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The Bargaining Table

The NLRB Returns to Its Pre-2020 Policies and Procedures in Its “New” Blocking Charge and Voluntary Recognition Rules

The National Labor Relations Board (NLRB or Board) recently revived its “blocking charge” policy, voluntary recognition process and construction industry bargaining relationship policy by returning to its pre-April 2020 procedures in its “Fair Choice – Employee Voice Rule.” The new final rule is to take effect on September 30, 2024.

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Under the new rule, the Board has adopted the following pro-union policies: (1) regional directors will once again have the authority to delay an election if a party alleges unfair labor practices (ULP), (2) employers may voluntarily recognize a union without notice to affected employees and the option of a representation election, and (3) construction industry employers and unions may convert a prehire arrangement pursuant to Section 8(f) of the National Labor Relations Act (NLRA or Act) to a more permanent collective bargaining relationship in accordance with Section 9(a) of the Act without evidence of majority support.

Reviving the Blocking Charge

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For many years, the Board had a policy of declining to process election petitions where a party objected to the election because of a pending ULP charge. This tactic was often used by unions to create lengthy delays and kill momentum when they believed employees may vote to decertify the union or select a rival union that filed an election petition.  

Under the 2020 “Election Protection Rule,” regional directors not only were required to conduct an election when a ULP charge and blocking request had been filed but also were generally required to immediately count the ballots, with some minor exceptions. The new final rule revives the previous policy allowing regional directors to delay an election when a party – typically a union – requests that the election be blocked due to a ULP charge, provided the request is supported by adequate proof, witnesses are promptly made available and no exception is applicable.

Enshrining the Voluntary Recognition Bar

Under the 2020 rule (which codified the Board’s 2007 Dana Corp. case), voluntary recognition of a union without an election and the first collective bargaining agreement after recognition did not bar an election petition unless the Board’s regional office was notified of the recognition and the employer gave notice to its employees of the recognition and allowed for a 45-day window to file a decertification petition. By contrast, the new rule eliminates the notice requirement and the employees’ 45-day window to file a petition. In other words, employees can no longer challenge majority support through an election while the voluntary recognition bar is in place (i.e., between six and 12 months, depending on the circumstances).

Easing Permanent Recognition in the Construction Industry

Prior to 2020, Section 8(f) of the NLRA allowed an employer in the construction industry and a union to temporarily enter into a prehire agreement, which allowed the parties to negotiate terms and conditions for prospective employees. The Board, however, allowed a Section 8(f) relationship to be converted to a permanent union relationship pursuant to Section 9(a) of the Act if the collective bargaining agreement stated that the union had demonstrated majority support. The 2020 rule required more than the parties’ contract language to convert the relationship; it required positive evidence. If there was no such evidence, the regional director was required to hold an election.

The new rule will once again allow employers and the union to convert their Section (8)(f) relationship to a more permanent Section 9(a) relationship without additional evidence beyond the language of the collective bargaining agreement.

As we have seen time and time again, the Biden NLRB is determined to overturn the pro-business rules and decisions of the Trump Board and in many ways go beyond similar pro-union efforts of the Obama Board. Indeed, despite the name of the new rule, it arguably sacrifices employee choice as to unions under Section 7 of the Act for the “stability” of top-down arrangements engineered by unions. This is probably not the last time we will see such activity by the current Board, and employers should keep their eyes on changing obligations implemented by the Board.

Should you need to discuss this decision and its effect on your organization in greater detail, the BakerHostetler Labor and Employment Practice Group is available to help.

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