The National Labor Relations Board recently issued the first of its planned regulations overhauling parts of its union election procedures. These updates arguably make it easier for workers to remove a labor union representing a bargaining unit. Statements issued noted that the Board believes the amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing “unnecessary barriers” to board-conducted secret ballot elections.
NLRB’s Proposed Rules
The NLRB’s proposed rules would modify three of the Board’s election processes:
Handling of Blocking Charges
Blocking charges refer to the pausing of a union election when an unfair labor practice charge is filed alleging that a party to that election illegally coerced workers to vote a certain way. The existing rule will be replaced with a so-called “vote-and-impound procedure” in which an election won’t be blocked by pending unfair labor practice charges, but the ballots cast in those elections will be seized by the board until the charges are resolved.
Voluntary Recognition Bar
The voluntary recognition bar prohibits challenges to whether a union has majority support for a “reasonable period of time” after the union is voluntarily recognized by an employer. The standard for “reasonable period” is six months to a year currently. The new NLRB proposal would return the board to the “Dana Corp.” standard which allowed workers or rival unions a 45-day post-recognition window for filing a decertification petition.
Standard of Proof for Forming Section 9(a) Collective Bargaining Relationships in the Construction Industry
The new proposal would require a union to have “extrinsic evidence” that shows its recognition “was based on a contemporaneous showing of majority employee support”. Such evidence can include employee signatures on union authorization cards or a petition. This new standard departs from the 2001 “Staunton Fuel” standard which allowed a Section 8(f) presumption to transition into a Section 9(a) relationship solely based on language in the parties’ collective bargaining agreement.
The Board’s proposed regulations are open for public comment through October 11, 2019.