NLRB Finalizes Rule Modifying Union Representation Election Procedures

On March 31, 2020, the National Labor Relations Board (the “Board”) finalized a new rule significantly changing parts of its representation election procedures. The election procedures establish rules regulating how a workforce may become unionized through an election or other methods. These new rules issued on March 31, 2020, are in addition to election rule modifications issued in December of 2019. For details on the December rule changes please click here to read our previous client alert. The December rule changes are currently under legal challenges by various labor groups.

The March 31, 2020 rule modifications address three different areas. The first modification addresses rules regarding when a party can “block” a representation election. The Board also altered the standard in which a company can “voluntarily recognize” a union. Finally, the Board made changes – applicable only to the construction industry – regarding the standard of proof necessary for forming so-called “Section 9(a)” collective bargaining relationships. These rules are set to become effective on June 1, 2020.

The Three Rule Modifications

1. Changes to Blocking Procedures

Under existing Board rules, a party may sometimes exercise a right to “block” a pending representation election. Unions sometimes use this option to pause an upcoming representation election where the union alleges that an employer violated the law during the campaign period. For example, a union which alleges that an employer has illegally threatened employees to coerce them to vote against the union could previously request that the election be postponed until after resolution of the allegations. This procedure often led to lengthy delays in the election process. The NLRB’s new rule significantly modifies the procedures in these instances. Instead of “blocking” an election, the new procedures allow for the election to proceed as scheduled. Now, however, instead of immediately counting the votes after the election, the Board may impound the ballots and not open or count them until after resolution of the allegations. If the Board ultimately finds that a union’s allegations are meritorious, the Board can require a re-run of the election or impose other remedies.

2. Changes to Voluntary Recognition Doctrine

The Board currently follows a “voluntary bar” standard which prohibits challenges to whether a union has majority support for a “reasonable period of time” after an employer voluntarily recognizes a union. A 2011 Board decision defined a “reasonable period” as six months to a year. That current standard is being replaced by a prior standard established by the Board in a 2007 decision. The prior standard adopted in the March 31 rule changes allows workers or rival unions a 45-day period to file a decertification petition. It is important to note that this change applies only to voluntary recognitions extended by employers after the Board’s new rule takes effect and to any collective bargaining agreements that are established as a result of such voluntary recognitions.

3. Construction Industry Changes to Forming a Collective Bargaining Relationship

The final change announced by the Board applies only in the construction industry. A company’s employees can only be unionized if a union can show that it enjoys the support of a majority of the company’s workforce. This is usually demonstrated through a union election or sometimes through a card check mechanism. This type of relationship is referred to as a “Section 9(a)” bargaining relationship. In the construction industry, however, collective bargaining relationships are presumed to be covered under Section 8(f) of the NLRA, which allows unions and businesses to set work terms in a contract even if there is no evidence of majority support of a union by the construction company’s employees. The difference between a Section 9(a) bargaining relationship and a Section 8(f) bargaining relationship is important because in a Section 8(f) bargaining relationship, after the agreement expires the employer has no duty to negotiate a successor collective bargaining agreement and is free to become non-union or to enter into an agreement with a different union.

Prior to the Board’s new rule, a Section 8(f) bargaining relationship could be transformed into a Section 9(a) bargaining relationship solely by the language used in a collective bargaining agreement. In other words, a union and a company could agree to language that defined the bargaining relationship as a Section 9(a) relationship without the presentation of specific evidence that a majority of bargaining unit employees supported the union. The Board has scrapped this standard. The new standard requires for conversion of a Section 8(f) relationship into a Section 9(a) relationship that there be “positive evidence of majority employee support.” In other words, contract language is no longer enough to establish a Section 9(a) relationship.

Takeaways for Companies

The Board’s rule changes are important for employers in the midst of a union representation election because they eliminate the possibility of long delays before voting if a blocking charge is filed as well as provide strategic options to employers who may be considering whether or not to voluntarily recognize a union. Additionally, the Board’s alteration to when a Section 9(a) bargaining relationship can be created is very important to the construction industry. Employers in the construction industry seeking to become non-union should carefully review their collective bargaining agreements and bargaining history to determine if positive evidence of majority employee support has ever been demonstrated.

Companies who are unsure as to how these rule changes would affect their workforce should consult Daniel Sobol, Joseph Hofmann, Brandon Shemtob or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.