NLRB Announces Proposed Rule Changes to Union Election Process

The National Labor Relations Board (“NLRB”) is continuing its effort to undo many of the changes made during the era of the Obama Board through the Board’s rule-changing authority. The latest initiative is the much anticipated proposed changes to the Union election process which was announced on August 12. The three most significant proposed changes include:

1.     Eliminating “blocking charges” from postponing elections. For several years, employees and Unions petitioning for Union recognition often filed unfair labor practice charges shortly before Union elections in an effort to “block” the election until the charge had been completely resolved. The so-called blocking charge became a favorite weapon of Unions, particularly where Union support appeared to be shaky. Under the proposed rule, the NLRB will no longer postpone Union elections based merely on the filing of the charge. Instead, the new rule would permit the election to go forward and the results would be held in abeyance until the unfair labor practice was resolved. This would remove a potentially significant strategic advantage for Unions.

2.      Modified “Voluntary Recognition Bar.” Under the current rules, employers are free to voluntarily recognize Unions in the absence of an NLRB election and employees have no say in the outcome. This is called the Voluntary Recognition Bar. Under the proposed rule, employees are to be given notice of the proposed Voluntary Recognition and offered a 45-day open period for filing an election petition seeking a vote on whether or not to recognize the Union.

3.     “Pre-hire” Agreements in the Construction Industry. Under the current law, pre-hire collective bargaining agreements can be entered into without a showing of employee majority support for a Union and even before it has hired any employees. Under the proposed rule, the Board will now require actual evidence of employee majority support before it will approve a pre-hire agreement.

These proposed rules continue the NLRB’s effort to reconstruct itself into a more employer-friendly Board. This follows, for example, the Board’s decision in Cordúa Restaurants announced just last month permitting employers to require employees to sign mandatory arbitration agreements barring collective actions under the Fair Labor Standards Act even if in response to Section 7 (organizing) activity, which we discussed here.

For further information on the impact of these proposed rules, please contact members of the Mansour Gavin Labor and Employment Group.