NLRB Releases Final Rule on 9(a) Recognition and Other Election Issues
The National Labor Relations Board (NLRB) published a final rule to rescind and replace an April 2020 Trump-era NLRB rule regarding construction industry bargaining relationships, election-blocking charges, and voluntary recognition. Notably, the NLRB explains that the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo did not address or call into question longstanding Supreme Court precedent indicating that Congress intended to grant policymaking authority to the NLRB over the kinds of representation-case procedures at issue in this rulemaking. As a result, the NLRB believes that the final rule is “an appropriate exercise of the Board’s delegated authority grounded in the Board’s special competence when it comes to matters involving the mechanics of representation-case procedure.”
The April 2020 Rule, which is currently in effect, amended three of the NLRB’s election and representation processes related to: (1) certain “9(a)” collective bargaining relationships involving employers in the construction industry; (2) the “blocking charge” policy, which pauses elections when unions or employers file interference charges; and (3) the “voluntary recognition bar,” which prohibits challenges to whether a union has majority support for a “reasonable period of time” after the union is voluntarily recognized by an employer. This new final rule rescinds and replaces the April 2020 rule to return to the standards governing each of these three issues which existed prior to the adoption of the Trump-era April 2020 Rule, including by rescinding the portion of the final rule that addressed proof of majority support for labor organizations representing employees in the construction industry and rescinding and replacing the portions that addressed the blocking charge policy and voluntary-recognition bar doctrine. The NLRB states that the changes in the final rule will “better protect employees’ statutory right to freely choose whether to be represented by a labor organization, promote industrial peace, and encourage the practice and procedure of collective bargaining.”
First, as in the proposed version, the final rule returns the NLRB’s prior approach to voluntary recognition in the construction industry, which includes: (1) restoring the Staunton Fuel principle that sufficiently detailed language in a collective-bargaining agreement can serve as sufficient evidence that voluntary recognition was based on Section 9(a); and (2) restoring, pursuant to Casale Industries, the six-month limitation period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a) of the NLRA. The NLRB explains that to the extent the decisions in Staunton Fuel and Casale Industries are in tension with prior decisions of the D.C. Circuit, as commenters pointed out, the NLRB has attempted to address and accommodate those concerns through its adjudication in Enright Seeding, an unfair labor practice case, and will make further refinements to the appropriate standard, as necessary, in adjudicating future cases before the Board. Additionally, the NLRB adds that the April 2020 Rule’s overruling of Casale Industries created uncertainty and unpredictability in construction industry labor relations because, among other things, it: (1) made construction-industry collective-bargaining agreements subject to challenge at any time; and (2) created an onerous and unreasonable recordkeeping requirement on construction employers and unions.
Next, the final rule returns to the NLRB’s “long-established” blocking charge policy. Specifically, under this final rule, 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 NLRB notes that it developed the blocking charge policy through adjudication more than eight decades ago, and the NLRB adhered to this policy for more than eight decades because it enabled the Board “to preserve laboratory conditions” for ascertaining employee choice during Board-conducted elections. The NLRB also states that the prior policy advanced the interests of potential voters by shielding them from voting in an atmosphere impacted by coercion and adds that “no court had ever invalidated the blocking charge policy in the more than eight decades of its existence.” Therefore, the NLRB believes that the pre-April 2020 blocking charge policy better balances the NLRB’s interests in protecting employee free choice, preserving laboratory conditions in NLRB-conducted elections, and resolving questions concerning representation expeditiously. As a result, under this final rule, Regional Directors once again have authority to delay an election when a party to the representation proceeding requests that its unfair labor practice charge blocks an election, provided the request is supported by an adequate offer of proof, the party agrees to promptly make its witnesses available, and no exception is applicable.
Finally, with respect to the voluntary recognition bar doctrine, the NLRB is adopting the final rule as proposed, with two additional provisions. First, regarding the adoption of the proposed rule’s provisions, the final rule eliminates the April 2020 rule’s required “notice-and-election” procedure triggered by an employer’s voluntary recognition of a union based on a showing of majority support among employees and instead codifies the “traditional” voluntary recognition bar as refined in Lamons Gasket, which the Trump-era NLRB overruled in the April 2020 final rule. The NLRB now views restoring the voluntary recognition bar in its more traditional form as better serving the policies of the NLRA by vindicating employee free choice while also encouraging collective bargaining. Moreover, the Board adds that Lamons Gasket provided that voluntary recognition of one union will not bar a petition by a competing union if the competing union was actively organizing the employees and had a 30-percent showing of interest at the time of recognition. In the proposed rule, the NLRB specifically sought feedback on whether it should: (1) continue to process a representation petition filed by a competing union that had a 30-percent showing of interest at the time of recognition; or (2) bar the processing of such a petition so as to not delay, until after a NLRB election, the employer’s recognition of the employees’ designation of their collective-bargaining representative. The Board states that only the NLRB General Counsel specifically addressed this issue in comments submitted in response to the proposed rule and urged the Board to: (1) establish an increased threshold of 50 percent; and (2) only process a rival union’s petition if it is filed within 14 days of the voluntary recognition. The NLRB notes that given the lack of comments on the issue in response to the proposed rule, the NLRB has decided to preserve the 30-percent threshold and leave the issue for “further consideration” in future NLRB case adjudications.
In this new final rule, the NLRB adds two caveats with respect to the voluntary recognition bar doctrine. The first acknowledges (but does not codify) current caselaw addressing application of the voluntary recognition bar when two or more unions are vying to represent employees, as reflected in Smith’s Food & Drug Centers, an NLRB decision permitting a union to file and proceed with a representation petition if, at the time the employer voluntarily recognized a rival union, the petitioner union had already obtained a sufficient showing of interest to support a petition. The NLRB asserts that this approach leaves the law in this area unchanged (as Lamons Gasket did) and allows any modifications to it to be made through case-by-case adjudication. The second caveat establishes that the rescission of the April 2020 rule’s required “notice-and-election” procedure and the codification of the “traditional” voluntary recognition bar as refined in Lamons Gasket are severable actions under the final rule, meaning that if one is invalidated, the other is not necessarily void.
The final rule is effective beginning September 30, 2024.
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