NLRB Announces Proposed Revisions to Representation Procedures

The three proposed amendments include: (1) replacing the current “blocking charge” policy with a “vote-and-impound” procedure; (2) modifying the immediate voluntary recognition bar and reinstating the Dana notice and open-period procedures; and (3) in the unique construction industry, requiring the showing of positive evidence of majority employee support, rather than mere contractual language, in order to transition an initial Section 8(f) bargaining relationship to a full Section 9(a) bargaining relationship. 

Blocking Charges

Pursuant to Section 9 of the NLRA, if employees no longer wish to be represented by a union, either they, or the employer, can file an “RD (or RM) Petition” with the Board supported by at least 30% of the employees requesting the conduct of a decertification election to determine if the union has lost its majority status. However, under current Board policy, if an unfair labor practice charge (ULP) is filed during the pendency of a decertification petition, along with a blocking request, it may “block” the conduct of any election until it is resolved, often resulting in lengthy delays, if not indefinite suspension, of the election process and concomitant impact on the employees’ free choice of bargaining representative.

The NLRB’s proposed new rule would replace the current “blocking charge” policy with a “vote-and-impound” procedure in which an election will be held regardless of whether a ULP charge has been filed. Under the new proposed rule, if the charge is not resolved before the election is scheduled, the election will be conducted, but the ballots cast in the elections will be impounded by the NLRB until the charge is resolved. In the Board’s view, by avoiding unnecessary and potentially lengthy delay, this “vote-and-impound” process would preserve the employees’ free choice while allowing the ULP charge to be processed appropriately. It is worth noting that this approach has been used successfully by the California Agricultural Labor Relations Board since 1975 in conducting elections in the highly – seasonal agricultural industry to preserve employee sentiment regarding union representation while assuring that any issues arising either before or after the election are properly resolved.

Voluntary Recognition Bar

Under current NLRA law, an employer may “voluntarily recognize” a union as the exclusive representative of the bargaining unit without conducting an NLRB secret-ballot election if the union presents the employer with an appropriate demonstration of majority support among the employees in the form of either union authorization cards or a signed petition. In 2007, the NLRB held in Dana Corp. that employees who become represented by a union pursuant to “voluntary recognition” have a period of 45 days after receiving notice of same within which they may reject that representation through a secret ballot election.

However, in 2011, in Lamons Gasket Co., the Obama Board announced a voluntary recognition election bar, which expanded the 45-day period to a “reasonable period” of time (no less than six months, but not more than one year) before representation may be challenged in an election.

The NLRB’s new proposed revision would reinstate the Dana Corp. rule, noting that “[t]his 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.”

Collective Bargaining Relationships for Construction Industry Employers

The NLRA contains statutory provisions that are unique to the construction industry and the Board’s third proposed amendment to its current representation procedures addresses one of those provisions. In particular, Section 8(f) of the NLRA permits construction industry employers and unions to sign “pre-hire agreements,” which are collective bargaining agreements signed without the union either being certified by an NLRB election or voluntarily recognized after demonstrating majority support even before any employees have been hired. “Pre-hire agreements” are enforceable for their particular term, but do not bar a representation election petition filed by either a rival union or disaffected employees. Also, upon termination of a “prehire agreement” under Section 8(f), the employer has no duty to bargain for a new agreement.

However, unlike Section 8(f), bargaining relationships arising under Section 9(a) of the NLRA require that the union be the chosen representative of a majority of the bargaining unit employees. Thus, if a Section 8(f) relationship is ultimately converted to one governed by Section 9(a), the union has the same rights and the employer has the same obligations as those extant in any non-construction industry collective bargaining relationship.

The Board’s third proposed amendment addresses the standard of proof for converting an initial Section 8(f) bargaining relationship into a full Section 9(a) bargaining relationship. In 2001, in Staunton Fuel & Material, the NLRB held that a construction industry union could prove Section 9(a) recognition by merely executing a collective bargaining agreement with the employer with language indicating that union requested and obtained recognition as a representative of the unit and, significantly, there was no requirement that the union provide positive evidence of majority support among employees beyond the language in the contract. However, the Board’s new proposed amendment would require the union to provide extrinsic “clear evidence” that shows that its recognition by the employees “was based on a contemporaneous showing of majority employee support,” and was not simply the mere choice of either the union or the employer to convert the Section 8(f) relationship into one arising under Section 9(a) of the NLRA.  

What’s Next?

The NLRB’s proposed changes to its representation procedures, published on August 12^th in the Federal Register, are subject to a public comment period of 60 days and, of course, interested parties should not assume that any of the changes proposed will automatically be adopted by the Board. Additionally, whether or not these proposed changes are ultimately adopted, they demonstrate the Trump-appointed Board’s interest in allowing employees to have a meaningful opportunity to choose whether or not they want union representation, or its continuation, by providing a means by which employees may exercise their free choice of bargaining representatives without unnecessary legal restrictions.