The Beginning of the End of the "Election Protection Rule"

By Rex Fennessey - McMahon Berger P.C.

November 4, 2022

On November 3, the National Labor Relations Board (“NLRB”) issued a proposed rule that will change when elections can occur in private workplaces about whether employees should be represented by a union.

The National Labor Relations Act provides private-sector employees the opportunity to vote on whether they will be represented, or continue to be represented, by a labor union to negotiate with their employer over the terms and conditions of their employment. However, the details of how and when such representation elections will occur is set out in both regulations and decisions issued by the NLRB. Because of the importance of representation elections for employers, unions, and workers, the details of the rules surrounding representation elections have been the subject of long debate and disagreement.

One controversial practice involves the interplay between decertification elections and what are called “blocking charges.” When a petition seeking to remove an existing labor union is filed by workers, the NLRB is required to schedule an election. But the NLRB is also responsible for ensuring that both employers and labor unions do not manipulate, threaten, or otherwise coerce employees into voting a particular way.  Thus, a policy developed which allowed NLRB Regional Directors to delay (and sometimes entirely cancel) decertification elections if a union filed an unfair labor practice charge claiming an employer attempted to inappropriately influence employees’ votes. Under that policy, the election would be postponed until the NLRB officials had investigated and resolved the unfair labor practice allegations.

While reasonable on its face, many observers noted that this policy was abused by unions seeking to avoid being decertified.  When workers filed a petition seeking an election that might remove the union, a union would often file unfair labor practice charges – often with little merit – in an effort to “block” the election; hence the moniker “blocking charge.”  The NLRB’s investigation into these blocking charges could drag on for weeks, months, and sometimes years.  In the meantime, the union remained the exclusive bargaining representative for employees who may well have voted to remove it.

To address this practice, in 2020 the Republican-majority NLRB issued the “Election Protection Rule.”  Under that rule, the filing of an unfair labor practice charge would not, by itself, prevent a representation election from going forward.  Instead, the election would occur, and (depending on the nature of the unfair labor practice alleged) employee votes would either be counted or impounded until the NLRB’s investigation into the election had occurred.  If the unfair labor practice was found to be meritorious, the election could be invalidated and rerun.  If the unfair labor practice was found to be groundless, the votes would be counted.  Either way, the filing of a charge would not block an election from taking place.

The NLRB’s November 3 proposed rule would scrap the “Election Protection Rule” and return to the previous “blocking charge” practice.  It would also eliminate a 45-day window for employees to challenge an employer’s voluntary recognition of a labor union and rescind amendments relating to a construction industry union’s bargaining relationships with employers.  Interested parties have until January 17, 2023 to submit comments.  However, given the current composition of the NLRB, it is likely this proposal will be the beginning of the end of the Election Protection Rule.

www.mcmahonberger.com