NLRB Makes Changes to Election Procedures to Protect Employees’ “Free Choice”

On August 12, 2019, the National Labor Relations Board published a Notice of Proposed Rulemaking that included three amendments to the representation election regulations found in Title 29, part 103 of the Code of Federal Regulations. The purpose of 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” pursuant to the National Labor Relations Act (NLRA).

The proposed amendments made changes to the Board’s blocking charge policy, the immediate imposition of a voluntary recognition bar, and the contract bar created via the establishment of a NLRA Section 9(a) relationship in the construction industry based solely on contract language. The Board finalized the amendments, with certain changes, on April 1, 2020, and they took effect on June 1, 2020.

Blocking Charge Policy

Under previous regulations, a party could block a representation election indefinitely by filing an unfair labor practice charge challenging the validity of the election petition or the ability of employees to make a free and fair choice concerning representation while the charge is unresolved.

The new amendment implements a vote-and-impound procedure whereby an election is to be held regardless of whether the blocking charge is pending. The ballots are to be impounded until there is a final determination on the charge and its effect, if any, on the election petition or fairness of the election.

The vote-and-impound procedure only applies to cases where the unfair labor practice charge alleges (1) violations of NLRA Sections 8(a)(1), 8(a)(2), or 8(b)(1)(A) that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition; or (2) that an employer has dominated a union in violation of Section 8(a)(2) and seeks to disestablish a bargaining relationship.

For cases involving all other types of unfair labor practice charges, the amendment requires that the ballots be opened and counted instead of impounded. Additionally, regardless of the type of charge, the certification of results will not be issued until there is a final resolution of the charge and determination of its effect, if any, on the election petition.

Voluntary Recognition Bar

Under the Board’s decision in Lamons Gasket Co., 357 N.L.R.B. 739 (2011), an employer’s voluntary recognition of a union immediately bars the filing of an election petition for between six months and one year after the date of the parties’ first bargaining session. This recognition bar, and the subsequent execution of a collective bargaining agreement, could have precluded, for as many as four years, a Board-conducted secret-ballot election contesting the initial non-electoral recognition of a union as the employees’ majority-supported exclusive bargaining representative. This occurred despite the NLRA’s preference (as recognized by the Board and federal courts) for resolving questions of representation via a Board-conducted secret-ballot election.

The Board in Lamons Gasket overruled its previous decision in Dana Corp., 351 N.L.R.B. 434 (2007), which required the employer to post a notice and provide a 45-day open period for filing an election petition following the employer’s voluntary recognition of a union as the employees’ majority-supported exclusive bargaining representative under NLRA Section 9(a).

This amendment voids Lamons Gasket and reinstates Dana Corp. Employers once again have to post a notice and provide a 45-day open period. The notice must be posted in conspicuous places, including all places where notices to employees are customarily posted. The notice must also be distributed electronically to employees if the employer customarily communicates with employees by such means. The amendment provides model language for the notice. The employer and/or the labor organization must also notify the applicable NLRB Regional Office that recognition has been granted.

The amendment only applies to an employer’s voluntary recognition on or after the effective date of the amendment and to the first collective bargaining agreement reached after such recognition.

Proof of Majority-Based Recognition in the Construction Industry

Section 8(f) of the NLRA permits an employer in the construction industry and a labor organization to establish a collective bargaining relationship in the absence of majority support, which is an exception to the general rule found in Section 9(a). Previous regulations allow an employer and labor organization representing employees in the construction industry to prove Section 9(a) recognition based solely on contract language, thus triggering the three-year contract bar against the processing of election petitions filed by employees and other parties.

Now, in order to prove the establishment of a Section 9(a) relationship in the construction industry and the existence of a contract to bar an election, the amendment requires an employer to demonstrate with extrinsic evidence, apart from contract language, that recognition was based on a contemporaneous showing of majority-employee support.

This amendment only applies to voluntary recognition extended on or after the effective date of the amendment and to any collective bargaining agreement entered into on or after the date of such recognition.