Hunton Employment & Labor Perspectives

The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures.  The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.

On August 12, a three-member majority, over a one-member dissent, issued a 113-page proposed rule that would modify three of the Board’s election processes: (1) its handling of “blocking charges,” (2) the restriction on elections after an employer’s voluntary recognition of a union, and (3) the standard for contractually-negotiated recognition of a union in the construction industry.

A “blocking charge” is an unfair labor practices (ULP) charge, sometimes filed by a labor union seeking to delay an election to decertify the union as the employees bargaining representative in hopes that employee interest in decertification will dissipate during the time (sometimes months) it takes for the Board to investigate and adjudicate the ULP charge.  Under the current rules, elections are generally delayed until the blocking charges are resolved.  The proposed amendment would modify the rules to establish a “vote-and-impound procedure” whereby an election would be held regardless of whether a blocking charge was filed, but the ballots cast in the election would be impounded by the Board until the blocking charge is resolved.

The proposed amendments also would change the voluntary recognition bar, which currently 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 proposed rule would return the Board’s election procedures to a Bush-era standard, which established a 45-day period following an employer’s voluntary recognition of a union, during which the employees in the bargaining unit would be permitted to file a petition for an election to decertify the union.

Finally, the amended rule would heighten the standard required in the construction industry for a union to be contractually recognized in negotiations with the employer.  Currently, under Section 8(f) of the NLRA, construction industry employers and unions can agree to terms allowing the union to represent employees without first being certified through an election, simply by setting forth such terms in the collective bargaining agreement and stating that the union has a majority of the employees’ support to do so.

The amended rule would require that in order for a union to be recognized as the employees’ bargaining representative the parties would have to do more than simply include such language in the CBA.  Rather, the union would have to provide “extrinsic evidence” that shows its recognition “was based on a contemporaneous showing of majority employee support,” which could include employee signatures on union authorization cards or a petition.  The Board reported that this was necessary because contractually-negotiated representation, like the conventional election process, triggers the three-year bar on processing new petitions for representation, so employers and unions should be required to provide better evidence of majority support before negotiating employees’ rights.

The proposed rule was published in the Federal Register on Monday, August 12, and is open to public comment for 60 days.  The first round of proposed changes did not address many of the more controversial aspects of the current election rules, and it remains to be seen what the future amendments will hold.