On November 3, the National Labor Relations Board released a Notice of Proposed Rulemaking (NPRM) for a proposed rule that would rescind a final rule adopted during the Trump Administration. The current policy includes the following provisions:
(1) allows representation elections to proceed despite pending unfair labor practice charges alleging coercive conduct;
(2) allows challenges to the representative status of a union that has been voluntarily recognized based on a showing of majority support among employees before there has been a reasonable period for collective bargaining; and
(3) permits election challenges to the long settled representative status of unions representing construction industry employees, despite undisputed evidence of the union’s majority support in detailed language in a collective-bargaining agreement making clear that the employer voluntarily recognized the union based on a showing of majority support.
The proposed rule has three parts, each rescinding a corresponding portion of the Board’s April 2020 final rule.
First, the proposed rule would return to the “blocking charge” policy as most recently reflected in a 2014 rule. Under that approach, when unfair labor practice charges are filed while an election petition is pending, a Regional Director may delay the election if the conduct alleged threatens to interfere with employee free choice.
Second, the proposed rule would eliminate the required notice-and-election procedure triggered by an employer’s voluntary recognition of a union based on a showing of majority support among employees. In the NPRM, the Board explained its preliminary view that a voluntary-recognition bar, preventing challenges to the status of a newly recognized union until a reasonable period for collective bargaining has passed.
Finally, the proposed rule would return to the Board’s prior approach to voluntary recognition in the construction industry. This would include restoring a six-month limitations period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a) of the Act. It would also include the principle that sufficiently detailed language in a collective-bargaining agreement can serve as sufficient evidence that voluntary recognition was based on Section 9(a) of the Act.
