Election Procedures

On Tuesday March 31, 2020, the National Labor Relations Board (“NLRB”) published the first in a series of proposed revisions to its union election procedures. The final rule will be published in the Federal Register on April 1, 2020, and addresses three areas of the election process: blocking charge policy, voluntary recognition bar, and Section 9(a) recognition in the construction industry. In a news release unveiling the final rule, the Board stated the amendments better protect employees’ rights to choose whether they want union representation. 

1. Blocking Charge Policy

Prior to this amendment, the Board’s policy was to pause a union election if an unfair labor practice charge (aka “blocking charge”) was filed that alleged a party illegally coerced workers to vote a particular way. The election would then be delayed until the proceedings on the blocking charge were completed. The new rule does not permit blocking of a vote by pending unfair labor practice charges. Instead, the ballots are to be counted or impounded by the Board–depending on the nature of the charges–until the charges are resolved. However, the certification of the results will not be issued until there is a final disposition of the unfair labor practice charge.

2. Voluntary Recognition Bar

The Board also revised its voluntary recognition bar standard, requiring challenges to a union’s status as a bargaining representative to be made within a “reasonable period of time” after an employer voluntarily recognizes the union. Under the previous standard, a “reasonable period” was defined as six months to a year. However, the new rule returns to a 45-day post-recognition window. Under the new rule, workers or a rival union have only 45 days after voluntary recognition to file a decertification petition. This new standard applies to voluntary recognition that occurs after April 1, 2020.

3. Section 9(a) Recognition in the Construction Industry

The rule’s last amendment applies only to the construction industry. Section 9(a) of the NLRA covers typically formed unions, but in the construction industry, collective bargaining relationships are presumed to be governed by Section 8(f) of the NLRA, which allows unions and employers to set work terms in a contract without majority support. Previous to the new rule, a Section 8(f) presumption could be transitioned into a Section 9(a) bargaining relationship based solely on contract language stating that a union requested and obtained recognition in the face of evidence — or merely an offer of evidence — demonstrating majority support. The new rule instead specifies that transition to a Section 9(a) relationship requires positive evidence of majority employee support and cannot be based on contract language alone.

What This Means

  • Union elections will proceed despite the filing of blocking charges and the election results will be certified after resolution of the charge.
  • Workers or a rival union will have only 45 days after an employer’s voluntary recognition of a union to file a decertification petition.
  • In the construction industry, transition to a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone.