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NLRB proposed election rule changes to affect blocking charges, voluntary recognition bar, construction industry recognition

By Joy P. Waltemath, J.D.

The Board proposes to replace the current blocking charge policy, return to a 45-day notice and open period following voluntary recognition, and require extrinsic evidence of majority employee support to convert a Section 8(f) construction industry bargaining relationship to a Section 9(a) relationship.

In a 113-page notice of proposed rulemaking scheduled to be published in the Federal Register August 12, the NLRB majority is proposing to undo several Board policies, none of which are currently set forth as rules. Specifically, the Board proposes:

1. to adopt its General Counsel’s suggested approach to the existing blocking charge policy as set forth in comments to the 2017 RFI to re-open the 2014 Election rule;
2. to overrule Lamons Gasket and reinstate the Dana notice and open period procedures following voluntary recognition under Section 9(a); and
3. to overrule Staunton Fuel and adopt the D.C. Circuit’s position in that contract language alone cannot create a 9(a) bargaining relationship in the construction industry and incorporate the requirement of extrinsic proof of contemporaneous majority support.

In the NPRM, the Board majority justified its regulatory approach, stating that “By establishing the new election bar standards in the Board’s Rules & Regulations, employers, unions, and employees will be able to plan their affairs free of the uncertainty that the legal regime may change on a moment’s notice (and possibly retroactively) through the adjudication process.”

Dissent. Member McFerran, in a 50-plus page dissent, responded that “Each of the majority’s proposed changes would make it harder for employees to get, or to keep, union representation. It is common knowledge that the Board’s limited resources are severely taxed by undertaking a rulemaking process, instead of deciding cases already waiting for Board action. And while rulemaking can potentially be a useful tool in appropriate circumstances, the Board should not undertake this arduous process without proper justification. Finally, of course, the rules it adopts should actually further the goals of the National Labor Relations Act, not undermine them.”

The proposals in brief

Election blocking charge policy. The first regulatory amendment would modify the Board’s election blocking charge policy by establishing a vote and impound procedure for processing representation petitions when a party has requested blocking the election based on a pending unfair labor practice charge.

Voluntary recognition bar. The second amendment would modify the current recognition bar policy by reestablishing a notice requirement and 45-day open period for filing an election petition following an employer’s voluntary recognition of a labor organization as employees’ majority-supported exclusive collective-bargaining representative under Section 9(a) of the Act.

Construction industry contract bar. The third amendment would overrule current Board law holding that contract language, standing alone, can establish the existence of a Section 9(a) majority-based bargaining relationship for parties in the construction industry, rather than a relationship under Section 8(f), the second proviso of which prohibits any election bar. To prove the establishment of a Section 9(a) relationship in the construction industry and the existence of a contract bar to an election, the proposed amendment instead would require extrinsic evidence, in the form of employee signatures on union authorization cards or a petition, that recognition was based on a contemporaneous showing of majority employee support.

Rationale: It’s all about employee freedom of choice. Although recognizing that comments on its proposed rulemaking are still to be received, the Board stated that the current blocking charge policy, the immediate imposition of a voluntary recognition election bar, and the establishment of a Section 9(a) relationship in the construction industry based solely on contract recognition language constitute an “overbroad and inappropriate limitation on the ability of employees to exercise their fundamental statutory right to the timely resolution of questions concerning representation through the preferred means of a Board-conducted secret ballot election.”

In announcing the proposed amendments, Board Chairman John F. Ring stated: “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom. Our proposals are, however, subject to comment, and we look forward to reviewing the public’s input with an open mind.”

New no-block policy. The Board majority said it wanted to institute more substantial measures to protect employee free choice and ensure that employees may realize their right to have their votes “recorded accurately, efficiently, and speedily.” That is why it proposes to adopt the vote and impound procedure suggested by the General Counsel in response to the 2017 Request for Information.

Under this new policy, as set forth in an amended Section 103.20 of the Rules, regional directors will continue to process a representation petition and will conduct an election even when an unfair labor practice charge and blocking request have been filed. If the charge has not been resolved prior to the election, the ballots will remain impounded until the Board makes a final determination regarding the charge.

As further explained by the General Counsel: “Adoption of a vote-and-impound protocol while the region investigates a charge would allow for balloting when the parties’ respective arguments are fresh in the mind of unit employees. Balloting would occur with the understanding that allegations have been proffered, regardless of whether probable cause has been found; thus, neither the charging party nor the charged party would be in control of the narrative underlying the election campaign. Should the director find that the ULP charge is without merit, the count and resulting tally of ballots could occur immediately, rather than after a further delay while the petition is unblocked, an election is either negotiated or directed, the mechanics of the pre-election period dispensed with, and balloting take place. Moreover, any burden in conducting elections created where the ballots may never be counted is more than offset by the benefit of preserving employees’ free choice. Indeed, the preservation of employee free choice through a vote and impound procedure far outweighs any other concerns.”

No immediate voluntary recognition bar. The Board proposal here would overrule Lamons Gasket (issued on the final day of Wilma Liebman’s tenure as NLRB Chair) and reinstate the Dana Corp. notice and open period procedures following voluntary recognition under Section 9(a), and incorporate those procedures in the Rules as a new Section 103.21(a). The Board says its action “is not intended to and should not have the effect of discouraging parties from entering into collective-bargaining relationships and agreements through the undisputedly valid procedure of voluntary recognition based on a contemporaneous showing of majority support.”

But the Board now finds the justifications expressed in the Dana Board majority and Lamons Gasket dissenting opinions for the limited post-recognition notice and open period requirements are more persuasive than those expressed by the Lamons Gasket Board majority in support of an immediate voluntary recognition bar. Stressing the importance of secret elections over voluntary recognition, the Board said that the Lamons Gasket majority failed to accept this distinction, or to address at all the cumulative effect of an immediate recognition bar and a subsequent contract bar that would apply if parties execute a collective-bargaining agreement during the six-month to one-year reasonable bargaining period following the first bargaining session following voluntary recognition.

The Board also agreed with the Lamons Gasket dissent by then-Member Brian Hayes that the Board election statistics cited by the Lamons Gasket majority with respect to the limited number of elections held under Dana procedures supported, rather than detracted from, the need for a notice and brief open period following voluntary recognition. It cited from the dissenting opinion in detail and concluded by noting that it was necessary to reestablish, through rulemaking, “a post-recognition period in which employees and rival unions are permitted to file an election petition before the imposition of an election bar. This modification does not diminish the role that voluntary recognition plays in the creation of bargaining relationships but ensures that employee free choice has not been impaired by a process that is less reliable than Board elections.”

Proof of Sec. 9(a) relationships in construction industry. Finally, the Board proposes to overrule Staunton Fuel and instead adopt the D.C. Circuit’s position in Nova Plumbing, Inc. v. NLRB (2003) that contract language alone cannot create a 9(a) bargaining relationship in the construction industry. Rather, it will incorporate the requirement of extrinsic proof of contemporaneous majority support in a new Section 103.21(b) of the Board’s Rules.

Section 8(f) permits an employer and labor organization in the construction industry to establish a collective-bargaining relationship absent majority support, an exception to the majority-based requirements for establishing a collective-bargaining relationship under Section 9(a). While the impetus for this exception is that construction industry employers often executed pre-hire agreements with a labor organization in order to assure a reliable, cost-certain source of labor referred from a union hiring hall for a specific job, the exception applies as well to voluntary recognition and collective-bargaining agreements executed by a construction industry employer that has employees. However, the second proviso to Section 8(f) states that any agreement that is lawful only because of that section’s nonmajority exception cannot bar a petition for a Board election. Accordingly, there cannot be a contract bar or voluntary recognition bar to an election among employees covered by an 8(f) agreement.

Under Staunton Fuel, an initial bargaining relationship under Section 8(f) may become a Section 9(a) relationship at any time after the hiring of employees if the employer and union execute a contract with the prescribed Section 9(a) recognition language. Without any extrinsic proof that a majority of those employees ever supported the recognized union, the current contract bar policy will prevent them, or a rival union, from filing a Board election petition to challenge the union’s representative status for up to three years of the contract’s duration.

The repeated criticisms voiced by the D.C. Circuit in Nova Plumbing (and later) raise a legitimate concern that the current Staunton Fuel test conflicts with statutory majoritarian principles and represents an impermissible restriction on employee free choice, particularly in light of the protections intended by the second proviso of Section 8(f). Thus, the proposed rule requiring positive evidence (apart from contract language) that a union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representative, 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, will restore the protections of employee free choice in the construction industry that Congress intended.

Expert commentary. Mark Kisicki, Shareholder in the Phoenix office of Ogletree Deakins, spoke with Employment Law Daily about the NPRM. He suggested the most significant of the proposed changes was in the blocking charge policy, positing that while it might not result in more elections being held overall (given that an election is typically held eventually, even though it may be significantly delayed), it certainly could result in more decertification elections being held.

He also noted that all the proposed amendments reflected previous Board decisional law and in fact a return to longstanding precedent on both the blocking charge amendment and the construction industry required proof of Section 9(a) relationships. To that end, and subject of course to the impact of public comments, he thought there was a good chance that the rules could be finalized without substantial change.

As to the immediate voluntary recognition bar proposal, Kisicki pointed out that it recognizes that employees need to be aware what their employer has agreed to, and without a requirement for notice, they may otherwise remain uninformed about their rights. It’s hard to undermine the Dana requirements, he said, “if you value industrial democracy.”

Current Board law that allows an initial bargaining relationship under Section 8(f) to convert to Section 9(a) relationship at any time after the hiring of employees if the employer and union execute a contract with the prescribed Section 9(a) recognition language “elevates form over substance,” Kisicki stressed, commenting it was high time for the Board to confront 20 years of consistent criticism from the D.C. Circuit.

As for other regulatory action that could be expected from the Board, Kisicki offered that it may not be likely that the Board will stretch its limited resources further with respect to proposed rulemaking until it has the opportunity to act on rulemaking that is already pending. He did suggest, however, that the Board is anxious to move with greater alacrity, and that its current focus on rulemaking and here, in ensuring employees have a clear voice in representation decisions, demonstrates that it is committed to allowing everyone the opportunity to be heard.

Public comments. Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Any person wishing to comment on any ongoing rulemaking by the Board must do so in accordance with the applicable Notice of Proposed Rulemaking. Communications submitted in any other manner, including comments on this website, will not be considered by the Board.