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The NLRB has been the most activist of the federal agencies in promoting deregulatory actions that benefit employee and management rights.  A part of the effort has been an attempt to undo the 92 precedents overturned by the Obama-Era NLRB.  But the Republican-majority NLRB is also aggressively pursuing tactics that make it more difficult for a future administration to overturn various reforms.  One of the avenues of such an approach is proposing changes through rule-making, as federal regulations are harder to undo in the future than an NLRB ruling which can be reversed by a future Board. 

On August 12, 2019, in a Notice of Proposed Rule-Making, NLRB is formally proposing three new rules:

1.         Blocking Charge Policy.  Currently, if a union has filed a petition for an election, but decides that the election is not likely to result in a union victory, it may file a so-called "blocking charge."  Under current NLRB policy, if an unfair labor practice charge is pending that might have merit, and is filed in the period before an NLRB election, the election is postponed under the "blocking charge" policy.  The same concept applies to a decertification election that attempts to vote an incumbent union out, and through such blocking charges the union can indefinitely postpone such a decertification election.

            Under the proposed new rule, elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.  This measure would definitely improve employee and employer rights, and the Labor Act is supposed to protect such a right of free choice on the question of unionization. 

2.         Voluntary Recognition Bar.  In today's environment, unions often forego the NLRB election procedures to gain union recognition, and to gain the ability to start collecting union dues.  Instead, unions often try to attempt to get employers to agree to "voluntary" union recognition through a card-check procedure.  Under these procedures, if a union can get authorization cards signed by a majority of eligible employees, it is legal for the employer to recognize the union without a secret ballot NLRB election.  Some unions go to great lengths to coerce employers into agreeing to such measures, through pressure on the employer directly or through petitions to government bodies.  When an employer and union agree to such a measure, it is the employees that come up short due to a lack of free choice in a secret ballot election.                      

            Under the proposed new NLRB rule, employees would be notified when their employer has granted "voluntary recognition" to a union under Section 9(a).  Under current NLRB case law, employees have no right to decertify the union voluntarily recognized until a reasonable period of time has elapsed for the negotiation of a union collective bargaining agreement.  Under the proposed new rule, employees must not only receive notice of the recognition, but also be given a 45-day open period in which to file an election petition with the NLRB for a secret ballot election. 

3.         Section 9(a) Recognition in the Construction Industry.  There is a special rule in the construction industry known as the Construction Industry Proviso, which allows employers and union employers to "voluntarily" recognize unions without an election or even a card-check under Section 8(f).  This provision is unique to construction because of some special history there.  However, an election petition for decertification can be filed at any time under such a Section 8(f) relationship.  The unions often attempt to convert Section 8(f) relationships to Section 9(a) relationships, which can bar secret ballot election petitions by the NLRB during the term of a collective bargaining agreement.  But unions quickly found a way to get around the Section 8(f) requirements, by putting in tricky contract language converting a relationship to a Section 9(a) relationship.  Under the new proposed NLRB rule, to convert a Section 8(f) relationship into a Section 9(a) relationship, there would actually have to be positive evidence of majority employee support for union representation rather than tricky union contract language alone.

Another area the NLRB hopes to address in the near future concerns revisions to the NLRB's quickie election rule.


The Department of Labor (DOL) is struggling to finalize various proposed regulations at a faster pace due to two converging factors.  First, under the 1996 Congressional Review Act (CRA), rules finalized in the last year of an administration can be repealed if they have not gone into effect yet, and stayed in court while their validity is being challenged.  Under the CRA, any rule finalized in the last 60 legislative days of the congressional session can be vetoed within the first 60 days of the new Congress if a resolution is passed by both chambers and the President signs it into law.  Second, after the resignation of Alexander Acosta as Secretary of Labor, the new Acting Secretary, Patrick Pizzella, is known to be much more aggressive pursuing deregulation and pro-business initiatives.  Eugene Scalia has been nominated by President Trump as the new Secretary of Labor, but he is not expected to be confirmed until the fall.  Scalia is known to share Pizzella's enthusiasm for pursing pro-business regulatory reform, and Scalia and Pizzella have worked together in past administrations to do just that.

It may surprise readers to know that it takes 1-5 years to finalize a significant new federal rule.  The relevant agency must develop various documents supporting the new rule, allow for public comment, and particularly to follow closely the steps in the Administrative Procedure Act and other requirements of agency rule-making.  If the regulatory requirements are not met, a federal court can invalidate the federal rule and so careful planning is necessary.

Some 15 Obama-Era rules were invalidated using the CRA, and the same thing has happened to some of the current administration's regulatory proposals.

Publication of new proposed salary tests for the white-collar exemption is expected to be released any time now, and the DOL is pushing ahead on the joint employer rule and clarification of the "regular rate" for overtime purposes.  Another rule likely to move ahead in the near future is the "fluctuating work week" proposal, a rule giving employers the option to pay certain workers whose hours vary each week at half their regular rates, instead of time and a half for hours worked over 40.  While this rule currently exists, it is not always available to employers that compensate their employees with bonuses or other incentive-based pay. 

Wimberly, Lawson, Steckel, Schneider & Stine

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