NLRB Emphasizes Employee Free Choice in Additional Amendments to “Quickie Election” Rules

By Erin Walsh and Melissa Sobota - Franczek P.C.

April 20, 2020

On April 1, 2020, the National Labor Relations Board (NLRB) finalized a series of highly anticipated additional amendments to its union election procedures. The final rule, which can be found here targets the following three areas: the NLRB’s processing of “blocking charges,” its voluntary recognition bar, and collective bargaining relationships in the construction industry. The NLRB’s stated aim behind the amendments is to “better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret-ballot election.”

These new amendments follow the NLRB’s request for public input in December 2017 regarding its highly controversial “quickie election” rules, and the NLRB’s December 2019 amendments to the election rules,  which relax some of the time-frames the Obama-era Board had tightened in 2014 and clarify the pre-election procedures related to unit scope and voter eligibility issues. Though originally scheduled to go into effect June 1, 2020, the Board recently postponed the effective date 60 days due to the ongoing national emergency caused by the coronavirus.

The amendments, proposed by the Board on August 12, 2019 and as modified in the final rule, include:

Blocking Charge Policy: A blocking charge is an unfair labor practice charge in which it is alleged that a party illegally coerced workers to vote a certain way in a union election. Under the current rule, when a blocking charge is filed, the election is postponed by the NLRB until the charge has been resolved. Historically, blocking charges largely have been filed by unions in an attempt to delay decertification elections. The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. This means that if a blocking charge is filed, the election would move forward, but the ballots cast in the election would be either impounded (if the party alleges a violation of 8(a)(1) and 8(a)(2)(2) or 8(b)(1)(A)) or counted (in all other ULP charges) until the charge is resolved. The amendment specifies that for all types of charges upon which a blocking-charge request is based, the certification of results (including, where appropriate, a certification of representative) shall not be issued until there is a final disposition of the charge and a determination of its effect, if any, on the election petition. In sum, the filing of a blocking-charge request will not delay the conduct of an election but may delay the vote count or certification of results.

Voluntary Recognition Bar: The NLRB’s voluntary recognition bar serves to prohibit challenges related to a union’s majority support (such as the filing of a decertification petition) for a “reasonable period of time” after an employer has voluntarily recognized a union in the absence of an election. Prior to the amendment, the NLRB followed Obama-era NLRB precedent, which defined a “reasonable period” as six (6) to twelve (12) months. See Lamons Gasket Co., 357 NLRB No. 72 (2011). The amendment changes course and codifies the pre-Obama era standard established in Dana Corp., 351 NLRB 434 (2007). Under the new rule codifying the Dana Corp. decision, unit employees are given notice that voluntary recognition has been granted, and they then have a 45-day open period to file an election petition. The amendment applies to the employer’s voluntary recognition on or after the effective date of the rule.

Collective Bargaining Relationships in the Construction Industry: In the construction industry, there exists a presumption that bargaining relationships are covered under Section 8(f), rather than Section 9(a), of the National Labor Relations Act. Section 8(f) permits unions and employers in the construction industry to establish a collective bargaining relationship in the absence of evidence of majority support by the union—a clear exception to Section 9(a)’s majority status requirement. Prior to the amendment, this presumption under Section 8(f) could convert to a Section 9(a) relationship based solely on language in a collective bargaining agreement, indicating that the union requested and obtained recognition. The amendment now requires a more exacting standard that unions must satisfy to establish a Section 9(a) collective bargaining relationship in an effort to ensure that the workers themselves, rather than the union or the employer, chose to shift to a Section 9(a) bargaining relationship. Specifically, the amendment requires unions to have “positive evidence that the union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit.”

The final rule was published in the Federal Register on April 1, 2020.

Recap on December 2019 Amendments:

As a reminder, the NLRB published an amendment to the election rules on December 18, 2019, which also aimed at promoting freedom of employee choice and additional fairness and transparency in the election process. Most notably, the amendment allowed more time into the election procedure by

> Extending the time period for employers to post a Notice for Petition of Election from 2 business days to 5 business days;
> Delaying the commencement of the representation hearing from 8 days to 14 business days;
> Amending the time period for the non-petitioning party to file a written Statement of Position to 1 day before the opening of the hearing, allowing for an additional 6 days;
> Amending the time period for the petitioning party to file a written Statement of Position to no later than 3 business days before the hearing, instead of only requiring the petitioning party to make an oral statement at the beginning of the hearing;
> Permitting unit scope and voter eligibility issues to be litigated at the hearing instead of postponing those issues until after the election;
> Permitting the parties to file a post-hearing brief within 5 business days after the close of the hearing and authorizing the hearing officer to grant a 10 business day extension for good cause;
> Prohibiting an election to occur sooner than 20 business days after the date of the direction of election,
> Extending the time period an employer must provide a voter eligibility list from 2 business day to 5 business days from the notice of direction of election;
> Allowing for the segregation and impoundment of ballots when a request for review of a direction of election is filed within 10 business days and has not been ruled upon at the time of the election; and
> Prohibiting certifying the results of an election when a request for review is pending.

Due to implications related to the coronavirus, all of the above amendments are now scheduled to take effect on July 31, 2020. If you have any questions regarding any of the above described amendments, please do not hesitate to contact your Franczek attorney.