New Rule Gives NLRB Ability to Block Union Elections

On July 26, 2024, the National Labor Relations Board (NLRB) issued the finalized Fair Choice – Employee Voice Final Rule (New Rule).  The most impactful change of the New Rule is the NLRB’s ability to block a union election from taking place.

Key Updates

NLRB Allowed to Block an Election From Occurring

• Old Rule: If an Unfair Labor Practice (ULP) was filed while a union election petition was pending, the NLRB would still permit the election to happen. The ballots would be impounded until the ULP was resolved
• New Rule: Allows the NLRB to indefinitely block an election from occurring should a ULP be filed while a representation petition is pending and an election has been or could be scheduled

Unions Cannot Be Ousted for Reasonable Amount of Time (Six Months to One Year)

• Old Rule: Provided employees a mechanism to either choose another union or decertify the union 45 days after an employer voluntarily recognized a union
• New Rule: Voluntarily recognized unions cannot be ousted for a reasonable amount of time, which ranges from six months to one year

Construction Industry Impact

The New Rule also impacts construction industry unionization. Section 8(f) of The National Labor Relations Act (the Act) allows construction employers and unions to enter into collective bargaining agreements without the union being certified through an NLRB election or traditional voluntary recognition by the employer. When the term of a Section 8(f) agreement ends, employers are free to terminate the contract. By contrast, under Section 9(a) of the Act, employers not in the construction industry must bargain for a new collective bargaining agreement once an existing collective bargaining agreement expires.

Relationship Established With Contract Language Alone

• Old Rule: A Section 9(a) relationship could only be established by evidence of majority employee support
• New Rule: A Section 9(a) relationship can be established with contract language alone and requires no additional evidence of employee support

If you are experiencing a union election, considering voluntarily recognizing a union (which has become a more permanent decision under the new rules) or are in the construction industry, please reach out to us for experienced guidance.