By Lisa Nagele-Piazza, J.D., SHRM-SCP
August 12, 2019 - SHRM
The National Labor Relations Board (NLRB) proposed several policy changes that will make it easier for workers to remove a labor union representing a bargaining unit.
The proposed rule would make changes to three areas of NLRB procedure:
"The proposed rules should not be controversial and, in my view, are entirely consistent with the National Labor Relations Act's purpose of ensuring an employee's free choice," said Charlie Morgan, an attorney with Alston & Bird in Atlanta. Each proposed change would give more power to employees to vote and stop unions and employers from delaying or preventing voting, he noted.
NLRB Chairman John Ring said the board's majority believes that the changes further the goal of protecting employees' right to choose—or refrain from choosing—a labor organization to represent them. Republican board members Marvin Kaplan and William Emanuel joined Ring in the proposal, while Democrat Lauren McFerran dissented.
"The proposal relies on faulty premises, fails to ask critical questions, and fails to analyze the relevant data and agency experience," McFerran said.
Changes to Blocking-Charge Policy
Employees who no longer want to be represented by a labor union can move to decertify the union. If at least 30 percent of employees in the bargaining unit sign a petition, the NLRB will conduct a decertification election to determine if the union has lost its majority status.
The rules for an election to decide whether a union comes into an employer are very different from the rules for a decertification election, Morgan explained. One main difference is that in a decertification election, a union can delay the election by filing blocking charges claiming that the employer has committed an unfair labor practice under the act. By contrast, he said, an employer has no similar method of blocking a regular union election once a petition is filed.
Currently, the NLRB may suspend decertification procedures if an unfair labor practice charge is filed against the employer for interfering with the process. The board noted in the proposed rule that the policy "can preclude holding the petitioned-for election for months, or even years, if at all."
The proposed rule would replace this policy with a "vote-and-impound" procedure. Rather than block elections while unfair labor practice charges are pending, the ballots would be collected and held until the charges are resolved.
"Of the three, the proposed change to blocking charges in a decertification election is probably the most significant," Morgan said.
Harry Johnson, an attorney with Morgan Lewis in Los Angeles, noted that this change will likely have the largest impact because it will apply to any bargaining unit in the decertification process.
If the proposal is finalized, decertification elections will move forward rather than be delayed while the board investigates, Johnson noted. If the employer is found to have tainted the election, however, the ballots won't be opened.
"While the new procedure may not shorten the decertification process, it will at least likely allow the employees a vote sooner and prevent the union from disrupting the process through blocking charges," Morgan said.
Voluntary Recognition Bar
In lieu of holding an NLRB-run secret-ballot election, an employer may voluntarily recognize a union as the exclusive representative for the bargaining unit if the union shows clear evidence that the majority of workers support it.
The NLRB wants to revise the so-called voluntary recognition bar, which prevents employees from filing a decertification petition for a "reasonable period" (which the board said could last up to four years) after an employer voluntarily recognizes a union. This rule was meant to give the new bargaining relationship a chance to succeed and limit disruption to the workplace.
Under the proposal, for the voluntary recognition bar to apply, the employer would have to notify employees in the bargaining unit that it voluntarily recognized the union and give workers a 45-day window to file a decertification petition.
If the proposal is finalized, employers should note that voluntary recognition will not end the matter, Johnson said. Employees or an intervening union would still have a chance to cause a decertification election.
Recognition in the Construction Industry
The proposed rule also would limit the voluntary recognition bar in the construction industry, where special rules apply.
"The law has recognized for a long time that the construction industry is different," Johnson said. For instance, many construction projects are short term.
A construction employer and a union, therefore, can enter an agreement before a worksite or project is staffed, but union recognition can be withdrawn when the collective bargaining agreement ends, unless the union gains majority support.
The employer can voluntarily agree in a subsequent collective bargaining agreement that the union has gained majority support. Under the NLRB's proposal, however, proof that most employees support the union could not be based solely on contract language.
What's Next?
The proposal, published in the Federal Register Aug. 12, will give employers, workers and other interested members of the public 60 days to submit comments.
Members of the employer and employee community may want to submit comments for the board to consider, said Mark Kisicki, an attorney with Ogletree Deakins in Phoenix.
He noted that the changes in the proposed rule are not new; rather, they would adopt the board's prior position on these issues.
Employers shouldn't assume that the proposal will be finalized, Kisicki added, noting that it would be premature for employers to develop an implementation strategy at this point.
But employers should continue to monitor NLRB activity as new rules take shape. "The board has picked up the pace this year by issuing a number of high-impact decisions and proposals," Johnson said.