The National Labor Relations Board (“NLRB”) finally unveiled its “Fair Choice-Employee Voice Final Rule” (“Final Rule”). The Final Rule makes three key changes – all designed to help unionizing efforts:
- Restoring the “blocking charge” policy;
- Recognizing voluntary recognition of a union without the option of an election to confirm employee support; and
- Converting limited term construction industry bargaining relationships to long term relationships.
Blocking Charge Policy
The Final Rule permits Regional Directors to “delay the processing of an election petition at the request of a party who has filed an unfair labor practice (“ULP”) charge alleging that the employer has interfered with employees’ free choice in an election.” This is known as a blocking charge. Blocking charges are permissible if “the party simultaneously files an adequate offer of proof and agrees to promptly make its witnesses available.”
Previously, Regional Directors would hold elections even if a blocking charge was filed and resolve the challenge after the votes were counted. However, the Board said this often required employees to vote in a “coercive atmosphere that interferes with employee free choice.” The Final Rule prevents this. It allows the NLRB regional offices to halt the election while the charge is investigated, often delaying an election for months or years until the ULP allegations are resolved. While this can be a legitimate strategy, it also can be a tool for unions to use when employees legitimately decide they no longer want union representation.
Voluntary Recognition
Under the Final Rule, if an employer voluntarily recognizes a union, there will be no union election for a “reasonable period of time” to allow for collective bargaining. The Final Rule eliminates the previous “notice-and-election procedure,” which created a forty-five-day window following voluntary recognition during which employees unhappy with the voluntary recognition could file a petition for an election.
By removing this barrier to voluntary recognition, the NLRB has made it more difficult for employees to contest an employer’s voluntary recognition.
Construction Industry Bargaining Relationships
The Final Rule also addresses “the application of the voluntary recognition bar [National Labor Relations Act (“NLRA”) Section 9(a)]and contract bar in the construction industry [NLRA Section 8(e)].” (If you are not in the construction industry, this rule has no impact on you!) Historically, contractors often recognized the union and executed a union contract before their project began (and thus before the employees were hired). This was allowed because it was impractical to go through the negotiation process in the middle of a construction project. The “catch” was the employer could terminate the contract once the project was complete. In most other unionized settings, the employer maintains its obligation to the union even after a specific project is complete.
The Final Rule can remove this “catch” if the employer and union agree their relationship will continue after the project is complete. This change will enable construction unions to secure long term recognition as the bargaining representative under the NLRA Section 9(a). This represents a significant shift for construction employers, who are accustomed to the union’s representative status ending upon the completion of the job under NLRA Section 8(f).
Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
