November 3, 2022

The National Labor Relations Board (NLRB) released a proposed rule to rescind and replace the Trump-era Board’s April 1, 2020 final rule revising election procedures under the NLRA. Specifically, today’s Notice of Proposed Rulemaking has three parts, each rescinding a corresponding portion of the NLRB’s April 2020 final rule.  

First, the proposed rule would return to the Board’s prior approach to voluntary recognition in the construction industry, as reflected in case law. 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 NLRA, as established in Casale Industries. It would also include the principle established in Staunton Fuel 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. The current Biden-appointed NLRB majority feels that the 2020 rule injected uncertainty and unpredictability into construction-industry labor relations.  

Second, the proposed rule would return to the Board’s long-established “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. The current Biden-appointed majority at the NLRB believes that the proposed rule promotes employee free choice and conserves the Board’s resources, and those of the parties, by ensuring that the Board does not conduct elections—that might well have to be re-run—in a tainted environment.

Finally, 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 proposed rule, the current Biden-appointed majority at the NLRB reasons that a voluntary-recognition bar, preventing challenges to the status of a newly recognized union until a reasonable period for collective bargaining has passed—as reflected in the Lamons Gasket decision—better effectuates the policies of the NLRA, encourages collective bargaining, and preserves labor relations stability. 

The proposed rule will publish in tomorrow’s Federal Register. Comments are due on or before January 3, 2023. Comments replying to comments submitted during the initial comment period must be received by the on or before January 17, 2023.

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