New NLRB Rulemaking Proposals Focus on Union Elections

On August 9, 2019, the National Labor Relations Board (Board) proposed changing three of its rules for union elections that may affect all employers. The first proposed rule relates to both new elections for representation and decertification elections for currently unionized employers. The second proposed rule change primarily relates to decertification of currently unionized employers, and the third to employers within the construction industry.

The first proposed rule change will reshape the current “blocking charge” policy. In sum, the current blocking charge policy temporarily suspends elections where there are outstanding unfair labor practice charges pending that could interfere with the employees’ free choice to vote either for or against a union. The Board stated that this policy required change because it can cause indefinite delay. The proposal would allow those elections to proceed and then impound the vote until there is a final resolution of the charges. The proposed rule would also require employers to tell their workers if they’ve voluntarily recognized a union. It also would create a 45-day window to ask for a decertification election following the voluntary recognition.

The second proposed rule would amend the “voluntary recognition bar,” which currently requires that workers wait at least six months before they can file decertification petitions to oust a union that an employer had voluntarily recognized as its exclusive bargaining agent.

The third rule change affects the construction industry, and calls for overturning precedent on what a union must do to show that a pre-hire arrangement with a construction company has become a full bargaining relationship. In the standard set forth in its 2001 Staunton Fuel & Material decision, an employer and a union can establish a full bargaining relationship based on contract language alone. The proposal would require actual evidence of majority employee support. Construction companies can withdraw from a pre-hire agreement with a union once the agreement expires, but they can’t walk away from a union with full bargaining rights unless the union loses majority support.

The proposal to change the three policies discussed above marks another major step in the Board’s recent policy to use formal notice-and-comment rulemaking to shape labor law. The board has previously primarily acted through decisions in individual cases.

Formal publication of the proposed rule in the Federal Register today will kick off a 60-day comment period.