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On July 26, 2024, the National Labor Relations Board (“NLRB”) <a href="https://www.nlrb.gov/news-outreach/news-story/nlrb-issues-fair-choice-employee-voice-final-rule">announced</a> that it finalized its “Fair Choice – Employee Voice” <a href="https://www.federalregister.gov/public-inspection/2024-16535/representationcase-procedures-election-bars-proof-of-majority-support-in-construction-industry">rule</a>. The final rule, which was finalized on August 1, 2024 and thus effective on September 30, 2024, overturn three major Trump-era rules. The NLRB notes the final rule restored “three key policies” – (1) the blocking charge policy; (2) voluntary recognition of a union; and (3) construction industry bargaining relationships.

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Blocking charges refers to Board policy “of generally declining to process an election petition over party objections in the face of pending unfair labor practice charges alleging conduct that, if proven, would interfere with employee free choice in an election, until the merits of those charges could be determined.” There are two types of blocking charges. The first (Type I) allege conduct that interferes with employee free choice, like threats to retaliate or promises to employees during the period leading up to an election. The NLRB typically would investigate these before the petition is processed. The second (Type II) both allege conduct that interferes with employee free choice but also is “inherently inconsistent with the petition itself.” These included allegations that a union’s showing of interest was obtained by threats or force or that an employer’s representatives were involved in initiating a decertification petition. These would also be investigated before the petition for an election was processed. If merit was found, the petition could be dismissed. In 2020, the Board finalized a rule where a charge did not block most elections except in certain cases of Type II charges, where the votes would be impounded for no more than 60 days.

The final rule provides that “[w]henever any party to a representation proceeding files an unfair labor practice charge together with a request that it block the processing of the petition to the election, or  whenever any party to a representation proceeding requests that its previously filed unfair labor  practice charge block the further processing of the petition, the party shall simultaneously file, but not serve on any other party, a written offer of proof in support of the charge.” The Regional Director will review the offer of proof and, if the offer of proof describe evidence that would be “inherently inconsistent with the petition itself,” the Regional Director has the authority to hold the petition in abeyance, and, if appropriate, dismiss the petition.

Under the 2020 rules, if an employer chose to voluntarily recognize the union (as opposed to going through the secret ballot election process), there was a mandatory 45-day period to allow the opportunity for a minority of workers to demand an election. The new rule gets rid of this time period and reinstates a voluntary recognition bar of “no less than 6 months” and “no more than 1 year” after recognition. During that time, no petitions for election can be processed.

Finally, the new rules rescind 29 CFR § 103.22, which the NLRB argues that the change “allow[s] construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining.” Construction contracts allow employers to voluntarily recognize a union under Section 8(f) of the National Labor Relations Act, and does not require a majority showing of support for the union. All other contracts under Section 9(a) do require a majority showing.  The 2020 rules provided a higher standard for voluntary recognition, which would allow a Section 8(f) contract to be one under 9(a). The new rule removes these requirements, including again allowing language in a collective bargaining agreement be sufficient to show majority support. In short, this makes it easier for a construction employer to voluntarily recognize a union.

The Board has made it clear once again that it favors union organizing. This is the second round of rules which are intended to make it easier for unions to organize. In August 2023, the NLRB finalized the “quickie” rules, as set forth in our August 31, 2023 <a href="https://www.michaelbest.com/Newsroom/322016/NLRB-Swings-Election-Process-Back-to-Unions-Favor">Client Alert</a>. The rules will only apply to cases filed after September 30, 2024.

These rules are likely to put even larger burdens on employers who are facing an election petition. Now, unions are incentivized to bring charges to pause elections where they may have lost support or in the decertification process, gain additional support.

Many employers are already on notice that an unfair labor practice charge may lead to a bargaining order under <em>Cemex</em>. We recommend reaching out to your Michael Best labor attorney to discuss how these rules may impact your organization if faced with a union campaign.

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NLRB Finalizes Additional Election Rules, Further Distancing Itself from the Trump-Era Rules

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