NLRB Publishes Final Rule on Blocking Charges, Election Bars, Proof of Majority Support in the Construction Industry | Practical Law

NLRB Publishes Final Rule on Blocking Charges, Election Bars, Proof of Majority Support in the Construction Industry | Practical Law

On April 1, 2020, the National Labor Relations Board (NLRB) issued a final rule to amend its rules and regulations concerning petitions for NLRB-conducted representation elections and proof of majority support for collective bargaining relationships in the construction industry.

NLRB Publishes Final Rule on Blocking Charges, Election Bars, Proof of Majority Support in the Construction Industry

by Practical Law Labor & Employment
Law stated as of 23 Oct 2020 • USA (National/Federal)
On April 1, 2020, the National Labor Relations Board (NLRB) issued a final rule to amend its rules and regulations concerning petitions for NLRB-conducted representation elections and proof of majority support for collective bargaining relationships in the construction industry.
On March 31, 2020, the NLRB announced the April 1, 2020 publication of a final rule amending Part 103 of its rules and regulations governing the filing and processing of petitions for an NLRB-conducted representation election and proof of majority support in construction-industry collective bargaining relationships. The amendments:
  • Replace the current blocking charge policy with either a procedure of vote-and-count or vote-and-impound. Instead of permitting pending unfair labor practice (ULP) charges to block elections, the NLRB will, depending on the nature of the charge:
    • count or impound the ballots until the charge is resolved; and
    • issue the certification of results or representative once there is a final disposition of the charge and a determination of any effect it has on the election petition.
    (29 C.F.R. § 103.20.)
  • Abandon the recognition bar precluding processing of an election petition after an employer voluntarily recognizes a union under Lamons Gasket and return the NLRB to applying Dana Corp. (351 N.L.R.B. 434 (2007); see Lamons Gasket Co., 357 N.L.R.B. 739 (2011)). For a representation petition to be barred by voluntary recognition occurring on or after the amendment's effective date under Section 9(a) of the NLRA, and for a post-recognition collective bargaining agreement (CBA) to have contract-bar effect, affected bargaining unit employees must be adequately notified:
    • of the voluntary recognition; and
    • that they may file an NLRB election petition within 45 days.
    (29 C.F.R. § 103.21(a).)
  • Provide that a voluntary recognition or a bargaining relationship established under the Section 8(f) non-majority exception in the construction industry cannot bar petitions for an NLRB election absent positive evidence of majority union employee support. CBA language is insufficient to create a Section 9(a) bargaining relationship. This part of the amendments:
    • overrules Staunton Fuel (335 N.L.R.B. 717 (2001)); and
    • applies to an employer's voluntary recognition extended on or after the rule's effective date, and to any CBA entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.
    (29 C.F.R § 103.22(b); see 29 U.S.C. § 158(f).)
(85 Fed. Reg. 18366 (Apr. 1, 2020).)
The NLRB believes that NLRB-conducted secret-ballot elections will better protect employees' statutory right of free choice on representation issues than existing bars to elections rooted in presumptions of continued majority support. The rule becomes effective on June 1, 2020.

UPDATE

On April 10, 2020, the NLRB published in the Federal Register a final rule making three amendments to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships. Due to the ongoing national emergency caused by 2019 novel coronavirus disease (COVID-19), the Board has postponed the effective date 60 days. The new effective date is July 31, 2020.

UPDATE

On July 15, 2020, the AFL-CIO sought declaratory judgment that this rule was arbitrary and capricious and therefore in violation of the Administrative Procedures Act. That case is stayed pending the DC Circuit's determinations on the cross-appeals of the DC District Court's rulings on the NLRB's other election procedures rulemaking in 20-CV-0675 (see Minute Order, Civ. No. 20-CV-01909 (D.C. Dist. Oct. 23, 2020); see Legal Updates, NLRB Announces Modifications to Representation Case Procedures and DC District Court Strikes Down Part of NLRB's Election Rule Amendments; NLRB Implements and Provides Guidance on Remaining Amendments).