The National Labor Relations Board (NLRB) on Aug. 12, 2019, published proposed amendments to its rules and regulations in representation matters. Comments on the proposed amendments are due by Oct. 11, 2019, and reply comments by Oct. 25, 2019. Sometime thereafter, likely in 2020, a final rule will become effective. The proposed amendments are not unanimously put forth. There is a dissenting view, and it is difficult to predict what form the final rule will take. However, it is clear that a Board majority is seeking to secure employee freedom of choice in the representation process, and it addresses three areas with its proposed amendments.
The NLRB addresses its unwritten "blocking charge" rule whereby the charging party of an unfair labor practice during a representation, decertification, or deauthorization proceeding can use that charge to halt the NLRB's processing of the case. This prevents employees from having an election on the question concerning representation or dues authorization until the charge is investigated and resolved or until the charging party requests that the NLRB proceed with processing the case. Historically, blocking charge delays have held up elections by a few months to years.
In order to avoid the delays inherent in blocking charges and assure timely balloting while the competing arguments of the employer and the union are still fresh in the minds of the employees, the proposed amendment to the NLRB's regulations would require that the representation matter continue to be processed and the election held. If the unfair labor practice charge has not been resolved by the time of the election, the ballots will be impounded until the unfair labor practice charge has been resolved. Then, depending upon the outcome of the charge, a decision will be made as to whether to count the ballots.
The NLRB also addresses voluntary recognition agreements. Although secret ballot elections conducted by the NLRB are the Board's preferred means for resolving questions concerning representation, it is perfectly lawful for an employer to recognize and bargain with a union in the absence of an election based upon a showing by the union that it in fact represents a majority of the employer's employees. This the union does by offering to demonstrate its majority interest by presenting the employer with either signed authorization cards or a signed petition that it has received from a majority of the employees indicating their support for unionization. Often, the parties entering into a voluntary recognition agreement have an independent party, typically an arbitrator, review the cards or petition and certify the authenticity of the signatures on the cards or petition to create a formal record of the legitimacy of the recognition. Such recognition agreements currently serve as an immediate bar to competing representation activity for a "reasonable period of time," defined by the Board to be at least six months, to permit the nascent recognition an opportunity to succeed.
The proposed amendment would create a new rule codifying the NLRB's short-lived, 2007-2011, Dana Corp. holding that voluntary recognition would not bar a representation election unless (a) the employees receive adequate notice of the recognition and of their ability to file an election petition within 45 days and (b) no valid petition is filed within 45 days of the notice.
Finally, the NLRB addressed the conversion of Section 8(f) relationships in the construction industry into Section 9(a) relationships. Because of the transient nature of work in the construction industry, the historical fact that the unions were the principal source of trained labor, and the need for employers to have an accurate basis for predicting costs for bidding on construction projects, section 8(f) of the Act allowed employers to recognize and bargain with unions before they had any employees or any indication of union representation. This is an exception to the general rule applicable outside the construction industry that, as required by Section 9(a) of the National Labor Relations Act (Act), an employer could not recognize a union as the representative of its employees until the union established its majority support in a secret ballot election or by voluntary recognition. Under Section 9(a) there is a continuing presumption of majority status at the expiration of the collective bargaining agreement, and therefore a continuing obligation to bargain, unless there is objective evidence that the union no longer represents a majority of the employer's employees. In contrast, under Section 8(f), where the relationship is not based upon any demonstration of majority representation, there is no presumption of continuing majority status at the expiration of the collective bargaining agreement unless the union established its representative status during the term of the contract. The specific issue addressed in the NLRB's proposed rule concerns conversion of 8(f) relationships to 9(a) relationships in the absence of a representation election. Since 2001, the NLRB has been permitting such conversions solely on the basis of recitals in collective bargaining agreements that the employer has recognized the union based upon a showing of majority support.
The NLRB's proposed amendment disallows the establishment of a 9(a) relationship in the construction industry based upon contract recitals alone. The proposed new rule would require extrinsic proof of contemporaneous majority support at the time of recognition. This is consistent with usual voluntary recognition requirements.
The proposed rulemaking expands employee freedom of choice on representation matters and raises the question as to whether there might be more such changes coming. The relatively recent revisions of election rules drastically reduced the pre-election time period and thereby limited the time for employers and unions to share information with the employees in order for the employees to make an informed decision on the question of union representation. The lack of such information necessarily affects free choice, and it will be interesting to see if those pre-election changes, which were often referred to as "ambush election rules," are revisited with a view to enhancing freedom of choice among employees on representation issues.
Holland & Knight will continue to monitor this issue and provide updates as warranted. For more information or questions regarding the NLRB's proposed rules and regulations, contact the author.
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