NLRB Finalizes Improvements to Election Rules

By Patrick R. Scully and James S. Korte

On March 31, 2020, the National Labor Relations Board (“NLRB” or “Board”) finalized amendments to its election rules, improving current processes in favor of greater employee choice.

New Blocking Charge Policy:  Instead of delaying or canceling a representation election when a union files a “blocking” unfair labor practice charge, the NLRB will now allow employees to vote and impound the ballots for up to 60 days from the conclusion of the election if the charge has not been withdrawn or dismissed. If the NLRB issues a complaint under the Unfair Labor Practice charge prior to the 60-day period, the ballots will continue to be impounded until resolution of the charge. For all other charges, the election ballots will be opened and counted at the conclusion of the 60-day period. The NLRB, however, will not issue a certification of the results until there is a final disposition of the charge, regardless of the basis for the charge.

Voluntary Recognition Bar: The final rule adopts the Board’s decision in Dana Corp., 351 NLRB 434 (2007). Specifically, the rule provides that for voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition, unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. This amendment applies to a voluntary recognition on or after the effective date of the rule.

Section 9(a) Recognition in the Construction Industry: In the construction industry, employers can sign agreements with unions that do not have majority employee support.  However, the employer’s “recognition” of the union lasts only as long as the contract.  The NLRB’s final rule prohibits unions from overcoming this shortcoming by agreeing with the employer that the union has majority or “9(a)” status (when the union actually does not have majority support).  The NLRB will now require positive evidence of majority employee support to prove a Section 9(a) relationship in the construction industry. All of these revisions elevate employees’ Section 7 right to choose whether or not to be represented to a level above prior NLRB doctrine that permitted other forms of union recognition.  Not surprisingly, organized labor strongly objected to the changes.