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.
